OPINION OF THE COURT MEDELLIN V. TEXAS 552 U. S. ____ (2008) 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
reconsideration 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, through a Memorandum
to the Attorney General (Feb. 28, 2005), App. to Pet. for Cert.
187a (Memorandum or President’s Memorandum), that the United States
would “discharge its international obligations” under Avena “by having State courts give effect to the
decision.”

															   Petitioner José Ernesto Medellín, who had been
convicted and sentenced in Texas state court for murder, is one of
the 51 Mexican nationals named in the Avena decision.
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 Memorandum
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 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 sending 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 resolution of disputes arising out of the
interpretation or application 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
present 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 framework 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 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. 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. 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
jurisdiction under Art. 36(2) in 1946. The United States withdrew
from general ICJ jurisdiction in 1985. See U. S. Dept. of State
Letter and Statement Concerning Termination 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 Convention. On March 7, 2005, subsequent to the ICJ’s
judgment in Avena , the United States gave notice of
withdrawal 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 prevent their victims from identifying them,
Medellín and his fellow gang members murdered the girls and
discarded 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 enforcement 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. Medellín 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 Convention 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.[ Footnote 1 ] The Texas Court
of Criminal 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 appealability 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, including 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.

															   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 decision 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 displace 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 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.
Accordingly, 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 Vienna 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 international
commitments . . . they are not domestic law unless Congress has
either enacted implementing statutes or the 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.).[ Footnote 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 governments which
are parties to it.” Ibid .; see also The Federalist No. 33,
p. 207 (J. Cooke ed. 1961) (A. Hamilton) (comparing 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 negotiations 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.[ Footnote 3 ]

															   Medellín and his amici nonetheless
contend that the Optional Protocol, United Nations Charter, and ICJ
Statute 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.[ Footnote 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 interpretation” 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 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 jurisdiction 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 arbitration. 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 requested by a Party to the agreement], the disputing Parties
shall agree on the resolution of the dispute, which normally shall
conform with the determinations and recommendations 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
Protocol, but rather from Article 94 of the United Nations
Charter—the provision that specifically addresses the effect of ICJ
decisions. 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 (emphasis
added). The Executive Branch contends that the phrase “undertakes
to comply” is not “an acknowledgement that an ICJ decision will
have immediate 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 enforcement 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.[ Footnote 5 ]

															   The remainder of Article 94 confirms that the
U. N. Charter does not contemplate the automatic
enforceability of ICJ decisions in domestic courts.[ Footnote 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. See, e.g. , The Charter of the United Nations for the
Maintenance 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 perform 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 Compulsory
Jurisdiction of International Court of Justice: Hearings 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
automatically 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 judgment through exercise of the Security
Council veto—always regarded as an option by the Executive and
ratifying 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
automatically enforceable as domestic law is fatally undermined by
the enforcement structure established by Article 94. His
construction would eliminate the option of noncompliance
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 Executive 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 judicially 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 national
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).[ Footnote 7 ] The 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 nationals 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
Concerning 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 persons 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.[ Footnote 8 ]

															   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 relevant treaties do not create domestically enforceable
federal law. See Brief for United States as Amicus Curiae 4, 27–29.[ Footnote 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.

															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
obligation 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 today—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
distinguishing between self-executing treaties (those “equivalent
to an act of the legislature”) and non-self-executing treaties
(those “the legislature must execute”), Chief Justice 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) indicated 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 directly enforceable
federal law is arrestingly indeterminate. 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”). Determining whether treaties themselves create
federal law is sometimes committed to the political branches and
sometimes 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 assessment. 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’ involvement 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 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.[ Footnote 10 ] In determining 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 their domestic law strongly suggests that the treaty
should not be so viewed in our courts.

															   Our conclusion is further
supported by general principles 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 procedural 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 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 statue 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 treaties 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 judiciary should decide which
judgments are politically sensitive 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, 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 international tribunals are automatically binding on
domestic 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.[ Footnote
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.

															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 domestic 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 automatically
become domestic law hardly means the underlying treaty is
“useless.” See post , at 17; cf. post , at 11
(describing 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 implement 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); see also infra , at 25–26 (listing examples of legislation
implementing international obligations).

															   Further, that an ICJ judgment may not be
automatically 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 Navigation” 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 approach nor our cases require that a treaty provide
for self-execution in so many talismanic words; that is a
caricature of the Court’s opinion. Our cases simply require courts
to decide whether a treaty’s terms reflect a determination by the
President who negotiated it and the Senate 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., dissenting). The judgments of a number of
international tribunals 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
Settlement of Investment Disputes] 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”); 9
U. S.C. §§201–208 (“The [U. N.] Convention on the Recognition
and Enforcement 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 Congress knows how
to accord domestic effect to international obligations when it
desires such a result.[ Footnote
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 settling 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 judgment 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]” his case. The
general rule, however, is that judgments of foreign courts awarding
injunctive relief, even as to private parties, let alone sovereign
States, “are not generally entitled to enforcement.” See 2
Restatement §481, Comment 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 federal 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
Constitution do not have the effect of displacing state procedural
rules. See 548 U. S., at 360. Nothing in the text, background,
negotiating and drafting history, or practice among signatory
nations suggests that the President or Senate intended the
improbable result of giving the judgments of an international
tribunal a higher status than that enjoyed by “many of our most
fundamental constitutional 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 domestic law binding in state and federal
courts.[ Footnote 13 ]

															A

															   The United States maintains that
the President’s constitutional 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
question these propositions. See, e.g. , First Nat.
City Bank v. Banco Nacional de Cuba , 406 U. S. 759 , 767
(1972) (plurality 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, protecting
relations with foreign governments, and demonstrating 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).

															   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 General first argues that the relevant 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 wholly apart from the asserted authority
based on the pertinent treaties. 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.

															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 obligation.” 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 international
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
stipulations 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
President, 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
providing 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., consistent
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, combined with either the President’s signature or a
congressional 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 lawmaker.” 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 precludes the
assertion that Congress has implicitly authorized the
President—acting on his own—to achieve precisely 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 authority 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 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 domestic 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 Executive, or, if the
ratified treaty is not self-executing, Congress can enact
implementing legislation approved by the President. It should not
be surprising that our Constitution does not contemplate vesting
such power in the Executive alone. As Madison explained
in The Federalist No. 47, under our constitutional system of checks
and balances, “[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 description 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
domestic 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
acquiescence 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 authority.” 343 U. S., at 637
(Jackson, J., concurring). Here, 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 congressional 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 resolution of
prior ICJ controversies. A review of the Executive’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 remotely involved transforming an international
obligation into domestic law and thereby displacing state
law.[ Footnote 14 ] 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 represent the United
States before such bodies speaks to the President’s international responsibilities, not any unilateral
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., concurring). At bottom, none of
the sources of authority identified 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-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 authority 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 congressional acquiescence can be treated as a
“gloss on ‘Executive 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. Nevertheless, we
find that our claims-settlement cases do not support the authority
that the President asserts in this case. The claims-settlement cases
involve a narrow set of 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
systematic, 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 received congressional
acquiescence throughout its history, the conclusion that the
President’s control of foreign 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 acquiescence, see Garamendi, supra, at 415,
but rather is what the United States itself has described as
“unprecedented 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 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 Petitioner 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 President 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. Footnote 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 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. Footnote 2 The label “self-executing” has on
occasion been used to convey different meanings. What we mean by
“self-executing” is that the treaty has automatic domestic effect
as federal law upon ratification. Conversely, 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. Footnote 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
Restatement). 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-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. Congoleum Corp. , 595 F. 2d 1287, 1298 (CA3
1979). Footnote 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.” Footnote 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 [Nebraska] as to the
disposition of homestead property”)). Whether or not the United
States “undertakes” to comply with a treaty says nothing 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). Footnote 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. Footnote 7 Medellín alters this language in
his brief to provide that the ICJ Statute makes the Avena judgment binding “in respect of [his] particular 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. Footnote 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 procedural
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. Footnote 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
jurisdiction 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. Footnote
10 The best that the ICJ experts as amici curiae can come up with is the contention that local
Moroccan courts have referred to ICJ judgments 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 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 predecessor, the Permanent Court of
International Justice, were not domestically
enforceable). Footnote
11 The other case Medellín cites for
the proposition that the judgments 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). Footnote
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., dissenting).
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. Footnote
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. Footnote
14 Rather, in the Case
Concerning Military and Paramilitary Activities in and Against
Nicaragua ( Nicar. v. U. S. ), 1986
I. C. J. 14 (Judgment 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./em>.), 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 Lagrand 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
response, 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 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
persuasion,” 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. STEVENS, J., CONCURRING IN JUDGMENT MEDELLIN V. TEXAS 552 U. S. ____ (2008) 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 Supremacy 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.
Moreover, I think this case presents a closer question than the
Court’s opinion allows. In the end, however, I am persuaded 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 (Judgment 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 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 enforcement of other international judgments, even
when the operative treaty provisions use far more mandatory
language than “undertakes to comply.”[ Footnote 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 undertake 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 Convention, Art. I,
Dec. 6, 1951, [1972] 23 U. S. T. 2770,
T. I. A. S. No. 7465 (“[T]he contracting Governments
undertake to adopt the legislative, technical and administrative
measures specified in this Convention”). Furthermore, 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.[ Footnote 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 “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. 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).[ Footnote 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
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 Disputes 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
Convention. See ICJ Statute, Art. 36(1), 59 Stat. 1060 (“The
jurisdiction of the Court comprises . . . all matters specially
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 obligation 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 memorandum 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 necessary 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 integrity 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
Convention—ensnared the United States in the current controversy.
Having already put the Nation in breach of one treaty, it is now up
to Texas to prevent the breach of another.

															   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
provide 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 Vienna 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.[ Footnote
4 ]

															   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, protecting relations with
foreign governments, and demonstrating 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 recognize 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. Footnote 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”). Footnote 2 Cf., e.g. , U. S. Reservations,
Declarations and Understandings, International 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”). Footnote 3 Congress’ implementation options are broader
than the dissent suggests. 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 enforceable 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 agreements take effect). Footnote 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 Convention, (2) that treaty is “important in protecting
the rights of American 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. Oklahoma , 120
P. 3d 1184 (2005). BREYER, J., DISSENTING MEDELLIN V. TEXAS 552 U. S. ____ (2008) NO. 06-984 SUPREME COURT OF THE UNITED
STATES 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
proceedings in the cases of 51 Mexican nationals. Case
Concerning Avena and Other Mexican Nationals (Mex . v. U.
S.) , 2004 I. C. J. 12 (Judgment of Mar. 31) (Avena) . The question 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 States has agreed to submit, in this kind of case, to the
ICJ’s “compulsory jurisdiction” for purposes of “compulsory
settlement.” Optional Protocol Concerning the Compulsory 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 Memorandum). 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 jurisdiction, 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 intended.” 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). 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 particular 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 different 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 choosing” certain aspects of the
relevant state criminal proceedings 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 judgment. The Court says “no.”
And it reaches its negative answer by interpreting the labyrinth of
treaty provisions 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 promise, 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 approximately 70 U. S. treaties in force that contain similar
provisions 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 majority 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 judgment
rendered pursuant to the parties’ consent to compulsory 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 particular, to the many treaty-related cases
interpreting the Supremacy Clause. Those cases, including some
written 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 Founders 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 American’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 (opinion of Chase,
J.). The creditor, however, claimed that this state-sanctioned
repayment did not count because a provision 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 contracted’ ”; and that provision, the creditor
argued, effectively 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 provision 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 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
Supremacy Clause). See also Flaherty, History Right?: Historical
Scholarship, Original Understanding, and Treaties as “Supreme Law
of the Land”, 99 Colum. L. Rev. 2095 (1999) (contending that
the Founders crafted the Supremacy 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 independent Nation or acknowledging
its right to navigate the Mississippi River, were
“ executed ,” taking effect automatically upon ratification.
3 Dall. , at 272. Other provisions were “executory,” in the
sense that they were “to be carried into execution” by each
signatory nation “in the manner 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 adoption, while further
parliamentary action remained necessary 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 Constitution with its Supremacy Clause means
that treaty provisions that bind the United States may (and in this
instance did) also enter domestic law without further congressional
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 Supremacy
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 examined a provision in an
1819 treaty with Spain ceding Florida 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 legislature). Id., at 314. But in the United States “a different principle” applies. Ibid. (emphasis added). The Supremacy 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 department .” 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 legislatively oriented, less
tentative, but equally authentic Spanish-language version of the
treaty. See United States v. Percheman , 7 Pet.
51, 88–89 (1833). And by 1840, instances 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)
(Baldwin, 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 invalidates 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: Foster , supra , which was later reversed, and Cameron Septic Tank Co. v. Knoxville , 227 U. S. 39 (1913),
where specific 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 matter 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
inheritance, 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 congressional enactment specifically requiring such
compliance. 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 adjudicating 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 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 drafting “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 Iredell, 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 procedural rules”). This is also true of those
cases that deal 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
provisions. 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, Comparative Approach to Treaty Law and Practice, in
National 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 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 Apartheid, 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
provision 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 unnecessarily) insisting that the United States apply a
treaty provision 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, conclude they should
best leave national legal practices alone. It may reflect the fact
that achieving international agreement 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 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 determine 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 provision “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 Executive; 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 political branches. See id., at
259–262 (opinion of Iredell, J.). Alternatively, does it concern
the adjudication of traditional 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 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 enforcement 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, context-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 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 judgments 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 procedure,” 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 decision” of the ICJ “in any case to which it is a party.”
59 Stat. 1051. And the ICJ Statute (part of the U. N. Charter)
makes clear that, a decision of the ICJ between parties that have
consented to the ICJ’s compulsory jurisdiction 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 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 signatories follow British
further-legislation-always-needed principles, 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 multilateral 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 (property, 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, 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 authoritative 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 English 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 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 contemplates 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 execution”); 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 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 judgment 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 President (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 implementation 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 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 individual
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 regulations” of the arresting nation
provided that the “laws and regulations . . . enable full effect to
be given to the purposes 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 criminal 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
complementing 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, indistinguishable 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 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 Convention provisions as if (between the
parties and in respect 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 relevant 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 promise 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-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 Relations §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 judgment 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), including 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 Relations, supra , §713, Comments a , b , at 217; Case Concerning 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 Relations, 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 espoused 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 Vienna 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 another’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 seriously negative practical
implications. The United States has entered into at least 70
treaties that contain provisions for ICJ dispute settlement similar
to the Protocol before us. Many of these treaties contain
provisions similar 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. Compare 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 judgments.” 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 example, those touching upon military
hostilities, naval activity, 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 approach, it seems unlikely that
Congress will find it easy to develop legislative bright lines that
pick out those provisions (addressed to the Judicial Branch) where
self-execution seems warranted. But, of course, it is not necessary
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 understanding of how criminal procedure works,
including whether, and how, a notification failure may work
prejudice. 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
standards 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 consequently 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
judgment as binding law applicable to the parties in a particular
criminal proceeding that Texas law creates independently of the
treaty. I repeat that the question before us does not involve the
creation of a private right of action (and the majority’s reliance
on authority regarding such a circumstance is misplaced, see ante , at 9, n. 3). Seventh, neither the President nor Congress has expressed concern about
direct judicial enforcement of the ICJ decision. To the contrary,
the President favors enforcement of this judgment. Thus, insofar as
foreign policy impact, the interrelation of treaty provisions, or
any other matter within the President’s special treaty, military,
and foreign affairs responsibilities might prove relevant, such
factors favor, rather than militate against, enforcement
of the judgment before us. See, e.g., Jama v. Immigration and Customs Enforcement , 543 U. S. 335, 348
(2005) (noting Court’s “customary policy of deference to the
President in matters of foreign affairs”). For these seven
reasons, I would find that the United States’ treaty obligation to
comply with the ICJ judgment in Avena is enforceable in
court in this case without further congressional action beyond
Senate ratification of the relevant treaties. The majority reaches
a different conclusion 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).
Hunting for what the text cannot contain, it takes a wrong turn. It
threatens to deprive individuals, including businesses, property
owners, testamentary beneficiaries, consular officials, and others,
of the workable dispute resolution procedures that many treaties,
including commercially oriented treaties, provide. In a world where
commerce, trade, and travel have become ever more international,
that is a step in the wrong direction. Were the Court for a
moment to shift the direction of its legal gaze, looking instead to
the Supremacy Clause and to the extensive case law interpreting
that Clause as applied to treaties, I believe it would reach a
better supported, more felicitous conclusion. That approach, well
embedded in Court case law, leads to the conclusion that the ICJ
judgment before us is judicially enforceable without further
legislative action. II A
determination that the ICJ judgment is enforceable does not quite
end the matter, for the judgment itself requires us to make one
further decision. It directs the United States to provide further
judicial review of the 51 cases of Mexican nationals “by means of
its own choosing.” Avena, 2004 I. C. J., at 72,
¶153(9). As I have explained, I believe the judgment addresses
itself to the Judicial Branch. This Court consequently must
“choose” the means. And rather than, say, conducting the further
review in this Court, or requiring Medellín to seek the review in
another federal court, I believe that the proper forum for review
would be the Texas-court proceedings that would follow a remand of
this case. Beyond
the fact that a remand would be the normal course upon reversing a
lower court judgment, there are additional reasons why further
state-court review would be particularly appropriate here. The
crime took place in Texas, and the prosecution at issue is a Texas
prosecution. The President has specifically endorsed further Texas
court review. See President’s Memorandum. The ICJ judgment requires
further hearings as to whether the police failure to inform
Medellín of his Vienna Convention rights prejudiced Medellín, even
if such hearings would not otherwise be available under Texas’
procedural default rules. While Texas has already considered that
matter, it did not consider fully, for example, whether appointed
counsel’s coterminous 6-month suspension from the practice of the
law “caused actual prejudice to the defendant”—prejudice that would
not have existed had Medellín known he could contact his consul and
thereby find a different lawyer. Id., at 60,
¶121. Finally, Texas law
authorizes a criminal defendant to seek postjudgment review. See
Tex. Code Crim. Proc. Ann., Art. 11.071, §5(a)(1) (Vernon Supp.
2006). And Texas law provides for further review where American law
provides a “legal basis” that was previously “unavailable.” See Ex parte Medellín , 223 S. W. 3d 315, 352 (Tex. Crim.
App. 2006). Thus, I would send this case back to the Texas courts,
which must then apply the Avena judgment as binding law.
See U. S. Const., Art. VI, cl. 2; see also, e.g. , Dominguez v. State , 90 Tex. Crim.
92, 99, 234 S. W. 79, 83 (1921) (recognizing that treaties are
“part of the supreme law of the land” and that “it is the duty of
the courts of the state to take cognizance of, construe and give
effect” to them (internal quotation marks
omitted)). III Because
the majority concludes that the Nation’s international legal
obligation to enforce the ICJ’s decision is not automatically a
domestic legal obligation, it must then determine whether the
President has the constitutional authority to enforce it. And the
majority finds that he does not. See Part III, ante . In my
view, that second conclusion has broader implications than the
majority suggests. The President here seeks to implement treaty
provisions in which the United States agrees that the ICJ judgment
is binding with respect to the Avena parties.
Consequently, his actions draw upon his constitutional authority in
the area of foreign affairs. In this case, his exercise of that
power falls within that middle range of Presidential authority
where Congress has neither specifically authorized nor specifically
forbidden the Presidential action in question. See Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 637
(1952) (Jackson, J., concurring). At the same time, if the
President were to have the authority he asserts here, it would
require setting aside a state procedural law. It is 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. Cf. United States v. Pink , 315 U. S. 203 , 233
(1942) (“No State can rewrite our foreign policy to conform to its
own domestic policies”). Suppose that the President believes it
necessary that he implement a treaty provision requiring a prisoner
exchange involving someone in state custody in order to avoid a
proven military threat. Cf. Ware , 3 Dall., at 205. Or
suppose he believes it necessary to secure a foreign consul’s
treaty-based rights to move freely or to contact an arrested
foreign national. Cf. Vienna Convention, Art. 34, 21 U. S. T., at
98. Does the Constitution require the President in each and every
such instance to obtain a special statute authorizing his action?
On the other hand, the Constitution must impose significant
restrictions upon the President’s ability, by invoking Article II
treaty-implementation authority, to circumvent ordinary legislative
processes and to pre-empt state law as he does
so. Previously this Court
has said little about this question. It has held that the President
has a fair amount of authority to make and to implement executive
agreements, at least in respect to international claims settlement,
and that this authority can require contrary state law to be set
aside. See, e.g. , Pink , supra, at 223,
230–231, 233–234; United States v. Belmont , 301 U. S. 324 ,
326–327 (1937). It has made clear that principles of foreign
sovereign immunity trump state law and that the Executive,
operating without explicit legislative authority, can assert those
principles in state court. See Ex parte Peru , 318 U. S. 578 , 588
(1943). It has also made clear that the Executive has inherent
power to bring a lawsuit “to carry out treaty obligations.” Sanitary Dist. of Chicago v. United States , 266 U. S. 405 ,
425, 426 (1925). But it has reserved judgment as to “the scope of
the President’s power to preempt state law pursuant to authority
delegated by . . . a ratified treaty”—a fact that helps to explain
the majority’s inability to find support in precedent for its own
conclusions. Barclays Bank PLC v. Franchise Tax Bd. of
Cal. , 512 U. S.
298 , 329 (1994). Given the Court’s
comparative lack of expertise in foreign affairs; given the
importance of the Nation’s foreign relations; given the difficulty
of finding the proper constitutional balance among state and
federal, executive and legislative, powers in such matters; and
given the likely future importance of this Court’s efforts to do
so, I would very much hesitate before concluding that the
Constitution implicitly sets forth broad prohibitions (or
permissions) in this area. Cf. ante , at 27–28, n. 13
(stating that the Court’s holding is “limited” by the facts that
(1) this treaty is non-self-executing and (2) the judgment of an
international tribunal is involved). I would thus be
content to leave the matter in the constitutional shade from which
it has emerged. Given my view of this case, I need not answer the
question. And I shall not try to do so. That silence, however,
cannot be taken as agreement with the majority’s Part III
conclusion. IV The
majority’s two holdings taken together produce practical anomalies.
They unnecessarily complicate the President’s foreign affairs task
insofar as, for example, they increase the likelihood of Security
Council Avena enforcement proceedings, of worsening
relations with our neighbor Mexico, of precipitating actions by
other nations putting at risk American citizens who have the
misfortune to be arrested while traveling abroad, or of diminishing
our Nation’s reputation abroad as a result of our failure to follow
the “rule of law” principles that we preach. The holdings also
encumber Congress with a task (postratification legislation) that,
in respect to many decisions of international tribunals, it may not
want and which it may find difficult to execute. See supra , at 23–24 (discussing the problems with case-by-case
legislation). At the same time, insofar as today’s holdings make it
more difficult to enforce the judgments of international tribunals,
including technical non-politically-controversial judgments, those
holdings weaken that rule of law for which our Constitution stands.
Compare Hughes Defends Foreign Policies in Plea for Lodge,
N. Y. Times, Oct. 31, 1922, p. 1, col. 1, p. 4, col.
1 (then-Secretary of State Charles Evans Hughes stating that “we
favor, and always have favored, an international court of justice
for the determination according to judicial standards of
justiciable international disputes”); Mr. Root Discusses
International Problems, N. Y. Times, July 9, 1916, section 6,
book review p. 276 (former Secretary of State and U. S. Senator
Elihu Root stating that “ ‘a court of international justice
with a general obligation to submit all justiciable questions to
its jurisdiction and to abide by its judgment is a primary
requisite to any real restraint of law’ ”); Mills, The
Obligation of the United States Toward the World Court, 114 Annals
of the American Academy of Political and Social Science 128 (1924)
(Congressman Ogden Mills describing the efforts of then-Secretary
of State John Hay, and others, to establish a World Court, and the
support therefor). These
institutional considerations make it difficult to reconcile the
majority’s holdings with the workable Constitution that the
Founders envisaged. They reinforce the importance, in practice and
in principle, of asking Chief Justice Marshall’s question: Does a
treaty provision address the “Judicial” Branch rather than the
“Political Branches” of Government. See Foster , 2 Pet., at
314. And they show the wisdom of the well-established precedent
that indicates that the answer to the question here is “yes.” See
Parts I and II, supra . V In sum, a
strong line of precedent, likely reflecting the views of the
Founders, indicates that the treaty provisions before us and the
judgment of the International Court of Justice address themselves
to the Judicial Branch and consequently are self-executing. In
reaching a contrary conclusion, the Court has failed to take proper
account of that precedent and, as a result, the Nation may well
break its word even though the President seeks to live up to that
word and Congress has done nothing to suggest the
contrary. For the
reasons set forth, I respectfully dissent. APPENDIXES TO OPINION OF
BREYER, J. A Examples
of Supreme Court decisions considering a treaty provision to be
self-executing. Parentheticals indicate the subject matter; an
asterisk indicates that the Court applied the provision to
invalidate a contrary state or territorial law or
policy. 1. Olympic
Airways v. Husain , 540 U. S. 644 , 649, 657 (2004) (air
carrier liability) 2. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng , 525 U. S. 155 , 161–163, 176 (1999)
(same)* 3. Zicherman v. Korean Air
Lines Co. , 516
U. S. 217 , 221, 231 (1996) (same) 4. Société Nationale Industrielle
Aérospatiale v. United States Dist. Court for Southern
Dist. of Iowa , 482 U. S. 522 , 524, 533
(1987) (international discovery rules) 5. Sumitomo Shoji America,
Inc. v. Avagliano , 457 U. S. 176 , 181,
189–190 (1982) (employment practices) 6. Trans World Airlines, Inc. v. Franklin Mint Corp. , 466 U. S. 243 , 245, 252 (1984) (air
carrier liability) 7. Kolovrat v. Oregon , 366 U. S. 187 , 191, n. 6, 198
(1961) (property rights and inheritance)* 8. Clark v. Allen , 331 U. S. 503 , 507–508, 517–518 (1947)
(same)* 9. Bacardi Corp. of America v. Domenech , 311 U. S. 150 , 160, and n. 9, 161
(1940) (trademark)* 10. Todok v. Union State
Bank of Harvard , 281 U. S. 449 , 453, 455 (1930)
(property rights and inheritance) 11. Nielsen v. Johnson , 279 U. S. 47 , 50, 58 (1929)
(taxation)* 12. Jordan v. Tashiro , 278 U. S. 123 , 126–127, n. 1,
128–129 (1928) (trade and commerce) 13. Asakura v. Seattle , 265 U. S. 332 , 340, 343–344 (1924)
(same)* 14. Maiorano v. Baltimore
& Ohio R. Co. , 213 U. S. 268 , 273–274
(1909) (travel, trade, access to courts) 15. Johnson v. Browne , 205 U. S. 309 , 317–322 (1907)
(extradition) 16. Geofroy v. Riggs , 133 U. S. 258 , 267–268, 273 (1890)
(inheritance)* 17. Wildenhus’s Case , 120 U. S. 1 , 11, 17–18 (1887) (criminal
jurisdiction) 18. United States v. Rauscher , 119 U. S. 407 , 410–411, 429–430 (1886)
(extradition) 19. Hauenstein v. Lynham , 100
U. S. 483 , 485–486, 490–491 (1880) (property rights and
inheritance)* 20. American Ins. Co. v. 356 Bales of Cotton , 1 Pet. 511, 542 (1828)
(property) 21. United States v. Percheman , 7 Pet. 51, 88–89 (1833) (land
ownership) 22. United States v. Arredondo , 6 Pet. 691, 697, 749 (1832)
(same) 23. Orr v. Hodgson , 4
Wheat. 453, 462–465 (1819) (same)* 24. Chirac v. Lessee of
Chirac , 2 Wheat. 259, 270–271, 274, 275 (1817) (land ownership
and inheritance)* 25. Martin v. Hunter’s
Lessee , 1 Wheat. 304, 356–357 (1816) (land
ownership) 26. Hannay v. Eve , 3
Cranch 242, 248 (1806) (monetary debts) 27. Hopkirk v. Bell , 3
Cranch 454, 457–458 (1806) (same)* 28. Ware v. Hylton , 3
Dall. 199, 203–204, 285 (1796) (same)* 29. Georgia v. Brailsford , 3 Dall. 1, 4 (1794) (same) B United
States treaties in force containing provisions for the submission
of treaty-based disputes to the International Court of Justice.
Parentheticals indicate subject matters that can be the subject of
ICJ adjudication that are of the sort that this Court has found
self-executing. Economic Cooperation
Agreements 1. Economic Aid Agreement
Between the United States of America and Spain, Sept. 26, 1953,
[1953] 4 U. S. T. 1903, 1920–1921, T. I. A. S. No. 2851
(property and contract) 2. Agreement for Economic Assistance
Between the Government of the United States of America and the
Government of Israel Pursuant to the General Agreement for
Technical Cooperation, May 9, 1952, [1952] 3 U. S. T. 4174, 4177,
T. I. A. S. No. 2561 (same) 3. Economic Cooperation Agreement
Between the United States of America and Portugal, 62 Stat.
2861–2862 (1948) (same) 4. Economic Cooperation Agreement
Between the United States of America and the United Kingdom, 62
Stat. 2604 (1948) (same) 5. Economic Cooperation Agreement
Between the United States of America and the Republic of Turkey, 62
Stat. 2572 (1948) (same) 6. Economic Cooperation Agreement
Between the United States of America and Sweden, 62 Stat. 2557
(1948) (same) 7. Economic Cooperation Agreement
Between the United States of America and Norway, 62 Stat. 2531
(1948) (same) 8. Economic Cooperation Agreement
Between the Governments of the United States of America and the
Kingdom of the Netherlands, 62 Stat. 2500 (1948)
(same) 9. Economic Cooperation Agreement
Between the United States of America and the Grand Duchy of
Luxembourg, 62 Stat. 2468 (1948) (same) 10. Economic Cooperation Agreement
Between the United States of America and Italy, 62 Stat. 2440
(1948) (same) 11. Economic Cooperation Agreement
Between the United States of America and Iceland, 62 Stat. 2390
(1948) (same) 12. Economic Cooperation Agreement
Between the United States of America and Greece, 62 Stat. 2344
(1948) (same) 13. Economic Cooperation Agreement
Between the United States of America and France, 62 Stat. 2232,
2233 (1948) (same) 14. Economic Cooperation Agreement
Between the United States of America and Denmark, 62 Stat. 2214
(1948) (same) 15. Economic Cooperation Agreement
Between the United States of America and the Kingdom of Belgium, 62
Stat. 2190 (1948) (same) 16. Economic Cooperation Agreement
Between the United States of America and Austria, 62 Stat. 2144
(1948) (same) Bilateral Consular
Conventions 1. Consular Convention
Between the United States of America and the Kingdom of Belgium,
Sept. 2, 1969, [1974] 25 U. S. T. 41, 47–49, 56–57, 60–61, 75,
T. I. A. S. No. 7775 (domestic court jurisdiction and
authority over consular officers, taxation of consular officers,
consular notification) 2. Consular Convention Between the
United States of America and the Republic of Korea, Jan. 8, 1963,
[1963] 14 U. S. T. 1637, 1641, 1644–1648, T. I. A. S. No.
5469 (same) Friendship, Commerce, and
Navigation Treaties 1. Treaty of Amity and
Economic Relations Between the United States of America and the
Togolese Republic, Feb. 8, 1966, [1967] 18 U. S. T. 1, 3–4, 10, T.
I. A. S. No. 6193 (contracts and property) 2. Treaty of Friendship, Establishment
and Navigation Between the United States of America and The Kingdom
of Belgium, Feb. 21, 1961, [1963] 14 U. S. T. 1284, 1290–1291,
1307, T. I. A. S. No. 5432 (same) 3. Treaty of Friendship, Establishment
and Navigation between the United States of America and the Grand
Duchy of Luxembourg, Feb. 23, 1962, [1963] 14 U. S. T. 251,
254–255, 262, T. I. A. S. No. 5306 (consular notification;
contracts and property) 4. Treaty of Friendship, Commerce and
Navigation between the United States of America and the Kingdom of
Denmark, Oct. 1, 1951, [1961] 12 U. S. T. 908, 912–913, 935,
T. I. A. S. No. 4797 (contracts and property) 5. Treaty of Friendship and Commerce
Between the United States of America and Pakistan, Nov. 12, 1959,
[1961] 12 U. S. T. 110, 113, 123, T. I. A. S. No. 4863
(same) 6. Convention of Establishment Between
the United States of America and France, Nov. 25, 1959, [1960] 11
U. S. T. 2398, 2401–2403, 2417, T. I. A. S. No. 4625
(same) 7. Treaty of Friendship, Commerce and
Navigation Between the United States of America and the Republic of
Korea, Nov. 28, 1956, [1957] 8 U. S. T. 2217, 2221–2222, 2233, T.
I. A. S. No. 3947 (same) 8. Treaty of Friendship, Commerce and
Navigation between the United States of America and the Kingdom of
the Netherlands, Mar. 27, 1956, [1957] 8 U. S. T. 2043, 2047–2050,
2082–2083, T. I. A. S. No. 3942 (freedom to travel, consular
notification, contracts and property) 9. Treaty of Amity, Economic Relations,
and Consular Rights Between the United States of America and Iran,
Aug. 15, 1955, [1957] 8 U. S. T. 899, 903, 907, 913, T. I. A. S.
No. 3853 (property and freedom of commerce) 10. Treaty of Friendship, Commerce and
Navigation Between the United States of America and the Federal
Republic of Germany, Oct. 29, 1954, [1956] 7 U. S. T. 1839,
1844–1846, 1867, T. I. A. S. No. 3593 (property and
contract) 11. reaty of Friendship, Commerce and
Naviga- tion Between the United States of America and Greece, Aug.
3, 1951, [1954] 5 U. S. T. 1829, 1841–1847, 1913–1915, T. I. A. S.
No. 3057 (same) 12. Treaty of Friendship, Commerce and
Navigation Between the United States of America and Israel, Aug.
23, 1951, [1954] 5 U. S. T 550, 555–556, 575, T. I. A. S. No. 2948
(same) 13. Treaty of Amity and Economic
Relations Between the United States of America and Ethiopia, Sept.
7, 1951, [1953] 4 U. S. T. 2134, 2141, 2145, 2147, T. I. A. S. No.
2864 (property and freedom of commerce) 14. Treaty of Friendship, Commerce and
Navigation Between the United States of America and Japan, Apr. 2,
1953, [1953] 4 U. S. T. 2063, 2067–2069, 2080, T. I. A. S. No. 2863
(property and contract) 15. Treaty of Friendship, Commerce and
Navigation between the United States of America and Ireland, Jan.
21, 1950, [1950] 1 U. S. T. 785, 792–794, 801, T. I. A. S. No. 2155
(same) 16. Treaty of Friendship, Commerce and
Navigation between the United States of America and the Italian
Republic, 63 Stat. 2262, 2284, 2294 (1948) (property and freedom of
commerce) Multilateral
Conventions 1. Patent Cooperation
Treaty, June 19, 1970, [1976–77] 28 U. S. T. 7645, 7652–7676,
7708, T. I. A. S. No. 8733
(patents) 2. Universal Copyright Convention, July
24, 1971, [1974] 25 U. S. T. 1341, 1345, 1366,
T. I. A. S. No. 7868 (copyright) 3. Vienna Convention on Diplomatic
Relations and Optional Protocol Concerning the Compulsory
Settlement of Disputes, Apr. 18, 1961, [1972] 23 U. S. T.
3227, 3240–3243, 3375, T. I. A. S. No. 7502 (rights
of diplomats in foreign nations) 4. Paris Convention for the Protection
of Industrial Property, July 14, 1967, [1970] 21 U. S. T.
1583, 1631–1639, 1665–1666, T. I. A. S. No. 6923
(patents) 5. Convention on the Privileges and
Immunities of the United Nations, Feb. 13, 1946, [1970] 21 U.
S. T. 1418, 1426–1428, 1430–1432, 1438–1440,
T. I. A. S. No. 6900 (rights of U. N. diplomats and
officials) 6. Convention on Offences and Certain
Other Acts Committed on Board Aircraft, Sept. 14, 1963, [1969] 20
U. S. T. 2941, 2943–2947, 2952, T. I. A. S. No.
6768 (airlines’ treatment of passengers) 7. Agreement for Facilitating the
International Circulation of Visual and Auditory Materials of an
Educational, Scientific and Cultural Character, July 15, 1949,
[1966] 17 U. S. T. 1578, 1581, 1586, T. I. A. S. No.
6116 (customs duties on importation of films and
recordings) 8. Universal Copyright Convention,
Sept. 6, 1952, [1955] 6 U. S. T. 2731, 2733–2739, 2743,
T. I. A. S. No. 3324 (copyright) 9. Treaty of Peace with Japan, Sept. 8,
1951, [1952] 3 U. S. T. 3169, 3181–3183, 3188,
T. I. A. S. No. 2490 (property) 10. Convention on Road Traffic, Sept.
19, 1949, [1952] 3 U. S. T. 3008, 3012–3017, 3020,
T. I. A. S. No. 2487 (rights and obligations of
drivers) 11. Convention on International Civil
Aviation, 61 Stat. 1204 (1944) (seizure of aircraft to satisfy
patent claims)