Amicus Curiae Brief — Castle Rock v. Gonzales

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No. 04-278 —

IN THE

Supreme Court of the United States

“= es

TOWN OF CASTLE ROCK, COLORADO,

Petitioner,

JESSICA GONZALES, individually and as next best iciend of her

deceased minor children, REBECCA GONZALES, KATHERYN GONZALES,

and LESLIE GONZALES,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF OF INTERNATIONAL LAW SCHOLARS AND

WOMEN’S, CIVIL RIGHTS AND HUMAN RIGHTS

ORGANIZATIONS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

JENNIFER K. BROWN* RHONDA COPELON

MAYA RAGHU ANDREW FIELDS

LEGAL MOMENTUM INTERNATIONAL WOMEN’S

395 Hudson Street HUMAN RIGHTS LAW CLINIC

New York, New York 10014 City University of New York

(212) 925-6635 School of Law

65-21 Main Street

Flushing, New York 11367

(718) 340-4163

*Counsel of Record

Counsel for Amici Curiae

February 9, 2005

TABLE OF CONTENTS

Page

BABEL GF Als TRRIRs 8 Bie ccccccesccscccnsitnsenessensessnctneoanes il

INTEREST OF AMICT CURIA ....0ccccccccocssoccscneseovssccesee l

SUMMARY OF ARGUMENT ...............c:ccccssesseeeesseneees l

PP TIINGE casciicistinsenisnitttiniinndisgeaiemidienttenanicnmetaiil 3

L. COMPARATIVE AND INTERNATIONAL LAW

PROVIDE STRONG PERSUASIVE AUTHORITY

FOR INTERPRETING THE CONSTITUTIONAL

ISSUES BEFORE THIS COURT. ...........cccccccccceeeeeeeeees 3

IL. THE RIGHT OF WOMEN AND CHILDREN TO

PROTECTION FROM AND __ EFFECTIVE

REMEDIES FOR GENDER-BASED VIOLENCE,

INCLUDING DOMESTIC VIOLENCE, HAS

EVOLVED AS A CUSTOMARY NORM OF

I DIG, ciccitiictsiaicnbchinciinnsstinilinaienssala 6

Ill. AS A STATE PARTY TO THE ICCPR, THE

UNITED STATES’ COMMITMENT TO ENSURE

THE PROTECTION OF WOMEN AND

CHILDREN FROM GENDER AND DOMESTIC

VIOLENCE PROPERLY INFORMS’ THIS

COURT’S INTERPRETATION OF THE DUE

PROCESS CLAUSE AND THE AVAILABILITY _

OF A REMEDY UNDER 42 U.S.C. § 1983. ......... 21

CONCLUSION. ..0cccsscscsecscsssssnseeseshiscessosssonsoatocansmssntonte 29

TABLE OF AUTHORITIES

FEDERAL CASES

Atkins v. Virginia, 536 U.S. 304 (2002) .......ccccccecceereeeees 4

Bowers v. Hardwick, 478 U.S. 186 (1986) .......:ccsccceeeees 3

DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189 (1989) ....ccccccccccseseereeeeeees 6

District of Columbia v. Carter, 409 U.S. 418

( 19°73).........coceceesessecesessnesnestenminnmanann 27

Fernandez v. Wilkinson. 505 F. Supp. 787 (D.

Kam. 1960) .......<..c<sscssescessesssencessenssnamnanieannannnial 15

Filartiga v. Pena-lrala, 630 F.2d 876 (2d Cir.

9 SGD) .....20-ccsecssescossececssnctecsssdnescnssiessuamnsnannnnn 15

Gideon v. Wainwright, 372 U.S. 335 (1963)... 28

Grutter v. Bollinger, 539 U.S. 306 (2003).......cccceeeeeeees 3

Lawrence v. Texas, 539 U.S. 558 (2003)........cc0s00000 2,3

Mayer v. City of Chicago, 404 U.S. 189 (1991)........... 28

Miranda v. Arizona, 384 U.S. 436 (1966) ........cccccceeeeee 4

Mitchum v. Foster, 407 U.S. 225 (1972) cocccccccccececeeeeees 27

New York v. United States, 326 U.S. 572 (1946)............ 4

iti

Negiraingas v. Sanchez, 495 U.S. 182 ....cccccccsecesseeeeeees 27

Printz v. United States, 521 U.S. 898 (1997)...........00 4

Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004) 7,20,25

The Nereide, \3 U.S. (9 Cranch) 388 (1815)............... 7

The Paquetes Habana, 175 U.S. 677 (1900)... 7

Thompson v. Oklahoma, 487 U.S. 815 (1988) ............-.. 4

U.S. v. Pink, 315 U.S. 203 (1942).......cccccccecsesesceneeensees 21

United States v. Yousef, 327 F.3d 56 (2d Cir.

ae 11

Washington v. Glucksberg, 521 U.S. 702 (1997) ........... 4

Weinberger v. Rossi, 56 U.S. 25 (1982) ........cccccceeeees 26

INTERNATIONAL CASES

Advisory Opinion OC-1/82 of Sept. 24, 1982,

Inter-Am. Ct. H.R. (ser. A) No.1 (1982)... 13

Airey v. Ireland, 32 Bur. Ct. H.R. (Ser. A) (1979) ....... 20

MC. v. Bulgaria, 2003-1 Eur. Ct. H.R. 646 (2004)...... 19

MZ. v. Bolivia, in Annual Report of the Inter-

American Commission of Human Rights, Case

No. 12.350, Inter-Am. C.H.R. 121 (Oct. 10, 2001)......20

Maria da Penha Maia Fernandes v. Brazil, in

Annual Report of the Inter-American Commission

on Human Rights, Case No. 12.051, Inter-Am.

RN CO ae 19, 20

R. v. Ewanchuk, [1999] 1 S.C.R. 330 (Cam.) ............000+ 5

State v. Baloyi, 2000 (1) BCLR 86 (CC) (S. Affr.).......... 5

Vishaka v. State of Rajasthan, [1997] 6 S.C.C.

241 (india) ............. -cusnanumatmmnmnngeaestiniitgiammasouapusiiantesti 5

CONSTITUTION, STATUTES AND

REGULATIONS

Sa COREE, GR, BI a GE Bcceccercsttcnetrnsetntesnasienesenens 7

en ae 21

42 U.S.C. § 1983............... dticnmiuiimavaiia 2, 21, 27

Statute of the International Court of Justice, 59

Stat. 1055, 3 Bevans 1179 (1945)... a x

OTHER FEDERAL AUTHORITIES

138 Cong. Rec. $4781-01 (daily ed. Apr. 2, 1992)........ Q

Exec. Order No. 13,107, 63 Fed. Reg. 68,991

GF ERE rn ee 22

Understanding III(5), U.S. Reservations,

Declaration, Understandings, and Proviso,

International Covenant on Civil and Political

Rights, 138 Cong. Rec. $4781-O01 (1992)... cn. 23

United States Senate Report on Ratification of the

International Covenant on Civil and Political

Rights, S. Exec. Rep. No. 102-23 (1992)... 21-25

UNITED NATIONS AND REGIONAL

_ DOCUMENTS AND REPORTS

American Convention on Human Rights, 1144

EU s.r tenants 13

Beijing Declaration-and Platform for Action,

Fourth World Conference on Women, U.N. Doc.

A/CONF.177/20 and A/CONF.177/20/Add. |

Committee of Ministers Recommendation

Rec(2002)5 to Member States on the Protection of

Women Against Violence, Comm. of Ministers,

794” meeting of the Ministers’ Deputies, Council

OO 14

C been om the Uiteninntion of Diessieninatt

Against Women, General Recommendation No.

12: Violence Against Women (8th Sess. 1989)............. 1!

; one an thn Utentaction of Ciatatiend

Against Women, General Recommendation 19:

Violence Against Women (1 \th Sess. 1992)........... 11,12

Committee on the Elimination of Violence

Against Women, Concluding

IIIT -nnccrcsccnsimmbsvamssaistanmesciitabibaiaisiiinis 12

Committee on the Rights of the Child, General

Comment No. 5: General Measures of

Implementation of the Convention on the Rights of

ep CI Ca: Be ccestesincinititiercitenitiiintaiin 13

Concluding Observations of the Human Rights

Committee: United States of America, U.N.

GAOR, Hum. Rts. Comm., U.N. Doc. A/50/40,

Uae 24

Consideration of Reports Submitted by States

Parties Under Article 40: Initial Reports of States

Parties Due in 1993: United States of America,

Hum. Rts. Comm., Annex Il, U.N. Doc.

ne 24

Convention for the Protection of Human Rights

and Fundamental Freedoms, 213 U.N.T.S. 222 .....13, 14

Convention on the Elimination of All Forms of

Discrimination Against Women, 1249 U.N_T.S.

PETS ~nssmtatinimarsiiinginabeeeaal ...passim

Convention on the Rights of the Child, G.A. Res.

44/25, Annex, Supp. No. 49, U.N. Doc. A/44/49

COED cvcccsssesmestiiniprnsnssinitneantianiasaatdeneantiamnabieined 9,12

Declaration on the Elimination of Violence

Against Women: Resolution, G.A. Res. 104, U.

N. GAOR, 48” Sess., Agenda Item 111, U.N.

Doc. A/R e8/48/104 20 (1993) 00... ccccccccceneeeeeees 10, 15

European Parliament Resolution on Violence

Against Women, Eur. Parl. Doc. A2-44186, 1986

O.J. (C176) 23 (July 14, 1986) 2... ce eencerceseneeneennes 14

vii

HRI/CORE/1/Add.49: United States of America

Human Rights Committee, General Comment No.

18: Non-Discrimination (37th Sess. 1989) .........0-00000+ 10

eee XY :

Human Rights Committee, General Comment No.

20: Article 7 (Prohibition of Torture, or Other

Cruel, Inhuman or Degrading Treatment or

Punishment) (44th Sess. 1992) .........ccccccceeceeserereeeeeeenees 10

Human Rights Committtee, General Comment

No. 28: Article 3 (The equality of rights between

men and women) (68th Sess. 2000) ............cccccccceeeeeeeee 10

Human Rights Committee, General Comment No.

31: The Nature of the General Legal Obligation

Imposed on States Parties to the Covenant (80”

Integration of the Human Rights of Women and

the Gender Perspective: Violence Against

Women, Report of the Special Rapporteur on

Violence Against Women, its causes and

consequences, U.N. ECOR, Hum. Rts. Comm.

59th Sess., U.N. Doc. E/CN.4/2003/75 (2003)............. 17

Inter-American Commission of Women, Status of

Signing and Ratification of the Convention of

a cniciintacticsnienticdinisieieaitapeienmccrncnisitaientipiin 13

vill

Inter-American Convention on the Prevention,

Punishment and Eradication of Violence Against

o> ES | see 13,14

International Covenant on Civil and Political

RE 8S GF eee passim

Observations of State Parties under article 40(5)

of the Convention, United States of America,

CCPR A/50/40/Vol. 1, Amnex VI Pt. 4.0..0...ccccceceeeeee 26

Protocol to the African Charter on Human and

Peoples’ Rights on the Rights of Women in

Africa, 2d Ord. Sess. of the Assemb. of the Union ...... 14

Report of the Special Rapporteur on Violence

Against Women. its causes and cons es,

U.N. ESCOR, Hum. Rts. Comm., 53” Sess., U.N.

SOG. AAT SO TAGE (BDU F Piccccccccccenccsesentincsssenttiasioiass 17

Report of the Special Rapporteur on Violence

Against Women, its causes and consequences,

U.N. ESCOR, Hum. Rts. Comm., 54" Sess., U.N.

Det. BACN A/199B/S4 (1996) .ccccccccccccocsccssecececsscescesssoocs 17

Resolution Adopted by the General Assembly,

U.N. GAOR, 33rd Special Sess, U.N. Doc.

RIS CD vertccrciatclicinainitltittaniatingsnismsiniiass 18

Resolution adopted by the General Assembly,

Elimination of Domestic Violence Against

Women, U.N. GAOR, 58th Sess., U.N. Doc.

RE OSE GD seniccsinrniititninnintitindinaitinitiindinsipaicdis 16

Summary of Record of the 1405th Meeting:

United States of America, U.N. GAOR, Hum. Rts.

Comm., 53rd Sess., U.N. Doc. CCPR/C/SR.1405

United Nations . evelopment Fund for Women,

Bringing Equal.ry Home: Implementing the

Convention on the Elimination of All Forms of

Discrimination Against Women (Illana Landsberg-

Rl OG. TTD cccccsescenttinicsccstescensssesicenmmnscenenctentessasinats 5

United Nations High Commissioner for Human

Rights, Economic and Social Council Decision,

U.N. ESCOR, 1994 Sub. Sess., 42nd Plen. Mig.,

U.N. Doc. E/DEC/1994/254 (1994) ......cccccccersereenees 16-17

United Nations High Commissioner for Human

Rights, Status of Ratifications of the Principal

International Human Rights Treaties (2004) .....9, 11, 12

Universal Declaration of Human Rights, G.A.

~ Res. 217A (III), U.N. GAOR, 3” Sess. U.N. Doc.

BIB CI eccoctccncecescnmcscosctninivissassneacsscstinsinennieninmanieties 8

Vienna Convention on the Law of Treaties, 1155

FE, FIG cceccussensectncsesonnstnsccervectzcenituapenntngiins 10, 11, 22

Vienna Declaration and Programme of Action,

World Conference on Human Rights, U.N. Doc.

A/CONF. 157/24 (Part 1) (1993) .......ccccccsseseeesenenenennees 17

Violence Against Women: Report of the Secretary

General, U.N., GAOR, 59th Sess., U.N. Doc.

RIT) CO a niccsscinvinsssnssenectnesstecnensicsmnsenmnenretnmsanases 18

Violence Against Women in the Family: Report of

the Special Rapporteur on Violence Against

Women, its causes and consequences, U.N.

ESCOR, Hum. Rts. Cu.nm., 55" Sess., U.N.

Doc.E/CN.4/RES/1999/42 (1999) ........ccccccccesseseeseeeeenes 17

World Health Organization, World Report of

Violence and Health (Etienne G. Krug et al., eds.

Sp cacernscccvunnsactesisenvesaneiniinhieceiinatiitibubiinsibaitednin 18,27

OTHER

Joan Fitzpatrick, The Significance and

Determination of Customary International Human

Rights Law: Relevance of Customary

_ International Norms to the Death Penalty in the

United States, 25 Ga. J. int'l & Comp. L. 165

CORSET BOWED niemiomsstsitstntaiicnttnctititiphaiinspaabibiiciianssniiaipeites 26

Ruth Bader Ginsburg & Deborah Jones Merritt,

Affirmative Action: An International Human

Rights Dialogue, Address at the Fifty-First

Cardozo Memorial Lecture (Feb. 11, 1999), in 21

Se a, SEs. ee re i iipintitesieniccebaveccttictarhindanseed 4

Martin S. Flaherty, History Right?: Historical

Scholarship, Original Understanding, and

Treaties as "Supreme Law of the Land,” 99

Colum. L. Rev. 2095 (1999)... cccceseeees CE 25

Louis Henkin, Foreign Affairs and the United

States Constitution (2d ed. 1996)........ccccccceccceeeceeseeeseees 25

Louis Henkin, Two Hundred Years of

Constitutional Confrontations in the D.C. Courts,

SPCR SiR sc cerninicnsnncishitindnsgtadatiiighncinanitiia 25

Sandra Day O'Connor, Federalism of Free

Nations, 28 N.Y.U. J. Int'l L. & Pol. 35 (1997)............ 22

Sandra Day O’ Connor, Keynote Address Before

the Ninety-Sixth Annual Meeting of the American

Society of International Law (Mar. 16, 2002), in

96 Am. Soc’y Int’l L. Proc. 348 (2002)............ccccccceeeeee: 5

John Quigley, Judge Bork is Wrong: The

Covenant is the Law, 71 Wash. U. L.Q. 1087

Restatement of the Law (Third), Foreign Relations

Law of the United States (1987) ........ccccccceseeeeeees 7, 8, 22

Elizabeth M. Schneider, Battered Women and

Feminist Lawmaking (2000)............ Spenemnsenemnssnocstoeserent 6

David Sloss, Non-Self-Executing Treaties:

Exposing a Constitutional Fallacy, 36 U.C. Davis

Se BEND, B Gate cicacccccssbssitiinnunatnisepdimcniganantibenisinaieae 25

INTEREST OF AMICI] CURIAE

Amici curiae are international law scholars and

women’s, civil rights and human rights organizations,’ all

of whom recognize the world consensus that women and

children have a fundamental human right to state

protection from and remedies for domestic violence.

Amici urge the Court to consider this strongly persuasive

international authority to determine that Ms. Gonzales has

a federal civil rights remedy for the Castle Rock police’s

violation of her right to due process in its enforcement of

the mandatory restraining order issued by a Colorado

court against her estranged husband, which led to her

husband’s murder of their three girls.

SUMMARY OF ARGUMENT

Ms. Gonzales’ brief explains that the police failure

to accord her due process in the enforcement of the

protective order violated her constitutional right to due

process of law. We concur in, but do not address, the

legal arguments she makes. Rather, we explain that the

principles expressed in the evolved international

customary norm of protection from and remedies for

domestic violence, as well as our obligations as a State

Party to the International Covenant on Civil and Political

' Names and statements of interest of the individual amici are set

forth in the attached Appendix. Letters from the parties consenting to

the filing of amicus curiae briefs in this case are on file with the

Clerk of Court. This brief was authored by the amici and counsel

listed on the front cover, and was not authored in whole or in part by

counsel for a party. No one other than amici or their counsel made

any monetary contributions to the preparation or stbmission of this

brief.

—

Rights (“ICCPR”),? should inform this Court’s

consideration of the due process question at hand so as to

grant Ms. Gonzales a federal remedy against the Town of

Castle Rock.

This Court has repeatedly acknowledged that

international and comparative law may be persuasive

sources of authority for questions arising under our own

Constitution. As it did in Lawrence v. Texas, 539 US.

558 (2(03), this Court may appropriately consider the

opinions of foreign jurisdictions in determining the scope

of the Due Process Clause, and should also give due

weight ’o other international sources of law. /nfra Point 1.

International human rights developments in recent

decades have resulted in the emergence of a worldwide

consensus that women and children have a fundamental

human nght to be protected from family violence, and to

have effective remedies when such protection fails. This

consensus is so powerful that it represents an evolved

norm of customary international law -- a norm that

provides additional persuasive authority to support a

determination by this Court that Ms. Gonzales’ due

process nghts were violated. /nfra Point II.

Finally, the United States has ratified the ICCPR,

a treaty whose terms are now recognized to encompass

States Parties’ obligations to ensure persons, particularly

women and children, the right to freedom from domestic

violence. Recognizing Ms. Gonzales’ right of action

under 42 U.S.C. § 1983 is both consistent with the federal

obligations undertaken by ratifying that treaty and with

* International Covenant on Civil and Political Rights, opened for

signature Dec. 16, 1966, 993 U.N.T.S. 171 (entered into force Mar.

23, 1976) (“ICCPR”).

the federalism understanding that accompanied it. /nfra

Point III.

For these additional reasons, the decision of the

Tenth Circuit Court of Appeals should be affirmed.

ARGUMENT

COMPARATIVE AND INTERNATIONAL LAW

PROVIDE STRONG PERSUASIVE AUTHORITY

FOR INTERPRETING THE CONSTITUTIONAL

ISSUES BEFORE THIS COURT.

This Court’s recent jurisprudence has affirmed

that international and comparative law provide valuable

interpretive guidance in areas of constitutional law. In

Lawrence v. Texas, 539 U.S. 558, 576-78 (2003), this

Court overruled its own precedent in Bowers v. Hardwick,

478 U.S. 186 (1986), which held that the due process

liberty interest in the United States Constitution did not

encompass the right of homosexuals to engage in private,

consensual, intimate conduct. The Court noted that the

reasoning in Bowers had been explicitly rejected by the

European Court of Human Rights and that “{o]ther

nations, too, have taken action consistent with an

affirmation of the protected right of homosexual adults to

engage in intimate, consensual conduct” such that the

right “has been accepted as an integral part of human

freedom in many other countries.” Lawrence, 539 U.S. at

576-77. See also Grutter v. Bollinger, 539 U.S. 306, 344

(2003) (Ginsburg, J., concurring, joined by Breyer, J.)

(noting that the Court’s opinion with regard to affirmative

action “accords with the international understanding of

the office of affirmative action” reflected in international

treaties). Similarly, in Atkins v. Virginia, 536 U.S. 304,

316 n.21 (2002), this Court examined the opinions of “the

world community” to support its conclusion that

execution of persons with mental retardation would

offend the standards of decency required by the Eighth

Amendment. And in Washington v. Glucksberg, 521 U.S.

702 (1997), in ruling thet the State of Washington’s

statute prohibiting assisted suicide was not invalid on its

face under the Due Process Clause of the Fourteenth

Amendment, the Court noted that Canada, Great Britain,

New Zealand and Australia had rejected efforts to

establish a fundamental right to assisted suicide. /d. at

718.16.

International and foreign law rulings on

constitutional issues facing the Court “cast an empirical

light on the consequences of different solutions to a

common legal problem.” Printz v. United States, 521

U.S. 898, 977 (1997) (Breyer, J., dissenting). As Justice

Ginsburg has observed, “comparative analysis

emphatically is relevant to the task of interpreting

constitutions and enforcing human nights.” Ruth Bader

Ginsburg & Deborah Jones Merritt, Affirmative Action:

An International Human Rights Dialogue, Address at the

Fifty-First Cardozo Memorial Lecture (Feb. 11, 1999), in

21 Cardozo L. Rev. 253, 282 (1999). And as Justice

O’Connor has stated: “While ultimately we must bear

* See also Thompson v. Oklahoma, 487 U.S. 815, 830-31 (1988)

(Stevens, J.) (looking to opinions of “other nations that share our

Anglo-American heritage” and “leading members of the Western

European community” as aids to deciding Eighth Amendment

question); Miranda v. Arizona, 384 U.S. 436, 521-23 (1966)

(considering law enforcement “experience . . . [in] other countries” in

interpreting Fifth Amendment); New York v. United States, 326 U.S.

572, 584 n.S (1946) (looking to constitutional experiences of other

countries to help decide scope of federal taxation power).

norms); Vishaka v. State of Rajasthan, {1997} 6 S.C.C. 241, # 5-10

(India) (determining that the Indian Constitution's guarantee of

equality women should be interpreted nm light of “global

Wisdom gleaned from the opinions of judicial

colleagues in foreign jurisdictions, together with a

developed international consensus mandating state

protection from and remedies for domestic violence, can

assist this Court in reaching sound conclusions under

domestic law. This is particularly true here, given that the

recent and rapid crystallization of the human right of

women and children to state protection from gender-based

violence is a worldwide phenomenon which post-dates

this Court’s 1989 decision in DeShaney v. Winnebago

County , Department of Social Services, 489 U.S. 189

(1989).°

THE RIGHT OF WOMEN AND CHILDREN TO

PROTECTION FROM AND _~ EFFECTIVE

REMEDIES FOR GENDER-BASED VIOLENCE,

INCLUDING DOMESTIC VIOLENCE, HAS

EVOLVED AS A CUSTOMARY NORM OF

INTERNATIONAL LAW.

In recent decades, international human rights

treaties and other authoritative international agreements

have underscored the systemic and grave nature of

domestic violence and given rise to an evolved

customary norm of international law that recognizes the

nght of persons, particularly women and children, to

protection from and compensation for such violence.

This Court recently reaffirmed that customary

* See generally Elizabeth M. Schneider, Battered Women and

Feminist Lawmaking 53 (2000) (“{clompared with the history of

women’s nghts struggles in the United States and around the world,

the development of feminist approaches to international human rights

is @ recent phenomenon” that “has exploded” in the last twenty

years).

international law, or the “law of nations,” is part of the

“laws” of the United States pursuant to Article III, section

2, clause 1 of the U.S. Constitution. Without reaching

the question whether the norm concerning family violence

would sustain a cause of action under the standards this

Court recently set forth in the context of the Alien Tort

Claims Act, see Sosa v. Alvarez-Machain, 124 S. Ct.

2739, 2765-66 (2004), this Court can, and should,

consider the abundant evidence of this norm as at least

highly persuasive authority that merits deep

a cn

Customary international law constitutes “specific,

universal and obligatory” “customs and usages of

civilized nations.” Sosa, 124 S. Ct. at 2766-67. It “results

from a general and consistent practice of states followed

by them from a sense of legal obligation.” Restatement of

the Law (Third), Foreign Relations Law of the United

States § 102(2) (1987). Under established principles,

evidence tending to show customary international human

rights law ipcludes:

[1] virtually universal participation of states

in the preparation and adoption of

international agreements recognizing human

nights principles generally, or particular

* Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2764-65 (2004) (“For

two centuries we have affirmed that the domestic law of the United

States recognizes the law of nations”); The Paguete Habana, 175

U.S. 677, 700 (1900) (“International law is part of our law, and must

be ascertained and administered by the courts of justice of appropnate

junsdiction, as often as questions of mght depending upon it are duly

presented for their determination.”). See also The Nereide, 13 U.S. (9

Cranch) 388, 423 (1815).

nghts principles as international law;

[4] action by states to conform their national

law -er practice to standards or principles

declared by international bodies; [and]

[5] invocation of human rights principles in

national policy, in diplomatic practice, in

international organization activities and

Id. § 701, Reporter's Notes § 2. See also Statute of the

International Court of Justice, art. 38, 59 Stat. 1055, 3

Bevans | 179 (1945).

As to the first category, over the last two decades,

as the United Nations has expounded upon the basic

international human rights recognized in the United

Nations Charter’ and the Universal Declaration of Human

Rights* in the 1940s, it has made clear that these rights

encompass the nght of women and children to be free

from violence, including domestic violence, and that

’ See U.N. Charter, arts. 1(3), 55(c), 56.

* The 1948 Universal Declaration of Human Rights states that “{a)ll

are equal before the law and are entitled without any discrimination to

equal protection of the law,” and “[e}veryone has the right to an

effective [domestic] remedy . . . for acts violating the fundamental

nghts granted { } by the constitution or by law.” Universal

Declaration of Human Rights, G.A. Res. 217A (III), UN. GAOR, 3”

Sess., arts. 3-8, 12, 16-19, 22-24 at 71, U.N. Doc. A/810 (1948).

nations have an affirmative obligation to protect that

right

At least three widely-ratified international human

rights treaties recognize the right to state protection from

compelling evidence of an emergent international norm.

These are the International Covenant on Civil and

Political Rights (“ICCPR”) (ratified by 152 states), the

Convention on the Elimination of All Forms of

Discrimination Against Women (“CEDAW”) (ratified by

177 states), and the Convention on the Rights of the Child

(“CRC”) (ratified by 192 states).°

within its territory . . . the rights recognized in the present

Covenant.” Art. 2(1) (emphasis added).'' Although the

February 6, 2005) (“Status of Ratifications”).

138 Cong. Rec. $4781-01 (daily ed. Apr. 2, 1992).

'' The obligation to “ensure” involve. tak{ing] the necessary steps . .

. to give effect to the[se) rights”; “ensur{ing] an effective remedy . . .

cod ty ab ® Po mage one Ae

— mined be: ~~ jedicial, atministreti lagistative

night to protection from domestic and gender-based

violence is not explicit in the ICCPR, the Human Rights

Committee has recognized since the early 1990s,'? and

States Parties hav accepted,'’ that the ICCPR applies to

Comment No. 3). See also Compilation, Hum. Rts. Comm., Genera/

Comment No. 18: Non-Discrimination (37th Sess. 1989) | 9

(“discrimination . . . by public authorities, by the community, or by

private persons or bodies”); Compilation, Hum. Rts. Comm., General

Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel,

Inhuman or Degrading Treatment or Punishment) (44th Sess. 1992) ¢

2 (requires state protection against torture and ill treatment, “whether

inflicted by people acting in their official capacity, outside their

official capacity or in a private capacity”).

The Human Rights Committee has identified protection from

vanous forms of violence and subordination in the family as implicit

under various articles of the ICCPR, including articles 6, 7, 12, 18

and 24 that protect the rights to: life; freedom from torture or cruel,

inhuman or degrading treatment or punishment; liberty of movement

and freedom to choose one’s residence; freedom of thought,

conscience, and religion; and the nghts of children to protection

without discrimination. Compilation, Hum. Rts. Comm., General

Comment No. 28. Article 3 (The equality of rights between men and

women) (68th Sess. 2000) Ff 10, 11, 14, 16, 21. Since the early

1990s violence against women, including domestic violence, has been

a frequent subject of monitoring and reporting by States Parties to the

ICCPR. See. eg, Hum. Rts. Comm. Concluding

Observations/Comments, available at

http://www.unhchr.ch/tbs/doc.nsf (last visited February 6, 2005).

Significantly, the General Assembly’s Declaration on the

Elimination of Violence Against Women reflects a universally

accepted interpretation of the ICCPR as a source of the state

obligation to prohibit gender-based violence, in public and private

life. Declaration on the Elimination of Violence Against Women:

Resolution, G.A. Res. 104, U.N. GAOR, 48" Sess., Agenda Item 111,

at preamble, art. 3, U.N. Doc. A/Res/48/104 20 (1993). See generally

Vienna Convention on the Law of Treaties, May 23, 1969, art. 31,

U.N. Doc. A/Conf. 39/27 at 289 (1969), 1155 U.N.T.S. 331 (“Law of

Treaties”) (a treaty is interpreted according to the “ordinary meaning”

of its terms in their “context|s) and in light of its object and purpose”;

moreover, subsequent agreements, state practice and relevant rules of

international law are principal sources of interpretation). See United

An international treaty broadly focused on the

rights of women, CEDAW" condemns “discrimination

against women in all its forms” and requires parties to

“ensure through competent national tribunals and other

public institutions the effective protection of women

against any act of discrimination.”’” The United Nations

Committee charged with interpreting CEDAW

(“CEDAW Committee”) stated that “gender-based

violence [including specifically within PR a

relationships} is a form of discrimination that seriously

inhibits women’s ability to enjoy rights and freedoms”

and recommended that States Parties “ensure that laws

against family violence and abuse . . . give adequate

protection to women.’ The CEDAW Committee

reminded States Parties that CEDAW calls on them to

eliminate discrimination against women by state and

private actors, and that states may be liable for private

States v. Yousef, 327 F.3d 56, 95 n.28 (2d Cir. 2003) (United States

has only signed the Law of Treaties; nonetheless, “the U.S.

oenaas ot iano eng Deo Cine Ge geaien Gis ‘ie Comenten

. the authoritative guide to current treaty law and practice’”).

* Convention on Ge Biindaston of Al Poms of Dinstndeien

Against Women, opened for signature Dec. 18, 1979, G.A. Res.

34/180, 34 U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc.

A/34/46 (1979) (entered into force Sept. 3, 1981) (“CEDAW”). The

United States has signed but not ratified CEDAW. See Status of

Ratifications, supra. As a signatory to CEDAW, the United States “is

obliged to refrain from acts which would defeat [its] object_and

purpose.” See Law of Treaties, supra, art. 18.

* CEDAW, supra, art. 2(c).

'* Compilation, CEDAW Comm., General Recommendation No. 19:

Violence Against Women (\\th Sess. 1992) 9 1. See also

Compilation. CEDAW Comm., General Recommendation No. 12:

Violence Against Women (8th Sess. 1989).

"" Id. 424%).

—_

acts of violence if they fail to act with “due diligence” to

prevent, investigate, or punish such violence."

Accordingly, state efforts to provide legal and social

protection against gender-based violence have been a

consistent focus of the CEDAW Committee’s monitoring

of state reporting.”

The Convention on the Rights of the Child

(“CRC”Y® requires further protection from domestic

violence for children. See art. 6 (requiring States Parties

to ensure “the survival and development of the child”);

art. 19 (“states Parties shall take all appropriate

legislative, administrative, social and educational

measures to protect the child from all forms of physical or

mental violence, injury or abuse . . . while in the care of

parent(s), legal guardian(s) or any other person who has

the care of the child”). Under Article 2, States Parties are

required to “ensure” the nghts in the CRC “without

discrimination of any kind, irrespective of the child’s . . .

sex.” The Committee on the Rights of the Child has said

that States Parties must “ensur{e] that all domestic

legislation is fully compatible with the Convention and

* Compilation, CEDAW Comm., General Recommendation No. 19,

supra, ¥9. This CEDAW Committee recommendation calls on States

Parties to ensure that laws against family violence and other forms of

gender-based violence are adequate, id. 4 24(b); to provide effective

complaint procedures and remedies, including compensation, id. 4

24); and to provide criminal penalties and civil remedies in case of

domestic violence, id. ¢ 24(r\i).

* See Committee on the Elimination of Violence Against Women,

Concluding Observations/Comments, available at

http. www_unhchr.ch/tbs doc nsf (last visited February 6, 2005).

** Convention on the Rights of the Child, opened for signature Nov.

20, 1989, G.A. Res. 44/25, Annex, Supp. No. 49, at 167, U.N. Doc.

A/44/49 (1989) (entered into force Sept. 2, 1990). Only the United

States and Somalia have signed but not ratified this Convention. See

Status of Ratification, supra.

that the Convention’s principles and provisions can be

directly applied and appropriately enforced.””'

Considering the second type of evidence of

customary human rights law, regional treaties and

declarations also show development of the universal

consensus that states must respect and enforce the right to

protection from gender-based violence, including

domestic violence. Several regional treaties, including

the Inter-American Convention on the Prevention,

Punishment and Eradication of Violence Against Women

(Convention of Belém do Para”),” the Convention for the

Protection of Human Rights and Fundamental Freedoms

*! Compilation, Comm. On Rts. Of Child, General Comment No. 5:

General Measures of Implementation of the Convention on the Rights

of the Child (34" Sess. 2003) 4 1.

Inter-American Convention on the Prevention, Punishment and

Eradication of Violence Against Women, opened for signature June

9, 1994, 33 LL.M. 1534 (entered into force Mar. 5, 1995)

(“Convention of Belém do Para”). The Convention of Belém do Para

has been ratified by 31 out of 34 Inter-American states, not including

the United States. See Inter-American Commission of Women,

Status of Signing and Ratification of the Convention of Belém do

Para, available at

http://www.oas.org/cim/English/Laws.Rat.Belem.htm (last visited

February 6, 2005). Nonetheless, the United States’ membership in

the Organization of American States and its adherence to the

American Declaration on the Rights and Duties of Man

(“Declaration”) c’sligate it_to promote the right to protection from

gender-based ana domestic violence, as the Convention of Belém do

Para is based on the rights articulated in the Declaration and the

American Convention on Human Rights, which the United States has

signed. American Convention on Human Rights, opened for

signature Nov. 22, 1969, 1144 U.N.T.S. 123 (entered into force July,

18, 1978); see also Advisory Opinion OC-1/82 of Sept. 24, 1982, 4

41, Inter-Am. Ct. H.R. (ser. A) No.1 (1982).

(“European Convention”), 23 and the Protocol on the

Rights of Women in Africa to the African Charter on

Human and Peoples’ Rights (“African Protocol’ [a

recognize women’s right to be free from gender-based

violence, including domestic violence; that states must

undertake “due diligence” to prevent, investigate, and

punish such acts of violence, whether perpetrated by a

State or private actor; and to provide com compensation and

legal recourse for victims of such violence.”

Likewise, the Council of Europe’s Committee of

Ministers has issued a Recommendation reaffirming its

“determination to combat violence against women” and

“recognis[ing] that states have an obligation to exercise

due diligence.”*° The Committee of Ministers further

reaffirmed a 1986 European Parliament Resolution

recommending that member states ensure victims receive

compensation and consider, inter alia, the use of

protective orders.’

** Convention for the Protection of Human Rights and Fundamental

Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 222

(entered into force Sept. 3, 1953).

** Protocol to the African Charter on Human and Peoples’ Rights on

the Rights of Women in Africa, opened for signature July 11-August

13, 2003, 2d Ord. Sess. of the Assemb. of the Union, available at

http://www | .umn.edu/humanrts/africa/protocol=women2003.html

(last visited February 6, 2005).

** See Convention of Belém do Para, supra, arts. 3, 4, and 7;

European Convention, supra, arts. 1, 8, and 13; African Protocol,

supra, arts. 4 and 8.

States on the Protection of Women Against Violence, at 3, 5, Comm.

of Ministers, 794" meeting of the Ministers’ Deputies, Council of

Europe (Apr. 30, 2002).

” Id., App. A, F 36, 58. See also European Parliament Resolution on

Violence Against Women, § 13, Eur. Parl. Doc. A2-44186, 1986 O.J.

(C176) 23 (July 14, 1986) (calling on national authorities to “ensure

that, in cases where the facts of violence have been established,

The “general assent of nations” to the night to

protection against family violence is demonstrated by

United Nations consensus documents, the third type of

evidence of customary human rights law.”* In particular,

the 1993 General Assembly Declaration on the

Elimination of Violence Against Women, adopted by

consensus, is specific and comprehensive, not only

recognizing the right to protection from family violence,

victims receive appropriate compensation for any pecuniary, physical,

psychological, moral and social damage suffered,” to consider

“enabl[ing] the judiciary to adopt, as interim measures aimed at

protecting victims, the banning of a perpetrator from contacting,

communicating with or approaching the victim, residing in or

entering certain defined areas” and “to ensure improvements in

training of police officers dealing with . . . reports of sexual

violence,” including requiring the police “to respond actively when

requests of help are received”’).

* While technically not bindifig under the United Nations Charter,

widely accepted General Assembly Declarations and Resolutions may

constitute authoritative statements of the world community and thus

contribute to the development of custom. See Filartiga v. Pena-Irala,

630 F.2d 876, 883 (2d Cir. 1980):

[Declarations] specify with great precision the

obligations of member nations under the Charter . .

{and constitute] a formal and solemn instrument,

suitable for rare occasions when principles of great

and lasting importance are being enunciated .

Thus, a Declaration creates an expectation of

adherence, and insofar as the expectation is gradually

justified by State practice, a declaration may by

custom become recognized as laying down rules

binding upon the States.

(internal quotations and citations omitted). See also Fernandez v.

Wilkinson, 505 F. Supp. 787, 796 (D. Kan. 1980) (“There are a great

number of other international declarations, resolutions, and

recommendations. While not technically binding, these documents

establish broadly recognized standards.”).

but also calling upon states, in specific terms, to exercise

due diligence.” The United Nations General Assembly

subsequently adopted a detailed Resolution that “requires

States to take serious action to protect victims and prevent

domestic violence.”””

The United Nations also has undertaken many

other initiatives to encourage states to ensure the right to

protection from and remedies for domestic violence. For

example, in 1994, the United Nations Commission on

Human Rights appointed the first U.N. Special

Rapporteur on Violence Against Women to analyze and

document the phenomenon, and hold governments

accountable for violations against women. See U.N. High

Comm’r for Human Rights Econ. and Soc. Council

Decision, U.N. ESCOR, 1994 Sub. Sess., 42nd Plen.

** Declaration on the Elimination of Violence Against Women, supra

note 13, arts. 1, 2 (recognizing the right to be free from violence, and

that “violence against women” includes “[p]hysical, sexual and

psychological! violence occurring in the family, including battering”);

art. 4 (calling upon states to “pursue by all appropriate means and

without delay a policy of eliminating violence against women,”

including “exercis[ing] due diligence to prevent, investigate and, in

accordance with national legislation, punish acts of violence against

women, whether those acts are perpetrated by the State or private

persons”).

Resolution adopted by the General Assembly, Elimination of

Domestic Violence Against Women, U.N. GAOR, 58th Sess., ¥ 1(d),

U.N. Doc. A/Res/58/147 (2004). The Resolution stresses “that States

have an obligation to exercise due diligence . . . and to provide

protection to the victims,” id. ¢ 5, including specifically, to

“establish{] adequate legal protection against domestic violence”;

“ensure greater protection for women, inter alia, by means of, where

appropnate, orders restraining violent spouses from. entering the

family home”; “establish and/or strengthen police response protocols

and procedures”; and “take measures to ensure the protection of

women subjected to violence, access to just and effective remedies,

inter alia, through compensation and indemnitication and healing of

victims.” Jd. ¥ 7(a), (e), (i), (j).

Mtg., U.N. Doc. E/DEC/1994/254 (1994). Her Reports

have been the basis for the Commission’s annual

resolutions emphasizing states’ obligations to eliminate

violence against women in all contexts, including in the

home.”'

Moreover, United Nations World Conferences

have condemned gender violence as a human rights

violation and called for international and national

remedies, in particular, the 1993 Vienna World

Conference on Human Rights” and the 1995 Fourth

World Conference on Women in Beijing.”®

*' For Reports on domestic violence in the home, see Integration of

the Human Rights of Women and the Gender Perspective: Violence

Against Women, Report of the Special Rapporteur on Violence

Against Women, its causes and consequences, U.N. ECOR, Hum.

Rts. Comm. 59" Sess., U.N. Doc. E/CN.4/2003/75 (2003) (“2003

Special Rapporteur Report’), Violence Against Women in the Family:

Report of the Special Rapporteur on Violence Against Women, its

causes and consequences, U.N. ESCOR, Hum. Rts. Comm., 55"

Sess., U.N. Doc.E/CN.4/RES/1999/42 (1999); Report of the Special

Rapporteur on Violence Against Women, its causes and

consequences, U.N. ESCOR, Hum. Rts. Comm., 54” Sess., U.N.

Doc. E/CN.4/1998/54 (1998); Report of the Special Rapporteur on

Violence Against Women, its causes and consequences, U.N. ESCOR,

Hum. Rts. Comm., 53 Sess., U.N. Doc. E/CN.4/1997/47 (1997).

2 The Vienna Declaration and Programme of Action recognized

gender violence as a human rights violation and triggered system-

wide as well as national reforms designed to eliminate gender

violence and advance the human rights of women. Vienna

Declaration end Programme of Action, World Conference on Human

Rights, at ¢ 18, U.N. Doc. A/CONF. 157/24 (Part I) (1993).

8 Beijing Declaration and Platform for Action, Fourth World

Conference on Women, at Annex I, ch. IV $¥ 125-30, U.N. Duc.

A/CONF.177/20 and A/CONF.177/20/Add.1 (1995). Significantly,

the consensus Beijing Platform included the elimination of all forms

of violence against women as one of its twelve strategic objectives,

and called for states to ensure the right of women to be free from

violence by, inter alia, providing “women who are subjected to

The emergence of an international customary

norm is further illustrated by the rapid, world-wide reform

of laws and practices to provide protection against gender

and domestic violence, the fourth category of relevant

evidence. Recent international surveys indicate that states

are adopting a range of protective measures, including

protective orders, to prevent domestic violence,’ and that

there is increasing recognition of the importance of

effective enforcement of restraining orders such as that at

issue here.*®

Finally, the decisions of international human

rights courts and commissions determining that women’s

international human rights were violated by state failure

to provide or enforce fair and effective protections against

gender-based violence, including domestic violence,

provide the fifth type of evidence for this customary

human rights norm.

violence with access to the mechanisms of justice and . . . to just and

effective remedies for the harm they have suffered.” Jd. at 4 125(h).

The United Nations reaffirmed its commitment to eliminating

violence against women as outlined in the Beijing Declaration and

Platform in the Resolution Adopted by the General Assembly ¥ 2,

U.N. GAOR, 33rd Special Sess, U.N. Doc. A/RES/S-23/2 (2000).

* See generally Violence Against Women: Report of the Secretary

General, U.N., GAOR, 59th Sess., U.N. Doc. A/59/281 (2004)

(“Sec 'y Gen. VAW Report”); 2003 Special Rapporteur Report, supra;

World Health Organization, World Report of Violence and Health

105 (Etienne G. Krug et al., eds. 2002) (“WHO World Report”).

* See, e.g., 2003 Special Rapporteur Report, supra, at 4 1857; WHO

World Report, supra, at 105; Sec'y Gen. VAW Report, supra, at ¥ 65

(“Women victims of violence, or women who are at risk of repeated

acts of violence in the home, should have immediate means of redress

and protection, including protection or restraining orders, access to

legal aid, and shelters staffed with personnel who are sensitive to

victims’ needs.”’).

In M.C. v. Bulgaria, 2003-1 Eur. Ct. H.R. 646 %

185-87 (2004), the European Court of Human Rights held

that Bulgaria violated the rights of a 14-year-old alleged

rape victim to be free from inhuman or degrading

treatment and to privacy guaranteed under Articles 3 and

8 of the European Convention by failing to investigate the

alleged rapes fully and effectively.°° The court awarded

M.C. compensation for “distress and psychological

trauma,” resulting “at least partly from the shortcomings

in the authorities’ approach” to the criminal investigation.

Id. 7 191, 194.

Likewise, in Maria da Penha Maia Fernandes v.

Brazil, in Annual Report. of the Inter-American

Commission on Human Rights, Case No. 12.051, Inter-

Am. C.H.R. 704, OEA/Ser. L/V/IL.111 doc. 20 rev. (Apr.

16, 2001), the Inter-American Commission on Human

Rights concluded that Brazil had violated Ms. Fernandes’

rights under the Convention of Belém do Para, arts. 3 and

4, by delaying for more than 15 years the prosecution of

her abusive husband for her attempted murder, noting that

“this violation form{ed] a pattern of discrimination

evidenced by the condoning of domestic violence against

women in Brazil through ineffective judicial action.” /d.

§ 3. The Commission therefore recommended “prompt

and prosecutors in the case fell short of the requirements inherent in

the States’ positive obligations — viewed in the light of the relevant

modern standards in comparative and international law - to establish

and apply effectively a criminal-law system punishing al! forms of

rape and sexual abuse.” M.C. v. Bulgaria, 2003-1 Eur. Ct. H.R. 646 4

187 (2004). The court further acknowledged that “[wJhile the choice

of the means to secure compliance with [international human nghts

law] . . . is in principle within the State’s margin of appreciation,

effective deterrence against grave acts such as rape, where

fundamental values and essential aspects of private life are at stake,

requires efficient criminal-law provisions.” /d. 4 150.

and effective compensation for the victim, and the

adoption of measures at the national level to eliminate

tolerance by the State of domestic violence against

women.” /d.

Taken together, these international and regional

treaties and other documents evidencing state practice

establish that state failure to provide effective protection

from domestig violence is recognized as a “specific,

universal and obligatory” violation of human rights

throughout the world, see Sosa, 124 S. Ct. at 2766-67,

that gives rise to a right to compensation. This

international consensus, reflecting an evolved customary

norm of international law, lends further and compelling

support for interpreting the Due Process Clause to permit

Ms. Gonzales to pursue her federal civil rights claim in

this case.

” See also Airey v. Ireland, 32 Eur. Ct. H.R. (Ser. A) $7 9, 24, 28

(1979) (holding that Ireland violated right to access to court for a

decree of separation from woman's abusive and alcoholic husband by

failing to provide her with legal aid to do so); MZ v. Bolivia, in

Annual Report of the Inter-American Commission of Human Rights,

Case No. 12.350, Inter-Am. C.H.R. 121, OEA/Ser. L/V/11.114 doc. 5

rev. (Oct. 10, 2001) (determining that, if the allegations concerning

the judicial overturning of a rape conviction in the face of

overwhelming evidence were true, violations of the Inter-Amencan

Convention by Bolivia would be established); cases cited supra note

III.

AS A STATE PARTY TO THE ICCPR, THE

UNITED STATES’ COMMITMENT TO ENSURE

CLAUSE AND THE AVAILABILITY OF A

REMEDY UNDER 42 U.S.C. § 1983.

The United States’ ratification of the ICCPR,

which largely parallels the Bill of Rights,”* supports the

Court’s determination in this case that the police deprived

Ms. Gonzales and her children of due process in their

As a ratified treaty, the ICCPR constitutes “a ‘Law

of the Land’ under the Supremacy Clause, Art. VI, Cl. 2,

of the Constitution,” see U.S. v. Pink, 315 U.S. 203, 230

(1942), which implements the fundamental international

* United States Senate Report on Ratification of the International

Covenant on Civil and Political Rights, S. Exec. Rep. No. 102-23, at

2 (1992) (“The rights guaranteed by the Covenant are similar to those

guaranteed by the U.S. Constitution and the Bil! of Rights”).

As discussed below, the Senate's reservations, understandings and

declarations to the ICCPR do not undermine, but rather support, this

Court's authori’ \o consider the treaty as persuasive authority.

principle of pacta sunt servunda that “every treaty in

force is binding upon the parties to it and must be

performed by them in good faith.” Law of Treaties,

supra, art. 26. As Justice O'Connor has noted, “domestic

courts should faithfully recognize the obligations imposed

by international law. The Supremacy Clause of the

United States Constitution gives legal force to foreign

treaties, and our status as a free nation demands faithful

compliance with the law of free nations.” Sandra Day

L. & Pol. 35, 42 (1997).

Under both ICCPR article 50 and international

law, the United States may, as a federal state, relegate

different functions to its constituent parts, but

concurrently it must ensure that the treaty is fully

effective throughout its territory.*' Consistent with this

obligation, the U.S. Senate did not take a reservation to

ICCPR art. 50.° Rather, it ratified the ICCPR with the

* See also Exec. Order No. 13,107, 63-Fed. Reg. 68,991 § 1 (Dec.10,

1998) (stating that “[ijt shall be the policy and practice of the

Government of the United States . . . fully to respect and implement

its obligations under the international human nghts treaties to which

it is a party, including the ICCPR”).

“ ICCPR, supra, art. 50 provides: “The provisions of the present

Covenant shal] extend to all parts of federal States without any

limitations or exceptions.” See generally Law of Treaties, supra, art.

27 (“A party may not invoke the provisions of its internal law as

justification for its failure to perform a treaty.”); id. art. 29 (“{ujniess

a different intention appears from the treaty . . . a treaty is binding

upon each party in respect of its entire territory”); The Restatement of

the Law (Third), Foreign Relations Law of the United States § 207(b)

(1987) (a federal state “is responsible for any violation of its

obligations under international law resulting from action or inaction

by the government or authorities of any political subdivision of the

state”).

“ The Senate considered a reservation to article $0 “not necessary...

since the intent is not to modify or limit U.S. undertakings under the

following express understanding (the “federalism

understanding”’):

That the United States understands that this

Convention shall be implemented by the

Federal Government to the extent that it

exercises legislative and judicial jurisdiction

over the matters covered therein, and

otherwise by the state and local

governments; to the extent that state end

such matters, the Federal Government shall

take measures appropriate to the Federal

system to the end that the competent

authorities of the state or local governments

may take appropriate measures for the

fulfillment of the Convention.

Understanding III(5), U.S. Reservations, Declaration,

Understandings, and Proviso, International Covenant on .

Civil and Political Rights, 138 Cong. Rec. $4781-01

(1992).

The Senate explained, as did the Admuinistration’s

1994 Report to the United Nations Human Rights

Committee (the “1994 Report”), that this understanding

was intended “to emphasize domestically that there is no

intent to alter the constitutional balance of authority

between the State and Federal governments” and “to

signal to our treaty partners that the U.S. will implement

” §. Exec. ~<A N 102-23 at 18.

as appropriate."*? When presenting the 1994 Report to

the Human Rights Committee, the U.S. spokesperson

stated that while federalism concerns would not permit

the federal government to obligate the states to undertake

particular action -- such as “dictat{ing] the basic form or

internal workings of state government” -- federal

responsibility did extend to “enforcfing] uniform

standards for the respect of civil and political rights."“*

The Senate also attached a non-self-executing

declaration as to ICCPR articles 1-27, stating:

For reasons of prudence, we recommend

including a declaration that the substantive

provisions of the Covenant are not self-

executing. The intent is to clarify that the

Covenant will not create a private cause of

action in U.S. courts .. . . [E]xisting U.S.

law generally complies with the Covenant;

hence, implementing legislation is not

contemplated.

S. Exec. Rep. No. 102-23 at 18-19 (emphasis added).

” S. Exec. Rep. No. 102-23 at 19-20 (emphasis added). See also

Consideration of Reports Submitted by States Parties Under Article

40: Initial Reports of States Parties Due in 1993: United States of

America, Hum. Rts. Comm., Annex Il, 4 I-Ill, U.N. Doc.

CCPR/C/81/Add.4 (1994).

“ Summary of Record of the 1405th Meeting: United State- of

. America, U.N. GAOR, Hum. Rts. Comm., 53rd Sess. ¢ 10, U.N. Doc.

CCPR/C/SR.1405 (1995) (emphasis added). Significantly, the

Human Rights Committee noted “with satisfaction the assurances of

the [United States] Government that its declaration regarding the

federal syst is not a reservation and is not intended to affect the

international obligations of the United States.” Concluding

Observations of the Human Rights Committee: United States of

America, U.N. GAOR, Hum. Rts. Comm. % 266-304, U.N. Doc.

A/S0/40, CCPR/C/79/Add.50 (1995).

Given this Senate recognition of the relevance of

existing U.S. law to the rights protected by the ICCPR,

and the Senate commitment to employ “appropriate

legislative, executive and judicial means, federal or state

as appropriate” in service of the ICCPR, S. Exec. Rep.

No. 102-23 at 19-20, it is reasonable to assume that the

Senate contemplated that achieving compliance with the

treaty’s terms could require the use of already-existing

domestic rights and remedies, and moreover, in light of

the federalism understanding, that such remedies could

include federal civil rights remedies.*°

In considering the weight that the ICCPR

commands in this context, it is useful to recognize that the

non-self-executing declaration does not undermine this

Court’s authority to consider the ICCPR in deciding this

section 1983 claim.“ In reporting to the Human Rights

eaation the United States stated: “The ([self-

executing] distinction is one of domestic law only; in

either case, the treaty remains binding on the United

States as a matter of international law.”

HRI/CORE/1/Add.49: United States of America, 4 138

” This reading of the non-self-executing declaration is entirely

consistent with this Court's ruling in Sosa that by virtue of the non-

self-executing declaration “the [Covenant] did not itself create

a 124 S. Ct. at 2767

She « The ay” of such declarations has been sharply- criticized,

however, including on constitutional grounds. See, ¢.g., Louis

Henkin, Foreign Affairs and the United States Constitution 201-03

(2d ed. 1996); Louis Henkin, Two Hundred Years of Constitutional

Confrontations in the D.C. Courts, 90 Geo. L. J. 725, 733-34 (2002);

Martin S. Flaherty, History Right?: Historical Scholarship, Original

Understanding, and Treaties as “Supreme Law of the Land,” 99

Colum. L. Rev. 2095 (1999); David Sloss, Non-Self-Executing

Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1,

45-76 (2002); John Quigley, Judge Bork is Wrong: The Covenant is

the Law, 71 Wash. U. L.Q. 1087, 1101-1102 (1993).

(August 1994). The United States representative affirmed

this view in response to the Human Rights Committee’s

concerns regarding the declaration, stating: “[t]o clarify

an apparent misunderstanding, the courts [of the United

States} could refer to the Covenant and take gu’ isrce

from [the Covenant] even though it was noi svif

executing. What the Covenant could not do was provide

a cause of action.” Summary of Record of the 1405th

Meeting: United States of America, UN. GAOR, Hum.

Rts. Comm., 53rd Sess. § 8, U.N. Doc. CCPR/C/SR.1405

(1995) (Remarks of Conrad Harper).*’ Thus, the non-

self-executing declaration neither nullifies the binding

nature of the ICCPR nor the appropriateness of federal

judicial attention to the treaty; nor does it disturb the

fundamental principle, embodied in the Supremacy

Clause, that absent irreconcilable conflict, international

law carries great weight in the interpretation of domestic

law.

* See also Observations of State Parties under article 40(5) of the

Convention, United States of America, CCPR A/50/40/Vol. 1, Annex

VI Pt. 4 (if a state party “lacks any means under its domestic law by

which Covenant rights may be enforced. . . such an approach would

not, of course, be consistent with the fundamental principle of pacta

Sunt servunda”).

* The principle, most often discussed in relation to customary

international law, applies with at least equal rigor to treaty

commitments. See Weinberger v. Rossi, 56 U.S. 25, 32 (1982) (“It

has been a maxim of statutory construction since the decision in

Murray v. The Charming Betsy, 2 Cranch 64, 118 [6 U.S. 64, 118]

(1804), that ‘an act of congress ought never to be construed to violate

the law of nations, if any other possible construction remains. . . . . a

see also Joan Fitzpatrick, The Significance and Determination of

Customary International Human Rights Law: Relevance of

Customary International Norms to the Death Penalty in the United

States, 25 Ga. J. Int'l & Comp. L. 165, 179-180 (1995/1996)

(explaining that courts should interpret constitutional norms

consistently with international norms because “(njot only does this

approach help insure the international law-abiding character of the

Turning to the case before this Court, here,

Colorado sought to protect Ms. Gonzales and her children

from domestic violence through a mandatory restraining

order. Colorado failed in its obligations only when the

police failed to accord her due process in enforcing the

order.” In light of our treaty obligations and the

federalism understanding, it is appropriate for this Court

to interpret the Constitution to require due process in the

enforcement of a mandatory protective order and a

remedy under 42 U.S.C. § 1983. Section 1983

jurisdiction does not supplant the states, but “interpose[s]

the federal courts . . . to protect the people from

unconstitutional action under color of state law,” Mitchum

v. Foster, 407 U.S. 225, 242 (1972), and to provide a

balanced means of “at least indirect federal control over

the unconstitutional actions of state officials.” Ngiraingas

v. Sanchez, 495 U.S. 182, 189 (1990) (citing District of

Columbia v. Carter, 409 U.S. 418, 428 (1973)). Thus,

considering the ICCPR in these circumstances not only

supports a remedy for Ms. Gonzales, but also encourages

future enforcement of protective orders on the local level

consistent with our international commitment. Just as

federal courts adjudicate section 1983 claims against local

officials and entities when they fail to accord positive

United States, it helps to avoid a clash between two important

interpretive principles — that statutes should be construed where

possible, to be consistent with the Constitution and with international

law”).

” This breakdown of legal protection from domestic violence at the

police level is not unique to Colorado or the United States.

According to the World Health Organization, internationally, “{a)fter

support services for victims, efforts to reform police practice are the

next most common form of intervention against domestic violence . .

. . when training alone proved largely ineffective in changing police

behaviour, efforts shifted to seeking laws requiring mandatory arrest

for domestic violence and policies that forced police officers to take a

more active stand.” WHO World Report, supra, at 105.

federal due process protections to those accused of taking

life,” so it would be consistent to the task of preserving

life, and precious family relationships, to do so here.

In sum, by recognizing federal civil rights

jurisdiction to provide an effective remedy for the due

process violation and resultant unspeakable violence

suffered by Ms. Gonzales and her children, this Court will

“give[] legal force” to this treaty and will also signal to

the world that the United States takes seriously its treaty

and international legal commitments.

® See, e.g, Mayer v. City of Chicago, 404 U.S. 189 (1991) (indigent

access to appeal in quasi-criminal cases); Gideon v. Wainwright, 372

U.S. 335 (1963) (right to counsel).

ao -

CONCLUSION

For the foregoing reasons, as well as those stated

in the brief for Respondents, the decision of the court

below should be affirmed.

Respectfully submitted,

Jennifer K. Brown* Rhonda Copelon¢

Maya Raghu Andrew Fields

Legal Momentum International Women’s

395 Hudson Street Human Rights Law Clinic

New York, N.Y. 10014 City University of New

(212) 925-6635 York

School of Law

*Counsel of Record 65-21 Main Street

Flushing, N.Y. 11367

(718) 340-4163

February 9, 2005

¢ Counsel wish to acknow’zdge the contributions of the

interns in the International Women’s Human Rights Law

Clinic to this brief.

NAMES AND STATEMENTS OF INTEREST

OF AMICI CURIAE

Organizations

The Allard K. Lowenstein International Human

Rights Clinic (the “Clinic”) is a Yale Law School

program that gives students first-hand experience in

human rights advocacy. The Clinic undertakes numerous

litigation and research projects on behalf of human rights

organizations and individual victims of human rights

abuses. The Clinic’s work is based on the human rights

standards contained in international customary and

conventional law, at the core of which is the prohibition

against discrimination. Since the Clinic began more than

ten years ago, its students have worked on a number of

lawsuits and other projects designed to combat racial,

gender, ethnic and other kinds of discrimination. In recent

years, the Clinic has focused increasing attention on

efforts to ensure respect for international human rights

standards in the United States.

Amnesty International USA is the U.S. section of

Amnesty International, a Nobel Prize-winning

organization with more than 1.8 million members,

supporters and subscribers in over 150 countries and

territories throughout the world. Amnesty International’s

mission is to undertake research and action focused on

preventing and ending grave abuses of the rights to

physical and mental integrity, freedom of conscience and

expression, and freedom from discrimination, within the

context of its work to promote all human rights. Amnesty

International is privately funded and is independent of any

political ideology or economic interest.

The Center for Constitutional Rights (“CCR”) is a

non-profit legal and educational organization dedicated to

advancing and protecting the rights guaranteed by the

United States Constitution and the Universal Declaration

of Human Rights. CCR has successfully litigated many

important international human rights cases since 1980,

including Filartiga v. Pena-lrala, 630 F.2d 876 (2d Cir.

1980), and currently represents the plaintiffs in Doe v.

Unocal, Wiwa v. Royal Dutch Petroleum, Bowoto v.

Chevron and Saleh v. Titan.

Center for Women’s Global Leadership (“Global

Center”), a project of Douglass College, Rutgers

University (New Brunswick) has developed and

facilitated women's leadership for women's human rights

and social justice worldwide since 1989. The Global

Center has advocated the recognition of women’s human

rights, and, in particular, violence against women, in

international, regional and national contexts and has

played a major role at various United Nations meetings

addressing human rights norms and intergovernmental

and national implementation of commitments relating,

inter alia, to states’ obligations to prevent, punish and

eliminate violence against women.

Federation International de Droits de L’Homme

(“FIDH”) is an _ international nongovernmental

organization for the defense of the human rights enshrined

in the Universal Declaration of Human Rights of 1948.

Created in 1922, it has its central office in Paris, France

and includes 89 national affiliates throughout the world,

including in the United States of America. FIDH enjoys

consultative status with the United Nations, UNESCO,

the European Council and observer status with the

African Commission of Human and Peoples’ Rights.

FIDH participates in the defense of human rights through,

inter alia, sponsoring human rights missions and through

advancing rights in intergovernmental as well as national

courts and tribunals.

Human Rights Advocates (“HRA”) is a human

rights organization based in Berkeley, California

dedicated to promoting and protecting international

human rights. HRA participates actively in the work of

various United Nations human nghts bodies and is a fully

United Nations. HRA seeks to advance the panoply of

human rights issues, including the nghts of the child and

women’s rights, among others, through the United

Nations system, by participation in _ international

conferences, and through participation in litigation and

other activities in the United States.

International Women’s Human Rights Law Clinic

(“IWHR”), founded in 1992, is an educational project of

the City University of New York School of Law

dedicated to promoting the international human nghts of

women and to implementation internationally, regionally

and in the United States. [WHR is recognized for its

expertise in the gender dimensions of international human

rights and international criminal law as well as in

human nights.

Legal Momentum advances the nghts of women

and girls by using the power of the law and creating

innovative public policy. Legal Momentum advocates in

the courts, Congress and state legislatures, as well as with

unions and private business, to improve the protection

afforded victims of domestic violence, and is a leading

authority on the rights of immigrant victims of such

violence. As with its amicus curiae brief in the cases

. +

Grutter v. Bollinger and Gratz v. Bollinger, Legal

Momentum here seeks to provide the Court with relevant,

persuasive authority from international and comparative

law that is relevant to the constitutional **-.-es at hand.

National E ic and Social Rights Initiati

(“NESRI”), founded in 2003 and located in New York

City, promotes a cultural and political commitment to a

human rights vision for the United States that ensures

dignity and access to the basic resources needed for

human development and civic_ participation. NESRI

develops expert materials on human rights issues and

works to strengthen legal standards in applying human

nghts to the United States.

International Human Rights Scholars And Experts

Willhiam J. Aceves, California Western School of Law

Deborah Anker, Harvard Immigration and Refugee

Clinical Program, Harvard Law School

Kelly Dawn Askin, Yale Fellow and Fulbright New

Century Scholar

Charlotte Bunch, Rutgers University-New Brunswick

Carolyn Patty Blum, Boalt Hall (emeritus), University of

California (Berkeley)

Douglass W. Cassel, Center for International Human

Rights, Northwestern University School of Law

Jamie Chuang, Washington College of Law, American

University .

Roger Clark, Rutgers Law School-Camden

Rebecca J. Cook, Faculty of Law, University of Toronto

Radhika Coomaraswamy, United Nations Special

Rapporteur on Violence Against Women (1994-2003),

Colombo, Sri Lanka

Martha Davis, New England School of Law

Connie de la Vega, University of San Francisco School of

Law

Alda Facio, Concertacion Inter-Americana de las Mujeres

Activistas para Los Derechos Humanos, San Jose, Costa

Rica

George E. Edwards, Program in International Human

Rights Law, Indiana University School of Law

Stephanie Farrior, Pennsylvania State University,

Dickinson School of Law

Sid Harring, City University of New York School of Law

Deena R. Hurwitz, International Human Rights Law

Clinic, University of Virginia School of Law

Scott T. Johnson, Attorney at Law, Santa Monica,

Californi

Jules Lobel, University of Pittsburgh Law School

Bert Lockwood, Urban Morgan Institute for Human

Rights. University of Cincinnati

Beth Lyon, Villanova University School of Law

Dorean Marguerite Koenig, Thomas M. Cooley Law

School

Smita Narula, Center for Human Rights and Global

Justice, New York University School of Law

Sarah H. Paoletti, International Human Rights Clinic,

Washington College of Law

Karen Parker, International Human Rights Attorney, San

Francisco, CA

Jordan J. Paust, University of Houston Law Center

Sir Nigel Rodley, Chair, Human Rights Centre,

University of Essex, Colchester, United Kingdom

Meg Satterthwaite, Center for Human Rights and Global

Justice, New York University School of Law

Martin Scheinin, Abo Akademi University, Institute for

Human Rights, Abo/Turku, Finland

Beth Stephens, Rutgers-Camden School of Law

Penny M. Venetis, Rutgers School of Law — Newark

Wendy Webster Williams, Georgetown University Law

Center

Richard J. Wilson, Washington College of Law,

American University

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.