Medellin v. Texas

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MEDELLIN v. TEXAS

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS

No. 06–984. Argued October 10, 2007—Decided March 25, 2008

In the Case Concerning Avena and Other Mexican Nationals (Mex. v.

U. S.), 2004 I. C. J. 12 (Avena), the International Court of Justice

(ICJ) held that the United States had violated Article 36(1)(b) of the

Vienna Convention on Consular Relations (Vienna Convention or

Convention) by failing to inform 51 named Mexican nationals, includ­

ing petitioner Medellín, of their Vienna Convention rights. The ICJ

found that those named individuals were entitled to review and re­

consideration of their U. S. state-court convictions and sentences re­

gardless of their failure to comply with generally applicable state

rules governing challenges to criminal convictions. In Sanchez-

Llamas v. Oregon, 548 U. S. 331—issued after Avena but involving

individuals who were not named in the Avena judgment—this Court

held, contrary to the ICJ’s determination, that the Convention did

not preclude the application of state default rules. The President

then issued a memorandum (President’s Memorandum or Memoran­

dum) stating that the United States would “discharge its interna­

tional obligations” under Avena “by having State courts give effect to

the decision.”

Relying on Avena and the President’s Memorandum, Medellín filed

a second Texas state-court habeas application challenging his state

capital murder conviction and death sentence on the ground that he

had not been informed of his Vienna Convention rights. The Texas

Court of Criminal Appeals dismissed Medellín’s application as an

abuse of the writ, concluding that neither Avena nor the President’s

Memorandum was binding federal law that could displace the State’s

limitations on filing successive habeas applications.

Held: Neither Avena nor the President’s Memorandum constitutes di­

rectly enforceable federal law that pre-empts state limitations on the

filing of successive habeas petitions. Pp. 8–37.

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Syllabus

1. The Avena judgment is not directly enforceable as domestic law

in state court. Pp. 8–27.

(a) While a treaty may constitute an international commitment,

it is not binding domestic law unless Congress has enacted statutes

implementing it or the treaty itself conveys an intention that it be

“self-executing” and is ratified on that basis. See, e.g., Foster v. Neil-

son, 2 Pet. 253, 314. The Avena judgment creates an international

law obligation on the part of the United States, but it is not auto­

matically binding domestic law because none of the relevant treaty

sources—the Optional Protocol, the U. N. Charter, or the ICJ Stat­

ute—creates binding federal law in the absence of implementing leg­

islation, and no such legislation has been enacted.

The most natural reading of the Optional Protocol is that it is a

bare grant of jurisdiction. The Protocol says nothing about the effect

of an ICJ decision, does not commit signatories to comply therewith,

and is silent as to any enforcement mechanism. The obligation to

comply with ICJ judgments is derived from Article 94 of the U. N.

Charter, which provides that “[e]ach . . . Member . . . undertakes to

comply with the [ICJ’s] decision . . . in any case to which it is a

party.” The phrase “undertakes to comply” is simply a commitment

by member states to take future action through their political

branches. That language does not indicate that the Senate, in ratify­

ing the Optional Protocol, intended to vest ICJ decisions with imme­

diate legal effect in domestic courts.

This reading is confirmed by Article 94(2)—the enforcement provi­

sion—which provides the sole remedy for noncompliance: referral to

the U. N. Security Council by an aggrieved state. The provision of an

express diplomatic rather than judicial remedy is itself evidence that

ICJ judgments were not meant to be enforceable in domestic courts.

See Sanchez-Llamas, 548 U. S., at 347. Even this “quintessentially

international remed[y],” id., at 355, is not absolute. It requires a Se­

curity Council resolution, and the President and Senate were un­

doubtedly aware that the United States retained the unqualified

right to exercise its veto of any such resolution. Medellín’s construc­

tion would eliminate the option of noncompliance contemplated by

Article 94(2), undermining the ability of the political branches to de­

termine whether and how to comply with an ICJ judgment.

The ICJ Statute, by limiting disputes to those involving nations,

not individuals, and by specifying that ICJ decisions have no binding

force except between those nations, provides further evidence that

the Avena judgment does not automatically constitute federal law en­

forceable in U. S. courts. Medellín, an individual, cannot be consid­

ered a party to the Avena decision. Finally, the United States’ inter­

pretation of a treaty “is entitled to great weight,” Sumitomo Shoji

Cite as: 552 U. S. ____ (2008) 3

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America, Inc. v. Avagliano, 457 U. S., at 184–185, and the Executive

Branch has unfailingly adhered to its view that the relevant treaties

do not create domestically enforceable federal law. Pp. 8–17.

(b) The foregoing interpretive approach—parsing a treaty’s text

to determine if it is self-executing—is hardly novel. This Court has

long looked to the language of a treaty to determine whether the

President who negotiated it and the Senate that ratified it intended

for the treaty to automatically create domestically enforceable federal

law. See, e.g., Foster, supra. Pp. 18–20.

(c) The Court’s conclusion that Avena does not by itself constitute

binding federal law is confirmed by the “postratification understand­

ing” of signatory countries. See Zicherman v. Korean Air Lines Co.,

516 U. S. 217, 226. There are currently 47 nations that are parties to

the Optional Protocol and 171 nations that are parties to the Vienna

Convention. Yet neither Medellín nor his amici have identified a

single nation that treats ICJ judgments as binding in domestic

courts. The lack of any basis for supposing that any other country

would treat ICJ judgments as directly enforceable as a matter of

its domestic law strongly suggests that the treaty should not be so

viewed in our courts. See Sanchez-Llamas, 548 U. S., at 343–344,

and n. 3.

The Court’s conclusion is further supported by general principles of

interpretation. Given that the forum state’s procedural rules govern

a treaty’s implementation absent a clear and express statement to

the contrary, see e.g., id., at 351, one would expect the ratifying par­

ties to the relevant treaties to have clearly stated any intent to give

ICJ judgments such effect. There is no statement in the Optional

Protocol, the U. N. Charter, or the ICJ Statute that supports this no­

tion. Moreover, the consequences of Medellín’s argument give pause:

neither Texas nor this Court may look behind an ICJ decision and

quarrel with its reasoning or result, despite this Court’s holding in

Sanchez-Llamas that “[n]othing in the [ICJ’s] structure or purpose

. . . suggests that its interpretations were intended to be conclusive

on our courts.” id., at 354. Pp. 20–24.

(d) The Court’s holding does not call into question the ordinary

enforcement of foreign judgments. An agreement to abide by the re­

sult of an international adjudication can be a treaty obligation like

any other, so long as the agreement is consistent with the Constitu­

tion. In addition, Congress is up to the task of implementing non­

self-executing treaties, even those involving complex commercial dis­

putes. Medellín contends that domestic courts generally give effect to

foreign judgments, but the judgment Medellín asks us to enforce is

hardly typical: It would enjoin the operation of state law and force

the State to take action to “review and reconside[r]” his case. Foreign

4 MEDELLIN v. TEXAS

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judgments awarding injunctive relief against private parties, let

alone sovereign States, “are not generally entitled to enforcement.”

Restatement (Third) of Foreign Relations Law of the United States

§481, Comment b, p. 595 (1986). Pp. 24–27.

2. The President’s Memorandum does not independently require

the States to provide review and reconsideration of the claims of the

51 Mexican nationals named in Avena without regard to state proce­

dural default rules. Pp. 27–37.

(a) The President seeks to vindicate plainly compelling interests

in ensuring the reciprocal observance of the Vienna Convention, pro­

tecting relations with foreign governments, and demonstrating com­

mitment to the role of international law. But those interests do not

allow the Court to set aside first principles. The President’s author­

ity to act, as with the exercise of any governmental power, “must

stem either from an act of Congress or from the Constitution itself.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 585.

Justice Jackson’s familiar tripartite scheme provides the accepted

framework for evaluating executive action in this area. First,

“[w]hen the President acts pursuant to an express or implied authori­

zation of Congress, his authority is at its maximum, for it includes all

that he possesses in his own right plus all that Congress can dele­

gate.” Youngstown, 343 U. S., at 635 (Jackson, J., concurring). Sec­

ond, “[w]hen the President acts in absence of either a congressional

grant or denial of authority, he can only rely upon his own independ­

ent powers, but there is a zone of twilight in which he and Congress

may have concurrent authority, or in which its distribution is uncer­

tain.” Id., at 637. In such a circumstance, Presidential authority can

derive support from “congressional inertia, indifference or quies­

cence.” Ibid. Finally, “[w]hen the President takes measures incom­

patible with the expressed or implied will of Congress, his power is at

its lowest ebb,” and the Court can sustain his actions “only by dis­

abling the Congress from acting upon the subject.” Id., at 637–638.

Pp. 28–29.

(b) The United States marshals two principal arguments in favor

of the President’s authority to establish binding rules of decision that

preempt contrary state law. The United States argues that the rele­

vant treaties give the President the authority to implement the

Avena judgment and that Congress has acquiesced in the exercise of

such authority. The United States also relies upon an “independent”

international dispute-resolution power. We find these arguments, as

well as Medellín’s additional argument that the President’s Memo­

randum is a valid exercise of his “Take Care” power, unpersuasive.

Pp. 29–37.

(i) The United States maintains that the President’s Memo­

Cite as: 552 U. S. ____ (2008) 5

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randum is implicitly authorized by the Optional Protocol and the

U. N. Charter. But the responsibility for transforming an interna­

tional obligation arising from a non-self-executing treaty into domes­

tic law falls to Congress, not the Executive. Foster, 2 Pet., at 315. It

is a fundamental constitutional principle that “ ‘[t]he power to make

the necessary laws is in Congress; the power to execute in the Presi­

dent.’ ” Hamdan v. Rumsfeld, 548 U. S. 557, 591. A non-self­

executing treaty, by definition, is one that was ratified with the un­

derstanding that it is not to have domestic effect of its own force.

That understanding precludes the assertion that Congress has im­

plicitly authorized the President—acting on his own—to achieve pre­

cisely the same result. Accordingly, the President’s Memorandum

does not fall within the first category of the Youngstown framework.

Indeed, because the non-self-executing character of the relevant trea­

ties not only refutes the notion that the ratifying parties vested the

President with the authority to unilaterally make treaty obligations

binding on domestic courts, but also implicitly prohibits him from do­

ing so, the President’s assertion of authority is within Youngstown’s

third category, not the first or even the second.

The United States maintains that congressional acquiescence re­

quires that the President’s Memorandum be given effect as domestic

law. But such acquiescence is pertinent when the President’s action

falls within the second Youngstown category, not the third. In any

event, congressional acquiescence does not exist here. Congress’ fail­

ure to act following the President’s resolution of prior ICJ controver­

sies does not demonstrate acquiescence because in none of those prior

controversies did the President assert the authority to transform an

international obligation into domestic law and thereby displace state

law. The United States’ reliance on the President’s “related” statu­

tory responsibilities and on his “established role” in litigating foreign

policy concerns is also misplaced. The President’s statutory authori­

zation to represent the United States before the U. N., the ICJ, and

the U. N. Security Council speaks to his international responsibili­

ties, not to any unilateral authority to create domestic law.

The combination of a non-self-executing treaty and the lack of im­

plementing legislation does not preclude the President from acting to

comply with an international treaty obligation by other means, so

long as those means are consistent with the Constitution. But the

President may not rely upon a non-self-executing treaty to establish

binding rules of decision that pre-empt contrary state law. Pp. 30–

35.

(ii) The United States also claims that—independent of the

United States’ treaty obligations—the Memorandum is a valid exer­

cise of the President’s foreign affairs authority to resolve claims dis­

6 MEDELLIN v. TEXAS

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putes. See, e.g., American Ins. Assn. v. Garamendi, 539 U. S. 396,

415. This Court’s claims-settlement cases involve a narrow set of cir­

cumstances: the making of executive agreements to settle civil claims

between American citizens and foreign governments or foreign na­

tionals. They are based on the view that “a systematic, unbroken,

executive practice, long pursued to the knowledge of the Congress

and never before questioned,” can “raise a presumption that the [ac­

tion] had been [taken] in pursuance of its consent.” Dames & Moore

v. Regan, 453 U. S. 654, 668. But “[p]ast practice does not, by itself,

create power.” Ibid. The President’s Memorandum—a directive is­

sued to state courts that would compel those courts to reopen final

criminal judgments and set aside neutrally applicable state laws—is

not supported by a “particularly longstanding practice.” The Execu­

tive’s limited authority to settle international claims disputes pursu­

ant to an executive agreement cannot stretch so far. Pp. 35–37.

(iii) Medellín’s argument that the President’s Memorandum is

a valid exercise of his power to “Take Care” that the laws be faith­

fully executed, U. S. Const., Art. II, §3, fails because the ICJ’s deci­

sion in Avena is not domestic law. P. 37.

223 S. W. 3d 315, affirmed.

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,

KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed an opinion

concurring in the judgment. BREYER, J., filed a dissenting opinion, in

which SOUTER and GINSBURG, JJ., joined.

Cite as: 552 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–984

_________________

JOSE ERNESTO MEDELLIN, PETITIONER v. TEXAS

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

[March 25, 2008]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court.

The International Court of Justice (ICJ), located in the

Hague, is a tribunal established pursuant to the United

Nations Charter to adjudicate disputes between member

states. In the Case Concerning Avena and Other Mexican

Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Judgment of

Mar. 31) (Avena), that tribunal considered a claim brought

by Mexico against the United States. The ICJ held that,

based on violations of the Vienna Convention, 51 named

Mexican nationals were entitled to review and reconsid­

eration of their state-court convictions and sentences in

the United States. This was so regardless of any forfeiture

of the right to raise Vienna Convention claims because of a

failure to comply with generally applicable state rules

governing challenges to criminal convictions.

In Sanchez-Llamas v. Oregon, 548 U. S. 331 (2006)—

issued after Avena but involving individuals who were not

named in the Avena judgment—we held that, contrary to

the ICJ’s determination, the Vienna Convention did not

preclude the application of state default rules. After the

Avena decision, President George W. Bush determined,

2 MEDELLIN v. TEXAS

Opinion of the Court

through a Memorandum to the Attorney General (Feb. 28,

2005), App. to Pet. for Cert. 187a (Memorandum or Presi­

dent’s Memorandum), that the United States would “dis­

charge its international obligations” under Avena “by

having State courts give effect to the decision.”

Petitioner José Ernesto Medellín, who had been con­

victed and sentenced in Texas state court for murder, is

one of the 51 Mexican nationals named in the Avena deci­

sion. Relying on the ICJ’s decision and the President’s

Memorandum, Medellín filed an application for a writ of

habeas corpus in state court. The Texas Court of Criminal

Appeals dismissed Medellín’s application as an abuse of

the writ under state law, given Medellín’s failure to raise

his Vienna Convention claim in a timely manner under

state law. We granted certiorari to decide two questions.

First, is the ICJ’s judgment in Avena directly enforceable

as domestic law in a state court in the United States?

Second, does the President’s Memorandum independently

require the States to provide review and reconsideration of

the claims of the 51 Mexican nationals named in Avena

without regard to state procedural default rules? We

conclude that neither Avena nor the President’s Memo­

randum constitutes directly enforceable federal law that

pre-empts state limitations on the filing of successive

habeas petitions. We therefore affirm the decision below.

I

A

In 1969, the United States, upon the advice and consent

of the Senate, ratified the Vienna Convention on Consular

Relations (Vienna Convention or Convention), Apr. 24,

1963, [1970] 21 U. S. T. 77, T. I. A. S. No. 6820, and the

Optional Protocol Concerning the Compulsory Settlement

of Disputes to the Vienna Convention (Optional Protocol or

Protocol), Apr. 24, 1963, [1970] 21 U. S. T. 325, T. I. A. S.

No. 6820. The preamble to the Convention provides that

Cite as: 552 U. S. ____ (2008) 3

Opinion of the Court

its purpose is to “contribute to the development of friendly

relations among nations.” 21 U. S. T., at 79; Sanchez-

Llamas, supra, at 337. Toward that end, Article 36 of the

Convention was drafted to “facilitat[e] the exercise of

consular functions.” Art. 36(1), 21 U. S. T., at 100. It

provides that if a person detained by a foreign country “so

requests, the competent authorities of the receiving State

shall, without delay, inform the consular post of the send­

ing State” of such detention, and “inform the [detainee] of

his righ[t]” to request assistance from the consul of his

own state. Art. 36(1)(b), id., at 101.

The Optional Protocol provides a venue for the resolu­

tion of disputes arising out of the interpretation or appli­

cation of the Vienna Convention. Art. I, 21 U. S. T., at

326. Under the Protocol, such disputes “shall lie within

the compulsory jurisdiction of the International Court of

Justice” and “may accordingly be brought before the [ICJ]

. . . by any party to the dispute being a Party to the pre­

sent Protocol.” Ibid.

The ICJ is “the principal judicial organ of the United

Nations.” United Nations Charter, Art. 92, 59 Stat. 1051,

T. S. No. 993 (1945). It was established in 1945 pursuant

to the United Nations Charter. The ICJ Statute—annexed

to the U. N. Charter—provides the organizational frame­

work and governing procedures for cases brought before

the ICJ. Statute of the International Court of Justice (ICJ

Statute), 59 Stat. 1055, T. S. No. 993 (1945).

Under Article 94(1) of the U. N. Charter, “[e]ach Mem­

ber of the United Nations undertakes to comply with the

decision of the [ICJ] in any case to which it is a party.” 59

Stat. 1051. The ICJ’s jurisdiction in any particular case,

however, is dependent upon the consent of the parties.

See Art. 36, 59 Stat. 1060. The ICJ Statute delineates two

ways in which a nation may consent to ICJ jurisdiction: It

may consent generally to jurisdiction on any question

arising under a treaty or general international law, Art.

4 MEDELLIN v. TEXAS

Opinion of the Court

36(2), ibid., or it may consent specifically to jurisdiction

over a particular category of cases or disputes pursuant to

a separate treaty, Art. 36(1), ibid. The United States

originally consented to the general jurisdiction of the ICJ

when it filed a declaration recognizing compulsory juris­

diction under Art. 36(2) in 1946. The United States with­

drew from general ICJ jurisdiction in 1985. See U. S.

Dept. of State Letter and Statement Concerning Termina­

tion of Acceptance of ICJ Compulsory Jurisdiction (Oct. 7,

1985), reprinted in 24 I. L. M. 1742 (1985). By ratifying

the Optional Protocol to the Vienna Convention, the

United States consented to the specific jurisdiction of the

ICJ with respect to claims arising out of the Vienna Con­

vention. On March 7, 2005, subsequent to the ICJ’s judg­

ment in Avena, the United States gave notice of with­

drawal from the Optional Protocol to the Vienna

Convention. Letter from Condoleezza Rice, Secretary of

State, to Kofi A. Annan, Secretary-General of the United

Nations.

B

Petitioner José Ernesto Medellín, a Mexican national,

has lived in the United States since preschool. A member

of the “Black and Whites” gang, Medellín was convicted of

capital murder and sentenced to death in Texas for the

gang rape and brutal murders of two Houston teenagers.

On June 24, 1993, 14-year-old Jennifer Ertman and 16­

year-old Elizabeth Pena were walking home when they

encountered Medellín and several fellow gang members.

Medellín attempted to engage Elizabeth in conversation.

When she tried to run, petitioner threw her to the ground.

Jennifer was grabbed by other gang members when she, in

response to her friend’s cries, ran back to help. The gang

members raped both girls for over an hour. Then, to pre­

vent their victims from identifying them, Medellín and his

fellow gang members murdered the girls and discarded

Cite as: 552 U. S. ____ (2008) 5

Opinion of the Court

their bodies in a wooded area. Medellín was personally

responsible for strangling at least one of the girls with her

own shoelace.

Medellín was arrested at approximately 4 a.m. on June

29, 1993. A few hours later, between 5:54 and 7:23 a.m.,

Medellín was given Miranda warnings; he then signed a

written waiver and gave a detailed written confession.

App. to Brief for Respondent 32–36. Local law enforce­

ment officers did not, however, inform Medellín of his

Vienna Convention right to notify the Mexican consulate

of his detention. Brief for Petitioner 6–7. Medellín was

convicted of capital murder and sentenced to death; his

conviction and sentence were affirmed on appeal. Medel­

lín v. State, No. 71,997 (Tex. Crim. App., May 16, 1997),

App. to Brief for Respondent 2–31.

Medellín first raised his Vienna Convention claim in his

first application for state postconviction relief. The state

trial court held that the claim was procedurally defaulted

because Medellín had failed to raise it at trial or on direct

review. The trial court also rejected the Vienna Conven­

tion claim on the merits, finding that Medellín had

“fail[ed] to show that any non-notification of the Mexican

authorities impacted on the validity of his conviction or

punishment.” Id., at 62.1 The Texas Court of Criminal

——————

1 The requirement of Article 36(1)(b) of the Vienna Convention that

the detaining state notify the detainee’s consulate “without delay” is

satisfied, according to the ICJ, where notice is provided within three

working days. Avena, 2004 I. C. J. 12, 52, ¶97 (Judgment of Mar. 31).

See Sanchez-Llamas v. Oregon, 548 U. S. 331, 362 (2006) (GINSBURG, J.,

concurring in judgment). Here, Medellín confessed within three hours

of his arrest—before there could be a violation of his Vienna Convention

right to consulate notification. App. to Brief for Respondent 32–36. In

a second state habeas application, Medellín sought to expand his claim

of prejudice by contending that the State’s noncompliance with the

Vienna Convention deprived him of assistance in developing mitigation

evidence during the capital phase of his trial. This argument, however,

was likely waived: Medellín had the assistance of consulate counsel

6 MEDELLIN v. TEXAS

Opinion of the Court

Appeals affirmed. Id., at 64–65.

Medellín then filed a habeas petition in Federal District

Court. The District Court denied relief, holding that

Medellín’s Vienna Convention claim was procedurally

defaulted and that Medellín had failed to show prejudice

arising from the Vienna Convention violation. See

Medellín v. Cockrell, Civ. Action No. H–01–4078 (SD Tex.,

June 26, 2003), App. to Brief for Respondent 86–92.

While Medellín’s application for a certificate of appeal­

ability was pending in the Fifth Circuit, the ICJ issued its

decision in Avena. The ICJ held that the United States

had violated Article 36(1)(b) of the Vienna Convention by

failing to inform the 51 named Mexican nationals, includ­

ing Medellín, of their Vienna Convention rights. 2004

I. C. J., at 53–55. In the ICJ’s determination, the United

States was obligated “to provide, by means of its own

choosing, review and reconsideration of the convictions

and sentences of the [affected] Mexican nationals.” Id., at

72. The ICJ indicated that such review was required

without regard to state procedural default rules. Id., at

56–57.

The Fifth Circuit denied a certificate of appealability.

Medellín v. Dretke, 371 F. 3d 270, 281 (2004). The court

concluded that the Vienna Convention did not confer

individually enforceable rights. Id., at 280. The court

further ruled that it was in any event bound by this

Court’s decision in Breard v. Greene, 523 U. S. 371, 375

(1998) (per curiam), which held that Vienna Convention

claims are subject to procedural default rules, rather than

by the ICJ’s contrary decision in Avena. 371 F. 3d, at 280.

——————

during the preparation of his first application for state postconviction

relief, yet failed to raise this argument at that time. See Application

for Writ of Habeas Corpus in Ex parte Medellín, No. 675430–A (Tex.

Crim. App.), pp. 25–31. In light of our disposition of this case, we need

not consider whether Medellín was prejudiced in any way by the

violation of his Vienna Convention rights.

Cite as: 552 U. S. ____ (2008) 7

Opinion of the Court

This Court granted certiorari. Medellín v. Dretke, 544

U. S. 660, 661 (2005) (per curiam) (Medellín I). Before we

heard oral argument, however, President George W. Bush

issued his Memorandum to the United States Attorney

General, providing:

I have determined, pursuant to the authority vested

in me as President by the Constitution and the laws of

the United States of America, that the United States

will discharge its international obligations under the

decision of the International Court of Justice in

[Avena], by having State courts give effect to the deci­

sion in accordance with general principles of comity in

cases filed by the 51 Mexican nationals addressed in

that decision. App. to Pet. for Cert. 187a.

Medellín, relying on the President’s Memorandum and

the ICJ’s decision in Avena, filed a second application for

habeas relief in state court. Ex parte Medellín, 223 S. W.

3d 315, 322–323 (Tex. Crim. App. 2006). Because the

state-court proceedings might have provided Medellín

with the review and reconsideration he requested, and

because his claim for federal relief might otherwise have

been barred, we dismissed his petition for certiorari as

improvidently granted. Medellín I, supra, at 664.

The Texas Court of Criminal Appeals subsequently

dismissed Medellín’s second state habeas application as an

abuse of the writ. 223 S. W. 3d, at 352. In the court’s

view, neither the Avena decision nor the President’s

Memorandum was “binding federal law” that could dis­

place the State’s limitations on the filing of successive

habeas applications. Ibid. We again granted certiorari.

550 U. S. ___ (2007).

II

Medellín first contends that the ICJ’s judgment in

Avena constitutes a “binding” obligation on the state and

8 MEDELLIN v. TEXAS

Opinion of the Court

federal courts of the United States. He argues that “by

virtue of the Supremacy Clause, the treaties requiring

compliance with the Avena judgment are already the ‘Law

of the Land’ by which all state and federal courts in this

country are ‘bound.’ ” Reply Brief for Petitioner 1. Accord­

ingly, Medellín argues, Avena is a binding federal rule of

decision that pre-empts contrary state limitations on

successive habeas petitions.

No one disputes that the Avena decision—a decision

that flows from the treaties through which the United

States submitted to ICJ jurisdiction with respect to Vi­

enna Convention disputes—constitutes an international

law obligation on the part of the United States. But not

all international law obligations automatically constitute

binding federal law enforceable in United States courts.

The question we confront here is whether the Avena

judgment has automatic domestic legal effect such that the

judgment of its own force applies in state and federal

courts.

This Court has long recognized the distinction between

treaties that automatically have effect as domestic law,

and those that—while they constitute international law

commitments—do not by themselves function as binding

federal law. The distinction was well explained by Chief

Justice Marshall’s opinion in Foster v. Neilson, 2 Pet. 253,

315 (1829), overruled on other grounds, United States v.

Percheman, 7 Pet. 51 (1833), which held that a treaty is

“equivalent to an act of the legislature,” and hence self-

executing, when it “operates of itself without the aid of

any legislative provision.” Foster, supra, at 314. When, in

contrast, “[treaty] stipulations are not self-executing they

can only be enforced pursuant to legislation to carry them

into effect.” Whitney v. Robertson, 124 U. S. 190, 194

(1888). In sum, while treaties “may comprise interna­

tional commitments . . . they are not domestic law unless

Congress has either enacted implementing statutes or the

Cite as: 552 U. S. ____ (2008) 9

Opinion of the Court

treaty itself conveys an intention that it be ‘self-executing’

and is ratified on these terms.” Igartúa-De La Rosa v.

United States, 417 F. 3d 145, 150 (CA1 2005) (en banc)

(Boudin, C. J.).2

A treaty is, of course, “primarily a compact between

independent nations.” Head Money Cases, 112 U. S. 580,

598 (1884). It ordinarily “depends for the enforcement of

its provisions on the interest and the honor of the govern­

ments which are parties to it.” Ibid.; see also The Federal­

ist No. 33, p. 207 (J. Cooke ed. 1961) (A. Hamilton) (com­

paring laws that individuals are “bound to observe” as “the

supreme law of the land” with “a mere treaty, dependent

on the good faith of the parties”). “If these [interests] fail,

its infraction becomes the subject of international negotia­

tions and reclamations . . . . It is obvious that with all this

the judicial courts have nothing to do and can give no

redress.” Head Money Cases, supra, at 598. Only “[i]f the

treaty contains stipulations which are self-executing, that

is, require no legislation to make them operative, [will]

they have the force and effect of a legislative enactment.”

Whitney, supra, at 194.3

——————

2 The label “self-executing” has on occasion been used to convey dif­

ferent meanings. What we mean by “self-executing” is that the treaty

has automatic domestic effect as federal law upon ratification. Con­

versely, a “non-self-executing” treaty does not by itself give rise to

domestically enforceable federal law. Whether such a treaty has

domestic effect depends upon implementing legislation passed by

Congress.

3 Even when treaties are self-executing in the sense that they create

federal law, the background presumption is that “[i]nternational

agreements, even those directly benefiting private persons, generally do

not create private rights or provide for a private cause of action in

domestic courts.” 2 Restatement (Third) of Foreign Relations Law of

the United States §907, Comment a, p. 395 (1986) (hereinafter Re­

statement). Accordingly, a number of the Courts of Appeals have

presumed that treaties do not create privately enforceable rights in the

absence of express language to the contrary. See, e.g., United States v.

Emuegbunam, 268 F. 3d 377, 389 (CA6 2001); United States v. Jimenez­

10 MEDELLIN v. TEXAS

Opinion of the Court

Medellín and his amici nonetheless contend that the

Optional Protocol, United Nations Charter, and ICJ Stat­

ute supply the “relevant obligation” to give the Avena

judgment binding effect in the domestic courts of the

United States. Reply Brief for Petitioner 5–6.4 Because

none of these treaty sources creates binding federal law in

the absence of implementing legislation, and because it is

uncontested that no such legislation exists, we conclude

that the Avena judgment is not automatically binding

domestic law.

A

The interpretation of a treaty, like the interpretation of

a statute, begins with its text. Air France v. Saks, 470

U. S. 392, 396–397 (1985). Because a treaty ratified by

the United States is “an agreement among sovereign

powers,” we have also considered as “aids to its interpreta­

tion” the negotiation and drafting history of the treaty as

well as “the postratification understanding” of signatory

nations. Zicherman v. Korean Air Lines Co., 516 U. S.

217, 226 (1996); see also United States v. Stuart, 489 U. S.

353, 365–366 (1989); Choctaw Nation v. United States, 318

——————

Nava, 243 F. 3d 192, 195 (CA5 2001); United States v. Li, 206 F. 3d 56,

60–61 (CA1 2000) (en banc); Goldstar (Panama) S. A. v. United States,

967 F. 2d 965, 968 (CA4 1992); Canadian Transp. Co. v. United States,

663 F. 2d 1081, 1092 (CADC 1980); Mannington Mills, Inc. v. Congo­

leum Corp., 595 F. 2d 1287, 1298 (CA3 1979).

4 The question is whether the Avena judgment has binding effect in

domestic courts under the Optional Protocol, ICJ Statute, and U. N.

Charter. Consequently, it is unnecessary to resolve whether the

Vienna Convention is itself “self-executing” or whether it grants

Medellín individually enforceable rights. See Reply Brief for Petitioner

5 (disclaiming reliance on the Vienna Convention). As in Sanchez-

Llamas, 548 U. S., at 342–343, we thus assume, without deciding, that

Article 36 grants foreign nationals “an individually enforceable right to

request that their consular officers be notified of their detention, and an

accompanying right to be informed by authorities of the availability of

consular notification.”

Cite as: 552 U. S. ____ (2008) 11

Opinion of the Court

U. S. 423, 431–432 (1943).

As a signatory to the Optional Protocol, the United

States agreed to submit disputes arising out of the Vienna

Convention to the ICJ. The Protocol provides: “Disputes

arising out of the interpretation or application of the

[Vienna] Convention shall lie within the compulsory juris­

diction of the International Court of Justice.” Art. I, 21

U. S. T., at 326. Of course, submitting to jurisdiction and

agreeing to be bound are two different things. A party

could, for example, agree to compulsory nonbinding arbi­

tration. Such an agreement would require the party to

appear before the arbitral tribunal without obligating the

party to treat the tribunal’s decision as binding. See, e.g.,

North American Free Trade Agreement, U. S.-Can.-Mex.,

Art. 2018(1), Dec. 17, 1992, 32 I. L. M. 605, 697 (1993)

(“On receipt of the final report of [the arbitral panel re­

quested by a Party to the agreement], the disputing Par­

ties shall agree on the resolution of the dispute, which

normally shall conform with the determinations and rec­

ommendations of the panel”).

The most natural reading of the Optional Protocol is as

a bare grant of jurisdiction. It provides only that

“[d]isputes arising out of the interpretation or application

of the [Vienna] Convention shall lie within the compulsory

jurisdiction of the International Court of Justice” and

“may accordingly be brought before the [ICJ] . . . by any

party to the dispute being a Party to the present Protocol.”

Art. I, 21 U. S. T., at 326. The Protocol says nothing about

the effect of an ICJ decision and does not itself commit

signatories to comply with an ICJ judgment. The Protocol

is similarly silent as to any enforcement mechanism.

The obligation on the part of signatory nations to comply

with ICJ judgments derives not from the Optional Proto­

col, but rather from Article 94 of the United Nations Char-

ter—the provision that specifically addresses the effect of

ICJ decisions. Article 94(1) provides that “[e]ach Member

12 MEDELLIN v. TEXAS

Opinion of the Court

of the United Nations undertakes to comply with the deci­

sion of the [ICJ] in any case to which it is a party.” 59

Stat. 1051 (emphasis added). The Executive Branch

contends that the phrase “undertakes to comply” is not “an

acknowledgement that an ICJ decision will have immedi­

ate legal effect in the courts of U. N. members,” but rather

“a commitment on the part of U. N. Members to take

future action through their political branches to comply

with an ICJ decision.” Brief for United States as Amicus

Curiae in Medellín I, O. T. 2004, No. 04–5928, p. 34.

We agree with this construction of Article 94. The

Article is not a directive to domestic courts. It does not

provide that the United States “shall” or “must” comply

with an ICJ decision, nor indicate that the Senate that

ratified the U. N. Charter intended to vest ICJ decisions

with immediate legal effect in domestic courts. Instead,

“[t]he words of Article 94 . . . call upon governments to

take certain action.” Committee of United States Citizens

Living in Nicaragua v. Reagan, 859 F. 2d 929, 938 (CADC

1988) (quoting Diggs v. Richardson, 555 F. 2d 848, 851

(CADC 1976); internal quotation marks omitted). See also

Foster, 2 Pet., at 314, 315 (holding a treaty non-self­

executing because its text—“ ‘all . . . grants of land . . .

shall be ratified and confirmed’ ”—did not “act directly on

the grants” but rather “pledge[d] the faith of the United

States to pass acts which shall ratify and confirm them”).

In other words, the U. N. Charter reads like “a compact

between independent nations” that “depends for the en­

forcement of its provisions on the interest and the honor of

the governments which are parties to it.” Head Money

Cases, 112 U. S., at 598.5

——————

5 We do not read “undertakes” to mean that “ ‘ “[t]he United States . . .

shall be at liberty to make respecting th[e] matter, such laws as they

think proper.” ’ ” Post, at 17–18 (BREYER, J., dissenting) (quoting Todok

v. Union State Bank of Harvard, 281 U. S. 449, 453, 454 (1930) (holding

that a treaty with Norway did not “operat[e] to override the law of

Cite as: 552 U. S. ____ (2008) 13

Opinion of the Court

The remainder of Article 94 confirms that the U. N.

Charter does not contemplate the automatic enforceability

of ICJ decisions in domestic courts.6 Article 94(2)—the

enforcement provision—provides the sole remedy for

noncompliance: referral to the United Nations Security

Council by an aggrieved state. 59 Stat. 1051.

The U. N. Charter’s provision of an express diplomatic—

that is, nonjudicial—remedy is itself evidence that ICJ

judgments were not meant to be enforceable in domestic

courts. See Sanchez-Llamas, 548 U. S., at 347. And even

this “quintessentially international remed[y],” id., at 355,

is not absolute. First, the Security Council must “dee[m]

necessary” the issuance of a recommendation or measure

to effectuate the judgment. Art. 94(2), 59 Stat. 1051.

Second, as the President and Senate were undoubtedly

aware in subscribing to the U. N. Charter and Optional

Protocol, the United States retained the unqualified right

to exercise its veto of any Security Council resolution.

This was the understanding of the Executive Branch

when the President agreed to the U. N. Charter and the

declaration accepting general compulsory ICJ jurisdiction.

——————

[Nebraska] as to the disposition of homestead property”)). Whether or

not the United States “undertakes” to comply with a treaty says noth­

ing about what laws it may enact. The United States is always “at

liberty to make . . . such laws as [it] think[s] proper.” Id., at 453.

Indeed, a later-in-time federal statute supersedes inconsistent treaty

provisions. See, e.g., Cook v. United States, 288 U. S. 102, 119–120

(1933). Rather, the “undertakes to comply” language confirms that

further action to give effect to an ICJ judgment was contemplated,

contrary to the dissent’s position that such judgments constitute

directly enforceable federal law, without more. See also post, at 1–3

(STEVENS, J., concurring in judgment).

6 Article 94(2) provides in full: “If any party to a case fails to perform

the obligations incumbent upon it under a judgment rendered by the

Court, the other party may have recourse to the Security Council,

which may, if it deems necessary, make recommendations or decide

upon measures to be taken to give effect to the judgment.” 59 Stat.

1051.

14 MEDELLIN v. TEXAS

Opinion of the Court

See, e.g., The Charter of the United Nations for the Main­

tenance of International Peace and Security: Hearings

before the Senate Committee on Foreign Relations, 79th

Cong., 1st Sess., 124–125 (1945) (“[I]f a state fails to per­

form its obligations under a judgment of the [ICJ], the

other party may have recourse to the Security Council”);

id., at 286 (statement of Leo Paslovsky, Special Assistant

to the Secretary of State for International Organizations

and Security Affairs) (“[W]hen the Court has rendered a

judgment and one of the parties refuses to accept it, then

the dispute becomes political rather than legal. It is as a

political dispute that the matter is referred to the Security

Council”); A Resolution Proposing Acceptance of Compul­

sory Jurisdiction of International Court of Justice: Hear­

ings on S. Res. 196 before the Subcommittee of the Senate

Committee on Foreign Relations, 79th Cong., 2d Sess., 142

(1946) (statement of Charles Fahy, State Dept. Legal

Adviser) (while parties that accept ICJ jurisdiction have “a

moral obligation” to comply with ICJ decisions, Article

94(2) provides the exclusive means of enforcement).

If ICJ judgments were instead regarded as automati­

cally enforceable domestic law, they would be immediately

and directly binding on state and federal courts pursuant

to the Supremacy Clause. Mexico or the ICJ would have

no need to proceed to the Security Council to enforce the

judgment in this case. Noncompliance with an ICJ judg­

ment through exercise of the Security Council veto—

always regarded as an option by the Executive and ratify­

ing Senate during and after consideration of the U. N.

Charter, Optional Protocol, and ICJ Statute—would no

longer be a viable alternative. There would be nothing to

veto. In light of the U. N. Charter’s remedial scheme,

there is no reason to believe that the President and Senate

signed up for such a result.

In sum, Medellín’s view that ICJ decisions are auto­

matically enforceable as domestic law is fatally under­

Cite as: 552 U. S. ____ (2008) 15

Opinion of the Court

mined by the enforcement structure established by Article

94. His construction would eliminate the option of non­

compliance contemplated by Article 94(2), undermining

the ability of the political branches to determine whether

and how to comply with an ICJ judgment. Those sensitive

foreign policy decisions would instead be transferred to

state and federal courts charged with applying an ICJ

judgment directly as domestic law. And those courts

would not be empowered to decide whether to comply with

the judgment—again, always regarded as an option by the

political branches—any more than courts may consider

whether to comply with any other species of domestic law.

This result would be particularly anomalous in light of the

principle that “[t]he conduct of the foreign relations of our

Government is committed by the Constitution to the Ex­

ecutive and Legislative—‘the political’—Departments.”

Oetjen v. Central Leather Co., 246 U. S. 297, 302 (1918).

The ICJ Statute, incorporated into the U. N. Charter,

provides further evidence that the ICJ’s judgment in

Avena does not automatically constitute federal law judi­

cially enforceable in United States courts. Art. 59, 59

Stat. 1062. To begin with, the ICJ’s “principal purpose” is

said to be to “arbitrate particular disputes between na­

tional governments.” Sanchez-Llamas, supra, at 355

(citing 59 Stat. 1055). Accordingly, the ICJ can hear

disputes only between nations, not individuals. Art. 34(1),

59 Stat. 1059 (“Only states [i.e., countries] may be parties

in cases before the [ICJ]”). More important, Article 59 of

the statute provides that “[t]he decision of the [ICJ] has no

binding force except between the parties and in respect of

that particular case.” Id., at 1062 (emphasis added).7 The

——————

7 Medellín alters this language in his brief to provide that the ICJ

Statute makes the Avena judgment binding “in respect of [his] particu­

lar case.” Brief for Petitioner 22 (internal quotation marks omitted).

Medellín does not and cannot have a case before the ICJ under the

terms of the ICJ Statute.

16 MEDELLIN v. TEXAS

Opinion of the Court

dissent does not explain how Medellín, an individual, can

be a party to the ICJ proceeding.

Medellín argues that because the Avena case involves

him, it is clear that he—and the 50 other Mexican nation­

als named in the Avena decision—should be regarded as

parties to the Avena judgment. Brief for Petitioner 21–22.

But cases before the ICJ are often precipitated by disputes

involving particular persons or entities, disputes that a

nation elects to take up as its own. See, e.g., Case Con­

cerning the Barcelona Traction, Light & Power Co. (Belg.

v. Spain), 1970 I. C. J. 3 (Judgment of Feb. 5) (claim

brought by Belgium on behalf of Belgian nationals and

shareholders); Case Concerning the Protection of French

Nationals and Protected Persons in Egypt (Fr. v. Egypt),

1950 I. C. J. 59 (Order of Mar. 29) (claim brought by

France on behalf of French nationals and protected per­

sons in Egypt); Anglo-Iranian Oil Co. Case (U. K. v. Iran),

1952 I. C. J. 93, 112 (Judgment of July 22) (claim brought

by the United Kingdom on behalf of the Anglo-Iranian Oil

Company). That has never been understood to alter the

express and established rules that only nation-states may

be parties before the ICJ, Art. 34, 59 Stat. 1059, and—

contrary to the position of the dissent, post, at 23—that

ICJ judgments are binding only between those parties,

Art. 59, id., at 1062.8

——————

8 The dissent concludes that the ICJ judgment is binding federal law

based in large part on its belief that the Vienna Convention overrides

contrary state procedural rules. See post, at 19–20, 20–21, 23. But not

even Medellín relies on the Convention. See Reply Brief for Petitioner

5 (disclaiming reliance). For good reason: Such reliance is foreclosed by

the decision of this Court in Sanchez-Llamas, 548 U. S., at 351 (holding

that the Convention does not preclude the application of state proce­

dural bars); see also id., at 363 (GINSBURG, J., concurring in judgment).

There is no basis for relitigating the issue. Further, to rely on the

Convention would elide the distinction between a treaty—negotiated by

the President and signed by Congress—and a judgment rendered

pursuant to those treaties.

Cite as: 552 U. S. ____ (2008) 17

Opinion of the Court

It is, moreover, well settled that the United States’

interpretation of a treaty “is entitled to great weight.”

Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176,

184–185 (1982); see also El Al Israel Airlines, Ltd. v. Tsui

Yuan Tseng, 525 U. S. 155, 168 (1999). The Executive

Branch has unfailingly adhered to its view that the rele­

vant treaties do not create domestically enforceable fed­

eral law. See Brief for United States as Amicus Curiae 4,

27–29.9

The pertinent international agreements, therefore, do

not provide for implementation of ICJ judgments through

direct enforcement in domestic courts, and “where a treaty

does not provide a particular remedy, either expressly or

implicitly, it is not for the federal courts to impose one on

the States through lawmaking of their own.” Sanchez-

Llamas, 548 U. S., at 347.

——————

9 In interpreting our treaty obligations, we also consider the views of

the ICJ itself, “giv[ing] respectful consideration to the interpretation of

an international treaty rendered by an international court with juris­

diction to interpret [the treaty].” Breard v. Greene, 523 U. S. 371, 375

(1998) (per curiam); see Sanchez-Llamas, supra, at 355–356. It is not

clear whether that principle would apply when the question is the

binding force of ICJ judgments themselves, rather than the substantive

scope of a treaty the ICJ must interpret in resolving disputes. Cf.

Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 805 (1985) (“[A] court

adjudicating a dispute may not be able to predetermine the res judicata

effect of its own judgment”); 18 C. Wright, A. Miller, & E. Cooper,

Federal Practice and Procedure §4405, p. 82 (2d ed. 2002) (“The first

court does not get to dictate to other courts the preclusion consequences

of its own judgment”). In any event, nothing suggests that the ICJ

views its judgments as automatically enforceable in the domestic courts

of signatory nations. The Avena judgment itself directs the United

States to provide review and reconsideration of the affected convictions

and sentences “by means of its own choosing.” 2004 I. C. J., at 72

(emphasis added). This language, as well as the ICJ’s mere suggestion

that the “judicial process” is best suited to provide such review, id., at

65–66, confirm that domestic enforceability in court is not part and

parcel of an ICJ judgment.

18 MEDELLIN v. TEXAS

Opinion of the Court

B

The dissent faults our analysis because it “looks for the

wrong thing (explicit textual expression about self-

execution) using the wrong standard (clarity) in the wrong

place (the treaty language).” Post, at 26. Given our obli­

gation to interpret treaty provisions to determine whether

they are self-executing, we have to confess that we do

think it rather important to look to the treaty language to

see what it has to say about the issue. That is after all

what the Senate looks to in deciding whether to approve

the treaty.

The interpretive approach employed by the Court to­

day—resorting to the text—is hardly novel. In two early

cases involving an 1819 land-grant treaty between Spain

and the United States, Chief Justice Marshall found the

language of the treaty dispositive. In Foster, after distin­

guishing between self-executing treaties (those “equiva­

lent to an act of the legislature”) and non-self-executing

treaties (those “the legislature must execute”), Chief Jus­

tice Marshall held that the 1819 treaty was non-self­

executing. 2 Pet., at 314. Four years later, the Supreme

Court considered another claim under the same treaty,

but concluded that the treaty was self-executing. See

Percheman, 7 Pet., at 87. The reason was not because the

treaty was sometimes self-executing and sometimes not,

but because “the language of” the Spanish translation

(brought to the Court’s attention for the first time) indi­

cated the parties’ intent to ratify and confirm the land-

grant “by force of the instrument itself.” Id., at 89.

As against this time-honored textual approach, the

dissent proposes a multifactor, judgment-by-judgment

analysis that would “jettiso[n] relative predictability for

the open-ended rough-and-tumble of factors.” Jerome B.

Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S.

527, 547 (1995). The dissent’s novel approach to deciding

which (or, more accurately, when) treaties give rise to

Cite as: 552 U. S. ____ (2008) 19

Opinion of the Court

directly enforceable federal law is arrestingly indetermi­

nate. Treaty language is barely probative. Post, at 12–13

(“[T]he absence or presence of language in a treaty about a

provision’s self-execution proves nothing at all”). Deter­

mining whether treaties themselves create federal law is

sometimes committed to the political branches and some­

times to the judiciary. Post, at 13. Of those committed to

the judiciary, the courts pick and choose which shall be

binding United States law—trumping not only state but

other federal law as well—and which shall not. Post, at

13–27. They do this on the basis of a multifactor, “context-

specific” inquiry. Post, at 13. Even then, the same treaty

sometimes gives rise to United States law and sometimes

does not, again depending on an ad hoc judicial assess­

ment. Post, at 13–27.

Our Framers established a careful set of procedures that

must be followed before federal law can be created under

the Constitution—vesting that decision in the political

branches, subject to checks and balances. U. S. Const.,

Art. I, §7. They also recognized that treaties could create

federal law, but again through the political branches, with

the President making the treaty and the Senate approving

it. Art. II, §2. The dissent’s understanding of the treaty

route, depending on an ad hoc judgment of the judiciary

without looking to the treaty language—the very language

negotiated by the President and approved by the Senate—

cannot readily be ascribed to those same Framers.

The dissent’s approach risks the United States’ in­

volvement in international agreements. It is hard to

believe that the United States would enter into treaties

that are sometimes enforceable and sometimes not. Such

a treaty would be the equivalent of writing a blank check

to the judiciary. Senators could never be quite sure what

the treaties on which they were voting meant. Only a

judge could say for sure and only at some future date.

This uncertainty could hobble the United States’ efforts to

20 MEDELLIN v. TEXAS

Opinion of the Court

negotiate and sign international agreements.

In this case, the dissent—for a grab bag of no less than

seven reasons—would tell us that this particular ICJ

judgment is federal law. Post, at 13–27. That is no sort of

guidance. Nor is it any answer to say that the federal

courts will diligently police international agreements and

enforce the decisions of international tribunals only when

they should be enforced. Ibid. The point of a non-self­

executing treaty is that it “addresses itself to the political,

not the judicial department; and the legislature must

execute the contract before it can become a rule for the

Court.” Foster, supra, at 314 (emphasis added); Whitney,

124 U. S., at 195. See also Foster, supra, at 307 (“The

judiciary is not that department of the government, to

which the assertion of its interests against foreign powers

is confided”). The dissent’s contrary approach would

assign to the courts—not the political branches—the

primary role in deciding when and how international

agreements will be enforced. To read a treaty so that it

sometimes has the effect of domestic law and sometimes

does not is tantamount to vesting with the judiciary the

power not only to interpret but also to create the law.

C

Our conclusion that Avena does not by itself constitute

binding federal law is confirmed by the “postratification

understanding” of signatory nations. See Zicherman, 516

U. S., at 226. There are currently 47 nations that are

parties to the Optional Protocol and 171 nations that are

parties to the Vienna Convention. Yet neither Medellín

nor his amici have identified a single nation that treats

ICJ judgments as binding in domestic courts.10 In deter­

——————

10 Thebest that the ICJ experts as amici curiae can come up with is

the contention that local Moroccan courts have referred to ICJ judg­

ments as “dispositive.” Brief for ICJ Experts as Amici Curiae 20, n. 31.

Even the ICJ experts do not cite a case so holding, and Moroccan

Cite as: 552 U. S. ____ (2008) 21

Opinion of the Court

mining that the Vienna Convention did not require certain

relief in United States courts in Sanchez-Llamas, we

found it pertinent that the requested relief would not be

available under the treaty in any other signatory country.

See 548 U. S., at 343–344, and n. 3. So too here the lack of

any basis for supposing that any other country would treat

ICJ judgments as directly enforceable as a matter of its

domestic law strongly suggests that the treaty should not

be so viewed in our courts.

Our conclusion is further supported by general princi­

ples of interpretation. To begin with, we reiterated in

Sanchez-Llamas what we held in Breard, that “ ‘absent a

clear and express statement to the contrary, the proce­

dural rules of the forum State govern the implementation

of the treaty in that State.’ ” 548 U. S., at 351 (quoting

Breard, 523 U. S., at 375). Given that ICJ judgments may

interfere with state procedural rules, one would expect the

ratifying parties to the relevant treaties to have clearly

stated their intent to give those judgments domestic effect,

if they had so intended. Here there is no statement in the

Optional Protocol, the U. N. Charter, or the ICJ Statute

that supports the notion that ICJ judgments displace state

procedural rules.

Moreover, the consequences of Medellín’s argument give

pause. An ICJ judgment, the argument goes, is not only

binding domestic law but is also unassailable. As a result,

neither Texas nor this Court may look behind a judgment

——————

practice is at best inconsistent, for at least one local Moroccan court has

held that ICJ judgments are not binding as a matter of municipal law.

See, e.g., Mackay Radio & Tel. Co. v. Lal-La Fatma Bent si Mohamed el

Khadar, [1954] 21 Int’l L. Rep. 136 (Tangier, Ct. App. Int’l Trib.)

(holding that ICJ decisions are not binding on Morocco’s domestic

courts); see also “Socobel” v. Greek State, [1951] 18 Int’l L. Rep. 3 (Belg.,

Trib. Civ. de Bruxelles) (holding that judgments of the ICJ’s predeces­

sor, the Permanent Court of International Justice, were not domesti­

cally enforceable).

22 MEDELLIN v. TEXAS

Opinion of the Court

and quarrel with its reasoning or result. (We already

know, from Sanchez-Llamas, that this Court disagrees

with both the reasoning and result in Avena.) Medellín’s

interpretation would allow ICJ judgments to override

otherwise binding state law; there is nothing in his logic

that would exempt contrary federal law from the same

fate. See, e.g., Cook v. United States, 288 U. S. 102, 119

(1933) (later-in-time self-executing treaty supersedes a

federal statute if there is a conflict). And there is nothing

to prevent the ICJ from ordering state courts to annul

criminal convictions and sentences, for any reason deemed

sufficient by the ICJ. Indeed, that is precisely the relief

Mexico requested. Avena, 2004 I. C. J., at 58–59.

Even the dissent flinches at reading the relevant trea­

ties to give rise to self-executing ICJ judgments in all

cases. It admits that “Congress is unlikely to authorize

automatic judicial enforceability of all ICJ judgments, for

that could include some politically sensitive judgments

and others better suited for enforcement by other

branches.” Post, at 24. Our point precisely. But the

lesson to draw from that insight is hardly that the judici­

ary should decide which judgments are politically sensi­

tive and which are not.

In short, and as we observed in Sanchez-Llamas,

“[n]othing in the structure or purpose of the ICJ suggests

that its interpretations were intended to be conclusive on

our courts.” 548 U. S., at 354. Given that holding, it is

difficult to see how that same structure and purpose can

establish, as Medellín argues, that judgments of the ICJ

nonetheless were intended to be conclusive on our courts.

A judgment is binding only if there is a rule of law that

makes it so. And the question whether ICJ judgments can

bind domestic courts depends upon the same analysis

undertaken in Sanchez-Llamas and set forth above.

Our prior decisions identified by the dissent as holding a

number of treaties to be self-executing, see post, at 8–9,

Cite as: 552 U. S. ____ (2008) 23

Opinion of the Court

Appendix A, stand only for the unremarkable proposition

that some international agreements are self-executing and

others are not. It is well settled that the “[i]nterpretation

of [a treaty] . . . must, of course, begin with the language of

the Treaty itself.” Sumitomo Shoji America, Inc., 457

U. S., at 180. As a result, we have held treaties to be self-

executing when the textual provisions indicate that the

President and Senate intended for the agreement to have

domestic effect.

Medellín and the dissent cite Comegys v. Vasse, 1 Pet.

193 (1828), for the proposition that the judgments of in­

ternational tribunals are automatically binding on domes­

tic courts. See post, at 9; Reply Brief for Petitioner 2; Brief

for Petitioner 19–20. That case, of course, involved a

different treaty than the ones at issue here; it stands only

for the modest principle that the terms of a treaty control

the outcome of a case.11 We do not suggest that treaties

can never afford binding domestic effect to international

tribunal judgments—only that the U. N. Charter, the

Optional Protocol, and the ICJ Statute do not do so. And

whether the treaties underlying a judgment are self-

executing so that the judgment is directly enforceable as

domestic law in our courts is, of course, a matter for this

Court to decide. See Sanchez-Llamas, supra, at 353–354.

——————

11 The other case Medellín cites for the proposition that the judg­

ments of international courts are binding, La Abra Silver Mining Co. v.

United States, 175 U. S. 423 (1899), and the cases he cites for the

proposition that this Court has routinely enforced treaties under which

foreign nationals have asserted rights, similarly stand only for the

principle that the terms of a treaty govern its enforcement. See Reply

Brief for Petitioner 4, 5, n. 2. In each case, this Court first interpreted

the treaty prior to finding it domestically enforceable. See, e.g., United

States v. Rauscher, 119 U. S. 407, 422–423 (1886) (holding that the

treaty required extradition only for specified offenses); Hopkirk v. Bell,

3 Cranch 454, 458 (1806) (holding that the treaty of peace between

Great Britain and the United States prevented the operation of a state

statute of limitations on British debts).

24 MEDELLIN v. TEXAS

Opinion of the Court

D

Our holding does not call into question the ordinary

enforcement of foreign judgments or international arbitral

agreements. Indeed, we agree with Medellín that, as a

general matter, “an agreement to abide by the result” of

an international adjudication—or what he really means,

an agreement to give the result of such adjudication do­

mestic legal effect—can be a treaty obligation like any

other, so long as the agreement is consistent with the

Constitution. See Brief for Petitioner 20. The point is

that the particular treaty obligations on which Medellín

relies do not of their own force create domestic law.

The dissent worries that our decision casts doubt on

some 70-odd treaties under which the United States has

agreed to submit disputes to the ICJ according to “roughly

similar” provisions. See post, at 4, 16–17. Again, under

our established precedent, some treaties are self-executing

and some are not, depending on the treaty. That the

judgment of an international tribunal might not automati­

cally become domestic law hardly means the underlying

treaty is “useless.” See post, at 17; cf. post, at 11 (describ­

ing the British system in which treaties “virtually always

requir[e] parliamentary legislation”). Such judgments

would still constitute international obligations, the proper

subject of political and diplomatic negotiations. See Head

Money Cases, 112 U. S., at 598. And Congress could elect

to give them wholesale effect (rather than the judgment­

by-judgment approach hypothesized by the dissent, post,

at 24) through implementing legislation, as it regularly

has. See, e.g., Foreign Affairs Reform and Restructuring

Act of 1998, Pub. L. 105–277, div. G, §2242, 112 Stat.

2681–822, note following 8 U. S. C. §1231 (directing the

“appropriate agencies” to “prescribe regulations to imple­

ment the obligations of the United States under Article 3”

of the Convention Against Torture and Other Forms of

Cruel, Inhuman or Degrading Treatment or Punishment);

Cite as: 552 U. S. ____ (2008) 25

Opinion of the Court

see also infra, at 25–26 (listing examples of legislation

implementing international obligations).

Further, that an ICJ judgment may not be automati­

cally enforceable in domestic courts does not mean the

particular underlying treaty is not. Indeed, we have held

that a number of the “Friendship, Commerce, and Naviga­

tion” Treaties cited by the dissent, see post, Appendix B,

are self-executing—based on “the language of the[se]

Treat[ies].” See Sumitomo Shoji America, Inc., supra, at

180, 189–190. In Kolovrat v. Oregon, 366 U. S. 187, 191,

196 (1961), for example, the Court found that Yugoslavian

claimants denied inheritance under Oregon law were

entitled to inherit personal property pursuant to an 1881

Treaty of Friendship, Navigation, and Commerce between

the United States and Serbia. See also Clark v. Allen, 331

U. S. 503, 507–511, 517–518 (1947) (finding that the right

to inherit real property granted German aliens under the

Treaty of Friendship, Commerce, and Consular Rights

with Germany prevailed over California law). Contrary to

the dissent’s suggestion, see post, at 11, neither our ap­

proach nor our cases require that a treaty provide for self-

execution in so many talismanic words; that is a carica­

ture of the Court’s opinion. Our cases simply require

courts to decide whether a treaty’s terms reflect a deter­

mination by the President who negotiated it and the Sen­

ate that confirmed it that the treaty has domestic effect.

In addition, Congress is up to the task of implementing

non-self-executing treaties, even those involving complex

commercial disputes. Cf. post, at 24 (BREYER, J., dissent­

ing). The judgments of a number of international tribu­

nals enjoy a different status because of implementing

legislation enacted by Congress. See, e.g., 22 U. S. C.

§1650a(a) (“An award of an arbitral tribunal rendered

pursuant to chapter IV of the [Convention on the Settle­

ment of Investment Disputes] shall create a right arising

under a treaty of the United States. The pecuniary obliga­

26 MEDELLIN v. TEXAS

Opinion of the Court

tions imposed by such an award shall be enforced and

shall be given the same full faith and credit as if the

award were a final judgment of a court of general jurisdic­

tion of one of the several States”); 9 U. S C. §§201–208

(“The [U. N.] Convention on the Recognition and Enforce­

ment of Foreign Arbitral Awards of June 10, 1958, shall be

enforced in United States courts in accordance with this

chapter,” §201). Such language demonstrates that Con­

gress knows how to accord domestic effect to international

obligations when it desires such a result.12

Further, Medellín frames his argument as though giving

the Avena judgment binding effect in domestic courts

simply conforms to the proposition that domestic courts

generally give effect to foreign judgments. But Medellín

does not ask us to enforce a foreign-court judgment set­

tling a typical commercial or property dispute. See, e.g.,

Hilton v. Guyot, 159 U. S. 113 (1895); United States v.

Arredondo, 6 Pet. 691 (1832); see also Uniform Foreign

Money-Judgments Recognition Act §1(2), 13 U. L. A., pt. 2,

p. 44 (2002) (“ ‘[F]oreign judgment’ means any judgment of

a foreign state granting or denying recovery of a sum of

money”). Rather, Medellín argues that the Avena judg­

ment has the effect of enjoining the operation of state law.

What is more, on Medellín’s view, the judgment would

force the State to take action to “review and reconside[r]”

——————

12 That this Court has rarely had occasion to find a treaty non-self­

executing is not all that surprising. See post, at 8 (BREYER, J., dissent­

ing). To begin with, the Courts of Appeals have regularly done so. See,

e.g., Pierre v. Gonzales, 502 F. 3d 109, 119–120 (CA2 2007) (holding

that the United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment is non-self­

executing); Singh v. Ashcroft, 398 F. 3d 396, 404, n. 3 (CA6 2005)

(same); Beazley v. Johnson, 242 F. 3d 248, 267 (CA5 2001) (holding that

the International Covenant on Civil and Political Rights is non-self­

executing). Further, as noted, Congress has not hesitated to pass

implementing legislation for treaties that in its view require such

legislation.

Cite as: 552 U. S. ____ (2008) 27

Opinion of the Court

his case. The general rule, however, is that judgments of

foreign courts awarding injunctive relief, even as to pri­

vate parties, let alone sovereign States, “are not generally

entitled to enforcement.” See 2 Restatement §481, Com­

ment b, at 595.

In sum, while the ICJ’s judgment in Avena creates an

international law obligation on the part of the United

States, it does not of its own force constitute binding fed­

eral law that pre-empts state restrictions on the filing of

successive habeas petitions. As we noted in Sanchez-

Llamas, a contrary conclusion would be extraordinary,

given that basic rights guaranteed by our own Constitu­

tion do not have the effect of displacing state procedural

rules. See 548 U. S., at 360. Nothing in the text, back­

ground, negotiating and drafting history, or practice

among signatory nations suggests that the President or

Senate intended the improbable result of giving the judg­

ments of an international tribunal a higher status than

that enjoyed by “many of our most fundamental constitu­

tional protections.” Ibid.

III

Medellín next argues that the ICJ’s judgment in Avena

is binding on state courts by virtue of the President’s

February 28, 2005 Memorandum. The United States

contends that while the Avena judgment does not of its

own force require domestic courts to set aside ordinary

rules of procedural default, that judgment became the law

of the land with precisely that effect pursuant to the

President’s Memorandum and his power “to establish

binding rules of decision that preempt contrary state law.”

Brief for United States as Amicus Curiae 5. Accordingly,

we must decide whether the President’s declaration alters

our conclusion that the Avena judgment is not a rule of

28 MEDELLIN v. TEXAS

Opinion of the Court

domestic law binding in state and federal courts.13

A

The United States maintains that the President’s con­

stitutional role “uniquely qualifies” him to resolve the

sensitive foreign policy decisions that bear on compliance

with an ICJ decision and “to do so expeditiously.” Brief for

United States as Amicus Curiae 11, 12. We do not ques­

tion these propositions. See, e.g., First Nat. City Bank v.

Banco Nacional de Cuba, 406 U. S. 759, 767 (1972) (plu­

rality opinion) (The President has “the lead role . . . in

foreign policy”); American Ins. Assn. v. Garamendi, 539

U. S. 396, 414 (2003) (Article II of the Constitution places

with the President the “ ‘vast share of responsibility for the

conduct of our foreign relations’ ” (quoting Youngstown

Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610–611 (1952)

(Frankfurter, J., concurring)). In this case, the President

seeks to vindicate United States interests in ensuring the

reciprocal observance of the Vienna Convention, protect­

ing relations with foreign governments, and demonstrat­

ing commitment to the role of international law. These

interests are plainly compelling.

Such considerations, however, do not allow us to set

aside first principles. The President’s authority to act, as

with the exercise of any governmental power, “must stem

either from an act of Congress or from the Constitution

itself.” Youngstown, supra, at 585; Dames & Moore v.

Regan, 453 U. S. 654, 668 (1981).

——————

13 The dissent refrains from deciding the issue, but finds it “difficult

to believe that in the exercise of his Article II powers pursuant to a

ratified treaty, the President can never take action that would result in

setting aside state law.” Post, at 29. We agree. The questions here are

the far more limited ones of whether he may unilaterally create federal

law by giving effect to the judgment of this international tribunal

pursuant to this non-self-executing treaty, and, if not, whether he may

rely on other authority under the Constitution to support the action

taken in this particular case. Those are the only questions we decide.

Cite as: 552 U. S. ____ (2008) 29

Opinion of the Court

Justice Jackson’s familiar tripartite scheme provides the

accepted framework for evaluating executive action in this

area. First, “[w]hen the President acts pursuant to an

express or implied authorization of Congress, his authority

is at its maximum, for it includes all that he possesses in

his own right plus all that Congress can delegate.”

Youngstown, 343 U. S., at 635 (Jackson, J., concurring).

Second, “[w]hen the President acts in absence of either a

congressional grant or denial of authority, he can only rely

upon his own independent powers, but there is a zone of

twilight in which he and Congress may have concurrent

authority, or in which its distribution is uncertain.” Id., at

637. In this circumstance, Presidential authority can

derive support from “congressional inertia, indifference or

quiescence.” Ibid. Finally, “[w]hen the President takes

measures incompatible with the expressed or implied will

of Congress, his power is at its lowest ebb,” and the Court

can sustain his actions “only by disabling the Congress

from acting upon the subject.” Id., at 637–638.

B

The United States marshals two principal arguments in

favor of the President’s authority “to establish binding

rules of decision that preempt contrary state law.” Brief

for United States as Amicus Curiae 5. The Solicitor Gen­

eral first argues that the relevant treaties give the Presi­

dent the authority to implement the Avena judgment and

that Congress has acquiesced in the exercise of such au­

thority. The United States also relies upon an “independ­

ent” international dispute-resolution power wholly apart

from the asserted authority based on the pertinent trea­

ties. Medellín adds the additional argument that the

President’s Memorandum is a valid exercise of his power

to take care that the laws be faithfully executed.

30 MEDELLIN v. TEXAS

Opinion of the Court

1

The United States maintains that the President’s

Memorandum is authorized by the Optional Protocol and

the U. N. Charter. Brief for United States as Amicus

Curiae 9. That is, because the relevant treaties “create an

obligation to comply with Avena,” they “implicitly give the

President authority to implement that treaty-based obli­

gation.” Id., at 11 (emphasis added). As a result, the

President’s Memorandum is well grounded in the first

category of the Youngstown framework.

We disagree. The President has an array of political

and diplomatic means available to enforce international

obligations, but unilaterally converting a non-self­

executing treaty into a self-executing one is not among

them. The responsibility for transforming an interna­

tional obligation arising from a non-self-executing treaty

into domestic law falls to Congress. Foster, 2 Pet., at 315;

Whitney, 124 U. S., at 194; Igartúa-De La Rosa, 417 F. 3d,

at 150. As this Court has explained, when treaty stipula­

tions are “not self-executing they can only be enforced

pursuant to legislation to carry them into effect.” Whitney,

supra, at 194. Moreover, “[u]ntil such act shall be passed,

the Court is not at liberty to disregard the existing laws on

the subject.” Foster, supra, at 315.

The requirement that Congress, rather than the Presi­

dent, implement a non-self-executing treaty derives from

the text of the Constitution, which divides the treaty-

making power between the President and the Senate. The

Constitution vests the President with the authority to

“make” a treaty. Art. II, §2. If the Executive determines

that a treaty should have domestic effect of its own force,

that determination may be implemented “in mak[ing]” the

treaty, by ensuring that it contains language plainly pro­

viding for domestic enforceability. If the treaty is to be

self-executing in this respect, the Senate must consent to

the treaty by the requisite two-thirds vote, ibid., consis­

Cite as: 552 U. S. ____ (2008) 31

Opinion of the Court

tent with all other constitutional restraints.

Once a treaty is ratified without provisions clearly

according it domestic effect, however, whether the treaty

will ever have such effect is governed by the fundamental

constitutional principle that “ ‘[t]he power to make the

necessary laws is in Congress; the power to execute in the

President.’ ” Hamdan v. Rumsfeld, 548 U. S. 557, 591

(2006) (quoting Ex parte Milligan, 4 Wall. 2, 139 (1866)

(opinion of Chase, C. J.)); see U. S. Const., Art. I, §1 (“All

legislative Powers herein granted shall be vested in a

Congress of the United States”). As already noted, the

terms of a non-self-executing treaty can become domestic

law only in the same way as any other law—through

passage of legislation by both Houses of Congress, com­

bined with either the President’s signature or a congres­

sional override of a Presidential veto. See Art. I, §7.

Indeed, “the President’s power to see that the laws are

faithfully executed refutes the idea that he is to be a law­

maker.” Youngstown, 343 U. S., at 587.

A non-self-executing treaty, by definition, is one that

was ratified with the understanding that it is not to have

domestic effect of its own force. That understanding pre­

cludes the assertion that Congress has implicitly author­

ized the President—acting on his own—to achieve pre­

cisely the same result. We therefore conclude, given the

absence of congressional legislation, that the non-self­

executing treaties at issue here did not “express[ly] or

implied[ly]” vest the President with the unilateral author­

ity to make them self-executing. See id., at 635 (Jackson,

J., concurring). Accordingly, the President’s Memorandum

does not fall within the first category of the Youngstown

framework.

Indeed, the preceding discussion should make clear that

the non-self-executing character of the relevant treaties

not only refutes the notion that the ratifying parties

vested the President with the authority to unilaterally

32 MEDELLIN v. TEXAS

Opinion of the Court

make treaty obligations binding on domestic courts, but

also implicitly prohibits him from doing so. When the

President asserts the power to “enforce” a non-self­

executing treaty by unilaterally creating domestic law, he

acts in conflict with the implicit understanding of the

ratifying Senate. His assertion of authority, insofar as it

is based on the pertinent non-self-executing treaties, is

therefore within Justice Jackson’s third category, not the

first or even the second. See id., at 637–638.

Each of the two means described above for giving do­

mestic effect to an international treaty obligation under

the Constitution—for making law—requires joint action

by the Executive and Legislative Branches: The Senate

can ratify a self-executing treaty “ma[de]” by the Execu­

tive, or, if the ratified treaty is not self-executing, Con­

gress can enact implementing legislation approved by the

President. It should not be surprising that our Constitu­

tion does not contemplate vesting such power in the Ex­

ecutive alone. As Madison explained in The Federalist No.

47, under our constitutional system of checks and bal­

ances, “[t]he magistrate in whom the whole executive

power resides cannot of himself make a law.” J. Cooke ed.,

p. 326 (1961). That would, however, seem an apt descrip­

tion of the asserted executive authority unilaterally to give

the effect of domestic law to obligations under a non-self­

executing treaty.

The United States nonetheless maintains that the

President’s Memorandum should be given effect as domes­

tic law because “this case involves a valid Presidential

action in the context of Congressional ‘acquiescence’.”

Brief for United States as Amicus Curiae 11, n. 2. Under

the Youngstown tripartite framework, congressional ac­

quiescence is pertinent when the President’s action falls

within the second category—that is, when he “acts in

absence of either a congressional grant or denial of author­

ity.” 343 U. S., at 637 (Jackson, J., concurring). Here,

Cite as: 552 U. S. ____ (2008) 33

Opinion of the Court

however, as we have explained, the President’s effort to

accord domestic effect to the Avena judgment does not

meet that prerequisite.

In any event, even if we were persuaded that congres­

sional acquiescence could support the President’s asserted

authority to create domestic law pursuant to a non-self­

executing treaty, such acquiescence does not exist here.

The United States first locates congressional acquiescence

in Congress’s failure to act following the President’s reso­

lution of prior ICJ controversies. A review of the Execu­

tive’s actions in those prior cases, however, cannot support

the claim that Congress acquiesced in this particular

exercise of Presidential authority, for none of them re­

motely involved transforming an international obligation

into domestic law and thereby displacing state law.14

——————

14 Rather, in the Case Concerning Military and Paramilitary Activi­

ties in and Against Nicaragua (Nicar. v. U. S.), 1986 I. C. J. 14 (Judg­

ment of June 27), the President determined that the United States

would not comply with the ICJ’s conclusion that the United States owed

reparations to Nicaragua. In the Case Concerning Delimitation of the

Maritime Boundary in the Gulf of Maine Area (Can. v. U. S.), 1984

I. C. J. 246 (Judgment of Oct. 12), a federal agency—the National

Oceanic and Atmospheric Administration—issued a final rule which

complied with the ICJ’s boundary determination. The Case Concerning

Rights of Nationals of the United States of America in Morocco (Fr. v.

U. S.), 1952 I. C. J. 176 (Judgment of Aug. 27), concerned the legal

status of United States citizens living in Morocco; it was not enforced in

United States courts.

The final two cases arose under the Vienna Convention. In the La-

grand Case (F. R. G. v. U. S.), 2001 I. C. J. 466 (Judgment of June 27),

the ICJ ordered the review and reconsideration of convictions and

sentences of German nationals denied consular notification. In re­

sponse, the State Department sent letters to the States “encouraging”

them to consider the Vienna Convention in the clemency process. Brief

for United States as Amicus Curiae 20–21. Such encouragement did

not give the ICJ judgment direct effect as domestic law; thus, it cannot

serve as precedent for doing so in which Congress might be said to have

acquiesced. In the Case Concerning the Vienna Convention on Consular

Relations (Para. v. U. S.), 1998 I. C. J. 248 (Judgment of Apr. 9), the

34 MEDELLIN v. TEXAS

Opinion of the Court

The United States also directs us to the President’s

“related” statutory responsibilities and to his “established

role” in litigating foreign policy concerns as support for the

President’s asserted authority to give the ICJ’s decision in

Avena the force of domestic law. Brief for United States as

Amicus Curiae 16–19. Congress has indeed authorized

the President to represent the United States before the

United Nations, the ICJ, and the Security Council, 22

U. S. C. §287, but the authority of the President to repre­

sent the United States before such bodies speaks to the

President’s international responsibilities, not any unilat­

eral authority to create domestic law. The authority

expressly conferred by Congress in the international realm

cannot be said to “invite” the Presidential action at issue

here. See Youngstown, supra, at 637 (Jackson, J., concur­

ring). At bottom, none of the sources of authority identi­

fied by the United States supports the President’s claim

that Congress has acquiesced in his asserted power to

establish on his own federal law or to override state law.

None of this is to say, however, that the combination of

a non-self-executing treaty and the lack of implementing

legislation precludes the President from acting to comply

with an international treaty obligation. It is only to say

that the Executive cannot unilaterally execute a non-self­

——————

ICJ issued a provisional order, directing the United States to “take all

measures at its disposal to ensure that [Breard] is not executed pending

the final decision in [the ICJ’s] proceedings.” Breard, 523 U. S., at 374

(internal quotation marks omitted). In response, the Secretary of State

sent a letter to the Governor of Virginia requesting that he stay

Breard’s execution. Id., at 378. When Paraguay sought a stay of

execution from this Court, the United States argued that it had taken

every measure at its disposal: because “our federal system imposes

limits on the federal government’s ability to interfere with the criminal

justice systems of the States,” those measures included “only persua­

sion,” not “legal compulsion.” Brief for United States as Amicus Curiae,

O. T. 1997, No. 97–8214, p. 51. This of course is precedent contrary to

the proposition asserted by the Solicitor General in this case.

Cite as: 552 U. S. ____ (2008) 35

Opinion of the Court

executing treaty by giving it domestic effect. That is, the

non-self-executing character of a treaty constrains the

President’s ability to comply with treaty commitments by

unilaterally making the treaty binding on domestic courts.

The President may comply with the treaty’s obligations by

some other means, so long as they are consistent with the

Constitution. But he may not rely upon a non-self­

executing treaty to “establish binding rules of decision

that preempt contrary state law.” Brief for United States

as Amicus Curiae 5.

2

We thus turn to the United States’ claim that—

independent of the United States’ treaty obligations—the

Memorandum is a valid exercise of the President’s foreign

affairs authority to resolve claims disputes with foreign

nations. Id., at 12–16. The United States relies on a

series of cases in which this Court has upheld the author­

ity of the President to settle foreign claims pursuant to an

executive agreement. See Garamendi, 539 U. S., at 415;

Dames & Moore, 453 U. S., at 679–680; United States v.

Pink, 315 U. S. 203, 229 (1942); United States v. Belmont,

301 U. S. 324, 330 (1937). In these cases this Court has

explained that, if pervasive enough, a history of congres­

sional acquiescence can be treated as a “gloss on ‘Execu­

tive Power’ vested in the President by §1 of Art. II.”

Dames & Moore, supra, at 686 (some internal quotation

marks omitted).

This argument is of a different nature than the one

rejected above. Rather than relying on the United States’

treaty obligations, the President relies on an independent

source of authority in ordering Texas to put aside its

procedural bar to successive habeas petitions. Neverthe­

less, we find that our claims-settlement cases do not sup­

port the authority that the President asserts in this case.

The claims-settlement cases involve a narrow set of

36 MEDELLIN v. TEXAS

Opinion of the Court

circumstances: the making of executive agreements to

settle civil claims between American citizens and foreign

governments or foreign nationals. See, e.g., Belmont,

supra, at 327. They are based on the view that “a system­

atic, unbroken, executive practice, long pursued to the

knowledge of the Congress and never before questioned,”

can “raise a presumption that the [action] had been

[taken] in pursuance of its consent.” Dames & Moore,

supra, at 686 (some internal quotation marks omitted). As

this Court explained in Garamendi,

Making executive agreements to settle claims of

American nationals against foreign governments is a

particularly longstanding practice . . . . Given the fact

that the practice goes back over 200 years, and has re­

ceived congressional acquiescence throughout its his­

tory, the conclusion that the President’s control of for­

eign relations includes the settlement of claims is

indisputable. 539 U. S., at 415 (internal quotation

marks and brackets omitted).

Even still, the limitations on this source of executive

power are clearly set forth and the Court has been careful

to note that “[p]ast practice does not, by itself, create

power.” Dames & Moore, supra, at 686.

The President’s Memorandum is not supported by a

“particularly longstanding practice” of congressional ac­

quiescence, see Garamendi, supra, at 415, but rather is

what the United States itself has described as “unprece­

dented action,” Brief for United States as Amicus Curiae

in Sanchez-Llamas, O. T. 2005, Nos. 05–51 and 04–10566,

pp. 29–30. Indeed, the Government has not identified a

single instance in which the President has attempted (or

Congress has acquiesced in) a Presidential directive issued

to state courts, much less one that reaches deep into the

heart of the State’s police powers and compels state courts

to reopen final criminal judgments and set aside neutrally

Cite as: 552 U. S. ____ (2008) 37

Opinion of the Court

applicable state laws. Cf. Brecht v. Abrahamson, 507 U. S.

619, 635 (1993) (“States possess primary authority for

defining and enforcing the criminal law” (quoting Engle v.

Isaac, 456 U. S. 107, 128 (1982); internal quotation marks

omitted). The Executive’s narrow and strictly limited

authority to settle international claims disputes pursuant

to an executive agreement cannot stretch so far as to

support the current Presidential Memorandum.

3

Medellín argues that the President’s Memorandum is a

valid exercise of his “Take Care” power. Brief for Peti­

tioner 28. The United States, however, does not rely upon

the President’s responsibility to “take Care that the Laws

be faithfully executed.” U. S. Const., Art. II, §3. We think

this a wise concession. This authority allows the Presi­

dent to execute the laws, not make them. For the reasons

we have stated, the Avena judgment is not domestic law;

accordingly, the President cannot rely on his Take Care

powers here.

The judgment of the Texas Court of Criminal Appeals is

affirmed.

It is so ordered.

Cite as: 552 U. S. ____ (2008) 1

STEVENS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–984

_________________

JOSE ERNESTO MEDELLIN, PETITIONER v. TEXAS

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

[March 25, 2008]

JUSTICE STEVENS, concurring in the judgment.

There is a great deal of wisdom in JUSTICE BREYER’s

dissent. I agree that the text and history of the Suprem­

acy Clause, as well as this Court’s treaty-related cases, do

not support a presumption against self-execution. See

post, at 5–10. I also endorse the proposition that the

Vienna Convention on Consular Relations, Apr. 24, 1963,

[1970] 21 U. S. T. 77, T. I. A. S. No. 6820, “is itself self-

executing and judicially enforceable.” Post, at 19. More­

over, I think this case presents a closer question than the

Court’s opinion allows. In the end, however, I am per­

suaded that the relevant treaties do not authorize this

Court to enforce the judgment of the International Court

of Justice (ICJ) in Case Concerning Avena and Other

Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Judg­

ment of Mar. 31) (Avena).

The source of the United States’ obligation to comply

with judgments of the ICJ is found in Article 94(1) of the

United Nations Charter, which was ratified in 1945.

Article 94(1) provides that “[e]ach Member of the United

Nations undertakes to comply with the decision of the

[ICJ] in any case to which it is a party.” 59 Stat. 1051,

T. S. No. 993 (emphasis added). In my view, the words

“undertakes to comply”—while not the model of either a

self-executing or a non-self-executing commitment—are

most naturally read as a promise to take additional steps

2 MEDELLIN v. TEXAS

STEVENS, J., concurring in judgment

to enforce ICJ judgments.

Unlike the text of some other treaties, the terms of the

United Nations Charter do not necessarily incorporate

international judgments into domestic law. Cf., e.g.,

United Nations Convention on the Law of the Sea, Annex

VI, Art. 39, Dec. 10, 1982, S. Treaty Doc. No. 103–39, 1833

U. N. T. S. 570 (“[D]ecisions of the [Seabed Disputes]

Chamber shall be enforceable in the territories of the

States Parties in the same manner as judgments or orders

of the highest court of the State Party in whose territory

the enforcement is sought”). Moreover, Congress has

passed implementing legislation to ensure the enforce­

ment of other international judgments, even when the

operative treaty provisions use far more mandatory lan­

guage than “undertakes to comply.”1

On the other hand Article 94(1) does not contain the

kind of unambiguous language foreclosing self-execution

that is found in other treaties. The obligation to under­

take to comply with ICJ decisions is more consistent with

self-execution than, for example, an obligation to enact

legislation. Cf., e.g., International Plant Protection Con­

vention, Art. I, Dec. 6, 1951, [1972] 23 U. S. T. 2770,

T. I. A. S. No. 7465 (“[T]he contracting Governments un­

dertake to adopt the legislative, technical and administra­

tive measures specified in this Convention”). Further­

——————

1 See, e.g., Convention on the Settlement of Investment Disputes

between States and Nationals of Other States (ICSID Convention), Art.

54(1), Mar. 18, 1965, [1966] 17 U. S. T. 1291, T. I. A. S. No. 6090 (“Each

Contracting State shall recognize an award rendered pursuant to this

Convention as binding and enforce the pecuniary obligations imposed

by that award within its territories as if it were a final judgment of a

court in that State”); 22 U. S. C. §1650a (“An award of an arbitral

tribunal rendered pursuant to chapter IV of the [ICSID Convention]

shall create a right arising under a treaty of the United States. The

pecuniary obligations imposed by such an award shall be enforced and

shall be given the same full faith and credit as if the award were a final

judgment of a court of general jurisdiction of one of the several States”).

Cite as: 552 U. S. ____ (2008) 3

STEVENS, J., concurring in judgment

more, whereas the Senate has issued declarations of non­

self-execution when ratifying some treaties, it did not do

so with respect to the United Nations Charter.2

Absent a presumption one way or the other, the best

reading of the words “undertakes to comply” is, in my

judgment, one that contemplates future action by the

political branches. I agree with the dissenters that “Con­

gress is unlikely to authorize automatic judicial enforce­

ability of all ICJ judgments, for that could include some

politically sensitive judgments and others better suited for

enforcement by other branches.” Post, at 24. But this

concern counsels in favor of reading any ambiguity in

Article 94(1) as leaving the choice of whether to comply

with ICJ judgments, and in what manner, “to the political,

not the judicial department.” Foster v. Neilson, 2 Pet. 253,

314 (1829).3

The additional treaty provisions cited by the dissent do

not suggest otherwise. In an annex to the United Nations

Charter, the Statute of the International Court of Justice

(ICJ Statute) states that a decision of the ICJ “has no

binding force except between the parties and in respect of

that particular case.” Art. 59, 59 Stat. 1062. Because I

read that provision as confining, not expanding, the effect

of ICJ judgments, it does not make the undertaking to

comply with such judgments any more enforceable than

——————

2 Cf., e.g., U. S. Reservations, Declarations and Understandings, In­

ternational Covenant on Civil and Political Rights, 138 Cong. Rec. 8071

(1992) (“[T]he United States declares that the provisions of Articles 1

through 27 of the Covenant are not self-executing”).

3 Congress’ implementation options are broader than the dissent sug­

gests. In addition to legislating judgment-by-judgment, enforcing all

judgments indiscriminately, and devising “legislative bright lines,”

post, at 24, Congress could, for example, make ICJ judgments enforce­

able upon the expiration of a waiting period that gives the political

branches an opportunity to intervene. Cf., e.g., 16 U. S. C. §1823

(imposing a 120-day waiting period before international fishery agree­

ments take effect).

4 MEDELLIN v. TEXAS

STEVENS, J., concurring in judgment

the terms of Article 94(1) itself. That the judgment is

“binding” as a matter of international law says nothing

about its domestic legal effect. Nor in my opinion does the

reference to “compulsory jurisdiction” in the Optional

Protocol Concerning the Compulsory Settlement of Dis­

putes to the Vienna Convention, Art. I, Apr. 24, 1963,

[1970] 21 U. S. T. 325, T. I. A. S. No. 6820, shed any light

on the matter. This provision merely secures the consent

of signatory nations to the specific jurisdiction of the ICJ

with respect to claims arising out of the Vienna Conven­

tion. See ICJ Statute, Art. 36(1), 59 Stat. 1060 (“The

jurisdiction of the Court comprises . . . all matters spe­

cially provided for . . . in treaties and conventions in

force”).

Even though the ICJ’s judgment in Avena is not “the

supreme Law of the Land,” U. S. Const., Art. VI, cl. 2, no

one disputes that it constitutes an international law obli­

gation on the part of the United States. Ante, at 8. By

issuing a memorandum declaring that state courts should

give effect to the judgment in Avena, the President made a

commendable attempt to induce the States to discharge

the Nation’s obligation. I agree with the Texas judges and

the majority of this Court that the President’s memoran­

dum is not binding law. Nonetheless, the fact that the

President cannot legislate unilaterally does not absolve

the United States from its promise to take action neces­

sary to comply with the ICJ’s judgment.

Under the express terms of the Supremacy Clause, the

United States’ obligation to “undertak[e] to comply” with

the ICJ’s decision falls on each of the States as well as the

Federal Government. One consequence of our form of

government is that sometimes States must shoulder the

primary responsibility for protecting the honor and integ­

rity of the Nation. Texas’ duty in this respect is all the

greater since it was Texas that—by failing to provide

consular notice in accordance with the Vienna Conven­

Cite as: 552 U. S. ____ (2008) 5

STEVENS, J., concurring in judgment

tion—ensnared the United States in the current contro­

versy. Having already put the Nation in breach of one

treaty, it is now up to Texas to prevent the breach of an­

other.

The decision in Avena merely obligates the United

States “to provide, by means of its own choosing, review

and reconsideration of the convictions and sentences of the

[affected] Mexican nationals,” 2004 I. C. J., at 72, ¶153(9),

“with a view to ascertaining” whether the failure to pro­

vide proper notice to consular officials “caused actual

prejudice to the defendant in the process of administration

of criminal justice,” id., at 60, ¶121. The cost to Texas of

complying with Avena would be minimal, particularly

given the remote likelihood that the violation of the Vi­

enna Convention actually prejudiced José Ernesto

Medellín. See ante, at 4–6, and n. 1. It is a cost that the

State of Oklahoma unhesitatingly assumed.4

——————

4 In Avena, the ICJ expressed “great concern” that Oklahoma had set

the date of execution for one of the Mexican nationals involved in

the judgment, Osbaldo Torres, for May 18, 2004. 2004 I. C. J., at

28, ¶21. Responding to Avena, the Oklahoma Court of Criminal

Appeals stayed Torres’ execution and ordered an evidentiary hearing

on whether Torres had been prejudiced by the lack of consular noti­

fication. See Torres v. Oklahoma, No. PCD–04–442 (May 13, 2004),

43 I. L. M. 1227. On the same day, the Governor of Oklahoma

commuted Torres’ death sentence to life without the possibility

of parole, stressing that (1) the United States signed the Vienna Con­

vention, (2) that treaty is “important in protecting the rights of Ameri­

can citizens abroad,” (3) the ICJ ruled that Torres’ rights had been

violated, and (4) the U. S. State Department urged his office to give

careful consideration to the United States’ treaty obligations. See

Office of Governor Brad Henry, Press Release: Gov. Henry Grants

Clemency to Death Row Inmate Torres (May 13, 2004), online at

http://www.ok.gov/governor/display_article.php?article_id=301&article_

type=1 (as visited Mar. 20, 2008, and available in Clerk of Court’s case

file). After the evidentiary hearing, the Oklahoma Court of Criminal

Appeals held that Torres had failed to establish prejudice with respect

to the guilt phase of his trial, and that any prejudice with respect to the

sentencing phase had been mooted by the commutation order. Torres v.

6 MEDELLIN v. TEXAS

STEVENS, J., concurring in judgment

On the other hand, the costs of refusing to respect the

ICJ’s judgment are significant. The entire Court and the

President agree that breach will jeopardize the United

States’ “plainly compelling” interests in “ensuring the

reciprocal observance of the Vienna Convention, protect­

ing relations with foreign governments, and demonstrat­

ing commitment to the role of international law.” Ante, at

28. When the honor of the Nation is balanced against the

modest cost of compliance, Texas would do well to recog­

nize that more is at stake than whether judgments of the

ICJ, and the principled admonitions of the President of the

United States, trump state procedural rules in the absence

of implementing legislation.

The Court’s judgment, which I join, does not foreclose

further appropriate action by the State of Texas.

——————

Oklahoma, 120 P. 3d 1184 (2005).

Cite as: 552 U. S. ____ (2008) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–984

_________________

JOSE ERNESTO MEDELLIN, PETITIONER v. TEXAS

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

[March 25, 2008]

JUSTICE BREYER, with whom JUSTICE SOUTER and

JUSTICE GINSBURG join, dissenting.

The Constitution’s Supremacy Clause provides that “all

Treaties . . . which shall be made . . . under the Authority

of the United States, shall be the supreme Law of the

Land; and the Judges in every State shall be bound

thereby.” Art. VI, cl. 2. The Clause means that the

“courts” must regard “a treaty . . . as equivalent to an act

of the legislature, whenever it operates of itself without

the aid of any legislative provision.” Foster v. Neilson, 2

Pet. 253, 314 (1829) (majority opinion of Marshall, C. J.).

In the Avena case the International Court of Justice

(ICJ) (interpreting and applying the Vienna Convention

on Consular Relations) issued a judgment that requires

the United States to reexamine certain criminal proceed­

ings in the cases of 51 Mexican nationals. Case Concern­

ing Avena and Other Mexican Nationals (Mex. v. U. S.),

2004 I. C. J. 12 (Judgment of Mar. 31) (Avena). The ques­

tion here is whether the ICJ’s Avena judgment is en-

forceable now as a matter of domestic law, i.e., whether

it “operates of itself without the aid” of any further

legislation.

The United States has signed and ratified a series of

treaties obliging it to comply with ICJ judgments in cases

in which it has given its consent to the exercise of the

ICJ’s adjudicatory authority. Specifically, the United

2 MEDELLIN v. TEXAS

BREYER, J., dissenting

States has agreed to submit, in this kind of case, to the

ICJ’s “compulsory jurisdiction” for purposes of “compul­

sory settlement.” Optional Protocol Concerning the Com­

pulsory Settlement of Disputes (Optional Protocol or

Protocol), Art. I, Apr. 24, 1963, [1970] 21 U. S. T. 325, 326

T. I. A. S. No. 6820 (capitalization altered). And it agreed

that the ICJ’s judgments would have “binding force . . .

between the parties and in respect of [a] particular case.”

United Nations Charter, Art. 59, 59 Stat. 1062, T. S. No.

993 (1945). President Bush has determined that domestic

courts should enforce this particular ICJ judgment.

Memorandum to the Attorney General (Feb. 28, 2005),

App. to Pet. for Cert. 187a (hereinafter President’s Memo­

randum). And Congress has done nothing to suggest the

contrary. Under these circumstances, I believe the treaty

obligations, and hence the judgment, resting as it does

upon the consent of the United States to the ICJ’s jurisdic­

tion, bind the courts no less than would “an act of the

[federal] legislature.” Foster, supra, at 314.

I

To understand the issue before us, the reader must keep

in mind three separate ratified United States treaties and

one ICJ judgment against the United States. The first

treaty, the Vienna Convention, contains two relevant

provisions. The first requires the United States and other

signatory nations to inform arrested foreign nationals of

their separate Convention-given right to contact their

nation’s consul. The second says that these rights (of an

arrested person) “shall be exercised in conformity with the

laws and regulations” of the arresting nation, provided

that the “laws and regulations . . . enable full effect to be

given to the purposes for which” those “rights . . . are in­

tended.” See Vienna Convention on Consular Relations,

Arts. 36(1)(b), 36(2), Apr. 24, 1963, [1970] 21 U. S. T. 100–

101, T. I. A. S. No. 6820 (emphasis added).

Cite as: 552 U. S. ____ (2008) 3

BREYER, J., dissenting

The second treaty, the Optional Protocol, concerns the

“compulsory settlement” of Vienna Convention disputes.

21 U. S. T., at 326. It provides that for parties that elect

to subscribe to the Protocol, “[d]isputes arising out of the

interpretation or application of the [Vienna] Convention”

shall be submitted to the “compulsory jurisdiction of the

International Court of Justice.” Art. I, ibid. It authorizes

any party that has consented to the ICJ’s jurisdiction (by

signing the Optional Protocol) to bring another such party

before that Court. Ibid.

The third treaty, the United Nations Charter, says that

every signatory Nation “undertakes to comply with the

decision of the International Court of Justice in any case

to which it is a party.” Art. 94(1), 59 Stat. 1051. In an

annex to the Charter, the Statute of the International

Court of Justice states that an ICJ judgment has “binding

force . . . between the parties and in respect of that par­

ticular case.” Art. 59, id., at 1062. See also Art. 60, id., at

1063 (ICJ “judgment is final and without appeal”).

The judgment at issue is the ICJ’s judgment in Avena, a

case that Mexico brought against the United States on

behalf of 52 nationals arrested in different States on dif­

ferent criminal charges. 2004 I. C. J., at 39. Mexico

claimed that state authorities within the United States

had failed to notify the arrested persons of their Vienna

Convention rights and, by applying state procedural law

in a manner which did not give full effect to the Vienna

Convention rights, had deprived them of an appropriate

remedy. Ibid. The ICJ judgment in Avena requires that

the United States reexamine “by means of its own choos­

ing” certain aspects of the relevant state criminal proceed­

ings of 51 of these individual Mexican nationals. Id., at

62. The President has determined that this should be

done. See President’s Memorandum.

The critical question here is whether the Supremacy

Clause requires Texas to follow, i.e., to enforce, this ICJ

4 MEDELLIN v. TEXAS

BREYER, J., dissenting

judgment. The Court says “no.” And it reaches its nega­

tive answer by interpreting the labyrinth of treaty provi­

sions as creating a legal obligation that binds the United

States internationally, but which, for Supremacy Clause

purposes, is not automatically enforceable as domestic

law. In the majority’s view, the Optional Protocol simply

sends the dispute to the ICJ; the ICJ statute says that the

ICJ will subsequently reach a judgment; and the U. N.

Charter contains no more than a promise to “ ‘undertak[e]

to comply’ ” with that judgment. Ante, at 3. Such a prom­

ise, the majority says, does not as a domestic law matter

(in Chief Justice Marshall’s words) “operat[e] of itself

without the aid of any legislative provision.” Foster, 2

Pet., at 314. Rather, here (and presumably in any other

ICJ judgment rendered pursuant to any of the approxi­

mately 70 U. S. treaties in force that contain similar pro­

visions for submitting treaty-based disputes to the ICJ for

decisions that bind the parties) Congress must enact

specific legislation before ICJ judgments entered pursuant

to our consent to compulsory ICJ jurisdiction can become

domestic law. See Brief for International Court of Justice

Experts as Amici Curiae 18 (“Approximately 70 U. S.

treaties now in force contain obligations comparable to

those in the Optional Protocol for submission of treaty-

based disputes to the ICJ”); see also id., at 18, n. 25.

In my view, the President has correctly determined that

Congress need not enact additional legislation. The ma­

jority places too much weight upon treaty language that

says little about the matter. The words “undertak[e] to

comply,” for example, do not tell us whether an ICJ judg­

ment rendered pursuant to the parties’ consent to compul­

sory ICJ jurisdiction does, or does not, automatically

become part of our domestic law. To answer that question

we must look instead to our own domestic law, in particu­

lar, to the many treaty-related cases interpreting the

Supremacy Clause. Those cases, including some written

Cite as: 552 U. S. ____ (2008) 5

BREYER, J., dissenting

by Justices well aware of the Founders’ original intent,

lead to the conclusion that the ICJ judgment before us is

enforceable as a matter of domestic law without further

legislation.

A

Supreme Court case law stretching back more than 200

years helps explain what, for present purposes, the Foun­

ders meant when they wrote that “all Treaties . . . shall be

the supreme Law of the Land.” Art. VI, cl. 2. In 1796, for

example, the Court decided the case of Ware v. Hylton, 3

Dall. 199. A British creditor sought payment of an Ameri­

can’s Revolutionary War debt. The debtor argued that he

had, under Virginia law, repaid the debt by complying

with a state statute enacted during the Revolutionary War

that required debtors to repay money owed to British

creditors into a Virginia state fund. Id., at 220–221 (opin­

ion of Chase, J.). The creditor, however, claimed that this

state-sanctioned repayment did not count because a provi­

sion of the 1783 Paris Peace Treaty between Britain and

the United States said that “ ‘the creditors of either side

should meet with no lawful impediment to the recovery of

the full value . . . of all bona fide debts, theretofore con­

tracted’ ”; and that provision, the creditor argued, effec­

tively nullified the state law. Id., at 203–204. The Court,

with each Justice writing separately, agreed with the

British creditor, held the Virginia statute invalid, and

found that the American debtor remained liable for the

debt. Id., at 285.

The key fact relevant here is that Congress had not

enacted a specific statute enforcing the treaty provision at

issue. Hence the Court had to decide whether the provi­

sion was (to put the matter in present terms) “self­

executing.” Justice Iredell, a member of North Carolina’s

Ratifying Convention, addressed the matter specifically,

setting forth views on which Justice Story later relied to

6 MEDELLIN v. TEXAS

BREYER, J., dissenting

explain the Founders’ reasons for drafting the Supremacy

Clause. 3 J. Story, Commentaries on the Constitution of

the United States 696–697 (1833) (hereinafter Story). See

Vázquez, The Four Doctrines of Self-Executing Treaties,

89 Am. J. Int’l L. 695, 697–700 (1995) (hereinafter

Vázquez) (describing the history and purpose of the Su­

premacy Clause). See also Flaherty, History Right?: His­

torical Scholarship, Original Understanding, and Treaties

as “Supreme Law of the Land”, 99 Colum. L. Rev. 2095

(1999) (contending that the Founders crafted the Suprem­

acy Clause to make ratified treaties self-executing). But

see Yoo, Globalism and the Constitution: Treaties, Non­

Self-Execution, and the Original Understanding, 99

Colum. L. Rev. 1955 (1999).

Justice Iredell pointed out that some Treaty provisions,

those, for example, declaring the United States an inde­

pendent Nation or acknowledging its right to navigate the

Mississippi River, were “executed,” taking effect automati­

cally upon ratification. 3 Dall., at 272. Other provisions

were “executory,” in the sense that they were “to be car­

ried into execution” by each signatory nation “in the man­

ner which the Constitution of that nation prescribes.”

Ibid. Before adoption of the U. S. Constitution, all such

provisions would have taken effect as domestic law only if

Congress on the American side, or Parliament on the

British side, had written them into domestic law. Id., at

274–277.

But, Justice Iredell adds, after the Constitution’s adop­

tion, while further parliamentary action remained neces­

sary in Britain (where the “practice” of the need for an “act

of parliament” in respect to “any thing of a legislative

nature” had “been constantly observed,” id., at 275–276),

further legislative action in respect to the treaty’s debt-

collection provision was no longer necessary in the United

States. Id., at 276–277. The ratification of the Constitu­

tion with its Supremacy Clause means that treaty provi­

Cite as: 552 U. S. ____ (2008) 7

BREYER, J., dissenting

sions that bind the United States may (and in this in­

stance did) also enter domestic law without further con­

gressional action and automatically bind the States and

courts as well. Id., at 277.

“Under this Constitution,” Justice Iredell concluded, “so

far as a treaty constitutionally is binding, upon principles

of moral obligation, it is also by the vigour of its own

authority to be executed in fact. It would not otherwise be

the Supreme law in the new sense provided for.” Ibid.; see

also Story, supra, §1833, at 697 (noting that the Suprem­

acy Clause’s language was crafted to make the Clause’s

“obligation more strongly felt by the state judges” and to

“remov[e] every pretense” by which they could “escape

from [its] controlling power”); see also The Federalist No.

42, p. 264 (C. Rossiter ed. 1961) (J. Madison) (Supremacy

Clause “disembarrassed” the Convention of the problem

presented by the Articles of Confederation where “treaties

might be substantially frustrated by regulations of the

States”). Justice Iredell gave examples of provisions that

would no longer require further legislative action, such as

those requiring the release of prisoners, those forbidding

war-related “future confiscations” and “ ‘prosecutions,’ ”

and, of course, the specific debt-collection provision at

issue in the Ware case itself. 3 Dall., at 273, 277.

Some 30 years later, the Court returned to the “self­

execution” problem. In Foster, 2 Pet. 253, the Court exam­

ined a provision in an 1819 treaty with Spain ceding Flor­

ida to the United States; the provision said that “ ‘grants of

land made’ ” by Spain before January 24, 1818, “ ‘shall be

ratified and confirmed’ ” to the grantee. Id., at 310. Chief

Justice Marshall, writing for the Court, noted that, as a

general matter, one might expect a signatory nation to

execute a treaty through a formal exercise of its domestic

sovereign authority (e.g., through an act of the legisla­

ture). Id., at 314. But in the United States “a different

principle” applies. Ibid. (emphasis added). The Suprem­

8 MEDELLIN v. TEXAS

BREYER, J., dissenting

acy Clause means that, here, a treaty is “the law of the

land . . . to be regarded in Courts of justice as equivalent

to an act of the legislature” and “operates of itself without

the aid of any legislative provision” unless it specifically

contemplates execution by the legislature and thereby

“addresses itself to the political, not the judicial depart­

ment.” Ibid. (emphasis added). The Court decided that

the treaty provision in question was not self-executing; in

its view, the words “shall be ratified” demonstrated that

the provision foresaw further legislative action. Id., at

315.

The Court, however, changed its mind about the result

in Foster four years later, after being shown a less legisla­

tively oriented, less tentative, but equally authentic Span-

ish-language version of the treaty. See United States v.

Percheman, 7 Pet. 51, 88–89 (1833). And by 1840, in­

stances in which treaty provisions automatically became

part of domestic law were common enough for one Justice

to write that “it would be a bold proposition” to assert

“that an act of Congress must be first passed” in order to

give a treaty effect as “a supreme law of the land.” Lessee

of Pollard’s Heirs v. Kibbe, 14 Pet. 353, 388 (1840) (Bald­

win, J., concurring).

Since Foster and Pollard, this Court has frequently held

or assumed that particular treaty provisions are self-

executing, automatically binding the States without more.

See Appendix A, infra (listing, as examples, 29 such cases,

including 12 concluding that the treaty provision invali­

dates state or territorial law or policy as a consequence).

See also Wu, Treaties’ Domains, 93 Va. L. Rev. 571, 583–

584 (2007) (concluding “enforcement against States is the

primary and historically most significant type of treaty

enforcement in the United States”). As far as I can tell,

the Court has held to the contrary only in two cases: Fos­

ter, supra, which was later reversed, and Cameron Septic

Tank Co. v. Knoxville, 227 U. S. 39 (1913), where specific

Cite as: 552 U. S. ____ (2008) 9

BREYER, J., dissenting

congressional actions indicated that Congress thought

further legislation necessary. See also Vázquez 716. The

Court has found “self-executing” provisions in multilateral

treaties as well as bilateral treaties. See, e.g., Trans

World Airlines, Inc. v. Franklin Mint Corp., 466 U. S. 243,

252 (1984); Bacardi Corp. of America v. Domenech, 311

U. S. 150, 160, and n. 9, 161 (1940). And the subject mat­

ter of such provisions has varied widely, from extradition,

see, e.g., United States v. Rauscher, 119 U. S. 407, 411–

412 (1886), to criminal trial jurisdiction, see Wildenhus’s

Case, 120 U. S. 1, 11, 17–18 (1887), to civil liability, see,

e.g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525

U. S. 155, 161–163 (1999), to trademark infringement, see

Bacardi, supra, at 160, and n. 9, 161, to an alien’s freedom

to engage in trade, see, e.g., Jordan v. Tashiro, 278 U. S.

123, 126, n. 1 (1928), to immunity from state taxation, see

Nielsen v. Johnson, 279 U. S. 47, 50, 58 (1929), to land

ownership, Percheman, supra, at 88–89, and to inheri­

tance, see, e.g., Kolovrat v. Oregon, 366 U. S. 187, 191,

n. 6, 198 (1961).

Of particular relevance to the present case, the Court

has held that the United States may be obligated by treaty

to comply with the judgment of an international tribunal

interpreting that treaty, despite the absence of any con­

gressional enactment specifically requiring such compli­

ance. See Comegys v. Vasse, 1 Pet. 193, 211–212 (1828)

(holding that decision of tribunal rendered pursuant to a

United States-Spain treaty, which obliged the parties to

“undertake to make satisfaction” of treaty-based rights,

was “conclusive and final” and “not re-examinable” in

American courts); see also Meade v. United States, 9 Wall.

691, 725 (1870) (holding that decision of tribunal adjudi­

cating claims arising under United States-Spain treaty

“was final and conclusive, and bar[red] a recovery upon

the merits” in American court).

All of these cases make clear that self-executing treaty

10 MEDELLIN v. TEXAS

BREYER, J., dissenting

provisions are not uncommon or peculiar creatures of our

domestic law; that they cover a wide range of subjects;

that the Supremacy Clause itself answers the self-

execution question by applying many, but not all, treaty

provisions directly to the States; and that the Clause

answers the self-execution question differently than does

the law in many other nations. See supra, at 5–9. The

cases also provide criteria that help determine which

provisions automatically so apply—a matter to which I

now turn.

B

1

The case law provides no simple magic answer to the

question whether a particular treaty provision is self-

executing. But the case law does make clear that, insofar

as today’s majority looks for language about “self­

execution” in the treaty itself and insofar as it erects “clear

statement” presumptions designed to help find an answer,

it is misguided. See, e.g., ante, at 21 (expecting “clea[r]

state[ment]” of parties’ intent where treaty obligation

“may interfere with state procedural rules”); ante, at 30

(for treaty to be self-executing, Executive should at draft­

ing “ensur[e] that it contains language plainly providing

for domestic enforceability”).

The many treaty provisions that this Court has found

self-executing contain no textual language on the point

(see Appendix A, infra). Few, if any, of these provisions

are clear. See, e.g., Ware, 3 Dall., at 273 (opinion of Ire-

dell, J.). Those that displace state law in respect to such

quintessential state matters as, say, property, inheritance,

or debt repayment, lack the “clea[r] state[ment]” that the

Court today apparently requires. Compare ante, at 21

(majority expects “clea[r] state[ment]” of parties’ intent

where treaty obligation “may interfere with state proce­

dural rules”). This is also true of those cases that deal

Cite as: 552 U. S. ____ (2008) 11

BREYER, J., dissenting

with state rules roughly comparable to the sort that the

majority suggests require special accommodation. See,

e.g., Hopkirk v. Bell, 3 Cranch 454, 457–458 (1806) (treaty

pre-empts Virginia state statute of limitations). Cf. ante,

at 21 (setting forth majority’s reliance on case law that is

apparently inapposite). These many Supreme Court cases

finding treaty provisions to be self-executing cannot be

reconciled with the majority’s demand for textual clarity.

Indeed, the majority does not point to a single ratified

United States treaty that contains the kind of “clea[r]” or

“plai[n]” textual indication for which the majority

searches. Ante, at 21, 30. JUSTICE STEVENS’ reliance upon

one ratified and one un-ratified treaty to make the point

that a treaty could speak clearly on the matter of self-

execution, see ante, at 2 and n. 1, does suggest that there

are a few such treaties. But that simply highlights how

few of them actually do speak clearly on the matter. And

that is not because the United States never, or hardly

ever, has entered into a treaty with self-executing provi­

sions. The case law belies any such conclusion. Rather, it

is because the issue whether further legislative action is

required before a treaty provision takes domestic effect in

a signatory nation is often a matter of how that Nation’s

domestic law regards the provision’s legal status. And

that domestic status-determining law differs markedly

from one nation to another. See generally Hollis, Com­

parative Approach to Treaty Law and Practice, in Na­

tional Treaty Law and Practice 1, 9–50 (D. Hollis, M.

Blakeslee, & L. Ederington eds. 2005) (hereinafter Hollis).

As Justice Iredell pointed out 200 years ago, Britain, for

example, taking the view that the British Crown makes

treaties but Parliament makes domestic law, virtually

always requires parliamentary legislation. See Ware,

supra, at 274–277; Sinclair, Dickson, & Maciver, United

Kingdom, in National Treaty Law and Practice, supra, at

727, 733, and n. 9 (citing Queen v. Secretary of State for

12 MEDELLIN v. TEXAS

BREYER, J., dissenting

Foreign and Commonwealth Affairs, ex parte Lord Rees-

Mogg, [1994] Q. B. 552 (1993) (in Britain, “ ‘treaties are

not self-executing’ ”)). See also Torruella, The Insular

Cases: The Establishment of a Regime of Political Apart­

heid, 29 U. Pa. J. Int’l L. 283, 337 (2007). On the other

hand, the United States, with its Supremacy Clause, does

not take Britain’s view. See, e.g., Ware, supra, at 277

(opinion of Iredell, J.). And the law of other nations, the

Netherlands for example, directly incorporates many

treaties concluded by the executive into its domestic law

even without explicit parliamentary approval of the

treaty. See Brouwer, The Netherlands, in National Treaty

Law and Practice, supra, at 483, 483–502.

The majority correctly notes that the treaties do not

explicitly state that the relevant obligations are self-

executing. But given the differences among nations, why

would drafters write treaty language stating that a provi­

sion about, say, alien property inheritance, is self-

executing? How could those drafters achieve agreement

when one signatory nation follows one tradition and a

second follows another? Why would such a difference

matter sufficiently for drafters to try to secure language

that would prevent, for example, Britain’s following treaty

ratification with a further law while (perhaps unnecessar­

ily) insisting that the United States apply a treaty provi­

sion without further domestic legislation? Above all, what

does the absence of specific language about “self­

execution” prove? It may reflect the drafters’ awareness of

national differences. It may reflect the practical fact that

drafters, favoring speedy, effective implementation, con­

clude they should best leave national legal practices alone.

It may reflect the fact that achieving international agree­

ment on this point is simply a game not worth the candle.

In a word, for present purposes, the absence or presence

of language in a treaty about a provision’s self-execution

proves nothing at all. At best the Court is hunting the

Cite as: 552 U. S. ____ (2008) 13

BREYER, J., dissenting

snark. At worst it erects legalistic hurdles that can

threaten the application of provisions in many existing

commercial and other treaties and make it more difficult

to negotiate new ones. (For examples, see Appendix B,

infra.)

2

The case law also suggests practical, context-specific

criteria that this Court has previously used to help deter­

mine whether, for Supremacy Clause purposes, a treaty

provision is self-executing. The provision’s text matters

very much. Cf. ante, at 17–19. But that is not because it

contains language that explicitly refers to self-execution.

For reasons I have already explained, Part I–B–1, supra,

one should not expect that kind of textual statement.

Drafting history is also relevant. But, again, that is not

because it will explicitly address the relevant question.

Instead text and history, along with subject matter and

related characteristics will help our courts determine

whether, as Chief Justice Marshall put it, the treaty pro­

vision “addresses itself to the political . . . department[s]”

for further action or to “the judicial department” for direct

enforcement. Foster, 2 Pet., at 314; see also Ware, 3 Dall.,

at 244 (opinion of Chase, J.) (“No one can doubt that a

treaty may stipulate, that certain acts shall be done by the

Legislature; that other acts shall be done by the Execu­

tive; and others by the Judiciary”).

In making this determination, this Court has found the

provision’s subject matter of particular importance. Does

the treaty provision declare peace? Does it promise not to

engage in hostilities? If so, it addresses itself to the politi­

cal branches. See id., at 259–262 (opinion of Iredell, J.).

Alternatively, does it concern the adjudication of tradi­

tional private legal rights such as rights to own property,

to conduct a business, or to obtain civil tort recovery? If

so, it may well address itself to the Judiciary. Enforcing

14 MEDELLIN v. TEXAS

BREYER, J., dissenting

such rights and setting their boundaries is the bread-and­

butter work of the courts. See, e.g., Clark v. Allen, 331

U. S. 503 (1947) (treating provision with such subject

matter as self-executing); Asakura v. Seattle, 265 U. S. 332

(1924) (same).

One might also ask whether the treaty provision confers

specific, detailed individual legal rights. Does it set forth

definite standards that judges can readily enforce? Other

things being equal, where rights are specific and readily

enforceable, the treaty provision more likely “addresses”

the judiciary. See, e.g., Olympic Airways v. Husain, 540

U. S. 644 (2004) (specific conditions for air-carrier civil

liability); Geofroy v. Riggs, 133 U. S. 258 (1890) (French

citizens’ inheritance rights). Compare Foster, supra,

at 314–315 (treaty provision stating that landholders’

titles “shall be ratified and confirmed” foresees legislative

action).

Alternatively, would direct enforcement require the

courts to create a new cause of action? Would such en­

forcement engender constitutional controversy? Would it

create constitutionally undesirable conflict with the other

branches? In such circumstances, it is not likely that the

provision contemplates direct judicial enforcement. See,

e.g., Asakura, supra, at 341 (although “not limited by any

express provision of the Constitution,” the treaty-making

power of the United States “does not extend ‘so far as to

authorize what the Constitution forbids’ ”).

Such questions, drawn from case law stretching back

200 years, do not create a simple test, let alone a magic

formula. But they do help to constitute a practical, con­

text-specific judicial approach, seeking to separate run-of­

the-mill judicial matters from other matters, sometimes

more politically charged, sometimes more clearly the

responsibility of other branches, sometimes lacking those

attributes that would permit courts to act on their own

without more ado. And such an approach is all that we

Cite as: 552 U. S. ____ (2008) 15

BREYER, J., dissenting

need to find an answer to the legal question now before us.

C

Applying the approach just described, I would find the

relevant treaty provisions self-executing as applied to the

ICJ judgment before us (giving that judgment domestic

legal effect) for the following reasons, taken together.

First, the language of the relevant treaties strongly

supports direct judicial enforceability, at least of judg­

ments of the kind at issue here. The Optional Protocol

bears the title “Compulsory Settlement of Disputes,”

thereby emphasizing the mandatory and binding nature of

the procedures it sets forth. 21 U. S. T., at 326. The body

of the Protocol says specifically that “any party” that has

consented to the ICJ’s “compulsory jurisdiction” may bring

a “dispute” before the court against any other such party.

Art. I, ibid. And the Protocol contrasts proceedings of the

compulsory kind with an alternative “conciliation proce­

dure,” the recommendations of which a party may decide

“not” to “accep[t].” Art. III, id., at 327. Thus, the Optional

Protocol’s basic objective is not just to provide a forum

for settlement but to provide a forum for compulsory

settlement.

Moreover, in accepting Article 94(1) of the Charter,

“[e]ach Member . . . undertakes to comply with the deci­

sion” of the ICJ “in any case to which it is a party.” 59

Stat. 1051. And the ICJ Statute (part of the U. N. Char­

ter) makes clear that, a decision of the ICJ between par­

ties that have consented to the ICJ’s compulsory jurisdic­

tion has “binding force . . . between the parties and in

respect of that particular case.” Art. 59, id., at 1062

(emphasis added). Enforcement of a court’s judgment

that has “binding force” involves quintessential judicial

activity.

True, neither the Protocol nor the Charter explicitly

states that the obligation to comply with an ICJ judgment

16 MEDELLIN v. TEXAS

BREYER, J., dissenting

automatically binds a party as a matter of domestic law

without further domestic legislation. But how could the

language of those documents do otherwise? The treaties

are multilateral. And, as I have explained, some signato­

ries follow British further-legislation-always-needed prin­

ciples, others follow United States Supremacy Clause

principles, and still others, e.g., the Netherlands, can

directly incorporate treaty provisions into their domestic

law in particular circumstances. See Hollis 9–50. Why,

given national differences, would drafters, seeking as

strong a legal obligation as is practically attainable, use

treaty language that requires all signatories to adopt

uniform domestic-law treatment in this respect?

The absence of that likely unobtainable language can

make no difference. We are considering the language for

purposes of applying the Supremacy Clause. And for that

purpose, this Court has found to be self-executing multi­

lateral treaty language that is far less direct or forceful (on

the relevant point) than the language set forth in the

present treaties. See, e.g., Trans World Airlines, 466

U. S., at 247, 252; Bacardi, 311 U. S., at 160, and n. 9,

161. The language here in effect tells signatory nations to

make an ICJ compulsory jurisdiction judgment “as bind-

ing as you can.” Thus, assuming other factors favor

self-execution, the language adds, rather than subtracts,

support.

Indeed, as I have said, supra, at 4, the United States

has ratified approximately 70 treaties with ICJ dispute

resolution provisions roughly similar to those contained in

the Optional Protocol; many of those treaties contemplate

ICJ adjudication of the sort of substantive matters (prop­

erty, commercial dealings, and the like) that the Court has

found self-executing, or otherwise appear addressed to the

judicial branch. See Appendix B, infra. None of the ICJ

provisions in these treaties contains stronger language

about self-execution than the language at issue here. See,

Cite as: 552 U. S. ____ (2008) 17

BREYER, J., dissenting

e.g., Treaty of Friendship, Commerce and Navigation

between the United States of America and the Kingdom of

Denmark, Art. XXIV(2), Oct. 1, 1951, [1961] 12 U. S. T.

935, T. I. A. S. No. 4797 (“Any dispute between the Parties

as to the interpretation or application of the present

Treaty, not satisfactorily adjusted by diplomacy, shall be

submitted to the International Court of Justice, unless the

Parties agree to settlement by some other pacific means”).

In signing these treaties (in respect to, say, alien land

ownership provisions) was the United States engaging in a

near useless act? Does the majority believe the drafters

expected Congress to enact further legislation about, say,

an alien’s inheritance rights, decision by decision?

I recognize, as the majority emphasizes, that the U. N.

Charter uses the words “undertakes to comply,” rather

than, say, “shall comply” or “must comply.” But what is

inadequate about the word “undertak[e]”? A leading

contemporary dictionary defined it in terms of “lay[ing]

oneself under obligation . . . to perform or to execute.”

Webster’s New International Dictionary 2770 (2d ed.

1939). And that definition is just what the equally au­

thoritative Spanish version of the provision (familiar to

Mexico) says directly: The words “compromete a cumplir”

indicate a present obligation to execute, without any

tentativeness of the sort the majority finds in the English

word “undertakes.” See Carta de las Naciones Unidas,

Articulo 94, 59 Stat. 1175 (1945); Spanish and English

Legal and Commercial Dictionary 44 (1945) (defining

“comprometer” as “become liable”); id., at 59 (defining

“cumplir” as “to perform, discharge, carry out, execute”);

see also Art. 111, 59 Stat. 1054 (Spanish-language version

equally valid); Percheman, 7 Pet., at 88–89 (looking to

Spanish version of a treaty to clear up ambiguity in Eng­

lish version). Compare Todok v. Union State Bank of

Harvard, 281 U. S. 449, 453 (1930) (treating a treaty

provision as self-executing even though it expressly stated

18 MEDELLIN v. TEXAS

BREYER, J., dissenting

what the majority says the word “undertakes” implicitly

provides: that “ ‘[t]he United States . . . shall be at liberty

to make respecting this matter, such laws as they think

proper’ ”).

And even if I agreed with JUSTICE STEVENS that the

language is perfectly ambiguous (which I do not), I could

not agree that “the best reading . . . is . . . one that con­

templates future action by the political branches.” Ante,

at 3. The consequence of such a reading is to place the

fate of an international promise made by the United

States in the hands of a single State. See ante, at 4–6.

And that is precisely the situation that the Framers

sought to prevent by enacting the Supremacy Clause. See

3 Story 696 (purpose of Supremacy Clause “was probably

to obviate” the “difficulty” of system where treaties were

“dependent upon the good will of the states for their exe­

cution”); see also Ware, 3 Dall., at 277–278 (opinion of

Iredell, J.).

I also recognize, as the majority emphasizes (ante, at

13–14), that the U. N. Charter says that “[i]f any party to

a case fails to perform the obligations incumbent upon it

under a judgment rendered by the [ICJ], the other party

may have recourse to the Security Council.” Art. 94(2), 59

Stat. 1051. And when the Senate ratified the charter, it

took comfort in the fact that the United States has a veto

in the Security Council. See 92 Cong. Rec. 10694–10695

(1946) (statements of Sens. Pepper and Connally).

But what has that to do with the matter? To begin with,

the Senate would have been contemplating politically

significant ICJ decisions, not, e.g., the bread-and-butter

commercial and other matters that are the typical subjects

of self-executing treaty provisions. And in any event, both

the Senate debate and U. N. Charter provision discuss and

describe what happens (or does not happen) when a nation

decides not to carry out an ICJ decision. See Charter of

the United Nations for the Maintenance of International

Cite as: 552 U. S. ____ (2008) 19

BREYER, J., dissenting

Peace and Security: Hearing before the Senate Committee

on Foreign Relations, 79th Cong., 1st Sess., 286 (1945)

(statement of Leo Pasvolsky, Special Assistant to the

Secretary of State for International Organization and

Security Affairs) (“[W]hen the Court has rendered a judg­

ment and one of the parties refuses to accept it, then the

dispute becomes political rather than legal”). The debates

refer to remedies for a breach of our promise to carry out

an ICJ decision. The Senate understood, for example, that

Congress (unlike legislatures in other nations that do not

permit domestic legislation to trump treaty obligations,

Hollis 47–49) can block through legislation self-executing,

as well as non-self-executing determinations. The debates

nowhere refer to the method we use for affirmatively

carrying out an ICJ obligation that no political branch has

decided to dishonor, still less to a decision that the Presi­

dent (without congressional dissent) seeks to enforce. For

that reason, these aspects of the ratification debates are

here beside the point. See infra, at 23–24.

The upshot is that treaty language says that an ICJ

decision is legally binding, but it leaves the implementa­

tion of that binding legal obligation to the domestic law of

each signatory nation. In this Nation, the Supremacy

Clause, as long and consistently interpreted, indicates

that ICJ decisions rendered pursuant to provisions for

binding adjudication must be domestically legally binding

and enforceable in domestic courts at least sometimes.

And for purposes of this argument, that conclusion is all

that I need. The remainder of the discussion will explain

why, if ICJ judgments sometimes bind domestic courts,

then they have that effect here.

Second, the Optional Protocol here applies to a dispute

about the meaning of a Vienna Convention provision that

is itself self-executing and judicially enforceable. The

Convention provision is about an individual’s “rights,”

namely, his right upon being arrested to be informed of his

20 MEDELLIN v. TEXAS

BREYER, J., dissenting

separate right to contact his nation’s consul. See Art.

36(1)(b), 21 U. S. T., at 101. The provision language is

precise. The dispute arises at the intersection of an indi­

vidual right with ordinary rules of criminal procedure; it

consequently concerns the kind of matter with which

judges are familiar. The provisions contain judicially

enforceable standards. See Art. 36(2), ibid. (providing for

exercise of rights “in conformity with the laws and regula­

tions” of the arresting nation provided that the “laws and

regulations . . . enable full effect to be given to the pur­

poses for which the rights accorded under this Article are

intended”). And the judgment itself requires a further

hearing of a sort that is typically judicial. See infra, at

25–26.

This Court has found similar treaty provisions self-

executing. See, e.g., Rauscher, 119 U. S., at 410–411, 429–

430 (violation of extradition treaty could be raised as

defense in criminal trial); Johnson v. Browne, 205 U. S.

309, 317–322 (1907) (extradition treaty required grant of

writ of habeas corpus); Wildenhus’s Case, 120 U. S., at 11,

17–18 (treaty defined scope of state jurisdiction in a crimi­

nal case). It is consequently not surprising that, when

Congress ratified the Convention, the State Department

reported that the “Convention is considered entirely self-

executive and does not require any implementing or com­

plementing legislation.” S. Exec. Rep. No. 91–9, p. 5

(1969); see also id., at 18 (“To the extent that there are

conflicts with Federal legislation or State laws the Vienna

Convention, after ratification, would govern”). And the

Executive Branch has said in this Court that other, indis­

tinguishable Vienna Convention provisions are self-

executing. See Brief for United States as Amicus Curiae in

Sanchez-Llamas v. Oregon, O. T. 2005, Nos. 05–51 and

04–10566, p. 14, n. 2; cf. ante, at 10, n. 4 (majority leaves

question open).

Third, logic suggests that a treaty provision providing

Cite as: 552 U. S. ____ (2008) 21

BREYER, J., dissenting

for “final” and “binding” judgments that “settl[e]” treaty-

based disputes is self-executing insofar as the judgment in

question concerns the meaning of an underlying treaty

provision that is itself self-executing. Imagine that two

parties to a contract agree to binding arbitration about

whether a contract provision’s word “grain” includes rye.

They would expect that, if the arbitrator decides that the

word “grain” does include rye, the arbitrator will then

simply read the relevant provision as if it said “grain

including rye.” They would also expect the arbitrator to

issue a binding award that embodies whatever relief

would be appropriate under that circumstance.

Why treat differently the parties’ agreement to binding

ICJ determination about, e.g., the proper interpretation of

the Vienna Convention clauses containing the rights here

at issue? Why not simply read the relevant Vienna Con­

vention provisions as if (between the parties and in re­

spect to the 51 individuals at issue) they contain words

that encapsulate the ICJ’s decision? See Art. 59, 59 Stat.

1062 (ICJ decision has “binding force . . . between the

parties and in respect of [the] particular case”). Why

would the ICJ judgment not bind in precisely the same

way those words would bind if they appeared in the rele­

vant Vienna Convention provisions—just as the ICJ says,

for purposes of this case, that they do?

To put the same point differently: What sense would it

make (1) to make a self-executing promise and (2) to prom­

ise to accept as final an ICJ judgment interpreting that

self-executing promise, yet (3) to insist that the judgment

itself is not self-executing (i.e., that Congress must enact

specific legislation to enforce it)?

I am not aware of any satisfactory answer to these

questions. It is no answer to point to the fact that in

Sanchez-Llamas v. Oregon, 548 U. S. 331 (2006), this

Court interpreted the relevant Convention provisions

differently from the ICJ in Avena. This Court’s Sanchez­

22 MEDELLIN v. TEXAS

BREYER, J., dissenting

Llamas interpretation binds our courts with respect to

individuals whose rights were not espoused by a state

party in Avena. Moreover, as the Court itself recognizes,

see ante, at 1–2, and as the President recognizes, see

President’s Memorandum, the question here is the very

different question of applying the ICJ’s Avena judgment to

the very parties whose interests Mexico and the United

States espoused in the ICJ Avena proceeding. It is in

respect to these individuals that the United States has

promised the ICJ decision will have binding force. Art. 59,

59 Stat. 1062. See 1 Restatement (Second) of Conflict of

Laws §98 (1969); 2 Restatement (Third) of Foreign Rela­

tions §481 (1986); 1 Restatement (Second) of Judgments

§17 (1980) (all calling for recognition of judgment rendered

after fair hearing in a contested proceeding before a court

with adjudicatory authority over the case). See also 1

Restatement (Second) of Conflict of Laws §106 (“A judg­

ment will be recognized and enforced in other states even

though an error of fact or law was made in the proceedings

before judgment . . .”); id., §106, Comment a (“Th[is] rule

is . . . applicable to judgments rendered in foreign nations

. . .”); Reese, The Status in This Country of Judgments

Rendered Abroad, 50 Colum. L. Rev. 783, 789 (1950)

(“[Foreign] judgments will not be denied effect merely

because the original court made an error either of fact or

of law”).

Contrary to the majority’s suggestion, see ante, at 15–

16, that binding force does not disappear by virtue of the

fact that Mexico, rather than Medellín himself, presented

his claims to the ICJ. Mexico brought the Avena case in

part in “the exercise of its right of diplomatic protection of

its nationals,” e.g., 2004 I. C. J., at 21, ¶¶13(1), (3), includ­

ing Medellín, see id., at 25, ¶16. Such derivative claims

are a well-established feature of international law, and the

United States has several times asserted them on behalf of

its own citizens. See 2 Restatement (Third) of Foreign

Cite as: 552 U. S. ____ (2008) 23

BREYER, J., dissenting

Relations, supra, §713, Comments a, b, at 217; Case Con­

cerning Elettronic Sicula S. p. A. (U. S. v. Italy), 1989

I. C. J. 15, 20 (Judgment of July 20); Case Concerning

United States Diplomatic and Consular Staff in Tehran

(U. S. v. Iran), 1979 I. C. J. 7, 8 (Judgment of Dec. 15);

Case Concerning Rights of Nationals of the United States

of America in Morocco (Fr. v. U. S.), 1952 I. C. J. 176, 180–

181 (Judgment of Aug. 27). They are treated in relevant

respects as the claims of the represented individuals

themselves. See 2 Restatement (Third) of Foreign Rela­

tions, supra, §713, Comments a, b. In particular, they can

give rise to remedies, tailored to the individual, that bind

the Nation against whom the claims are brought (here, the

United States). See ibid.; see also, e.g., Frelinghuysen v.

Key, 110 U. S. 63, 71–72 (1884).

Nor does recognition of the ICJ judgment as binding

with respect to the individuals whose claims were es­

poused by Mexico in any way derogate from the Court’s

holding in Sanchez-Llamas, supra. See ante, at 16, n. 8.

This case does not implicate the general interpretive

question answered in Sanchez-Llamas: whether the Vi­

enna Convention displaces state procedural rules. We are

instead confronted with the discrete question of Texas’

obligation to comply with a binding judgment issued by a

tribunal with undisputed jurisdiction to adjudicate the

rights of the individuals named therein. “It is inherent in

international adjudication that an international tribunal

may reject one country’s legal position in favor of an­

other’s—and the United States explicitly accepted this

possibility when it ratified the Optional Protocol.” Brief

for United States as Amicus Curiae 22.

Fourth, the majority’s very different approach has seri­

ously negative practical implications. The United States

has entered into at least 70 treaties that contain provi­

sions for ICJ dispute settlement similar to the Protocol

before us. Many of these treaties contain provisions simi­

24 MEDELLIN v. TEXAS

BREYER, J., dissenting

lar to those this Court has previously found self­

executing—provisions that involve, for example, property

rights, contract and commercial rights, trademarks, civil

liability for personal injury, rights of foreign diplomats,

taxation, domestic-court jurisdiction, and so forth. Com­

pare Appendix A, infra, with Appendix B, infra. If the

Optional Protocol here, taken together with the U. N.

Charter and its annexed ICJ Statute, is insufficient to

warrant enforcement of the ICJ judgment before us, it is

difficult to see how one could reach a different conclusion

in any of these other instances. And the consequence is to

undermine longstanding efforts in those treaties to create

an effective international system for interpreting and

applying many, often commercial, self-executing treaty

provisions. I thus doubt that the majority is right when it

says, “We do not suggest that treaties can never afford

binding domestic effect to international tribunal judg­

ments.” Ante, at 23–24. In respect to the 70 treaties that

currently refer disputes to the ICJ’s binding adjudicatory

authority, some multilateral, some bilateral, that is just

what the majority has done.

Nor can the majority look to congressional legislation for

a quick fix. Congress is unlikely to authorize automatic

judicial enforceability of all ICJ judgments, for that could

include some politically sensitive judgments and others

better suited for enforcement by other branches: for exam­

ple, those touching upon military hostilities, naval activ­

ity, handling of nuclear material, and so forth. Nor is

Congress likely to have the time available, let alone the

will, to legislate judgment-by-judgment enforcement of,

say, the ICJ’s (or other international tribunals’) resolution

of non-politically-sensitive commercial disputes. And as

this Court’s prior case law has avoided laying down bright-

line rules but instead has adopted a more complex ap­

proach, it seems unlikely that Congress will find it easy to

develop legislative bright lines that pick out those provi­

Cite as: 552 U. S. ____ (2008) 25

BREYER, J., dissenting

sions (addressed to the Judicial Branch) where self-

execution seems warranted. But, of course, it is not neces­

sary for Congress to do so—at least not if one believes that

this Court’s Supremacy Clause cases already embody

criteria likely to work reasonably well. It is those criteria

that I would apply here.

Fifth, other factors, related to the particular judgment

here at issue, make that judgment well suited to direct

judicial enforcement. The specific issue before the ICJ

concerned “ ‘review and reconsideration’ ” of the “possible

prejudice” caused in each of the 51 affected cases by an

arresting State’s failure to provide the defendant with

rights guaranteed by the Vienna Convention. Avena, 2004

I. C. J., at 65, ¶138. This review will call for an under­

standing of how criminal procedure works, including

whether, and how, a notification failure may work preju­

dice. Id., at 56–57. As the ICJ itself recognized, “it is the

judicial process that is suited to this task.” Id., at 66,

¶140. Courts frequently work with criminal procedure

and related prejudice. Legislatures do not. Judicial stan­

dards are readily available for working in this technical

area. Legislative standards are not readily available.

Judges typically determine such matters, deciding, for

example, whether further hearings are necessary, after

reviewing a record in an individual case. Congress does

not normally legislate in respect to individual cases.

Indeed, to repeat what I said above, what kind of special

legislation does the majority believe Congress ought to

consider?

Sixth, to find the United States’ treaty obligations self-

executing as applied to the ICJ judgment (and conse­

quently to find that judgment enforceable) does not

threaten constitutional conflict with other branches; it

does not require us to engage in nonjudicial activity; and it

does not require us to create a new cause of action. The

only question before us concerns the application of the ICJ

26 MEDELLIN v. TEXAS

BREYER, J

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