1346 128 SUPREME COURT REPORTER · 1346 128 SUPREME COURT REPORTER Jose Ernesto MEDELLiIN,...

1346 128 SUPREME COURT REPORTER

Jose Ernesto MEDELLiIN, Petitioner,

v.

TEXAS.No. 06–984.

Argued Oct. 10, 2007.

Decided March 25, 2008.

Background: Following affirmance of hisconviction for capital murder and deathsentence, denial of his initial applicationfor habeas corpus, denial of his federalpetition for writ of habeas corpus, denial ofhis application for certificate of appealabili-ty, and grant of petition for writ of certio-rari by the United States Supreme Court,Mexican national filed subsequent applica-tion for writ of habeas corpus from theTexas Court of Criminal Appeals. Follow-ing United States Supreme Court’s dis-missal of federal writ as improvidentlygranted, 544 U.S. 660, 125 S.Ct. 2088, 161L.Ed.2d 982, the Texas Court of CriminalAppeals, 206 S.W.3d 584, ordered addition-al briefing and, 223 S.W.3d 315, dismissedapplication as abuse of writ. Certiorari wasgranted.

Holdings: The Supreme Court, Chief Jus-tice Roberts, held that:

(1) International Court of Justice’s Avenadecision, that United States had violat-ed Vienna Convention by failing to in-form 51 named Mexican nationals, in-cluding petitioner, of their ViennaConvention rights was not directly en-forceable domestic federal law thatpreempted state limitations on filing ofsuccessive habeas petitions, and

(2) President’s Memorandum to UnitedStates Attorney General, that UnitedStates would discharge its internation-al obligations under Avena by havingstate courts give effect to decision, didnot independently require states toprovide reconsideration and review ofnamed Mexican nationals’ claims with-

out regard to state procedural defaultrules.

Affirmed.

Justice Stevens filed opinion concurring inthe judgment.

Justice Breyer filed dissenting opinion inwhich Justices Souter and Ginsburgjoined.

1. Treaties O12, 13While treaty may constitute an inter-

national commitment, it is not binding do-mestic law unless Congress has enactedimplementing statutes or treaty itself con-veys intention that it be self-executing andis ratified on that basis.

2. Treaties O1, 13‘‘Treaty’’ is primarily compact be-

tween independent nations which ordi-narily depends for enforcement of itsprovisions on interest and honor of gov-ernments which are parties to it.

See publication Words and Phras-es for other judicial constructionsand definitions.

3. Treaties O7Interpretation of treaty, like interpre-

tation of statute, begins with its text.

4. Treaties O7Because treaty ratified by United

States is agreement among sovereign pow-ers, Supreme Court also considers as aidsto its interpretation treaty’s negotiationand drafting history as well as postratifica-tion understanding of signatory nations.

5. International Law O10.45(1)Phrase ‘‘undertakes to comply’’ in

United Nations (UN) Charter specificallyaddressing effect of International Court ofJustice (ICJ) decisions is not acknowledge-ment that decisions will have immediatelegal effect in courts of U.N. Members, butrather commitment on part of U.N. Mem-

1347MEDELLiIN v. TEXASCite as 128 S.Ct. 1346 (2008)

bers to take future action through theirpolitical branches to comply with ICJ deci-sion. United Nations Charter, Art. 94(1),59 Stat. 1031.

See publication Words and Phras-es for other judicial constructionsand definitions.

6. International Law O10.45(1)United Nations (UN) Charter does

not contemplate automatic enforceability ofInternational Court of Justice (ICJ) deci-sions in domestic courts;its enforcementprovision provides sole remedy for non-compliance, referral to United Nations Se-curity Council by aggrieved state. UnitedNations Charter, Art. 94(2), 59 Stat. 1031.

7. Aliens, Immigration, and CitizenshipO458

Treaties O11International Court of Justice’s Avena

judgment, that United States had violatedVienna Convention by failing to inform 51named Mexican nationals, including oneconvicted in Texas of capital murder andsentenced to death, of their Vienna Con-vention rights, was not automatically en-forceable domestic law, immediately anddirectly binding on state and federal courtspursuant to Supremacy Clause, as wouldpreempt state limitations on filing of suc-cessive habeas petitions. U.S.C.A. Const.Art. 6, cl. 2; Vernon’s Ann.Texas C.C.P.art. 11.071, § 5(a)(1).

8. Treaties O7The United States’ interpretation of a

treaty is entitled to great weight.

9. Treaties O7As general matter, agreement to

abide by result of international adjudica-tion, i.e., to give result of such adjudicationdomestic legal effect, can be treaty obli-gation like any other, so long as agreementis consistent with United States Constitu-tion.

10. Treaties O7

Fact that judgment of internationaltribunal does not automatically become do-mestic law does not mean that underlyingtreaty is useless; such judgments still con-stitute international obligations, the propersubject of political and diplomatic negotia-tions.

11. Treaties O13

Fact that International Court of Jus-tice (ICJ) judgment may not be automati-cally enforceable in domestic courts doesnot mean the particular underlying treatyis not.

12. Aliens, Immigration, and CitizenshipO458

Habeas Corpus O275.1

Treaties O11

President’s Memorandum to UnitedStates Attorney General, that UnitedStates would discharge its internationalobligations under International Court ofJustice’s (ICJ’s) Avena decision, that Unit-ed States had violated Vienna Conventionby failing to inform 51 named Mexicannationals of their Vienna Conventionrights, by having state courts give effect todecision, did not independently requirestates to provide reconsideration and re-view of named Mexican nationals’ habeasclaims without regard to state proceduraldefault rules; relevant treaties did not givePresident authority to implement Avenajudgment and Congress had not ac-quiesced in the exercise of that authority,and, independent of United States’ treatyobligations, Memorandum was not validexercise of President’s foreign affairs au-thority to resolve claims disputes with for-eign nations.

13. United States O28

President’s authority to act, as withthe exercise of any governmental power,


must stem either from an act of Congressor from the Constitution itself.

14. Treaties O12President has array of political and

diplomatic means available to enforce in-ternational obligations, but unilaterallyconverting non-self-executing treaty intoself-executing one is not among them; re-sponsibility for transforming internationalobligation arising from non-self-executingtreaty into domestic law falls to Congress.

15. Constitutional Law O2340, 2620Power to make necessary laws is in

Congress; power to execute them is in thePresident. U.S.C.A. Const. Art. 1, § 1;U.S.C.A. Const. Art. 2, § 1, cl. 1.

Syllabus *

In the Case Concerning Avena andOther Mexican Nationals (Mex.v.U.S.),2004 I.C.J. 12 (Avena ), the InternationalCourt of Justice (ICJ) held that the UnitedStates had violated Article 36(1)(b) of theVienna Convention on Consular Relations(Vienna Convention or Convention) by fail-ing to inform 51 named Mexican nationals,including petitioner Medellın, of their Vi-enna Convention rights. The ICJ foundthat those named individuals were entitledto review and reconsideration of their U.S.state-court convictions and sentences re-gardless of their failure to comply withgenerally applicable state rules governingchallenges to criminal convictions. InSanchez–Llamas v. Oregon, 548 U.S. 331,126 S.Ct. 2669, 165 L.Ed.2d 557—issuedafter Avena but involving individuals whowere not named in the Avena judgment—this Court held, contrary to the ICJ’s de-termination, that the Convention did notpreclude the application of state defaultrules. The President then issued a memo-

randum (President’s Memorandum orMemorandum) stating that the UnitedStates would ‘‘discharge its internationalobligations’’ under Avena ‘‘by having Statecourts give effect to the decision.’’

Relying on Avena and the President’sMemorandum, Medellın filed a secondTexas state-court habeas application chal-lenging his state capital murder convictionand death sentence on the ground that hehad not been informed of his Vienna Con-vention rights. The Texas Court of Crimi-nal Appeals dismissed Medellın’s applica-tion as an abuse of the writ, concludingthat neither Avena nor the President’sMemorandum was binding federal law thatcould displace the State’s limitations onfiling successive habeas applications.

Held: Neither Avena nor the Presi-dent’s Memorandum constitutes directlyenforceable federal law that pre-emptsstate limitations on the filing of successivehabeas petitions. Pp. 1356 – 1372.

1. The Avena judgment is not direct-ly enforceable as domestic law in statecourt. Pp. 1356 – 1367.

(a) While a treaty may constitute aninternational commitment, it is not bindingdomestic law unless Congress has enactedstatutes implementing it or the treaty it-self conveys an intention that it be ‘‘self-executing’’ and is ratified on that basis.See, e.g., Foster v. Neilson, 2 Pet. 253, 314,7 L.Ed. 415. The Avena judgment createsan international law obligation on the partof the United States, but it is not automati-cally binding domestic law because none ofthe relevant treaty sources—the OptionalProtocol, the U.N. Charter, or the ICJStatute—creates binding federal law in theabsence of implementing legislation, andno such legislation has been enacted.

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


The most natural reading of the Op-tional Protocol is that it is a bare grant ofjurisdiction. The Protocol says nothingabout the effect of an ICJ decision, doesnot commit signatories to comply there-with, and is silent as to any enforcementmechanism. The obligation to comply withICJ judgments is derived from Article 94of the U.N. Charter, which provides that‘‘[e]ach TTT Member TTT undertakes tocomply with the [ICJ’s] decision TTT in anycase to which it is a party.’’ The phrase‘‘undertakes to comply’’ is simply a com-mitment by member states to take futureaction through their political branches.That language does not indicate that theSenate, in ratifying the Optional Protocol,intended to vest ICJ decisions with imme-diate legal effect in domestic courts.

This reading is confirmed by Article94(2)—the enforcement provision—whichprovides the sole remedy for noncompli-ance: referral to the U.N. Security Coun-cil by an aggrieved state. The provision ofan express diplomatic rather than judicialremedy is itself evidence that ICJ judg-ments were not meant to be enforceable indomestic courts. See Sanchez–Llamas,548 U.S., at 347, 126 S.Ct. 2669. Even this‘‘quintessentially international remed[y],’’id., at 355, 126 S.Ct. 2669, is not absolute.It requires a Security Council resolution,and the President and Senate were un-doubtedly aware that the United Statesretained the unqualified right to exerciseits veto of any such resolution. Medellın’sconstruction would eliminate the option ofnoncompliance contemplated by Article94(2), undermining the ability of the politi-cal branches to determine whether andhow to comply with an ICJ judgment.

The ICJ Statute, by limiting disputesto those involving nations, not individuals,and by specifying that ICJ decisions haveno binding force except between those na-tions, provides further evidence that theAvena judgment does not automatically

constitute federal law enforceable in U.S.courts. Medellın, an individual, cannot beconsidered a party to the Avena decision.Finally, the United States’ interpretationof a treaty ‘‘is entitled to great weight,’’Sumitomo Shoji America, Inc. v. Avagli-ano, 457 U.S., at 184–185, 102 S.Ct. 2374,and the Executive Branch has unfailinglyadhered to its view that the relevant trea-ties do not create domestically enforceablefederal law. Pp. 1356 – 1361.

(b) The foregoing interpretive ap-proach—parsing a treaty’s text to deter-mine if it is self-executing—is hardly novel.This Court has long looked to the languageof a treaty to determine whether the Pres-ident who negotiated it and the Senatethat ratified it intended for the treaty toautomatically create domestically enforce-able federal law. See, e.g., Foster, supra.Pp. 1361 – 1363.

(c) The Court’s conclusion that Avenadoes not by itself constitute binding feder-al law is confirmed by the ‘‘postratificationunderstanding’’ of signatory countries.See Zicherman v. Korean Air Lines Co.,516 U.S. 217, 226, 116 S.Ct. 629, 133L.Ed.2d 596. There are currently 47 na-tions that are parties to the Optional Pro-tocol and 171 nations that are parties tothe Vienna Convention. Yet neither Me-dellın nor his amici have identified a singlenation that treats ICJ judgments as bind-ing in domestic courts. The lack of anybasis for supposing that any other countrywould treat ICJ judgments as directly en-forceable as a matter of their domestic lawstrongly suggests that the treaty shouldnot be so viewed in our courts. See San-chez–Llamas, 548 U.S., at 343–344, and n.3, 126 S.Ct. 2669.

The Court’s conclusion is furthersupported by general principles of inter-pretation. Given that the forum state’sprocedural rules govern a treaty’s imple-


mentation absent a clear and expressstatement to the contrary, see e.g., id., at351, 126 S.Ct. 2669, one would expect theratifying parties to the relevant treatiesto have clearly stated any intent to giveICJ judgments such effect. There is nostatement in the Optional Protocol, theU.N. Charter, or the ICJ Statute thatsupports this notion. Moreover, the con-sequences of Medellın’s argument givepause: neither Texas nor this Court maylook behind an ICJ decision and quarrelwith its reasoning or result, despite thisCourt’s holding in Sanchez–Llamas that‘‘[n]othing in the [ICJ’s] structure or pur-pose TTT suggests that its interpretationswere intended to be conclusive on ourcourts.’’ id., at 354, 126 S.Ct. 2669. Pp.1363 – 1365.

(d) The Court’s holding does not callinto question the ordinary enforcement offoreign judgments. An agreement toabide by the result of an internationaladjudication can be a treaty obligation likeany other, so long as the agreement isconsistent with the Constitution. In addi-tion, Congress is up to the task of imple-menting non-self-executing treaties, eventhose involving complex commercial dis-putes. Medellın contends that domesticcourts generally give effect to foreignjudgments, but the judgment Medellınasks us to enforce is hardly typical: Itwould enjoin the operation of state law andforce the State to take action to ‘‘reviewand reconside[r]’’ his case. Foreign judg-ments awarding injunctive relief againstprivate parties, let alone sovereign States,‘‘are not generally entitled to enforce-ment.’’ Restatement (Third) of ForeignRelations Law of the United States § 481,Comment b, p. 595 (1986). Pp. 1365 –1367.

2. The President’s Memorandumdoes not independently require the Statesto provide review and reconsideration ofthe claims of the 51 Mexican nationals

named in Avena without regard to stateprocedural default rules. Pp. 1367 – 1372.

(a) The President seeks to vindicateplainly compelling interests in ensuringthe reciprocal observance of the ViennaConvention, protecting relations with for-eign governments, and demonstratingcommitment to the role of internationallaw. But those interests do not allow theCourt to set aside first principles. ThePresident’s authority to act, as with theexercise of any governmental power, ‘‘muststem either from an act of Congress orfrom the Constitution itself.’’ YoungstownSheet & Tube Co. v. Sawyer, 343 U.S. 579,585, 72 S.Ct. 863, 96 L.Ed. 1153.

Justice Jackson’s familiar tripartitescheme provides the accepted frameworkfor evaluating executive action in this area.First, ‘‘[w]hen the President acts pursuantto an express or implied authorization ofCongress, his authority is at its maximum,for it includes all that he possesses in hisown right plus all that Congress can dele-gate.’’ Youngstown, 343 U.S., at 635, 72S.Ct. 863 (Jackson, J., concurring). Sec-ond, ‘‘[w]hen the President acts in absenceof either a congressional grant or denial ofauthority, he can only rely upon his ownindependent powers, but there is a zone oftwilight in which he and Congress mayhave concurrent authority, or in which itsdistribution is uncertain.’’ Id., at 637, 72S.Ct. 863. In such a circumstance, Presi-dential authority can derive support from‘‘congressional inertia, indifference orquiescence.’’ Ibid. Finally, ‘‘[w]hen thePresident takes measures incompatiblewith the expressed or implied will of Con-gress, his power is at its lowest ebb,’’ andthe Court can sustain his actions ‘‘only bydisabling the Congress from acting uponthe subject.’’ Id., at 637–638, 72 S.Ct. 863.Pp. 1367 – 1368.


(b) The United States marshals twoprincipal arguments in favor of the Presi-dent’s authority to establish binding rulesof decision that preempt contrary statelaw. The United States argues that therelevant treaties give the President theauthority to implement the Avena judg-ment and that Congress has acquiesced inthe exercise of such authority. The Unit-ed States also relies upon an ‘‘indepen-dent’’ international dispute-resolution pow-er. We find these arguments, as well asMedellın’s additional argument that thePresident’s Memorandum is a valid exer-cise of his ‘‘Take Care’’ power, unpersua-sive. Pp. 1368 – 1372.

(i) The United States maintains thatthe President’s Memorandum is implicitlyauthorized by the Optional Protocol andthe U.N. Charter. But the responsibilityfor transforming an international obli-gation arising from a non-self-executingtreaty into domestic law falls to Congress,not the Executive. Foster, 2 Pet., at 315, 7L.Ed. 415. It is a fundamental constitu-tional principle that ‘‘ ‘[t]he power to makethe necessary laws is in Congress; thepower to execute in the President.’ ’’Hamdan v. Rumsfeld, 548 U.S. 557, 591,126 S.Ct. 2749, 165 L.Ed.2d 723. A non-self-executing treaty, by definition, is onethat was ratified with the understandingthat it is not to have domestic effect of itsown force. That understanding precludesthe assertion that Congress has implicitlyauthorized the President—acting on hisown—to achieve precisely the same result.Accordingly, the President’s Memorandumdoes not fall within the first category ofthe Youngstown framework. Indeed, be-cause the non-self-executing character ofthe relevant treaties not only refutes thenotion that the ratifying parties vested thePresident with the authority to unilaterallymake treaty obligations binding on domes-tic courts, but also implicitly prohibits himfrom doing so, the President’s assertion of

authority is within Youngstown’s third cat-egory, not the first or even the second.

The United States maintains that con-gressional acquiescence requires that thePresident’s Memorandum be given effectas domestic law. But such acquiescence ispertinent when the President’s action fallswithin the second Youngstown category,not the third. In any event, congressionalacquiescence does not exist here. Con-gress’ failure to act following the Presi-dent’s resolution of prior ICJ controver-sies does not demonstrate acquiescencebecause in none of those prior controver-sies did the President assert the authorityto transform an international obligationinto domestic law and thereby displacestate law. The United States’ reliance onthe President’s ‘‘related’’ statutory respon-sibilities and on his ‘‘established role’’ in li-tigating foreign policy concerns is alsomisplaced. The President’s statutory au-thorization to represent the United Statesbefore the U. N., the ICJ, and the U.N.Security Council speaks to his internation-al responsibilities, not to any unilateralauthority to create domestic law.

The combination of a non-self-execut-ing treaty and the lack of implementinglegislation does not preclude the Presidentfrom acting to comply with an internation-al treaty obligation by other means, solong as those means are consistent withthe Constitution. But the President maynot rely upon a non-self-executing treatyto establish binding rules of decision thatpre-empt contrary state law. Pp. 1368 –1371.

(ii) The United States also claimsthat—independent of the United States’treaty obligations—the Memorandum is avalid exercise of the President’s foreignaffairs authority to resolve claims dis-putes. See, e.g., American Ins. Assn. v.Garamendi, 539 U.S. 396, 415, 123 S.Ct.2374, 156 L.Ed.2d 376. This Court’s


claims-settlement cases involve a narrowset of circumstances: the making of execu-tive agreements to settle civil claims be-tween American citizens and foreign gov-ernments or foreign nationals. They arebased on the view that ‘‘a systematic, un-broken, executive practice, long pursued tothe knowledge of the Congress and neverbefore questioned,’’ can ‘‘raise a presump-tion that the [action] had been [taken] inpursuance of its consent.’’ Dames &Moore v. Regan, 453 U.S. 654, 668, 101S.Ct. 2972, 69 L.Ed.2d 918. But ‘‘[p]astpractice does not, by itself, create power.’’Ibid. The President’s Memorandum—a di-rective issued to state courts that wouldcompel those courts to reopen final crimi-nal judgments and set aside neutrally ap-plicable state laws—is not supported by a‘‘particularly longstanding practice.’’ TheExecutive’s limited authority to settle in-ternational claims disputes pursuant to anexecutive agreement cannot stretch so far.Pp. 1371 – 1372.

(iii) Medellın’s argument that thePresident’s Memorandum is a valid exer-cise of his power to ‘‘Take Care’’ that thelaws be faithfully executed, U.S. Const.,Art. II, § 3, fails because the ICJ’s deci-sion in Avena is not domestic law. P.1372.

223 S.W.3d 315, affirmed.

ROBERTS, C. J., delivered theopinion of the Court, in which SCALIA,KENNEDY, THOMAS, and ALITO, JJ.,joined. STEVENS, J., filed an opinionconcurring in the judgment. BREYER,J., filed a dissenting opinion, in whichSOUTER and GINSBURG, JJ., joined.

Paul D. Clement, for United States asamicus curiae, by special leave of theCourt, supporting the Petitioner.

R. Ted Cruz, for Respondent.

Donald Francis Donovan, Carl Micarelli,Catherine M. Amirfar, Bruce W. Klaw, JillVan Berg, Emma C. Prete, Debevoise &Plimpton LLP, New York, New York, forPetitioner.

Greg Abbott, Attorney General of Texas,Kent C. Sullivan, First Assistant AttorneyGeneral, Eric J.R. Nichols, Deputy Attor-ney General for Criminal Justice, R. TedCruz, Solicitor General, Sean D. Jordan,Deputy Solicitor General, Kristofer S.Monson, Daniel L. Geyser, Adam W.Aston, Assistant Solicitors General Officeof the Attorney General, Austin, Texas, forRespondent.

For U.S. Supreme Court briefs, see:

2007 WL 1886212 (Pet.Brief)

2007 WL 2428387 (Resp.Brief)

2007 WL 2886606 (Reply.Brief)

Chief Justice ROBERTS delivered theopinion of the Court.

The International Court of Justice (ICJ),located in the Hague, is a tribunal estab-lished pursuant to the United NationsCharter to adjudicate disputes betweenmember states. In the Case ConcerningAvena and Other Mexican Nationals(Mex.v.U.S.), 2004 I.C.J. 12 (Judgment ofMar. 31) (Avena ), that tribunal considereda claim brought by Mexico against theUnited States. The ICJ held that, basedon violations of the Vienna Convention, 51named Mexican nationals were entitled toreview and reconsideration of their state-court convictions and sentences in theUnited States. This was so regardless ofany forfeiture of the right to raise ViennaConvention claims because of a failure tocomply with generally applicable staterules governing challenges to criminal con-victions.

In Sanchez–Llamas v. Oregon, 548 U.S.331, 126 S.Ct. 2669, 165 L.Ed.2d 557(2006)—issued after Avena but involving


individuals who were not named in theAvena judgment—we held that, contraryto the ICJ’s determination, the ViennaConvention did not preclude the applica-tion of state default rules. After the Ave-na decision, President George W. Bushdetermined, through a Memorandum tothe Attorney General (Feb. 28, 2005), App.to Pet. for Cert. 187a (Memorandum orPresident’s Memorandum), that the UnitedStates would ‘‘discharge its internationalobligations’’ under Avena ‘‘by having Statecourts give effect to the decision.’’

Petitioner Jose Ernesto Medellın, whohad been convicted and sentenced in Texasstate court for murder, is one of the 51Mexican nationals named in the Avenadecision. Relying on the ICJ’s decisionand the President’s Memorandum, Medel-lın filed an application for a writ of habeascorpus in state court. The Texas Court ofCriminal Appeals dismissed Medellın’s ap-plication as an abuse of the writ understate law, given Medellın’s failure to raisehis Vienna Convention claim in a timelymanner under state law. We granted cer-tiorari to decide two questions. First, isthe ICJ’s judgment in Avena directly en-forceable as domestic law in a state courtin the United States? Second, does thePresident’s Memorandum independentlyrequire the States to provide review andreconsideration of the claims of the 51Mexican nationals named in Avena withoutregard to state procedural default rules?We conclude that neither Avena nor thePresident’s Memorandum constitutes di-rectly enforceable federal law that pre-empts state limitations on the filing ofsuccessive habeas petitions. We thereforeaffirm the decision below.

I

A

In 1969, the United States, upon theadvice and consent of the Senate, ratified

the Vienna Convention on Consular Rela-tions (Vienna Convention or Convention),Apr. 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S.No. 6820, and the Optional Protocol Con-cerning the Compulsory Settlement of Dis-putes to the Vienna Convention (OptionalProtocol or Protocol), Apr. 24, 1963, [1970]21 U.S.T. 325, T.I.A.S. No. 6820. Thepreamble to the Convention provides thatits purpose is to ‘‘contribute to the devel-opment of friendly relations among na-tions.’’ 21 U.S.T., at 79; Sanchez–Llamas,supra, at 337, 126 S.Ct. 2669. Towardthat end, Article 36 of the Convention wasdrafted to ‘‘facilitat[e] the exercise of con-sular functions.’’ Art. 36(1), 21 U.S.T., at100. It provides that if a person detainedby a foreign country ‘‘so requests, thecompetent authorities of the receivingState shall, without delay, inform the con-sular post of the sending State’’ of suchdetention, and ‘‘inform the [detainee] of hisrigh[t]’’ to request assistance from the con-sul of his own state. Art. 36(1)(b), id., at101.

The Optional Protocol provides a venuefor the resolution of disputes arising out ofthe interpretation or application of the Vi-enna Convention. Art. I, 21 U.S.T., at 326.Under the Protocol, such disputes ‘‘shalllie within the compulsory jurisdiction ofthe International Court of Justice’’ and‘‘may accordingly be brought before the[ICJ] TTT by any party to the disputebeing a Party to the present Protocol.’’Ibid.

The ICJ is ‘‘the principal judicial organof the United Nations.’’ United NationsCharter, Art. 92, 59 Stat. 1051, T.S. No.993 (1945). It was established in 1945pursuant to the United Nations Charter.The ICJ Statute—annexed to the U.N.Charter—provides the organizationalframework and governing procedures forcases brought before the ICJ. Statute of


the International Court of Justice (ICJStatute), 59 Stat. 1055, T.S. No. 993 (1945).

Under Article 94(1) of the U.N. Charter,‘‘[e]ach Member of the United Nations un-dertakes to comply with the decision of the[ICJ] in any case to which it is a party.’’59 Stat. 1051. The ICJ’s jurisdiction inany particular case, however, is dependentupon the consent of the parties. See Art.36, 59 Stat. 1060. The ICJ Statute delin-eates two ways in which a nation mayconsent to ICJ jurisdiction: It may con-sent generally to jurisdiction on any ques-tion arising under a treaty or general in-ternational law, Art. 36(2), ibid., or it mayconsent specifically to jurisdiction over aparticular category of cases or disputespursuant to a separate treaty, Art. 36(1),ibid. The United States originally con-sented to the general jurisdiction of theICJ when it filed a declaration recognizingcompulsory jurisdiction under Art. 36(2) in1946. The United States withdrew fromgeneral ICJ jurisdiction in 1985. See U.S.Dept. of State Letter and Statement Con-cerning Termination of Acceptance of ICJCompulsory Jurisdiction (Oct. 7, 1985), re-printed in 24 I.L.M. 1742 (1985). By rati-fying the Optional Protocol to the ViennaConvention, the United States consentedto the specific jurisdiction of the ICJ withrespect to claims arising out of the ViennaConvention. On March 7, 2005, subse-quent to the ICJ’s judgment in Avena, theUnited States gave notice of withdrawalfrom the Optional Protocol to the ViennaConvention. Letter from CondoleezzaRice, Secretary of State, to Kofi A. Annan,Secretary–General of the United Nations.

B

Petitioner Jose Ernesto Medellın, aMexican national, has lived in the UnitedStates since preschool. A member of the‘‘Black and Whites’’ gang, Medellın wasconvicted of capital murder and sentenced

to death in Texas for the gang rape andbrutal murders of two Houston teenagers.

On June 24, 1993, 14–year–old JenniferErtman and 16–year–old Elizabeth Penawere walking home when they encounteredMedellın and several fellow gang mem-bers. Medellın attempted to engage Eliza-beth in conversation. When she tried torun, petitioner threw her to the ground.Jennifer was grabbed by other gang mem-bers when she, in response to her friend’scries, ran back to help. The gang mem-bers raped both girls for over an hour.Then, to prevent their victims from identi-fying them, Medellın and his fellow gangmembers murdered the girls and discard-ed their bodies in a wooded area. Medel-lın was personally responsible for stran-gling at least one of the girls with her ownshoelace.

Medellın was arrested at approximately4 a.m. on June 29, 1993. A few hourslater, between 5:54 and 7:23 a.m., Medellınwas given Miranda warnings; he thensigned a written waiver and gave a de-tailed written confession. App. to Brieffor Respondent 32–36. Local law enforce-ment officers did not, however, inform Me-dellın of his Vienna Convention right tonotify the Mexican consulate of his deten-tion. Brief for Petitioner 6–7. Medellınwas convicted of capital murder and sen-tenced to death; his conviction and sen-tence were affirmed on appeal. Medellınv. State, No. 71,997 (Tex.Crim.App., May16, 1997), App. to Brief for Respondent 2–31.

Medellın first raised his Vienna Conven-tion claim in his first application for statepostconviction relief. The state trial courtheld that the claim was procedurally de-faulted because Medellın had failed toraise it at trial or on direct review. Thetrial court also rejected the Vienna Con-vention claim on the merits, finding thatMedellın had ‘‘fail[ed] to show that any


non-notification of the Mexican authoritiesimpacted on the validity of his convictionor punishment.’’ Id., at 62.1 The TexasCourt of Criminal Appeals affirmed. Id.,at 64–65.

Medellın then filed a habeas petition inFederal District Court. The DistrictCourt denied relief, holding that Medellın’sVienna Convention claim was procedurallydefaulted and that Medellın had failed toshow prejudice arising from the ViennaConvention violation. See Medellın v.Cockrell, Civ. Action No. H–01–4078 (SDTex., June 26, 2003), App. to Brief forRespondent 86–92.

While Medellın’s application for a certif-icate of appealability was pending in theFifth Circuit, the ICJ issued its decision inAvena. The ICJ held that the UnitedStates had violated Article 36(1)(b) of theVienna Convention by failing to inform the51 named Mexican nationals, includingMedellın, of their Vienna Conventionrights. 2004 I.C. J., at 53–55. In theICJ’s determination, the United Stateswas obligated ‘‘to provide, by means of itsown choosing, review and reconsiderationof the convictions and sentences of the[affected] Mexican nationals.’’ Id., at 72.The ICJ indicated that such review wasrequired without regard to state procedur-al default rules. Id., at 56–57.

The Fifth Circuit denied a certificate ofappealability. Medellın v. Dretke, 371F.3d 270, 281 (2004). The court concludedthat the Vienna Convention did not conferindividually enforceable rights. Id., at280. The court further ruled that it was inany event bound by this Court’s decision inBreard v. Greene, 523 U.S. 371, 375, 118S.Ct. 1352, 140 L.Ed.2d 529 (1998) (percuriam ), which held that Vienna Conven-tion claims are subject to procedural de-fault rules, rather than by the ICJ’s con-trary decision in Avena. 371 F.3d, at 280.

This Court granted certiorari. Medellınv. Dretke, 544 U.S. 660, 661, 125 S.Ct.2088, 161 L.Ed.2d 982 (2005) (per curiam )(Medellın I ). Before we heard oral argu-ment, however, President George W. Bushissued his Memorandum to the UnitedStates Attorney General, providing:

I have determined, pursuant to the au-thority vested in me as President by theConstitution and the laws of the UnitedStates of America, that the UnitedStates will discharge its internationalobligations under the decision of the In-ternational Court of Justice in [Avena ],by having State courts give effect to thedecision in accordance with general prin-ciples of comity in cases filed by the 51Mexican nationals addressed in that de-cision. App. to Pet. for Cert. 187a.

1. The requirement of Article 36(1)(b) of theVienna Convention that the detaining statenotify the detainee’s consulate ‘‘without de-lay’’ is satisfied, according to the ICJ, wherenotice is provided within three working days.Avena, 2004 I.C.J. 12, 52, ¶ 97 (Judgment ofMar. 31). See Sanchez–Llamas v. Oregon,548 U.S. 331, 362, 126 S.Ct. 2669, 165L.Ed.2d 557 (2006) (GINSBURG, J., concur-ring in judgment). Here, Medellın confessedwithin three hours of his arrest—before therecould be a violation of his Vienna Conven-tion right to consulate notification. App. toBrief for Respondent 32–36. In a secondstate habeas application, Medellın sought toexpand his claim of prejudice by contending

that the State’s noncompliance with the Vi-enna Convention deprived him of assistancein developing mitigation evidence during thecapital phase of his trial. This argument,however, was likely waived: Medellın hadthe assistance of consulate counsel duringthe preparation of his first application forstate postconviction relief, yet failed to raisethis argument at that time. See Applicationfor Writ of Habeas Corpus in Ex parte Medel-lın, No. 675430–A (Tex.Crim.App.), pp. 25–31. In light of our disposition of this case,we need not consider whether Medellın wasprejudiced in any way by the violation of hisVienna Convention rights.


Medellın, relying on the President’sMemorandum and the ICJ’s decision inAvena, filed a second application for habe-as relief in state court. Ex parte Medel-lın, 223 S.W.3d 315, 322–323 (Tex.Crim.App.2006). Because the state-court pro-ceedings might have provided Medellınwith the review and reconsideration herequested, and because his claim for feder-al relief might otherwise have been barred,we dismissed his petition for certiorari asimprovidently granted. Medellın I, supra,at 664, 125 S.Ct. 2088.

The Texas Court of Criminal Appealssubsequently dismissed Medellın’s secondstate habeas application as an abuse of thewrit. 223 S.W.3d, at 352. In the court’sview, neither the Avena decision nor thePresident’s Memorandum was ‘‘bindingfederal law’’ that could displace the State’slimitations on the filing of successive habe-as applications. Ibid. We again grantedcertiorari. 550 U.S. ––––, 127 S.Ct. 2129,167 L.Ed.2d 862 (2007).

II

Medellın first contends that the ICJ’sjudgment in Avena constitutes a ‘‘binding’’obligation on the state and federal courtsof the United States. He argues that ‘‘byvirtue of the Supremacy Clause, the trea-ties requiring compliance with the Avenajudgment are already the ‘Law of theLand’ by which all state and federal courtsin this country are ‘bound.’ ’’ Reply Brieffor Petitioner 1. Accordingly, Medellın ar-gues, Avena is a binding federal rule ofdecision that pre-empts contrary state lim-itations on successive habeas petitions.

No one disputes that the Avena deci-sion—a decision that flows from the trea-ties through which the United States sub-

mitted to ICJ jurisdiction with respect toVienna Convention disputes—constitutesan international law obligation on the partof the United States. But not all interna-tional law obligations automatically consti-tute binding federal law enforceable inUnited States courts. The question weconfront here is whether the Avena judg-ment has automatic domestic legal effectsuch that the judgment of its own forceapplies in state and federal courts.

[1] This Court has long recognized thedistinction between treaties that automati-cally have effect as domestic law, andthose that—while they constitute interna-tional law commitments—do not by them-selves function as binding federal law.The distinction was well explained byChief Justice Marshall’s opinion in Fosterv. Neilson, 2 Pet. 253, 315, 7 L.Ed. 415(1829), overruled on other grounds, UnitedStates v. Percheman, 7 Pet. 51, 8 L.Ed.604 (1833), which held that a treaty is‘‘equivalent to an act of the legislature,’’and hence self-executing, when it ‘‘oper-ates of itself without the aid of any legisla-tive provision.’’ Foster, supra, at 314.When, in contrast, ‘‘[treaty] stipulationsare not self-executing they can only beenforced pursuant to legislation to carrythem into effect.’’ Whitney v. Robertson,124 U.S. 190, 194, 8 S.Ct. 456, 31 L.Ed. 386(1888). In sum, while treaties ‘‘may com-prise international commitments TTT theyare not domestic law unless Congress haseither enacted implementing statutes orthe treaty itself conveys an intention thatit be ‘self-executing’ and is ratified onthese terms.’’ Igartua–De La Rosa v.United States, 417 F.3d 145, 150 (C.A.12005) (en banc) (Boudin, C. J.).2

2. The label ‘‘self-executing’’ has on occasionbeen used to convey different meanings.What we mean by ‘‘self-executing’’ is that thetreaty has automatic domestic effect as feder-

al law upon ratification. Conversely, a ‘‘non-self-executing’’ treaty does not by itself giverise to domestically enforceable federal law.Whether such a treaty has domestic effect


[2] A treaty is, of course, ‘‘primarily acompact between independent nations.’’Head Money Cases, 112 U.S. 580, 598, 5S.Ct. 247, 28 L.Ed. 798 (1884). It ordi-narily ‘‘depends for the enforcement of itsprovisions on the interest and the honor ofthe 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 ofthe land’’ with ‘‘a mere treaty, dependenton the good faith of the parties’’). ‘‘Ifthese [interests] fail, its infraction becomesthe subject of international negotiationsand reclamations TTT. It is obvious thatwith all this the judicial courts have noth-ing to do and can give no redress.’’ HeadMoney Cases, supra, at 598, 112 U.S. 580.Only ‘‘[i]f the treaty contains stipulationswhich are self-executing, that is, requireno legislation to make them operative,[will] they have the force and effect of alegislative enactment.’’ Whitney, supra,at 194, 8 S.Ct. 456.3

Medellın and his amici nonetheless con-tend that the Optional Protocol, UnitedNations Charter, and ICJ Statute supply

the ‘‘relevant obligation’’ to give the Avenajudgment binding effect in the domesticcourts of the United States. Reply Brieffor Petitioner 5–6.4 Because none of thesetreaty sources creates binding federal lawin the absence of implementing legislation,and because it is uncontested that no suchlegislation exists, we conclude that theAvena judgment is not automatically bind-ing domestic law.

A

[3, 4] The interpretation of a treaty,like the interpretation of a statute, beginswith its text. Air France v. Saks, 470 U.S.392, 396–397, 105 S.Ct. 1338, 84 L.Ed.2d289 (1985). Because a treaty ratified bythe United States is ‘‘an agreement amongsovereign powers,’’ we have also consid-ered as ‘‘aids to its interpretation’’ thenegotiation and drafting history of thetreaty as well as ‘‘the postratification un-derstanding’’ of signatory nations. Zicher-man v. Korean Air Lines Co., 516 U.S.217, 226, 116 S.Ct. 629, 133 L.Ed.2d 596(1996); see also United States v. Stuart,489 U.S. 353, 365–366, 109 S.Ct. 1183, 103

depends upon implementing legislationpassed by Congress.

3. Even when treaties are self-executing in thesense that they create federal law, the back-ground presumption is that ‘‘[i]nternationalagreements, even those directly benefiting pri-vate persons, generally do not create privaterights or provide for a private cause of actionin domestic courts.’’ 2 Restatement (Third)of Foreign Relations Law of the United States§ 907, Comment a, p. 395 (1986) (hereinafterRestatement). Accordingly, a number of theCourts of Appeals have presumed that treatiesdo not create privately enforceable rights inthe absence of express language to the con-trary. See, e.g., United States v. Emuegbu-nam, 268 F.3d 377, 389 (C.A.6 2001); UnitedStates v. Jimenez–Nava, 243 F.3d 192, 195(C.A.5 2001); United States v. Li, 206 F.3d 56,60–61 (C.A.1 2000) (en banc); Goldstar (Pana-ma) S.A. v. United States, 967 F.2d 965, 968

(C.A.4 1992); Canadian Transp. Co. v. UnitedStates, 663 F.2d 1081, 1092 (C.A.D.C.1980);Mannington Mills, Inc. v. Congoleum Corp.,595 F.2d 1287, 1298 (C.A.3 1979).

4. The question is whether the Avena judgmenthas binding effect in domestic courts underthe Optional Protocol, ICJ Statute, and U.N.Charter. Consequently, it is unnecessary toresolve whether the Vienna Convention is it-self ‘‘self-executing’’ or whether it grants Me-dellın individually enforceable rights. SeeReply Brief for Petitioner 5 (disclaiming reli-ance on the Vienna Convention). As in San-chez–Llamas, 548 U.S., at 342–343, 126 S.Ct.2669, we thus assume, without deciding, thatArticle 36 grants foreign nationals ‘‘an indi-vidually enforceable right to request that theirconsular officers be notified of their deten-tion, and an accompanying right to be in-formed by authorities of the availability ofconsular notification.’’


L.Ed.2d 388 (1989); Choctaw Nation v.United States, 318 U.S. 423, 431–432, 63S.Ct. 672, 87 L.Ed. 877 (1943).

As a signatory to the Optional Protocol,the United States agreed to submit dis-putes arising out of the Vienna Conventionto the ICJ. The Protocol provides: ‘‘Dis-putes arising out of the interpretation orapplication of the [Vienna] Conventionshall lie within the compulsory jurisdictionof the International Court of Justice.’’Art. I, 21 U.S.T., at 326. Of course, sub-mitting to jurisdiction and agreeing to bebound are two different things. A partycould, for example, agree to compulsorynonbinding arbitration. Such an agree-ment would require the party to appearbefore the arbitral tribunal without obli-gating the party to treat the tribunal’sdecision as binding. See, e.g., NorthAmerican Free Trade Agreement, U.S.-Can.-Mex., Art.2018(1), Dec. 17, 1992, 32I.L.M. 605, 697 (1993) (‘‘On receipt of thefinal report of [the arbitral panel request-ed by a Party to the agreement], the dis-puting Parties shall agree on the resolu-tion of the dispute, which normally shallconform with the determinations and rec-ommendations of the panel’’).

The most natural reading of the Option-al Protocol is as a bare grant of jurisdic-tion. It provides only that ‘‘[d]isputesarising out of the interpretation or applica-tion of the [Vienna] Convention shall liewithin the compulsory jurisdiction of theInternational Court of Justice’’ and ‘‘mayaccordingly be brought before the [ICJ]TTT by any party to the dispute being aParty to the present Protocol.’’ Art. I, 21U.S.T., at 326. The Protocol says nothingabout the effect of an ICJ decision anddoes not itself commit signatories to com-ply with an ICJ judgment. The Protocolis similarly silent as to any enforcementmechanism.

[5] The obligation on the part of signa-tory nations to comply with ICJ judgmentsderives not from the Optional Protocol, butrather from Article 94 of the United Na-tions Charter—the provision that specifi-cally addresses the effect of ICJ decisions.Article 94(1) provides that ‘‘[e]ach Memberof the United Nations undertakes to com-ply with the decision of the [ICJ] in anycase to which it is a party.’’ 59 Stat. 1051(emphasis added). The Executive Branchcontends that the phrase ‘‘undertakes tocomply’’ is not ‘‘an acknowledgement thatan ICJ decision will have immediate legaleffect in the courts of U.N. members,’’ butrather ‘‘a commitment on the part of U.N.Members to take future action throughtheir political branches to comply with anICJ decision.’’ Brief for United States asAmicus Curiae in Medellın I, O.T.2004,No. 04–5928, p. 34.

We agree with this construction of Arti-cle 94. The Article is not a directive todomestic courts. It does not provide thatthe United States ‘‘shall’’ or ‘‘must’’ complywith an ICJ decision, nor indicate that theSenate that ratified the U.N. Charter in-tended to vest ICJ decisions with immedi-ate legal effect in domestic courts. In-stead, ‘‘[t]he words of Article 94 TTT callupon governments to take certain action.’’Committee of United States Citizens Liv-ing in Nicaragua v. Reagan, 859 F.2d 929,938 (C.A.D.C.1988) (quoting Diggs v. Rich-ardson, 555 F.2d 848, 851 (C.A.D.C.1976);internal quotation marks omitted). Seealso Foster, 2 Pet., at 314, 315 (holding atreaty non-self-executing because itstext—‘‘ ‘all TTT grants of land TTT shall beratified and confirmed’ ’’—did not ‘‘act di-rectly on the grants’’ but rather ‘‘pledge[d]the faith of the United States to pass actswhich shall ratify and confirm them’’). Inother words, the U.N. Charter reads like‘‘a compact between independent nations’’that ‘‘depends for the enforcement of itsprovisions on the interest and the honor of


the governments which are parties to it.’’Head Money Cases, 112 U.S., at 598, 5S.Ct. 247.5

[6] The remainder of Article 94 con-firms that the U.N. Charter does not con-template the automatic enforceability ofICJ decisions in domestic courts.6 Article94(2)—the enforcement provision—pro-vides the sole remedy for noncompliance:referral to the United Nations SecurityCouncil by an aggrieved state. 59 Stat.1051.

The U.N. Charter’s provision of an ex-press diplomatic—that is, nonjudicial—remedy is itself evidence that ICJ judg-ments were not meant to be enforceable indomestic courts. See Sanchez–Llamas,548 U.S., at 347, 126 S.Ct. 2669. And eventhis ‘‘quintessentially internationalremed[y],’’ id., at 355, 126 S.Ct. 2669, isnot absolute. First, the Security Councilmust ‘‘dee[m] necessary’’ the issuance of arecommendation or measure to effectuatethe judgment. Art. 94(2), 59 Stat. 1051.Second, as the President and Senate wereundoubtedly aware in subscribing to theU.N. Charter and Optional Protocol, theUnited States retained the unqualifiedright to exercise its veto of any SecurityCouncil resolution.

This was the understanding of the Exec-utive Branch when the President agreed tothe U.N. Charter and the declaration ac-cepting general compulsory ICJ jurisdic-tion. See, e.g., The Charter of the UnitedNations for the Maintenance of Interna-tional Peace and Security: Hearings be-fore the Senate Committee on ForeignRelations, 79th Cong., 1st Sess., 124–125(1945) (‘‘[I]f a state fails to perform itsobligations under a judgment of the [ICJ],the other party may have recourse to theSecurity Council’’); id., at 286 (statementof Leo Paslovsky, Special Assistant to theSecretary of State for International Or-ganizations and Security Affairs) (‘‘[W]henthe Court has rendered a judgment andone of the parties refuses to accept it, thenthe dispute becomes political rather thanlegal. It is as a political dispute that thematter is referred to the Security Coun-cil’’); A Resolution Proposing Acceptanceof Compulsory Jurisdiction of Internation-al Court of Justice: Hearings on S. Res.196 before the Subcommittee of the SenateCommittee on Foreign Relations, 79thCong., 2d Sess., 142 (1946) (statement ofCharles Fahy, State Dept. Legal Adviser)(while parties that accept ICJ jurisdictionhave ‘‘a moral obligation’’ to comply with

5. We do not read ‘‘undertakes’’ to mean that‘‘ ‘ ‘‘[t]he United States TTT shall be at libertyto make respecting th[e] matter, such lawsas they think proper.’’ ’ ’’ Post, at 1384 –1385 (BREYER, J., dissenting) (quoting To-dok v. Union State Bank of Harvard, 281 U.S.449, 453, 454, 50 S.Ct. 363, 74 L.Ed. 956(1930) (holding that a treaty with Norwaydid not ‘‘operat[e] to override the law of [Ne-braska] as to the disposition of homesteadproperty’’)). Whether or not the UnitedStates ‘‘undertakes’’ to comply with a treatysays nothing about what laws it may enact.The United States is always ‘‘at liberty tomake TTT such laws as [it] think[s] proper.’’Id., at 453, 50 S.Ct. 363. Indeed, a later-in-time federal statute supersedes inconsistenttreaty provisions. See, e.g., Cook v. United

States, 288 U.S. 102, 119–120, 53 S.Ct. 305,77 L.Ed. 641 (1933). Rather, the ‘‘under-takes to comply’’ language confirms that fur-ther action to give effect to an ICJ judgmentwas contemplated, contrary to the dissent’sposition that such judgments constitute di-rectly enforceable federal law, without more.See also post, at 1372 – 1374 (STEVENS, J.,concurring in judgment).

6. Article 94(2) provides in full: ‘‘If any partyto a case fails to perform the obligations in-cumbent upon it under a judgment renderedby the Court, the other party may have re-course to the Security Council, which may, ifit deems necessary, make recommendationsor decide upon measures to be taken to giveeffect to the judgment.’’ 59 Stat. 1051.


ICJ decisions, Article 94(2) provides theexclusive means of enforcement).

[7] If ICJ judgments were instead re-garded as automatically enforceable do-mestic law, they would be immediately anddirectly binding on state and federal courtspursuant to the Supremacy Clause. Mexi-co or the ICJ would have no need toproceed to the Security Council to enforcethe judgment in this case. Noncompliancewith an ICJ judgment through exercise ofthe Security Council veto—always regard-ed as an option by the Executive andratifying Senate during and after consider-ation of the U.N. Charter, Optional Proto-col, and ICJ Statute—would no longer be aviable alternative. There would be noth-ing to veto. In light of the U.N. Charter’sremedial scheme, there is no reason tobelieve that the President and Senatesigned up for such a result.

In sum, Medellın’s view that ICJ deci-sions are automatically enforceable as do-mestic law is fatally undermined by theenforcement structure established by Arti-cle 94. His construction would eliminatethe option of noncompliance contemplatedby Article 94(2), undermining the ability ofthe political branches to determine wheth-er and how to comply with an ICJ judg-ment. Those sensitive foreign policy deci-sions would instead be transferred to stateand federal courts charged with applyingan ICJ judgment directly as domestic law.And those courts would not be empoweredto decide whether to comply with the judg-ment—again, always regarded as an optionby the political branches—any more thancourts may consider whether to complywith any other species of domestic law.This result would be particularly anoma-lous in light of the principle that ‘‘[t]he

conduct of the foreign relations of ourGovernment is committed by the Constitu-tion to the Executive and Legislative—‘thepolitical’—Departments.’’ Oetjen v. Cen-tral Leather Co., 246 U.S. 297, 302, 38S.Ct. 309, 62 L.Ed. 726 (1918).

The ICJ Statute, incorporated into theU.N. Charter, provides further evidencethat the ICJ’s judgment in Avena does notautomatically constitute federal law judi-cially enforceable in United States courts.Art. 59, 59 Stat. 1062. To begin with, theICJ’s ‘‘principal purpose’’ is said to be to‘‘arbitrate particular disputes between na-tional governments.’’ Sanchez–Llamas,supra, at 355, 126 S.Ct. 2669 (citing 59Stat. 1055). Accordingly, the ICJ can heardisputes only between nations, not individ-uals. Art. 34(1), 59 Stat. 1059 (‘‘Onlystates [i.e., countries] may be parties incases before the [ICJ]’’). More important,Article 59 of the statute provides that‘‘[t]he decision of the [ICJ] has no bindingforce except between the parties and inrespect of that particular case.’’ Id., at1062 (emphasis added).7 The dissent doesnot explain how Medellın, an individual,can be a party to the ICJ proceeding.

Medellın argues that because the Avenacase involves him, it is clear that he—andthe 50 other Mexican nationals named inthe Avena decision—should be regardedas parties to the Avena judgment. Brieffor Petitioner 21–22. But cases before theICJ are often precipitated by disputes in-volving particular persons or entities, dis-putes that a nation elects to take up as itsown. See, e.g., Case Concerning the Bar-celona Traction, Light & Power Co.(Belg.v.Spain ), 1970 I.C.J. 3 (Judgment ofFeb. 5) (claim brought by Belgium on be-half of Belgian nationals and sharehold-

7. Medellın alters this language in his brief toprovide that the ICJ Statute makes the Avenajudgment binding ‘‘in respect of [his] particu-lar case.’’ Brief for Petitioner 22 (internal

quotation marks omitted). Medellın does notand cannot have a case before the ICJ underthe terms of the ICJ Statute.


ers); Case Concerning the Protection ofFrench Nationals and Protected Personsin Egypt (Fr.v.Egypt ), 1950 I.C.J. 59 (Or-der of Mar. 29) (claim brought by Franceon behalf of French nationals and protect-ed persons in Egypt); Anglo–Iranian OilCo. Case (U.K.v.Iran ), 1952 I.C.J. 93, 112(Judgment of July 22) (claim brought bythe United Kingdom on behalf of the An-glo–Iranian Oil Company). That has nev-er been understood to alter the expressand established rules that only nation-states may be parties before the ICJ, Art.34, 59 Stat. 1059, and—contrary to theposition of the dissent, post, at 1387—thatICJ judgments are binding only betweenthose parties, Art. 59, id., at 1062.8

[8] It is, moreover, well settled thatthe United States’ interpretation of a trea-ty ‘‘is entitled to great weight.’’ Sumito-mo Shoji America, Inc. v. Avagliano, 457U.S. 176, 184–185, 102 S.Ct. 2374, 72

L.Ed.2d 765 (1982); see also El Al IsraelAirlines, Ltd. v. Tsui Yuan Tseng, 525U.S. 155, 168, 119 S.Ct. 662, 142 L.Ed.2d576 (1999). The Executive Branch hasunfailingly adhered to its view that therelevant treaties do not create domestical-ly enforceable federal law. See Brief forUnited States as Amicus Curiae 4, 27–29.9

The pertinent international agreements,therefore, do not provide for implementa-tion of ICJ judgments through direct en-forcement in domestic courts, and ‘‘wherea treaty does not provide a particular rem-edy, either expressly or implicitly, it is notfor the federal courts to impose one on theStates through lawmaking of their own.’’Sanchez–Llamas, 548 U.S., at 347, 126S.Ct. 2669.

B

The dissent faults our analysis becauseit ‘‘looks for the wrong thing (explicit tex-

8. The dissent concludes that the ICJ judgmentis binding federal law based in large part onits belief that the Vienna Convention over-rides contrary state procedural rules. Seepost, at 1385 – 1386, 1386, 1387. But noteven Medellın relies on the Convention. SeeReply Brief for Petitioner 5 (disclaiming reli-ance). For good reason: Such reliance isforeclosed by the decision of this Court inSanchez–Llamas, 548 U.S., at 351, 126 S.Ct.2669 (holding that the Convention does notpreclude the application of state proceduralbars); see also id., at 363, 126 S.Ct. 2669(GINSBURG, J., concurring in judgment).There is no basis for relitigating the issue.Further, to rely on the Convention would el-ide the distinction between a treaty—negotiat-ed by the President and signed by Congress—and a judgment rendered pursuant to thosetreaties.

9. In interpreting our treaty obligations, wealso consider the views of the ICJ itself,‘‘giv[ing] respectful consideration to the inter-pretation of an international treaty renderedby an international court with jurisdiction tointerpret [the treaty].’’ Breard v. Greene, 523U.S. 371, 375, 118 S.Ct. 1352, 140 L.Ed.2d529 (1998) (per curiam ); see Sanchez–Lla-

mas, supra, at 355–356, 126 S.Ct. 2669. It isnot clear whether that principle would applywhen the question is the binding force of ICJjudgments themselves, rather than the sub-stantive scope of a treaty the ICJ must inter-pret in resolving disputes. Cf. Phillips Petro-leum Co. v. Shutts, 472 U.S. 797, 805, 105S.Ct. 2965, 86 L.Ed.2d 628 (1985) (‘‘[A] courtadjudicating a dispute may not be able topredetermine the res judicata effect of its ownjudgment’’); 18 C. Wright, A. Miller, & E.Cooper, Federal Practice and Procedure§ 4405, p. 82 (2d ed. 2002) (‘‘The first courtdoes not get to dictate to other courts thepreclusion consequences of its own judg-ment’’). In any event, nothing suggests thatthe ICJ views its judgments as automaticallyenforceable in the domestic courts of signato-ry nations. The Avena judgment itself directsthe United States to provide review and re-consideration of the affected convictions andsentences ‘‘by means of its own choosing.’’2004 I.C. J., at 72 (emphasis added). Thislanguage, as well as the ICJ’s mere suggestionthat the ‘‘judicial process’’ is best suited toprovide such review, id., at 65–66, confirmthat domestic enforceability in court is notpart and parcel of an ICJ judgment.


tual expression about self-execution) usingthe wrong standard (clarity) in the wrongplace (the treaty language).’’ Post, at1389. Given our obligation to interprettreaty provisions to determine whetherthey are self-executing, we have to confessthat we do think it rather important tolook to the treaty language to see what ithas to say about the issue. That is afterall what the Senate looks to in decidingwhether to approve the treaty.

The interpretive approach employed bythe Court today—resorting to the text—ishardly novel. In two early cases involvingan 1819 land-grant treaty between Spainand the United States, Chief Justice Mar-shall found the language of the treaty dis-positive. In Foster, after distinguishingbetween self-executing treaties (those‘‘equivalent to an act of the legislature’’)and non-self-executing treaties (those ‘‘thelegislature must execute’’), Chief JusticeMarshall held that the 1819 treaty wasnon-self-executing. 2 Pet., at 314. Fouryears later, the Supreme Court consideredanother claim under the same treaty, butconcluded that the treaty was self-execut-ing. See Percheman, 7 Pet., at 87. Thereason was not because the treaty wassometimes self-executing and sometimesnot, but because ‘‘the language of’’ theSpanish translation (brought to the Court’sattention for the first time) indicated theparties’ intent to ratify and confirm theland-grant ‘‘by force of the instrument it-self.’’ Id., at 89.

As against this time-honored textual ap-proach, the dissent proposes a multifactor,judgment-by-judgment analysis that would‘‘jettiso[n] relative predictability for theopen-ended rough-and-tumble of factors.’’Jerome B. Grubart, Inc. v. Great LakesDredge & Dock Co., 513 U.S. 527, 547, 115S.Ct. 1043, 130 L.Ed.2d 1024 (1995). Thedissent’s novel approach to deciding which(or, more accurately, when) treaties give

rise to directly enforceable federal law isarrestingly indeterminate. Treaty lan-guage is barely probative. Post, at 1381 –1382 (‘‘[T]he absence or presence of lan-guage in a treaty about a provision’s self-execution proves nothing at all’’). Deter-mining whether treaties themselves createfederal law is sometimes committed to thepolitical branches and sometimes to thejudiciary. Post, at 1382. Of those com-mitted to the judiciary, the courts pick andchoose which shall be binding UnitedStates law—trumping not only state butother federal law as well—and which shallnot. Post, at 1382 – 1389. They do this onthe basis of a multifactor, ‘‘context-specif-ic’’ inquiry. Post, at 1382. Even then, thesame treaty sometimes gives rise to Unit-ed States law and sometimes does not,again depending on an ad hoc judicial as-sessment. Post, at 1382 – 1389.

Our Framers established a careful set ofprocedures that must be followed beforefederal law can be created under the Con-stitution—vesting that decision in the po-litical branches, subject to checks and bal-ances. U.S. Const., Art. I, § 7. They alsorecognized that treaties could create feder-al law, but again through the politicalbranches, with the President making thetreaty and the Senate approving it. Art.II, § 2. The dissent’s understanding of thetreaty route, depending on an ad hoc judg-ment of the judiciary without looking tothe treaty language—the very languagenegotiated by the President and approvedby the Senate—cannot readily be ascribedto those same Framers.

The dissent’s approach risks the UnitedStates’ involvement in international agree-ments. It is hard to believe that the Unit-ed States would enter into treaties that aresometimes enforceable and sometimes not.Such a treaty would be the equivalent ofwriting a blank check to the judiciary.Senators could never be quite sure whatthe treaties on which they were voting


meant. Only a judge could say for sureand only at some future date. This uncer-tainty could hobble the United States’ ef-forts to negotiate and sign internationalagreements.

In this case, the dissent—for a grab bagof no less than seven reasons—would tellus that this particular ICJ judgment isfederal law. Post, at 1382 – 1389. That isno sort of guidance. Nor is it any answerto say that the federal courts will diligentlypolice international agreements and en-force the decisions of international tribu-nals only when they should be enforced.Ibid. The point of a non-self-executingtreaty is that it ‘‘addresses itself to thepolitical, not the judicial department; andthe legislature must execute the contractbefore it can become a rule for the Court.’’Foster, supra, at 314 (emphasis added);Whitney, 124 U.S., at 195, 8 S.Ct. 456.See also Foster, supra, at 307 (‘‘The judi-ciary is not that department of the govern-ment, to which the assertion of its inter-ests against foreign powers is confided’’).The dissent’s contrary approach would as-sign to the courts—not the politicalbranches—the primary role in decidingwhen and how international agreementswill be enforced. To read a treaty so thatit sometimes has the effect of domestic lawand sometimes does not is tantamount tovesting with the judiciary the power notonly to interpret but also to create the law.

C

Our conclusion that Avena does not byitself constitute binding federal law is con-

firmed by the ‘‘postratification understand-ing’’ of signatory nations. See Zicherman,516 U.S., at 226, 116 S.Ct. 629. There arecurrently 47 nations that are parties to theOptional Protocol and 171 nations that areparties to the Vienna Convention. Yetneither Medellın nor his amici have identi-fied a single nation that treats ICJ judg-ments as binding in domestic courts.10 Indetermining that the Vienna Conventiondid not require certain relief in UnitedStates courts in Sanchez–Llamas, wefound it pertinent that the requested reliefwould not be available under the treaty inany other signatory country. See 548U.S., at 343–344, and n. 3, 126 S.Ct. 2669.So too here the lack of any basis forsupposing that any other country wouldtreat ICJ judgments as directly enforce-able as a matter of their domestic lawstrongly suggests that the treaty shouldnot be so viewed in our courts.

Our conclusion is further supported bygeneral principles of interpretation. Tobegin with, we reiterated in Sanchez–Lla-mas what we held in Breard, that ‘‘ ‘absenta clear and express statement to the con-trary, the procedural rules of the forumState govern the implementation of thetreaty in that State.’ ’’ 548 U.S., at 351,126 S.Ct. 2669 (quoting Breard, 523 U.S.,at 375, 118 S.Ct. 1352). Given that ICJjudgments may interfere with state proce-dural rules, one would expect the ratifyingparties to the relevant treaties to haveclearly stated their intent to give those

10. The best that the ICJ experts as amicicuriae can come up with is the contentionthat local Moroccan courts have referred toICJ judgments as ‘‘dispositive.’’ Brief for ICJExperts as Amici Curiae 20, n. 31. Even theICJ experts do not cite a case so holding, andMoroccan practice is at best inconsistent, forat least one local Moroccan court has heldthat ICJ judgments are not binding as a mat-ter of municipal law. See, e.g., Mackay Radio

& Tel. Co. v. Lal–La Fatma Bent si Mohamedel Khadar, [1954] 21 Int’l L. Rep. 136 (Tangi-er, Ct.App. Int’l Trib.) (holding that ICJ deci-sions are not binding on Morocco’s domesticcourts); see also ‘‘Socobel’’ v. Greek State,[1951] 18 Int’l L. Rep. 3 (Belg., Trib. Civ. deBruxelles) (holding that judgments of theICJ’s predecessor, the Permanent Court ofInternational Justice, were not domesticallyenforceable).


judgments domestic effect, if they had sointended. Here there is no statement inthe Optional Protocol, the U.N. Charter, orthe ICJ Statute that supports the notionthat ICJ judgments displace state proce-dural rules.

Moreover, the consequences of Medel-lın’s argument give pause. An ICJ judg-ment, the argument goes, is not only bind-ing domestic law but is also unassailable.As a result, neither Texas nor this Courtmay look behind a judgment and quarrelwith its reasoning or result. (We alreadyknow, from Sanchez–Llamas, that thisCourt disagrees with both the reasoningand result in Avena.) Medellın’s interpre-tation would allow ICJ judgments to over-ride otherwise binding state law; there isnothing in his logic that would exemptcontrary federal law from the same fate.See, e.g., Cook v. United States, 288 U.S.102, 119, 53 S.Ct. 305, 77 L.Ed. 641 (1933)(later-in-time self-executing treaty super-sedes a federal statute if there is a con-flict). And there is nothing to prevent theICJ from ordering state courts to annulcriminal convictions and sentences, for anyreason deemed sufficient by the ICJ. In-deed, that is precisely the relief Mexicorequested. Avena, 2004 I.C. J., at 58–59.

Even the dissent flinches at reading therelevant treaties to give rise to self-execut-ing ICJ judgments in all cases. It admitsthat ‘‘Congress is unlikely to authorize au-tomatic judicial enforceability of all ICJjudgments, for that could include somepolitically sensitive judgments and othersbetter suited for enforcement by otherbranches.’’ Post, at 1388. Our point pre-cisely. But the lesson to draw from thatinsight is hardly that the judiciary shoulddecide which judgments are politically sen-sitive and which are not.

In short, and as we observed in San-chez–Llamas, ‘‘[n]othing in the structureor purpose of the ICJ suggests that itsinterpretations were intended to be conclu-sive on our courts.’’ 548 U.S., at 354, 126S.Ct. 2669. Given that holding, it is diffi-cult to see how that same structure andpurpose can establish, as Medellın argues,that judgments of the ICJ nonethelesswere intended to be conclusive on ourcourts. A judgment is binding only ifthere is a rule of law that makes it so.And the question whether ICJ judgmentscan bind domestic courts depends upon thesame analysis undertaken in Sanchez–Lla-mas and set forth above.

Our prior decisions identified by the dis-sent as holding a number of treaties to beself-executing, see post, at 1379 – 1380, Ap-pendix A, stand only for the unremarkableproposition that some international agree-ments are self-executing and others arenot. It is well settled that the ‘‘[i]nterpre-tation of [a treaty] TTT must, of course,begin with the language of the Treatyitself.’’ Sumitomo Shoji America, Inc.,457 U.S., at 180, 102 S.Ct. 2374. As aresult, we have held treaties to be self-executing when the textual provisions indi-cate that the President and Senate intend-ed for the agreement to have domesticeffect.

Medellın and the dissent cite Comegys v.Vasse, 1 Pet. 193, 7 L.Ed. 108 (1828), forthe proposition that the judgments of in-ternational tribunals are automaticallybinding on domestic courts. See post, at1380; Reply Brief for Petitioner 2; Brieffor Petitioner 19–20. That case, of course,involved a different treaty than the ones atissue here; it stands only for the modestprinciple that the terms of a treaty controlthe outcome of a case.11 We do not sug-

11. The other case Medellın cites for the prop-osition that the judgments of international

courts are binding, La Abra Silver Mining Co.v. United States, 175 U.S. 423, 35 Ct.Cl. 623,


gest that treaties can never afford bindingdomestic effect to international tribunaljudgments—only that the U.N. Charter,the Optional Protocol, and the ICJ Statutedo not do so. And whether the treatiesunderlying a judgment are self-executingso that the judgment is directly enforce-able as domestic law in our courts is, ofcourse, a matter for this Court to decide.See Sanchez–Llamas, supra, at 353–354,126 S.Ct. 2669.

D

[9] Our holding does not call into ques-tion the ordinary enforcement of foreignjudgments or international arbitral agree-ments. Indeed, we agree with Medellınthat, as a general matter, ‘‘an agreementto abide by the result’’ of an internationaladjudication—or what he really means, anagreement to give the result of such adju-dication domestic legal effect—can be atreaty obligation like any other, so long asthe agreement is consistent with the Con-stitution. See Brief for Petitioner 20.The point is that the particular treaty obli-gations on which Medellın relies do not oftheir own force create domestic law.

[10] The dissent worries that our deci-sion casts doubt on some 70–odd treatiesunder which the United States has agreedto submit disputes to the ICJ according to‘‘roughly similar’’ provisions. See post, at1377, 1383 – 1384. Again, under our estab-lished precedent, some treaties are self-executing and some are not, depending onthe treaty. That the judgment of an inter-national tribunal might not automatically

become domestic law hardly means theunderlying treaty is ‘‘useless.’’ See post,at 1384; cf. post, at 1381 (describing theBritish system in which treaties ‘‘virtuallyalways requir[e] parliamentary legisla-tion’’). Such judgments would still consti-tute international obligations, the propersubject of political and diplomatic negotia-tions. See Head Money Cases, 112 U.S.,at 598, 5 S.Ct. 247. And Congress couldelect to give them wholesale effect (ratherthan the judgment-by-judgment approachhypothesized by the dissent, post, at 1388)through implementing legislation, as itregularly has. See, e.g., Foreign AffairsReform 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 theobligations of the United States under Ar-ticle 3’’ of the Convention Against Tortureand Other Forms of Cruel, Inhuman orDegrading Treatment or Punishment); seealso infra, at 1388 – 1389 (listing examplesof legislation implementing internationalobligations).

[11] Further, that an ICJ judgmentmay not be automatically enforceable indomestic courts does not mean the particu-lar underlying treaty is not. Indeed, wehave held that a number of the ‘‘Friend-ship, Commerce, and Navigation’’ Treatiescited by the dissent, see post, Appendix B,are self-executing—based on ‘‘the lan-guage of the[se] Treat[ies].’’ See Sumito-mo Shoji America, Inc., supra, at 180,189–190, 102 S.Ct. 2374. In Kolovrat v.

20 S.Ct. 168, 44 L.Ed. 223 (1899), and thecases he cites for the proposition that thisCourt has routinely enforced treaties underwhich foreign nationals have asserted rights,similarly stand only for the principle that theterms of a treaty govern its enforcement. SeeReply Brief for Petitioner 4, 5, n. 2. In eachcase, this Court first interpreted the treatyprior to finding it domestically enforceable.

See, e.g., United States v. Rauscher, 119 U.S.407, 422–423, 7 S.Ct. 234, 30 L.Ed. 425(1886) (holding that the treaty required extra-dition only for specified offenses); Hopkirk v.Bell, 3 Cranch 454, 458, 2 L.Ed. 497 (1806)(holding that the treaty of peace betweenGreat Britain and the United States preventedthe operation of a state statute of limitationson British debts).


Oregon, 366 U.S. 187, 191, 196, 81 S.Ct.922, 6 L.Ed.2d 218 (1961), for example, theCourt found that Yugoslavian claimantsdenied inheritance under Oregon law wereentitled to inherit personal property pur-suant to an 1881 Treaty of Friendship,Navigation, and Commerce between theUnited States and Serbia. See also Clarkv. Allen, 331 U.S. 503, 507–511, 517–518, 67S.Ct. 1431, 91 L.Ed. 1633 (1947) (findingthat the right to inherit real propertygranted German aliens under the Treatyof Friendship, Commerce, and ConsularRights with Germany prevailed over Cali-fornia law). Contrary to the dissent’s sug-gestion, see post, at 1380 – 1381, neitherour approach nor our cases require that atreaty provide for self-execution in somany talismanic words; that is a carica-ture of the Court’s opinion. Our casessimply require courts to decide whether atreaty’s terms reflect a determination bythe President who negotiated it and theSenate that confirmed it that the treatyhas domestic effect.

In addition, Congress is up to the task ofimplementing non-self-executing treaties,even those involving complex commercialdisputes. Cf. post, at 1388 (BREYER, J.,dissenting). The judgments of a numberof international tribunals enjoy a differentstatus because of implementing legislationenacted by Congress. See, e.g., 22 U.S.C.§ 1650a(a) (‘‘An award of an arbitral tribu-nal rendered pursuant to chapter IV of the[Convention on the Settlement of Invest-ment Disputes] shall create a right arisingunder a treaty of the United States. Thepecuniary obligations imposed by such an

award shall be enforced and shall be giventhe same full faith and credit as if theaward were a final judgment of a court ofgeneral jurisdiction of one of the severalStates’’); 9 U.S.C. §§ 201–208 (‘‘The[U.N.] Convention on the Recognition andEnforcement of Foreign Arbitral Awardsof June 10, 1958, shall be enforced in Unit-ed States courts in accordance with thischapter,’’ § 201). Such language demon-strates that Congress knows how to accorddomestic effect to international obligationswhen it desires such a result.12

Further, Medellın frames his argumentas though giving the Avena judgmentbinding effect in domestic courts simplyconforms to the proposition that domesticcourts generally give effect to foreignjudgments. But Medellın does not ask usto enforce a foreign-court judgment set-tling a typical commercial or property dis-pute. See, e.g., Hilton v. Guyot, 159 U.S.113, 16 S.Ct. 139, 40 L.Ed. 95 (1895);United States v. Arredondo, 6 Pet. 691, 8L.Ed. 547 (1832); see also Uniform For-eign Money–Judgments Recognition Act§ 1(2), 13 U.L. A., pt. 2, p. 44 (2002)(‘‘ ‘[F]oreign judgment’ means any judg-ment of a foreign state granting or deny-ing recovery of a sum of money’’). Rather,Medellın argues that the Avena judgmenthas the effect of enjoining the operation ofstate law. What is more, on Medellın’sview, the judgment would force the Stateto take action to ‘‘review and reconside[r]’’his case. The general rule, however, isthat judgments of foreign courts awardinginjunctive relief, even as to private parties,

12. That this Court has rarely had occasion tofind a treaty non-self-executing is not all thatsurprising. See post, at 1379 (BREYER, J.,dissenting). To begin with, the Courts of Ap-peals have regularly done so. See, e.g., Pierrev. Gonzales, 502 F.3d 109, 119–120 (C.A.22007) (holding that the United Nations Con-vention Against Torture and Other Cruel, In-human or Degrading Treatment or Punish-

ment is non-self-executing); Singh v. Ashcroft,398 F.3d 396, 404, n. 3 (C.A.6 2005) (same);Beazley v. Johnson, 242 F.3d 248, 267 (C.A.52001) (holding that the International Cove-nant on Civil and Political Rights is non-self-executing). Further, as noted, Congress hasnot hesitated to pass implementing legislationfor treaties that in its view require such legis-lation.


let alone sovereign States, ‘‘are not gener-ally entitled to enforcement.’’ See 2 Re-statement § 481, Comment b, at 595.

In sum, while the ICJ’s judgment inAvena creates an international law obli-gation on the part of the United States, itdoes not of its own force constitute bindingfederal law that pre-empts state restric-tions on the filing of successive habeaspetitions. As we noted in Sanchez–Lla-mas, a contrary conclusion would be ex-traordinary, given that basic rights guar-anteed by our own Constitution do nothave the effect of displacing state proce-dural rules. See 548 U.S., at 360, 126S.Ct. 2669. Nothing in the text, back-ground, negotiating and drafting history,or practice among signatory nations sug-gests that the President or Senate intend-ed the improbable result of giving thejudgments of an international tribunal ahigher status than that enjoyed by ‘‘manyof our most fundamental constitutionalprotections.’’ Ibid.

III

[12] Medellın next argues that theICJ’s judgment in Avena is binding onstate courts by virtue of the President’sFebruary 28, 2005 Memorandum. TheUnited States contends that while the Ave-na judgment does not of its own forcerequire domestic courts to set aside ordi-nary rules of procedural default, that judg-ment became the law of the land withprecisely that effect pursuant to the Presi-dent’s Memorandum and his power ‘‘toestablish binding rules of decision thatpreempt contrary state law.’’ Brief for

United States as Amicus Curiae 5. Ac-cordingly, we must decide whether thePresident’s declaration alters our conclu-sion that the Avena judgment is not a ruleof domestic law binding in state and feder-al courts.13

A

The United States maintains that thePresident’s constitutional role ‘‘uniquelyqualifies’’ him to resolve the sensitive for-eign policy decisions that bear on compli-ance with an ICJ decision and ‘‘to do soexpeditiously.’’ Brief for United States asAmicus Curiae 11, 12. We do not ques-tion these propositions. See, e.g., FirstNat. City Bank v. Banco Nacional deCuba, 406 U.S. 759, 767, 92 S.Ct. 1808, 32L.Ed.2d 466 (1972) (plurality opinion) (ThePresident has ‘‘the lead role TTT in foreignpolicy’’); American Ins. Assn. v. Garam-endi, 539 U.S. 396, 414, 123 S.Ct. 2374, 156L.Ed.2d 376 (2003) (Article II of the Con-stitution places with the President the‘‘ ‘vast share of responsibility for the con-duct of our foreign relations’ ’’ (quotingYoungstown Sheet & Tube Co. v. Sawyer,343 U.S. 579, 610–611, 72 S.Ct. 863, 96L.Ed. 1153 (1952)) (Frankfurter, J., con-curring)). In this case, the Presidentseeks to vindicate United States interestsin ensuring the reciprocal observance ofthe Vienna Convention, protecting rela-tions with foreign governments, and dem-onstrating commitment to the role of inter-national law. These interests are plainlycompelling.

13. The dissent refrains from deciding the is-sue, but finds it ‘‘difficult to believe that in theexercise of his Article II powers pursuant to aratified treaty, the President can never takeaction that would result in setting aside statelaw.’’ Post, at 1390. We agree. The ques-tions here are the far more limited ones ofwhether he may unilaterally create federal

law by giving effect to the judgment of thisinternational tribunal pursuant to this non-self-executing treaty, and, if not, whether hemay rely on other authority under the Consti-tution to support the action taken in thisparticular case. Those are the only questionswe decide.


[13] Such considerations, however, donot allow us to set aside first principles.The President’s authority to act, as withthe exercise of any governmental power,‘‘must stem either from an act of Congressor from the Constitution itself.’’ Youngs-town, supra, at 585, 72 S.Ct. 863; Dames& Moore v. Regan, 453 U.S. 654, 668, 101S.Ct. 2972, 69 L.Ed.2d 918 (1981).

Justice Jackson’s familiar tripartitescheme provides the accepted frameworkfor evaluating executive action in this area.First, ‘‘[w]hen the President acts pursuantto an express or implied authorization ofCongress, his authority is at its maximum,for it includes all that he possesses in hisown right plus all that Congress can dele-gate.’’ Youngstown, 343 U.S., at 635, 72S.Ct. 863 (Jackson, J., concurring). Sec-ond, ‘‘[w]hen the President acts in absenceof either a congressional grant or denial ofauthority, he can only rely upon his ownindependent powers, but there is a zone oftwilight in which he and Congress mayhave concurrent authority, or in which itsdistribution is uncertain.’’ Id., at 637, 72S.Ct. 863. In this circumstance, Presiden-tial authority can derive support from‘‘congressional inertia, indifference orquiescence.’’ Ibid. Finally, ‘‘[w]hen thePresident takes measures incompatiblewith the expressed or implied will of Con-gress, his power is at its lowest ebb,’’ andthe Court can sustain his actions ‘‘only bydisabling the Congress from acting uponthe subject.’’ Id., at 637–638, 72 S.Ct. 863.

B

The United States marshals two princi-pal arguments in favor of the President’sauthority ‘‘to establish binding rules of de-cision that preempt contrary state law.’’Brief for United States as Amicus Curiae5. The Solicitor General first argues thatthe relevant treaties give the Presidentthe authority to implement the Avena

judgment and that Congress has ac-quiesced in the exercise of such authority.The United States also relies upon an ‘‘in-dependent’’ international dispute-resolu-tion power wholly apart from the assertedauthority based on the pertinent treaties.Medellın adds the additional argumentthat the President’s Memorandum is a val-id exercise of his power to take care thatthe laws be faithfully executed.

1

The United States maintains that thePresident’s Memorandum is authorized bythe Optional Protocol and the U.N. Char-ter. Brief for United States as AmicusCuriae 9. That is, because the relevanttreaties ‘‘create an obligation to complywith Avena,’’ they ‘‘implicitly give thePresident authority to implement thattreaty-based obligation.’’ Id., at 11 (em-phasis added). As a result, the President’sMemorandum is well grounded in the firstcategory of the Youngstown framework.

[14] We disagree. The President hasan array of political and diplomatic meansavailable to enforce international obli-gations, but unilaterally converting a non-self-executing treaty into a self-executingone is not among them. The responsibilityfor transforming an international obli-gation arising from a non-self-executingtreaty into domestic law falls to Congress.Foster, 2 Pet., at 315; Whitney, 124 U.S.,at 194, 8 S.Ct. 456; Igartua–De La Rosa,417 F.3d, at 150. As this Court has ex-plained, when treaty stipulations are ‘‘notself-executing they can only be enforcedpursuant to legislation to carry them intoeffect.’’ Whitney, supra, at 194, 8 S.Ct.456. Moreover, ‘‘[u]ntil such act shall bepassed, the Court is not at liberty to disre-gard the existing laws on the subject.’’Foster, supra, at 315.

The requirement that Congress, ratherthan the President, implement a non-self-


executing treaty derives from the text ofthe Constitution, which divides the treaty-making power between the President andthe Senate. The Constitution vests thePresident with the authority to ‘‘make’’ atreaty. Art. II, § 2. If the Executive de-termines that a treaty should have domes-tic effect of its own force, that determina-tion may be implemented ‘‘in mak[ing]’’the treaty, by ensuring that it containslanguage plainly providing for domesticenforceability. If the treaty is to be self-executing in this respect, the Senate mustconsent to the treaty by the requisite two-thirds vote, ibid., consistent with all otherconstitutional restraints.

[15] Once a treaty is ratified withoutprovisions clearly according it domestic ef-fect, however, whether the treaty will everhave such effect is governed by the funda-mental constitutional principle that ‘‘ ‘[t]hepower to make the necessary laws is inCongress; the power to execute in thePresident.’ ’’ Hamdan v. Rumsfeld, 548U.S. 557, 591, 126 S.Ct. 2749, 165 L.Ed.2d723 (2006) (quoting Ex parte Milligan, 4Wall. 2, 139, 18 L.Ed. 281 (1866) (opinionof Chase, C. J.)); see U.S. Const., Art. I,§ 1 (‘‘All legislative Powers herein grantedshall be vested in a Congress of the UnitedStates’’). As already noted, the terms of anon-self-executing treaty can become do-mestic law only in the same way as anyother law—through passage of legislationby both Houses of Congress, combinedwith either the President’s signature or acongressional override of a Presidentialveto. See Art. I, § 7. Indeed, ‘‘the Presi-dent’s power to see that the laws are faith-fully executed refutes the idea that he is tobe a lawmaker.’’ Youngstown, 343 U.S., at587, 72 S.Ct. 863.

A non-self-executing treaty, by defini-tion, is one that was ratified with the un-derstanding that it is not to have domesticeffect of its own force. That understand-

ing precludes the assertion that Congresshas implicitly authorized the President—acting on his own—to achieve precisely thesame result. We therefore conclude, giventhe absence of congressional legislation,that the non-self-executing treaties at issuehere did not ‘‘express[ly] or implied[ly]’’vest the President with the unilateral au-thority to make them self-executing. Seeid., at 635, 72 S.Ct. 863 (Jackson, J., con-curring). Accordingly, the President’sMemorandum does not fall within the firstcategory of the Youngstown framework.

Indeed, the preceding discussion shouldmake clear that the non-self-executingcharacter of the relevant treaties not onlyrefutes the notion that the ratifying partiesvested the President with the authority tounilaterally make treaty obligations bind-ing on domestic courts, but also implicitlyprohibits him from doing so. When thePresident asserts the power to ‘‘enforce’’ anon-self-executing treaty by unilaterallycreating domestic law, he acts in conflictwith the implicit understanding of the rati-fying Senate. His assertion of authority,insofar as it is based on the pertinent non-self-executing treaties, is therefore withinJustice Jackson’s third category, not thefirst or even the second. See id., at 637–638, 72 S.Ct. 863.

Each of the two means described abovefor giving domestic effect to an interna-tional treaty obligation under the Constitu-tion—for making law—requires joint ac-tion by the Executive and LegislativeBranches: The Senate can ratify a self-executing treaty ‘‘ma[de]’’ by the Execu-tive, or, if the ratified treaty is not self-executing, Congress can enact implement-ing legislation approved by the President.It should not be surprising that our Con-stitution does not contemplate vesting suchpower in the Executive alone. As Madisonexplained in The Federalist No. 47, underour constitutional system of checks and


balances, ‘‘[t]he magistrate in whom thewhole executive power resides cannot ofhimself make a law.’’ J. Cooke ed., p. 326(1961). That would, however, seem an aptdescription of the asserted executive au-thority unilaterally to give the effect ofdomestic law to obligations under a non-self-executing treaty.

The United States nonetheless main-tains that the President’s Memorandumshould be given effect as domestic lawbecause ‘‘this case involves a valid Presi-dential action in the context of Congres-sional ‘acquiescence’.’’ Brief for UnitedStates as Amicus Curiae 11, n. 2. Underthe Youngstown tripartite framework, con-gressional acquiescence is pertinent whenthe President’s action falls within the sec-ond category—that is, when he ‘‘acts inabsence of either a congressional grant ordenial of authority.’’ 343 U.S., at 637, 72S.Ct. 863 (Jackson, J., concurring). Here,

however, as we have explained, the Presi-dent’s effort to accord domestic effect tothe Avena judgment does not meet thatprerequisite.

In any event, even if we were persuadedthat congressional acquiescence could sup-port the President’s asserted authority tocreate domestic law pursuant to a non-self-executing treaty, such acquiescence doesnot exist here. The United States firstlocates congressional acquiescence in Con-gress’s failure to act following the Presi-dent’s resolution of prior ICJ controver-sies. A review of the Executive’s actionsin those prior cases, however, cannot sup-port the claim that Congress acquiesced inthis particular exercise of Presidential au-thority, for none of them remotely involvedtransforming an international obligationinto domestic law and thereby displacingstate law.14

14. Rather, in the Case Concerning Militaryand Paramilitary Activities in and Against Nic-aragua (Nicar.v.U.S.), 1986 I.C.J. 14 (Judg-ment of June 27), the President determinedthat the United States would not comply withthe ICJ’s conclusion that the United Statesowed reparations to Nicaragua. In the CaseConcerning Delimitation of the MaritimeBoundary in the Gulf of Maine Area(Can.v.U.S.), 1984 I.C.J. 246 (Judgment ofOct. 12), a federal agency—the NationalOceanic and Atmospheric Administration—is-sued a final rule which complied with theICJ’s boundary determination. The Case Con-cerning Rights of Nationals of the UnitedStates of America in Morocco (Fr.v.U.S.), 1952I.C.J. 176 (Judgment of Aug. 27), concernedthe legal status of United States citizens livingin Morocco; it was not enforced in UnitedStates courts.

The final two cases arose under the ViennaConvention. In the Lagrand Case (F.R.G.v.U.S.), 2001 I.C.J. 466 (Judgment of June27), the ICJ ordered the review and reconsid-eration of convictions and sentences of Ger-man nationals denied consular notification.In response, the State Department sent lettersto the States ‘‘encouraging’’ them to considerthe Vienna Convention in the clemency pro-

cess. Brief for United States as Amicus Curi-ae 20–21. Such encouragement did not givethe ICJ judgment direct effect as domesticlaw; thus, it cannot serve as precedent fordoing so in which Congress might be said tohave acquiesced. In the Case Concerning theVienna Convention on Consular Relations(Para.v.U.S.), 1998 I.C.J. 248 (Judgment ofApr. 9), the ICJ issued a provisional order,directing the United States to ‘‘take all meas-ures at its disposal to ensure that [Breard] isnot executed pending the final decision in [theICJ’s] proceedings.’’ Breard, 523 U.S., at374, 118 S.Ct. 1352 (internal quotation marksomitted). In response, the Secretary of Statesent a letter to the Governor of Virginia re-questing that he stay Breard’s execution. Id.,at 378, 118 S.Ct. 1352. When Paraguaysought a stay of execution from this Court, theUnited States argued that it had taken everymeasure at its disposal: because ‘‘our federalsystem imposes limits on the federal govern-ment’s ability to interfere with the criminaljustice systems of the States,’’ those measuresincluded ‘‘only persuasion,’’ not ‘‘legal com-pulsion.’’ Brief for United States as AmicusCuriae, O.T.1997, No. 97–8214, p. 51. This ofcourse is precedent contrary to the proposi-tion asserted by the Solicitor General in thiscase.


The United States also directs us to thePresident’s ‘‘related’’ statutory responsibil-ities and to his ‘‘established role’’ in litigat-ing foreign policy concerns as support forthe President’s asserted authority to givethe ICJ’s decision in Avena the force ofdomestic law. Brief for United States asAmicus Curiae 16–19. Congress has in-deed authorized the President to representthe United States before the United Na-tions, the ICJ, and the Security Council, 22U.S.C. § 287, but the authority of thePresident to represent the United Statesbefore such bodies speaks to the Presi-dent’s international responsibilities, notany unilateral authority to create domesticlaw. The authority expressly conferred byCongress in the international realm cannotbe said to ‘‘invite’’ the Presidential actionat issue here. See Youngstown, supra, at637, 72 S.Ct. 863 (Jackson, J., concurring).At bottom, none of the sources of authorityidentified by the United States supportsthe President’s claim that Congress hasacquiesced in his asserted power to estab-lish on his own federal law or to overridestate law.

None of this is to say, however, that thecombination of a non-self-executing treatyand the lack of implementing legislationprecludes the President from acting tocomply with an international treaty obli-gation. It is only to say that the Execu-tive cannot unilaterally execute a non-self-executing treaty by giving it domestic ef-fect. That is, the non-self-executing char-acter of a treaty constrains the President’sability to comply with treaty commitmentsby unilaterally making the treaty bindingon domestic courts. The President maycomply with the treaty’s obligations bysome other means, so long as they areconsistent with the Constitution. But hemay not rely upon a non-self-executingtreaty to ‘‘establish binding rules of deci-sion that preempt contrary state law.’’

Brief for United States as Amicus Curiae5.

2

We thus turn to the United States’ claimthat—independent of the United States’treaty obligations—the Memorandum is avalid exercise of the President’s foreignaffairs authority to resolve claims disputeswith foreign nations. Id., at 12–16. TheUnited States relies on a series of cases inwhich this Court has upheld the authorityof the President to settle foreign claimspursuant to an executive agreement. SeeGaramendi, 539 U.S., at 415, 123 S.Ct.2374; Dames & Moore, 453 U.S., at 679–680, 101 S.Ct. 2972; United States v. Pink,315 U.S. 203, 229, 62 S.Ct. 552, 86 L.Ed.796 (1942); United States v. Belmont, 301U.S. 324, 330, 57 S.Ct. 758, 81 L.Ed. 1134(1937). In these cases this Court has ex-plained that, if pervasive enough, a historyof congressional acquiescence can be treat-ed as a ‘‘gloss on ‘Executive Power’ vestedin the President by § 1 of Art. II.’’ Dames& Moore, supra, at 686, 101 S.Ct. 2972(some internal quotation marks omitted).

This argument is of a different naturethan the one rejected above. Rather thanrelying on the United States’ treaty obli-gations, the President relies on an inde-pendent source of authority in orderingTexas to put aside its procedural bar tosuccessive habeas petitions. Nevertheless,we find that our claims-settlement cases donot support the authority that the Presi-dent asserts in this case.

The claims-settlement cases involve anarrow set of circumstances: the makingof executive agreements to settle civilclaims between American citizens and for-eign governments or foreign nationals.See, e.g., Belmont, supra, at 327, 57 S.Ct.758. They are based on the view that ‘‘asystematic, unbroken, executive practice,long pursued to the knowledge of the Con-


gress and never before questioned,’’ can‘‘raise a presumption that the [action] hadbeen [taken] in pursuance of its consent.’’Dames & Moore, supra, at 686, 101 S.Ct.2972 (some internal quotation marks omit-ted). As this Court explained in Garam-endi,

Making executive agreements to settleclaims of American nationals against for-eign governments is a particularly long-standing practice TTT. Given the factthat the practice goes back over 200years, and has received congressionalacquiescence throughout its history, theconclusion that the President’s control offoreign relations includes the settlementof claims is indisputable. 539 U.S., at415, 123 S.Ct. 2374 (internal quotationmarks and brackets omitted).

Even still, the limitations on this source ofexecutive power are clearly set forth andthe Court has been careful to note that‘‘[p]ast practice does not, by itself, createpower.’’ Dames & Moore, supra, at 686,101 S.Ct. 2972.

The President’s Memorandum is notsupported by a ‘‘particularly longstandingpractice’’ of congressional acquiescence,see Garamendi, supra, at 415, 123 S.Ct.2374, but rather is what the United Statesitself has described as ‘‘unprecedented ac-tion,’’ Brief for United States as AmicusCuriae in Sanchez–Llamas, O.T.2005, Nos.05–51 and 04–10566, pp. 29–30. Indeed,the Government has not identified a singleinstance in which the President has at-tempted (or Congress has acquiesced in) aPresidential directive issued to statecourts, much less one that reaches deepinto the heart of the State’s police powersand compels state courts to reopen finalcriminal judgments and set aside neutrallyapplicable state laws. Cf. Brecht v. Abra-hamson, 507 U.S. 619, 635, 113 S.Ct. 1710,123 L.Ed.2d 353 (1993) (‘‘States possessprimary authority for defining and enforc-

ing the criminal law’’ (quoting Engle v.Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71L.Ed.2d 783 (1982)); internal quotationmarks omitted). The Executive’s narrowand strictly limited authority to settle in-ternational claims disputes pursuant to anexecutive agreement cannot stretch so faras to support the current PresidentialMemorandum.

3

Medellın argues that the President’sMemorandum is a valid exercise of his‘‘Take Care’’ power. Brief for Petitioner28. The United States, however, does notrely upon the President’s responsibility to‘‘take Care that the Laws be faithfullyexecuted.’’ U.S. Const., Art. II, § 3. Wethink this a wise concession. This authori-ty allows the President to execute thelaws, not make them. For the reasons wehave stated, the Avena judgment is notdomestic law; accordingly, the Presidentcannot rely on his Take Care powers here.

The judgment of the Texas Court ofCriminal Appeals is affirmed.

It is so ordered.

Justice STEVENS, concurring in thejudgment.

There is a great deal of wisdom in Jus-tice BREYER’s dissent. I agree that thetext 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 1377 – 1380. Ialso endorse the proposition that the Vien-na Convention on Consular Relations, Apr.24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No.6820, ‘‘is itself self-executing and judiciallyenforceable.’’ Post, at 1385. Moreover, Ithink this case presents a closer questionthan the Court’s opinion allows. In theend, however, I am persuaded that therelevant treaties do not authorize thisCourt to enforce the judgment of the In-


ternational Court of Justice (ICJ) in CaseConcerning Avena and Other MexicanNationals (Mex.v.U.S.), 2004 I.C.J. 12(Judgment of Mar. 31) (Avena ).

The source of the United States’ obli-gation to comply with judgments of theICJ is found in Article 94(1) of the UnitedNations Charter, which was ratified in1945. Article 94(1) provides that ‘‘[e]achMember of the United Nations undertakesto comply with the decision of the [ICJ] inany case to which it is a party.’’ 59 Stat.1051, T.S. No. 993 (emphasis added). Inmy view, the words ‘‘undertakes to com-ply’’—while not the model of either a self-executing or a non-self-executing commit-ment—are most naturally read as a prom-ise to take additional steps to enforce ICJjudgments.

Unlike the text of some other treaties,the terms of the United Nations Charterdo not necessarily incorporate internation-al judgments into domestic law. Cf., e.g.,United Nations Convention on the Law ofthe 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 terri-tories of the States Parties in the samemanner as judgments or orders of thehighest court of the State Party in whoseterritory the enforcement is sought’’).Moreover, Congress has passed imple-menting legislation to ensure the enforce-ment of other international judgments,

even when the operative treaty provisionsuse far more mandatory language than‘‘undertakes to comply.’’ 1

On the other hand Article 94(1) does notcontain the kind of unambiguous languageforeclosing self-execution that is found inother treaties. The obligation to under-take to comply with ICJ decisions is moreconsistent with self-execution than, for ex-ample, an obligation to enact legislation.Cf., e.g., International Plant ProtectionConvention, Art. I, Dec. 6, 1951, [1972] 23U.S.T. 2770, T.I.A.S. No. 7465 (‘‘[T]he con-tracting Governments undertake to adoptthe legislative, technical and administrativemeasures specified in this Convention’’).Furthermore, whereas the Senate has is-sued declarations of non-self-executionwhen ratifying some treaties, it did not doso with respect to the United NationsCharter.2

Absent a presumption one way or theother, the best reading of the words ‘‘un-dertakes to comply’’ is, in my judgment,one that contemplates future action by thepolitical branches. I agree with the dis-senters that ‘‘Congress is unlikely to au-thorize automatic judicial enforceability ofall ICJ judgments, for that could includesome politically sensitive judgments andothers better suited for enforcement byother branches.’’ Post, at 1388. But thisconcern counsels in favor of reading anyambiguity in Article 94(1) as leaving the

1. See, e.g., Convention on the Settlement ofInvestment Disputes between States and Na-tionals of Other States (ICSID Convention),Art. 54(1), Mar. 18, 1965, [1966] 17 U.S.T.1291, T.I.A.S. No. 6090 (‘‘Each ContractingState shall recognize an award rendered pur-suant to this Convention as binding and en-force the pecuniary obligations imposed bythat award within its territories as if it were afinal judgment of a court in that State’’); 22U.S.C. § 1650a (‘‘An award of an arbitraltribunal rendered pursuant to chapter IV ofthe [ICSID Convention] shall create a rightarising under a treaty of the United States.

The pecuniary obligations imposed by such anaward shall be enforced and shall be giventhe same full faith and credit as if the awardwere a final judgment of a court of generaljurisdiction of one of the several States’’).

2. Cf., e.g., U.S. Reservations, Declarations andUnderstandings, International Covenant onCivil and Political Rights, 138 Cong. Rec.8071 (1992) (‘‘[T]he United States declaresthat the provisions of Articles 1 through 27 ofthe Covenant are not self-executing’’).


choice of whether to comply with ICJjudgments, and in what manner, ‘‘to thepolitical, not the judicial department.’’Foster v. Neilson, 2 Pet. 253, 314, 7 L.Ed.415 (1829).3

The additional treaty provisions cited bythe dissent do not suggest otherwise. Inan annex to the United Nations Charter,the Statute of the International Court ofJustice (ICJ Statute) states that a decisionof the ICJ ‘‘has no binding force exceptbetween the parties and in respect of thatparticular case.’’ Art. 59, 59 Stat. 1062.Because I read that provision as confining,not expanding, the effect of ICJ judg-ments, it does not make the undertaking tocomply with such judgments any more en-forceable than the terms of Article 94(1)itself. That the judgment is ‘‘binding’’ as amatter of international law says nothingabout its domestic legal effect. Nor in myopinion does the reference to ‘‘compulsoryjurisdiction’’ in the Optional Protocol Con-cerning the Compulsory Settlement of Dis-putes to the Vienna Convention, Art. I,Apr. 24, 1963, [1970] 21 U.S.T. 325,T.I.A.S. No. 6820, shed any light on thematter. This provision merely secures theconsent of signatory nations to the specificjurisdiction of the ICJ with respect toclaims arising out of the Vienna Conven-tion. See ICJ Statute, Art. 36(1), 59 Stat.1060 (‘‘The jurisdiction of the Court com-prises TTT all matters specially providedfor TTT in treaties and conventions inforce’’).

Even though the ICJ’s judgment in Ave-na is not ‘‘the supreme Law of the Land,’’U.S. Const., Art. VI, cl. 2, no one disputesthat it constitutes an international law obli-gation on the part of the United States.

Ante, at 1356. By issuing a memorandumdeclaring that state courts should give ef-fect to the judgment in Avena, the Presi-dent made a commendable attempt to in-duce the States to discharge the Nation’sobligation. I agree with the Texas judgesand the majority of this Court that thePresident’s memorandum is not bindinglaw. Nonetheless, the fact that the Presi-dent cannot legislate unilaterally does notabsolve the United States from its promiseto take action necessary to comply withthe ICJ’s judgment.

Under the express terms of the Suprem-acy Clause, the United States’ obligation to‘‘undertak[e] to comply’’ with the ICJ’sdecision falls on each of the States as wellas the Federal Government. One conse-quence of our form of government is thatsometimes States must shoulder the pri-mary responsibility for protecting the hon-or and integrity of the Nation. Texas’duty in this respect is all the greater sinceit was Texas that—by failing to provideconsular notice in accordance with the Vi-enna Convention—ensnared the UnitedStates in the current controversy. Havingalready put the Nation in breach of onetreaty, it is now up to Texas to prevent thebreach of another.

The decision in Avena merely obligatesthe United States ‘‘to provide, by means ofits own choosing, review and reconsidera-tion of the convictions and sentences of the[affected] Mexican nationals,’’ 2004 I.C. J.,at 72, ¶ 153(9), ‘‘with a view to ascertain-ing’’ whether the failure to provide propernotice to consular officials ‘‘caused actualprejudice to the defendant in the processof administration of criminal justice,’’ id.,

3. Congress’ implementation options arebroader than the dissent suggests. In addi-tion to legislating judgment-by-judgment, en-forcing all judgments indiscriminately, anddevising ‘‘legislative bright lines,’’ post, at1388, Congress could, for example, make ICJ

judgments enforceable upon the expiration ofa waiting period that gives the politicalbranches an opportunity to intervene. Cf.,e.g., 16 U.S.C. § 1823 (imposing a 120–daywaiting period before international fisheryagreements take effect).


at 60, ¶ 121. The cost to Texas of comply-ing with Avena would be minimal, particu-larly given the remote likelihood that theviolation of the Vienna Convention actuallyprejudiced Jose Ernesto Medellın. Seeante, at 1354 – 1355, and n. 1. It is a costthat the State of Oklahoma unhesitatinglyassumed.4

On the other hand, the costs of refusingto respect the ICJ’s judgment are signifi-cant. The entire Court and the Presidentagree that breach will jeopardize the Unit-ed States’ ‘‘plainly compelling’’ interests in‘‘ensuring the reciprocal observance of theVienna Convention, protecting relationswith foreign governments, and demon-strating commitment to the role of interna-tional law.’’ Ante, at 1367. When thehonor of the Nation is balanced against themodest cost of compliance, Texas would dowell to recognize that more is at stakethan whether judgments of the ICJ, andthe principled admonitions of the Presi-dent of the United States, trump stateprocedural rules in the absence of imple-menting legislation.

The Court’s judgment, which I join, doesnot foreclose further appropriate action bythe State of Texas.

Justice BREYER, with whom JusticeSOUTER and Justice GINSBURG join,dissenting.

The Constitution’s Supremacy Clauseprovides that ‘‘all Treaties TTT which shallbe made TTT under the Authority of theUnited States, shall be the supreme Lawof the Land; and the Judges in everyState shall be bound thereby.’’ Art. VI, cl.2. The Clause means that the ‘‘courts’’must regard ‘‘a treaty TTT as equivalent toan act of the legislature, whenever it oper-ates of itself without the aid of any legisla-tive provision.’’ Foster v. Neilson, 2 Pet.253, 314, 7 L.Ed. 415 (1829) (majority opin-ion of Marshall, C. J.).

In the Avena case the InternationalCourt of Justice (ICJ) (interpreting andapplying the Vienna Convention on Consu-lar Relations) issued a judgment that re-quires the United States to reexamine cer-tain criminal proceedings in the cases of 51Mexican nationals. Case Concerning Ave-na and Other Mexican Nationals(Mex.v.U.S.), 2004 I.C.J. 12 (Judgment ofMar. 31) (Avena). The question here iswhether the ICJ’s Avena judgment is en-forceable now as a matter of domestic law,i.e., whether it ‘‘operates of itself withoutthe aid’’ of any further legislation.

4. In Avena, the ICJ expressed ‘‘great concern’’that Oklahoma had set the date of executionfor one of the Mexican nationals involved inthe judgment, Osbaldo Torres, for May 18,2004. 2004 I.C. J., at 28, ¶ 21. Respondingto Avena, the Oklahoma Court of CriminalAppeals stayed Torres’ execution and orderedan evidentiary hearing on whether Torres hadbeen prejudiced by the lack of consular notifi-cation. See Torres v. Oklahoma, No. PCD–04–442, 2004 WL 3711623 (May 13, 2004), 43I.L.M. 1227. On the same day, the Governorof Oklahoma commuted Torres’ death sen-tence to life without the possibility of parole,stressing that (1) the United States signed theVienna Convention, (2) that treaty is ‘‘impor-tant in protecting the rights of American citi-zens abroad,’’ (3) the ICJ ruled that Torres’

rights had been violated, and (4) the U.S.State Department urged his office to givecareful consideration to the United States’treaty obligations. See Office of GovernorBrad Henry, Press Release: Gov. HenryGrants Clemency to Death Row Inmate Tor-res (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 casefile). After the evidentiary hearing, the Okla-homa Court of Criminal Appeals held thatTorres had failed to establish prejudice withrespect to the guilt phase of his trial, and thatany prejudice with respect to the sentencingphase had been mooted by the commutationorder. Torres v. Oklahoma, 120 P.3d 1184(2005).


The United States has signed and rati-fied a series of treaties obliging it to com-ply with ICJ judgments in cases in whichit has given its consent to the exercise ofthe ICJ’s adjudicatory authority. Specifi-cally, the United States has agreed to sub-mit, in this kind of case, to the ICJ’s‘‘compulsory jurisdiction’’ for purposes of‘‘compulsory settlement.’’ Optional Proto-col Concerning the Compulsory Settlementof Disputes (Optional Protocol or Proto-col), Art. I, Apr. 24, 1963, [1970] 21 U.S.T.325, 326 T.I.A.S. No. 6820 (capitalizationaltered). And it agreed that the ICJ’sjudgments would have ‘‘binding force TTT

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 do-mestic courts should enforce this particu-lar ICJ judgment. Memorandum to theAttorney General (Feb. 28, 2005), App. toPet. for Cert. 187a (hereinafter President’sMemorandum). And Congress has donenothing to suggest the contrary. Underthese circumstances, I believe the treatyobligations, and hence the judgment, rest-ing as it does upon the consent of theUnited States to the ICJ’s jurisdiction,bind the courts no less than would ‘‘an actof the [federal] legislature.’’ Foster, su-pra, at 314.

I

To understand the issue before us, thereader must keep in mind three separateratified United States treaties and one ICJjudgment against the United States. Thefirst treaty, the Vienna Convention, con-tains two relevant provisions. The firstrequires the United States and other sig-natory nations to inform arrested foreignnationals of their separate Convention-giv-en right to contact their nation’s consul.The second says that these rights (of anarrested person) ‘‘shall be exercised inconformity with the laws and regulations’’

of the arresting nation, provided that the‘‘laws and regulations TTT enable full ef-fect to be given to the purposes for which’’those ‘‘rights TTT are intended.’’ See Vien-na 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 (em-phasis added).

The second treaty, the Optional Proto-col, concerns the ‘‘compulsory settlement’’of Vienna Convention disputes. 21 U.S.T.,at 326. It provides that for parties thatelect to subscribe to the Protocol, ‘‘[d]is-putes arising out of the interpretation orapplication of the [Vienna] Convention’’shall be submitted to the ‘‘compulsory ju-risdiction of the International Court ofJustice.’’ Art. I, ibid. It authorizes anyparty that has consented to the ICJ’s ju-risdiction (by signing the Optional Proto-col) to bring another such party beforethat Court. Ibid.

The third treaty, the United NationsCharter, says that every signatory Nation‘‘undertakes to comply with the decision ofthe International Court of Justice in anycase to which it is a party.’’ Art. 94(1), 59Stat. 1051. In an annex to the Charter,the Statute of the International Court ofJustice states that an ICJ judgment has‘‘binding force TTT between the parties andin respect of that particular case.’’ Art.59, id., at 1062. See also Art. 60, id., at1063 (ICJ ‘‘judgment is final and withoutappeal’’).

The judgment at issue is the ICJ’s judg-ment in Avena, a case that Mexico broughtagainst the United States on behalf of 52nationals arrested in different States ondifferent criminal charges. 2004 I.C. J., at39. Mexico claimed that state authoritieswithin the United States had failed to noti-fy the arrested persons of their ViennaConvention rights and, by applying stateprocedural law in a manner which did not


give full effect to the Vienna Conventionrights, had deprived them of an appropri-ate remedy. Ibid. The ICJ judgment inAvena requires that the United States re-examine ‘‘by means of its own choosing’’certain aspects of the relevant state crimi-nal proceedings of 51 of these individualMexican nationals. Id., at 62. The Presi-dent has determined that this should bedone. See President’s Memorandum.

The critical question here is whether theSupremacy Clause requires Texas to fol-low, i.e., to enforce, this ICJ judgment.The Court says ‘‘no.’’ And it reaches itsnegative answer by interpreting the laby-rinth of treaty provisions as creating alegal obligation that binds the UnitedStates internationally, but which, for Su-premacy Clause purposes, is not automati-cally enforceable as domestic law. In themajority’s view, the Optional Protocol sim-ply sends the dispute to the ICJ; the ICJstatute says that the ICJ will subsequentlyreach a judgment; and the U.N. Chartercontains no more than a promise to ‘‘ ‘un-dertak[e] to comply’ ’’ with that judgment.Ante, at 1354. Such a promise, the majori-ty says, does not as a domestic law matter(in Chief Justice Marshall’s words) ‘‘oper-at[e] of itself without the aid of any legisla-tive provision.’’ Foster, 2 Pet., at 314.Rather, here (and presumably in any otherICJ judgment rendered pursuant to any ofthe approximately 70 U.S. treaties in forcethat contain similar provisions for submit-ting treaty-based disputes to the ICJ fordecisions that bind the parties) Congressmust enact specific legislation before ICJjudgments entered pursuant to our con-sent to compulsory ICJ jurisdiction canbecome domestic law. See Brief for Inter-national Court of Justice Experts as AmiciCuriae 18 (‘‘Approximately 70 U.S. treatiesnow in force contain obligations compara-ble to those in the Optional Protocol forsubmission of treaty-based disputes to theICJ’’); see also id., at 18, n. 25.

In my view, the President has correctlydetermined that Congress need not enactadditional legislation. The majority placestoo much weight upon treaty language thatsays little about the matter. The words‘‘undertak[e] to comply,’’ for example, donot tell us whether an ICJ judgment ren-dered pursuant to the parties’ consent tocompulsory ICJ jurisdiction does, or doesnot, automatically become part of our do-mestic law. To answer that question wemust look instead to our own domestic law,in particular, to the many treaty-relatedcases interpreting the Supremacy Clause.Those cases, including some written byJustices well aware of the Founders’ origi-nal intent, lead to the conclusion that theICJ judgment before us is enforceable as amatter of domestic law without furtherlegislation.

A

Supreme Court case law stretching backmore than 200 years helps explain what,for present purposes, the Founders meantwhen they wrote that ‘‘all Treaties TTT

shall be the supreme Law of the Land.’’Art. VI, cl. 2. In 1796, for example, theCourt decided the case of Ware v. Hylton,3 Dall. 199, 1 L.Ed. 568. A British credi-tor sought payment of an American’s Rev-olutionary War debt. The debtor arguedthat he had, under Virginia law, repaid thedebt by complying with a state statuteenacted during the Revolutionary Warthat required debtors to repay moneyowed to British creditors into a Virginiastate fund. Id., at 220–221 (opinion ofChase, J.). The creditor, however, claimedthat this state-sanctioned repayment didnot count because a provision of the 1783Paris Peace Treaty between Britain andthe United States said that ‘‘ ‘the creditorsof either side should meet with no lawfulimpediment to the recovery of the fullvalue TTT of all bona fide debts, thereto-


fore contracted’ ’’; and that provision, thecreditor argued, effectively nullified thestate law. Id., at 203–204. The Court,with each Justice writing separately,agreed with the British creditor, held theVirginia statute invalid, and found that theAmerican debtor remained liable for thedebt. Id., at 285.

The key fact relevant here is that Con-gress had not enacted a specific statuteenforcing the treaty provision at issue.Hence the Court had to decide whetherthe provision was (to put the matter inpresent terms) ‘‘self-executing.’’ JusticeIredell, a member of North Carolina’s Rat-ifying Convention, addressed the matterspecifically, setting forth views on whichJustice Story later relied to explain theFounders’ reasons for drafting the Su-premacy Clause. 3 J. Story, Commentar-ies on the Constitution of the UnitedStates 696–697 (1833) (hereinafter Story).See Vazquez, The Four Doctrines of Self–Executing Treaties, 89 Am. J. Int’l L. 695,697–700 (1995) (hereinafter Vazquez) (de-scribing the history and purpose of theSupremacy 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 theFounders crafted the Supremacy Clause tomake ratified treaties self-executing). Butsee Yoo, Globalism and the Constitution:Treaties, Non–Self–Execution, and theOriginal Understanding, 99 Colum.L.Rev.1955 (1999).

Justice Iredell pointed out that someTreaty provisions, those, for example, de-claring the United States an independentNation or acknowledging its right to navi-gate the Mississippi River, were ‘‘execut-ed,’’ taking effect automatically upon ratifi-cation. 3 Dall., at 272. Other provisionswere ‘‘executory,’’ in the sense that theywere ‘‘to be carried into execution’’ by each

signatory nation ‘‘in the manner which theConstitution of that nation prescribes.’’Ibid. Before adoption of the U.S. Constitu-tion, all such provisions would have takeneffect as domestic law only if Congress onthe American side, or Parliament on theBritish side, had written them into domes-tic law. Id., at 274–277.

But, Justice Iredell adds, after the Con-stitution’s adoption, while further parlia-mentary action remained necessary inBritain (where the ‘‘practice’’ of the needfor 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 tothe treaty’s debt-collection provision wasno longer necessary in the United States.Id., at 276–277. The ratification of theConstitution with its Supremacy Clausemeans that treaty provisions that bind theUnited States may (and in this instancedid) also enter domestic law without fur-ther congressional action and automatical-ly bind the States and courts as well. Id.,at 277.

‘‘Under this Constitution,’’ Justice Ire-dell concluded, ‘‘so far as a treaty constitu-tionally is binding, upon principles of mor-al obligation, it is also by the vigour of itsown authority to be executed in fact. Itwould not otherwise be the Supreme lawin the new sense provided for.’’ Ibid.;see also Story, supra, § 1833, at 697 (not-ing that the Supremacy Clause’s languagewas crafted to make the Clause’s ‘‘obli-gation more strongly felt by the statejudges’’ and to ‘‘remov[e] every pretense’’by which they could ‘‘escape from [its]controlling power’’); see also The Federal-ist No. 42, p. 264 (C. Rossiter ed. 1961)(J. Madison) (Supremacy Clause ‘‘disem-barrassed’’ the Convention of the problempresented by the Articles of Confederationwhere ‘‘treaties might be substantiallyfrustrated by regulations of the States’’).


Justice Iredell gave examples of provisionsthat would no longer require further legis-lative action, such as those requiring therelease of prisoners, those forbidding war-related ‘‘future confiscations’’ and ‘‘ ‘prose-cutions,’ ’’ and, of course, the specific debt-collection provision at issue in the Warecase itself. 3 Dall., at 273, 277.

Some 30 years later, the Court returnedto the ‘‘self-execution’’ problem. In Fos-ter, 2 Pet. 253, the Court examined a pro-vision in an 1819 treaty with Spain cedingFlorida to the United States; the provi-sion said that ‘‘ ‘grants of land made’ ’’ bySpain before January 24, 1818, ‘‘ ‘shall beratified and confirmed’ ’’ to the grantee.Id., at 310. Chief Justice Marshall, writ-ing for the Court, noted that, as a generalmatter, one might expect a signatory na-tion to execute a treaty through a formalexercise of its domestic sovereign authori-ty (e.g., through an act of the legislature).Id., at 314. But in the United States ‘‘adifferent principle’’ applies. Ibid. (empha-sis added). The Supremacy Clause meansthat, here, a treaty is ‘‘the law of the landTTT to be regarded in Courts of justice asequivalent to an act of the legislature’’ and‘‘operates of itself without the aid of anylegislative provision’’ unless it specificallycontemplates execution by the legislatureand thereby ‘‘addresses itself to the politi-cal, not the judicial department.’’ Ibid.(emphasis added). The Court decided thatthe treaty provision in question was notself-executing; in its view, the words‘‘shall be ratified’’ demonstrated that theprovision foresaw further legislative ac-tion. Id., at 315.

The Court, however, changed its mindabout the result in Foster four years later,after being shown a less legislatively ori-ented, less tentative, but equally authenticSpanish-language version of the treaty.See United States v. Percheman, 7 Pet. 51,88–89, 8 L.Ed. 604 (1833). And by 1840,

instances in which treaty provisions auto-matically became part of domestic lawwere common enough for one Justice towrite that ‘‘it would be a bold proposition’’to assert ‘‘that an act of Congress must befirst passed’’ in order to give a treatyeffect as ‘‘a supreme law of the land.’’Lessee of Pollard’s Heirs v. Kibbe, 14 Pet.353, 388, 10 L.Ed. 490 (1840) (Baldwin, J.,concurring).

Since Foster and Pollard, this Court hasfrequently held or assumed that particulartreaty provisions are self-executing, auto-matically binding the States without more.See Appendix A, infra (listing, as exam-ples, 29 such cases, including 12 concludingthat the treaty provision invalidates stateor territorial law or policy as a conse-quence). See also Wu, Treaties’ Domains,93 Va. L.Rev. 571, 583–584 (2007) (conclud-ing ‘‘enforcement against States is the pri-mary and historically most significant typeof treaty enforcement in the UnitedStates’’). As far as I can tell, the Courthas held to the contrary only in two cases:Foster, supra, which was later reversed,and Cameron Septic Tank Co. v. Knox-ville, 227 U.S. 39, 33 S.Ct. 209, 57 L.Ed.407 (1913), where specific congressional ac-tions indicated that Congress thought fur-ther legislation necessary. See alsoVazquez 716. The Court has found ‘‘self-executing’’ provisions in multilateral trea-ties as well as bilateral treaties. See, e.g.,Trans World Airlines, Inc. v. FranklinMint Corp., 466 U.S. 243, 252, 104 S.Ct.1776, 80 L.Ed.2d 273 (1984); BacardiCorp. of America v. Domenech, 311 U.S.150, 160, and n. 9, 161, 61 S.Ct. 219, 85L.Ed. 98 (1940). And the subject matterof such provisions has varied widely, fromextradition, see, e.g., United States v.Rauscher, 119 U.S. 407, 411–412, 7 S.Ct.234, 30 L.Ed. 425 (1886), to criminal trialjurisdiction, see Wildenhus’s Case, 120U.S. 1, 11, 17–18, 7 S.Ct. 385, 30 L.Ed. 565(1887), to civil liability, see, e.g., El Al


Israel Airlines, Ltd. v. Tsui Yuan Tseng,525 U.S. 155, 161–163, 119 S.Ct. 662, 142L.Ed.2d 576 (1999), to trademark infringe-ment, see Bacardi, supra, at 160, and n. 9,161, 61 S.Ct. 219, to an alien’s freedom toengage in trade, see, e.g., Jordan v. Tashi-ro, 278 U.S. 123, 126, n. 1, 49 S.Ct. 47, 73L.Ed. 214 (1928), to immunity from statetaxation, see Nielsen v. Johnson, 279 U.S.47, 50, 58, 49 S.Ct. 223, 73 L.Ed. 607(1929), to land ownership, Percheman, su-pra, at 88–89, and to inheritance, see, e.g.,Kolovrat v. Oregon, 366 U.S. 187, 191, n. 6,198, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961).

Of particular relevance to the presentcase, the Court has held that the UnitedStates may be obligated by treaty to com-ply with the judgment of an internationaltribunal interpreting that treaty, despitethe absence of any congressional enact-ment specifically requiring such compli-ance. See Comegys v. Vasse, 1 Pet. 193,211–212, 7 L.Ed. 108 (1828) (holding thatdecision of tribunal rendered pursuant to aUnited States–Spain treaty, which obligedthe parties to ‘‘undertake to make satisfac-tion’’ of treaty-based rights, was ‘‘conclu-sive and final’’ and ‘‘not re-examinable’’ inAmerican courts); see also Meade v. Unit-ed States, 9 Wall. 691, 725, 19 L.Ed. 687(1870) (holding that decision of tribunaladjudicating claims arising under UnitedStates–Spain treaty ‘‘was final and conclu-sive, and bar[red] a recovery upon themerits’’ in American court).

All of these cases make clear that self-executing treaty provisions are not uncom-mon or peculiar creatures of our domesticlaw; that they cover a wide range of sub-jects; that the Supremacy Clause itselfanswers the self-execution question by ap-plying many, but not all, treaty provisionsdirectly to the States; and that the Clauseanswers the self-execution question differ-ently than does the law in many othernations. See supra, at 1354 – 1357. The

cases also provide criteria that help deter-mine which provisions automatically so ap-ply—a matter to which I now turn.

B

1The case law provides no simple magic

answer to the question whether a particu-lar treaty provision is self-executing. Butthe case law does make clear that, insofaras today’s majority looks for languageabout ‘‘self-execution’’ in the treaty itselfand insofar as it erects ‘‘clear statement’’presumptions designed to help find an an-swer, it is misguided. See, e.g., ante, at1363 – 1364 (expecting ‘‘clea[r]state[ment]’’ of parties’ intent where treatyobligation ‘‘may interfere with state proce-dural rules’’); ante, at 1368 (for treaty tobe self-executing, Executive should atdrafting ‘‘ensur[e] that it contains lan-guage plainly providing for domestic en-forceability’’).

The many treaty provisions that thisCourt has found self-executing contain notextual language on the point (see Appen-dix A, infra ). Few, if any, of these provi-sions are clear. See, e.g., Ware, 3 Dall., at273 (opinion of Iredell, J.). Those thatdisplace state law in respect to such quin-tessential state matters as, say, property,inheritance, or debt repayment, lack the‘‘clea[r] state[ment]’’ that the Court todayapparently requires. Compare ante, at1363 – 1364 (majority expects ‘‘clea[r]state[ment]’’ of parties’ intent where treatyobligation ‘‘may interfere with state proce-dural rules’’). This is also true of thosecases that deal with state rules roughlycomparable to the sort that the majoritysuggests require special accommodation.See, e.g., Hopkirk v. Bell, 3 Cranch 454,457–458, 2 L.Ed. 497 (1806) (treaty pre-empts Virginia state statute of limitations).Cf. ante, at 1363 – 1364 (setting forth ma-jority’s reliance on case law that is appar-ently inapposite). These many Supreme


Court cases finding treaty provisions to beself-executing cannot be reconciled withthe majority’s demand for textual clarity.

Indeed, the majority does not point to asingle ratified United States treaty thatcontains the kind of ‘‘clea[r]’’ or ‘‘plai[n]’’textual indication for which the majoritysearches. Ante, at 1363, 1368. JusticeSTEVENS’ reliance upon one ratified andone un-ratified treaty to make the pointthat a treaty could speak clearly on thematter of self-execution, see ante, at 1373and n. 1, does suggest that there are a fewsuch treaties. But that simply highlightshow few of them actually do speak clearlyon the matter. And that is not becausethe United States never, or hardly ever,has entered into a treaty with self-execut-ing provisions. The case law belies anysuch conclusion. Rather, it is because theissue whether further legislative action isrequired before a treaty provision takesdomestic effect in a signatory nation isoften a matter of how that Nation’s domes-tic law regards the provision’s legal status.And that domestic status-determining lawdiffers markedly from one nation to anoth-er. See generally Hollis, Comparative Ap-proach to Treaty Law and Practice, inNational Treaty Law and Practice 1, 9–50(D. Hollis, M. Blakeslee, & L. Ederingtoneds.2005) (hereinafter Hollis). As JusticeIredell pointed out 200 years ago, Britain,for example, taking the view that the Brit-ish Crown makes treaties but Parliamentmakes domestic law, virtually always re-quires parliamentary legislation. SeeWare, supra, at 274–277; Sinclair, Dick-son, & Maciver, United Kingdom, in Na-tional Treaty Law and Practice, supra, at727, 733, and n. 9 (citing Queen v. Secre-tary of State for Foreign and Common-wealth Affairs, ex parte Lord Rees–Mogg,[1994] Q.B. 552 (1993) (in Britain, ‘‘ ‘trea-ties are not self-executing’ ’’)). See alsoTorruella, The Insular Cases : The Estab-lishment of a Regime of Political Apar-

theid, 29 U. Pa. J. Int’l L. 283, 337 (2007).On the other hand, the United States, withits Supremacy Clause, does not take Brit-ain’s view. See, e.g., Ware, supra, at 277(opinion of Iredell, J.). And the law ofother nations, the Netherlands for exam-ple, directly incorporates many treatiesconcluded by the executive into its domes-tic law even without explicit parliamentaryapproval of the treaty. See Brouwer, TheNetherlands, in National Treaty Law andPractice, supra, at 483, 483–502.

The majority correctly notes that thetreaties do not explicitly state that therelevant obligations are self-executing.But given the differences among nations,why would drafters write treaty languagestating that a provision about, say, alienproperty inheritance, is self-executing?How could those drafters achieve agree-ment when one signatory nation followsone tradition and a second follows another?Why would such a difference matter suffi-ciently for drafters to try to secure lan-guage that would prevent, for example,Britain’s following treaty ratification witha further law while (perhaps unnecessari-ly) insisting that the United States apply atreaty provision without further domesticlegislation? Above all, what does the ab-sence of specific language about ‘‘self-exe-cution’’ prove? It may reflect the drafters’awareness of national differences. It mayreflect the practical fact that drafters, fa-voring speedy, effective implementation,conclude they should best leave nationallegal practices alone. It may reflect thefact that achieving international agreementon this point is simply a game not worththe candle.

In a word, for present purposes, theabsence or presence of language in a trea-ty about a provision’s self-execution provesnothing at all. At best the Court is hunt-ing the snark. At worst it erects legalistichurdles that can threaten the application


of provisions in many existing commercialand other treaties and make it more diffi-cult to negotiate new ones. (For exam-ples, see Appendix B, infra.)

2

The case law also suggests practical,context-specific criteria that this Court haspreviously used to help determine wheth-er, for Supremacy Clause purposes, a trea-ty provision is self-executing. The provi-sion’s text matters very much. Cf. ante, at1361 – 1362. But that is not because itcontains language that explicitly refers toself-execution. For reasons I have alreadyexplained, Part I–B–1, supra, one shouldnot expect that kind of textual statement.Drafting history is also relevant. But,again, that is not because it will explicitlyaddress the relevant question. Insteadtext and history, along with subject matterand related characteristics will help ourcourts determine whether, as Chief JusticeMarshall put it, the treaty provision ‘‘ad-dresses itself to the political TTT depart-ment[s]’’ for further action or to ‘‘the judi-cial department’’ for direct enforcement.Foster, 2 Pet., at 314; see also Ware, 3Dall., at 244 (opinion of Chase, J.) (‘‘Noone can doubt that a treaty may stipulate,that certain acts shall be done by theLegislature; that other acts shall be doneby the Executive; and others by the Judi-ciary’’).

In making this determination, this Courthas found the provision’s subject matter ofparticular importance. Does the treatyprovision declare peace? Does it promisenot to engage in hostilities? If so, it ad-dresses itself to the political branches.See id., at 259–262 (opinion of Iredell, J.).Alternatively, does it concern the adjudica-tion of traditional private legal rights suchas rights to own property, to conduct abusiness, or to obtain civil tort recovery?If so, it may well address itself to the

Judiciary. Enforcing such rights and set-ting their boundaries is the bread-and-butter work of the courts. See, e.g., Clarkv. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91L.Ed. 1633 (1947) (treating provision withsuch subject matter as self-executing);Asakura v. Seattle, 265 U.S. 332, 44 S.Ct.515, 68 L.Ed. 1041 (1924) (same).

One might also ask whether the treatyprovision confers specific, detailed individ-ual legal rights. Does it set forth definitestandards that judges can readily enforce?Other things being equal, where rights arespecific and readily enforceable, the treatyprovision more likely ‘‘addresses’’ the judi-ciary. See, e.g., Olympic Airways v. Hu-sain, 540 U.S. 644, 124 S.Ct. 1221, 157L.Ed.2d 1146 (2004) (specific conditions forair-carrier civil liability); Geofroy v. Riggs,133 U.S. 258, 10 S.Ct. 295, 33 L.Ed. 642(1890) (French citizens’ inheritance rights).Compare Foster, supra, at 314–315 (treatyprovision stating that landholders’ titles‘‘shall be ratified and confirmed’’ foreseeslegislative action).

Alternatively, would direct enforcementrequire the courts to create a new cause ofaction? Would such enforcement engen-der constitutional controversy? Would itcreate constitutionally undesirable conflictwith the other branches? In such circum-stances, it is not likely that the provisioncontemplates direct judicial enforcement.See, e.g., Asakura, supra, at 341, 44 S.Ct.515 (although ‘‘not limited by any expressprovision of the Constitution,’’ the treaty-making power of the United States ‘‘doesnot extend ‘so far as to authorize what theConstitution forbids’ ’’).

Such questions, drawn from case lawstretching back 200 years, do not create asimple test, let alone a magic formula.But they do help to constitute a practical,context-specific judicial approach, seekingto separate run-of-the-mill judicial mattersfrom other matters, sometimes more politi-


cally charged, sometimes more clearly theresponsibility of other branches, some-times lacking those attributes that wouldpermit courts to act on their own withoutmore ado. And such an approach is allthat we need to find an answer to the legalquestion now before us.

C

Applying the approach just described, Iwould find the relevant treaty provisionsself-executing as applied to the ICJ judg-ment before us (giving that judgment do-mestic legal effect) for the following rea-sons, taken together.

First, the language of the relevant trea-ties strongly supports direct judicial en-forceability, at least of judgments of thekind at issue here. The Optional Protocolbears the title ‘‘Compulsory Settlement ofDisputes,’’ thereby emphasizing the man-datory and binding nature of the proce-dures it sets forth. 21 U.S.T., at 326. Thebody of the Protocol says specifically that‘‘any party’’ that has consented to theICJ’s ‘‘compulsory jurisdiction’’ may bringa ‘‘dispute’’ before the court against anyother such party. Art. I, ibid. And theProtocol contrasts proceedings of the com-pulsory kind with an alternative ‘‘concilia-tion procedure,’’ the recommendations ofwhich a party may decide ‘‘not’’ to ‘‘ac-cep[t].’’ Art. III, id., at 327. Thus, theOptional Protocol’s basic objective is notjust to provide a forum for settlement butto provide a forum for compulsory settle-ment.

Moreover, in accepting Article 94(1) ofthe Charter, ‘‘[e]ach Member TTT under-takes to comply with the decision’’ of theICJ ‘‘in any case to which it is a party.’’59 Stat. 1051. And the ICJ Statute (partof the U.N. Charter) makes clear that, adecision of the ICJ between parties thathave consented to the ICJ’s compulsoryjurisdiction has ‘‘binding force TTT be-

tween the parties and in respect of thatparticular case.’’ Art. 59, id., at 1062 (em-phasis added). Enforcement of a court’sjudgment that has ‘‘binding force’’ involvesquintessential judicial activity.

True, neither the Protocol nor the Char-ter explicitly states that the obligation tocomply with an ICJ judgment automatical-ly binds a party as a matter of domesticlaw without further domestic legislation.But how could the language of those docu-ments do otherwise? The treaties aremultilateral. And, as I have explained,some signatories follow British further-leg-islation-always-needed principles, othersfollow United States Supremacy Clauseprinciples, and still others, e.g., the Neth-erlands, can directly incorporate treatyprovisions into their domestic law in par-ticular circumstances. See Hollis 9–50.Why, given national differences, woulddrafters, seeking as strong a legal obli-gation as is practically attainable, use trea-ty language that requires all signatories toadopt uniform domestic-law treatment inthis respect?

The absence of that likely unobtainablelanguage can make no difference. We areconsidering the language for purposes ofapplying the Supremacy Clause. And forthat purpose, this Court has found to beself-executing multilateral treaty languagethat is far less direct or forceful (on therelevant point) than the language set forthin the present treaties. See, e.g., TransWorld Airlines, 466 U.S., at 247, 252, 104S.Ct. 1776; Bacardi, 311 U.S., at 160, andn. 9, 161, 61 S.Ct. 219. The language herein effect tells signatory nations to make anICJ compulsory jurisdiction judgment ‘‘asbinding as you can.’’ Thus, assuming oth-er factors favor self-execution, the lan-guage adds, rather than subtracts, sup-port.

Indeed, as I have said, supra, at 1354,the United States has ratified approxi-


mately 70 treaties with ICJ dispute resolu-tion provisions roughly similar to thosecontained in the Optional Protocol; manyof those treaties contemplate ICJ adjudica-tion of the sort of substantive matters(property, commercial dealings, and thelike) that the Court has found self-execut-ing, or otherwise appear addressed to thejudicial branch. See Appendix B, infra.None of the ICJ provisions in these trea-ties contains stronger language about self-execution than the language at issue here.See, e.g., Treaty of Friendship, Commerceand Navigation between the United Statesof 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 be-tween the Parties as to the interpretationor application of the present Treaty, notsatisfactorily adjusted by diplomacy, shallbe submitted to the International Court ofJustice, unless the Parties agree to settle-ment by some other pacific means’’). Insigning these treaties (in respect to, say,alien land ownership provisions) was theUnited States engaging in a near uselessact? Does the majority believe the draft-ers expected Congress to enact furtherlegislation about, say, an alien’s inheri-tance rights, decision by decision?

I recognize, as the majority emphasizes,that the U.N. Charter uses the words ‘‘un-dertakes to comply,’’ rather than, say,‘‘shall comply’’ or ‘‘must comply.’’ Butwhat is inadequate about the word ‘‘under-tak[e]’’? A leading contemporary dictio-nary defined it in terms of ‘‘lay[ing] oneselfunder obligation TTT to perform or to exe-cute.’’ Webster’s New International Dic-tionary 2770 (2d ed.1939). And that defini-tion is just what the equally authoritativeSpanish version of the provision (familiarto Mexico) says directly: The words ‘‘com-promete a cumplir’’ indicate a present obli-gation to execute, without any tentative-ness of the sort the majority finds in theEnglish word ‘‘undertakes.’’ See Carta de

las Naciones Unidas, Articulo 94, 59 Stat.1175 (1945); Spanish and English Legaland Commercial Dictionary 44 (1945) (de-fining ‘‘comprometer’’ as ‘‘become liable’’);id., at 59 (defining ‘‘cumplir’’ as ‘‘to per-form, discharge, carry out, execute’’); seealso Art. 111, 59 Stat. 1054 (Spanish-lan-guage version equally valid); Percheman,7 Pet., at 88–89 (looking to Spanish versionof a treaty to clear up ambiguity in En-glish version). Compare Todok v. UnionState Bank of Harvard, 281 U.S. 449, 453,50 S.Ct. 363, 74 L.Ed. 956 (1930) (treatinga treaty provision as self-executing eventhough it expressly stated what the majori-ty says the word ‘‘undertakes’’ implicitlyprovides: that ‘‘ ‘[t]he United States TTT

shall be at liberty to make respecting thismatter, such laws as they think proper’ ’’).

And even if I agreed with Justice STE-VENS that the language is perfectly am-biguous (which I do not), I could not agreethat ‘‘the best reading TTT is TTT one thatcontemplates future action by the politicalbranches.’’ Ante, at 1373. The conse-quence of such a reading is to place thefate of an international promise made bythe United States in the hands of a singleState. See ante, at 1374 – 1375. And thatis precisely the situation that the Framerssought to prevent by enacting the Suprem-acy Clause. See 3 Story 696 (purpose ofSupremacy Clause ‘‘was probably to obvi-ate’’ the ‘‘difficulty’’ of system where trea-ties were ‘‘dependent upon the good will ofthe states for their execution’’); see alsoWare, 3 Dall., at 277–278 (opinion of Ire-dell, J.).

I also recognize, as the majority empha-sizes (ante, at 1359 – 1360), that the U.N.Charter says that ‘‘[i]f any party to a casefails to perform the obligations incumbentupon it under a judgment rendered by the[ICJ], the other party may have recourseto the Security Council.’’ Art. 94(2), 59Stat. 1051. And when the Senate ratified


the charter, it took comfort in the fact thatthe United States has a veto in the Securi-ty Council. See 92 Cong. Rec. 10694–10695 (1946) (statements of Sens. Pepperand Connally).

But what has that to do with the matter?To begin with, the Senate would have beencontemplating politically significant ICJdecisions, not, e.g., the bread-and-buttercommercial and other matters that are thetypical subjects of self-executing treatyprovisions. And in any event, both theSenate debate and U.N. Charter provisiondiscuss and describe what happens (ordoes not happen) when a nation decidesnot to carry out an ICJ decision. SeeCharter of the United Nations for theMaintenance of International Peace andSecurity: Hearing before the Senate Com-mittee on Foreign Relations, 79th Cong.,1st Sess., 286 (1945) (statement of LeoPasvolsky, Special Assistant to the Secre-tary of State for International Organiza-tion and Security Affairs) (‘‘[W]hen theCourt has rendered a judgment and one ofthe parties refuses to accept it, then thedispute becomes political rather than le-gal’’). The debates refer to remedies for abreach of our promise to carry out an ICJdecision. The Senate understood, for ex-ample, that Congress (unlike legislaturesin other nations that do not permit domes-tic legislation to trump treaty obligations,Hollis 47–49) can block through legislationself-executing, as well as non-self-execut-ing determinations. The debates nowhererefer to the method we use for affirmative-ly carrying out an ICJ obligation that nopolitical branch has decided to dishonor,still less to a decision that the President(without congressional dissent) seeks toenforce. For that reason, these aspects ofthe ratification debates are here beside thepoint. See infra, at 1387 – 1388.

The upshot is that treaty language saysthat an ICJ decision is legally binding, but

it leaves the implementation of that bind-ing legal obligation to the domestic law ofeach signatory nation. In this Nation, theSupremacy Clause, as long and consistent-ly interpreted, indicates that ICJ decisionsrendered pursuant to provisions for bind-ing adjudication must be domestically le-gally binding and enforceable in domesticcourts at least sometimes. And for pur-poses of this argument, that conclusion isall that I need. The remainder of thediscussion will explain why, if ICJ judg-ments sometimes bind domestic courts,then they have that effect here.

Second, the Optional Protocol here ap-plies to a dispute about the meaning of aVienna Convention provision that is itselfself-executing and judicially enforceable.The Convention provision is about an indi-vidual’s ‘‘rights,’’ namely, his right uponbeing arrested to be informed of his sepa-rate right to contact his nation’s consul.See Art. 36(1)(b), 21 U.S.T., at 101. Theprovision language is precise. The disputearises at the intersection of an individualright with ordinary rules of criminal proce-dure; it consequently concerns the kind ofmatter with which judges are familiar.The provisions contain judicially enforce-able standards. See Art. 36(2), ibid. (pro-viding for exercise of rights ‘‘in conformitywith the laws and regulations’’ of the ar-resting nation provided that the ‘‘laws andregulations TTT enable full effect to begiven to the purposes for which the rightsaccorded under this Article are intended’’).And the judgment itself requires a furtherhearing of a sort that is typically judicial.See infra, at 1388 – 1389.

This Court has found similar treaty pro-visions self-executing. See, e.g., Rauscher,119 U.S., at 410–411, 429–430, 7 S.Ct. 234(violation of extradition treaty could beraised as defense in criminal trial); John-son v. Browne, 205 U.S. 309, 317–322, 27S.Ct. 539, 51 L.Ed. 816 (1907) (extradition


treaty required grant of writ of habeascorpus); Wildenhus’s Case, 120 U.S., at 11,17–18, 7 S.Ct. 385 (treaty defined scope ofstate jurisdiction in a criminal case). It isconsequently not surprising that, whenCongress ratified the Convention, theState Department reported that the ‘‘Con-vention is considered entirely self-execu-tive and does not require any implement-ing or complementing legislation.’’ S.Exec. Rep. No. 91–9, p. 5 (1969); see alsoid., at 18, 7 S.Ct. 385 (‘‘To the extent thatthere are conflicts with Federal legislationor State laws the Vienna Convention, afterratification, would govern’’). And the Ex-ecutive Branch has said in this Court thatother, indistinguishable Vienna Conventionprovisions are self-executing. See Brieffor United States as Amicus Curiae inSanchez–Llamas v. Oregon, O.T.2005, Nos.05–51 and 04–10566, p. 14, n. 2; cf. ante, at1357, n. 4 (majority leaves question open).

Third, logic suggests that a treaty provi-sion providing for ‘‘final’’ and ‘‘binding’’judgments that ‘‘settl[e]’’ treaty-based dis-putes is self-executing insofar as the judg-ment in question concerns the meaning ofan underlying treaty provision that is itselfself-executing. Imagine that two partiesto a contract agree to binding arbitrationabout whether a contract provision’s word‘‘grain’’ includes rye. They would expectthat, if the arbitrator decides that theword ‘‘grain’’ does include rye, the arbitra-tor will then simply read the relevant pro-vision as if it said ‘‘grain including rye.’’They would also expect the arbitrator toissue a binding award that embodies what-ever relief would be appropriate underthat circumstance.

Why treat differently the parties’ agree-ment to binding ICJ determination about,e.g., the proper interpretation of the Vien-na Convention clauses containing therights here at issue? Why not simply readthe relevant Vienna Convention provisions

as if (between the parties and in respect tothe 51 individuals at issue) they containwords that encapsulate the ICJ’s decision?See Art. 59, 59 Stat. 1062 (ICJ decision has‘‘binding force TTT between the parties andin respect of [the] particular case’’). Whywould the ICJ judgment not bind in pre-cisely the same way those words wouldbind if they appeared in the relevant Vien-na Convention provisions—just as the ICJsays, for purposes of this case, that theydo?

To put the same point differently: Whatsense would it make (1) to make a self-executing promise and (2) to promise toaccept as final an ICJ judgment interpret-ing that self-executing promise, yet (3) toinsist that the judgment itself is not self-executing (i.e., that Congress must enactspecific legislation to enforce it)?

I am not aware of any satisfactory an-swer to these questions. It is no answerto point to the fact that in Sanchez–Lla-mas v. Oregon, 548 U.S. 331, 126 S.Ct.2669, 165 L.Ed.2d 557 (2006), this Courtinterpreted the relevant Convention provi-sions differently from the ICJ in Avena.This Court’s Sanchez–Llamas interpreta-tion binds our courts with respect to indi-viduals whose rights were not espoused bya state party in Avena. Moreover, as theCourt itself recognizes, see ante, at 1352 –1353, and as the President recognizes, seePresident’s Memorandum, the questionhere is the very different question of ap-plying the ICJ’s Avena judgment to thevery parties whose interests Mexico andthe United States espoused in the ICJAvena proceeding. It is in respect tothese individuals that the United Stateshas promised the ICJ decision will havebinding force. Art. 59, 59 Stat. 1062. See1 Restatement (Second) of Conflict ofLaws § 98 (1969); 2 Restatement (Third)of Foreign Relations § 481 (1986); 1 Re-statement (Second) of Judgments § 17


(1980) (all calling for recognition of judg-ment rendered after fair hearing in a con-tested proceeding before a court with adju-dicatory authority over the case). See also1 Restatement (Second) of Conflict ofLaws § 106 (‘‘A judgment will be recog-nized and enforced in other states eventhough an error of fact or law was made inthe proceedings before judgment TTT’’);id., § 106, Comment a (‘‘Th[is] rule is TTT

applicable to judgments rendered in for-eign nations TTT’’); Reese, The Status inThis Country of Judgments RenderedAbroad, 50 Colum. L.Rev. 783, 789 (1950)(‘‘[Foreign] judgments will not be deniedeffect merely because the original courtmade an error either of fact or of law’’).

Contrary to the majority’s suggestion,see ante, at 1360 – 1361, that binding forcedoes not disappear by virtue of the factthat Mexico, rather than Medellın himself,presented his claims to the ICJ. Mexicobrought the Avena case in part in ‘‘theexercise of its right of diplomatic protec-tion of its nationals,’’ e.g., 2004 I.C. J., at21, ¶¶ 13(1), (3), including Medellın, see id.,at 25, ¶ 16. Such derivative claims are awell-established feature of internationallaw, and the United States has severaltimes asserted them on behalf of its owncitizens. See 2 Restatement (Third) ofForeign Relations, supra, § 713, Com-ments a, b, at 217; Case Concerning Elet-tronic Sicula S. p. A. (U.S.v.Italy), 1989I.C.J. 15, 20 (Judgment of July 20); CaseConcerning United States Diplomatic andConsular Staff in Tehran (U.S.v.Iran),1979 I.C.J. 7, 8 (Judgment of Dec. 15);Case Concerning Rights of Nationals ofthe United States of America in Morocco(Fr.v.U.S.), 1952 I.C.J. 176, 180–181 (Judg-ment of Aug. 27). They are treated inrelevant respects as the claims of the rep-resented individuals themselves. See 2Restatement (Third) of Foreign Relations,supra, § 713, Comments a, b. In particu-lar, they can give rise to remedies, tailored

to the individual, that bind the Nationagainst whom the claims are brought(here, the United States). See ibid.; seealso, e.g., Frelinghuysen v. Key, 110 U.S.63, 71–72, 3 S.Ct. 462, 28 L.Ed. 71 (1884).

Nor does recognition of the ICJ judg-ment as binding with respect to the indi-viduals whose claims were espoused byMexico in any way derogate from theCourt’s holding in Sanchez–Llamas, su-pra. See ante, at 1361, n. 8. This casedoes not implicate the general interpretivequestion answered in Sanchez–Llamas:whether the Vienna Convention displacesstate procedural rules. We are insteadconfronted with the discrete question ofTexas’ obligation to comply with a bindingjudgment issued by a tribunal with undis-puted jurisdiction to adjudicate the rightsof the individuals named therein. ‘‘It isinherent in international adjudication thatan international tribunal may reject onecountry’s legal position in favor of anoth-er’s—and the United States explicitly ac-cepted this possibility when it ratified theOptional Protocol.’’ Brief for UnitedStates as Amicus Curiae 22.

Fourth, the majority’s very different ap-proach has seriously negative practical im-plications. The United States has enteredinto at least 70 treaties that contain provi-sions for ICJ dispute settlement similar tothe Protocol before us. Many of thesetreaties contain provisions similar to thosethis Court has previously found self-exe-cuting—provisions that involve, for exam-ple, property rights, contract and commer-cial rights, trademarks, civil liability forpersonal injury, rights of foreign diplo-mats, taxation, domestic-court jurisdiction,and so forth. Compare Appendix A, infra,with Appendix B, infra. If the OptionalProtocol here, taken together with theU.N. Charter and its annexed ICJ Statute,is insufficient to warrant enforcement ofthe ICJ judgment before us, it is difficult


to see how one could reach a differentconclusion in any of these other instances.And the consequence is to undermine long-standing efforts in those treaties to createan effective international system for inter-preting and applying many, often commer-cial, self-executing treaty provisions. Ithus doubt that the majority is right whenit says, ‘‘We do not suggest that treatiescan never afford binding domestic effect tointernational tribunal judgments.’’ Ante,at 1364 – 1365. In respect to the 70 trea-ties that currently refer disputes to theICJ’s binding adjudicatory authority, somemultilateral, some bilateral, that is justwhat the majority has done.

Nor can the majority look to congres-sional legislation for a quick fix. Congressis unlikely to authorize automatic judicialenforceability of all ICJ judgments, forthat could include some politically sensi-tive judgments and others better suitedfor enforcement by other branches: forexample, those touching upon military hos-tilities, naval activity, handling of nuclearmaterial, and so forth. Nor is Congresslikely to have the time available, let alonethe will, to legislate judgment-by-judg-ment enforcement of, say, the ICJ’s (orother international tribunals’) resolution ofnon-politically-sensitive commercial dis-putes. And as this Court’s prior case lawhas avoided laying down bright-line rulesbut instead has adopted a more complexapproach, it seems unlikely that Congresswill find it easy to develop legislativebright lines that pick out those provisions(addressed to the Judicial Branch) whereself-execution seems warranted. But, ofcourse, it is not necessary for Congress todo so—at least not if one believes that thisCourt’s Supremacy Clause cases alreadyembody criteria likely to work reasonablywell. It is those criteria that I wouldapply here.

Fifth, other factors, related to the par-ticular judgment here at issue, make thatjudgment well suited to direct judicial en-forcement. The specific issue before theICJ concerned ‘‘ ‘review and reconsidera-tion’ ’’ of the ‘‘possible prejudice’’ causedin each of the 51 affected cases by an ar-resting State’s failure to provide the de-fendant with rights guaranteed by the Vi-enna Convention. Avena, 2004 I.C. J., at65, ¶ 138. This review will call for anunderstanding of how criminal procedureworks, including whether, and how, a noti-fication failure may work prejudice. Id.,at 56–57. As the ICJ itself recognized, ‘‘itis the judicial process that is suited to thistask.’’ Id., at 66, ¶ 140. Courts frequent-ly work with criminal procedure and relat-ed prejudice. Legislatures do not. Judi-cial standards are readily available forworking in this technical area. Legisla-tive standards are not readily available.Judges typically determine such matters,deciding, for example, whether furtherhearings are necessary, after reviewing arecord in an individual case. Congressdoes not normally legislate in respect toindividual cases. Indeed, to repeat what Isaid above, what kind of special legislationdoes the majority believe Congress oughtto consider?

Sixth, to find the United States’ treatyobligations self-executing as applied to theICJ judgment (and consequently to findthat judgment enforceable) does notthreaten constitutional conflict with otherbranches; it does not require us to engagein nonjudicial activity; and it does notrequire us to create a new cause of action.The only question before us concerns theapplication of the ICJ judgment as bindinglaw applicable to the parties in a particularcriminal proceeding that Texas law createsindependently of the treaty. I repeat thatthe question before us does not involve thecreation of a private right of action (andthe majority’s reliance on authority re-


garding such a circumstance is misplaced,see ante, at 1357, n. 3).

Seventh, neither the President nor Con-gress has expressed concern about directjudicial enforcement of the ICJ decision.To the contrary, the President favors en-forcement of this judgment. Thus, insofaras foreign policy impact, the interrelationof treaty provisions, or any other matterwithin the President’s special treaty, mili-tary, and foreign affairs responsibilitiesmight prove relevant, such factors favor,rather than militate against, enforcementof the judgment before us. See, e.g.,Jama v. Immigration and Customs En-forcement, 543 U.S. 335, 348, 125 S.Ct. 694,160 L.Ed.2d 708 (2005) (noting Court’s‘‘customary policy of deference to thePresident in matters of foreign affairs’’).

For these seven reasons, I would findthat the United States’ treaty obligation tocomply with the ICJ judgment in Avena isenforceable in court in this case withoutfurther congressional action beyond Sen-ate ratification of the relevant treaties.The majority reaches a different conclu-sion because it looks for the wrong thing(explicit textual expression about self-exe-cution) 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 todeprive individuals, including businesses,property owners, testamentary beneficia-ries, consular officials, and others, of theworkable dispute resolution proceduresthat many treaties, including commerciallyoriented treaties, provide. In a worldwhere commerce, trade, and travel havebecome ever more international, that is astep in the wrong direction.

Were the Court for a moment to shiftthe direction of its legal gaze, looking in-stead to the Supremacy Clause and to theextensive case law interpreting that Clauseas applied to treaties, I believe it would

reach a better supported, more felicitousconclusion. That approach, well embeddedin Court case law, leads to the conclusionthat the ICJ judgment before us is judi-cially enforceable without further legisla-tive action.

II

A determination that the ICJ judgmentis enforceable does not quite end the mat-ter, for the judgment itself requires us tomake one further decision. It directs theUnited States to provide further judicialreview of the 51 cases of Mexican nationals‘‘by means of its own choosing.’’ Avena,2004 I.C. J., at 72, ¶ 153(9). As I haveexplained, I believe the judgment address-es itself to the Judicial Branch. ThisCourt consequently must ‘‘choose’’ themeans. And rather than, say, conductingthe further review in this Court, or requir-ing Medellın to seek the review in anotherfederal court, I believe that the properforum for review would be the Texas-courtproceedings that would follow a remand ofthis case.

Beyond the fact that a remand would bethe normal course upon reversing a lowercourt judgment, there are additional rea-sons why further state-court review wouldbe particularly appropriate here. Thecrime took place in Texas, and the prose-cution at issue is a Texas prosecution.The President has specifically endorsedfurther Texas court review. See Presi-dent’s Memorandum. The ICJ judgmentrequires further hearings as to whetherthe police failure to inform Medellın of hisVienna Convention rights prejudiced Me-dellın, even if such hearings would nototherwise be available under Texas’ proce-dural default rules. While Texas has al-ready considered that matter, it did notconsider fully, for example, whether ap-pointed counsel’s coterminous 6–monthsuspension from the practice of the law


‘‘caused actual prejudice to the defen-dant’’—prejudice that would not have ex-isted had Medellın known he could contacthis consul and thereby find a differentlawyer. Id., at 60, ¶ 121.

Finally, Texas law authorizes a criminaldefendant to seek postjudgment review.See Tex.Code Crim. Proc. Ann., Art.11.071, § 5(a)(1) (Vernon Supp.2006). AndTexas law provides for further reviewwhere American law provides a ‘‘legal ba-sis’’ that was previously ‘‘unavailable.’’See Ex parte Medellın, 223 S.W.3d 315,352 (Tex.Crim.App.2006). Thus, I wouldsend this case back to the Texas courts,which must then apply the Avena judg-ment 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 ‘‘partof the supreme law of the land’’ and that‘‘it is the duty of the courts of the state totake cognizance of, construe and give ef-fect’’ to them (internal quotation marksomitted)).

III

Because the majority concludes that theNation’s international legal obligation toenforce the ICJ’s decision is not automati-cally a domestic legal obligation, it mustthen determine whether the President hasthe constitutional authority to enforce it.And the majority finds that he does not.See Part III, ante.

In my view, that second conclusion hasbroader implications than the majoritysuggests. The President here seeks toimplement treaty provisions in which theUnited States agrees that the ICJ judg-ment is binding with respect to the Avenaparties. Consequently, his actions drawupon his constitutional authority in thearea of foreign affairs. In this case, hisexercise of that power falls within thatmiddle range of Presidential authority

where Congress has neither specificallyauthorized nor specifically forbidden thePresidential action in question. SeeYoungstown Sheet & Tube Co. v. Sawyer,343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed.1153 (1952) (Jackson, J., concurring). Atthe same time, if the President were tohave the authority he asserts here, itwould require setting aside a state proce-dural law.

It is difficult to believe that in the exer-cise of his Article II powers pursuant to aratified treaty, the President can nevertake action that would result in settingaside state law. Cf. United States v. Pink,315 U.S. 203, 233, 62 S.Ct. 552, 86 L.Ed.796 (1942) (‘‘No State can rewrite our for-eign policy to conform to its own domesticpolicies’’). Suppose that the President be-lieves it necessary that he implement atreaty provision requiring a prisoner ex-change involving someone in state custodyin order to avoid a proven military threat.Cf. Ware, 3 Dall., at 205. Or suppose hebelieves it necessary to secure a foreignconsul’s treaty-based rights to move freelyor to contact an arrested foreign national.Cf. Vienna Convention, Art. 34, 21 U.S.T.,at 98. Does the Constitution require thePresident in each and every such instanceto obtain a special statute authorizing hisaction? On the other hand, the Constitu-tion must impose significant restrictionsupon the President’s ability, by invokingArticle II treaty-implementation authority,to circumvent ordinary legislative process-es and to pre-empt state law as he does so.

Previously this Court has said littleabout this question. It has held that thePresident has a fair amount of authority tomake and to implement executive agree-ments, at least in respect to internationalclaims settlement, and that this authoritycan require contrary state law to be setaside. See, e.g., Pink, supra, at 223, 230–231, 233–234, 62 S.Ct. 552; United States


v. Belmont, 301 U.S. 324, 326–327, 57 S.Ct.758, 81 L.Ed. 1134 (1937). It has madeclear that principles of foreign sovereignimmunity trump state law and that theExecutive, operating without explicit legis-lative authority, can assert those principlesin state court. See Ex parte Peru, 318U.S. 578, 588, 63 S.Ct. 793, 87 L.Ed. 1014(1943). It has also made clear that theExecutive has inherent power to bring alawsuit ‘‘to carry out treaty obligations.’’Sanitary Dist. of Chicago v. United States,266 U.S. 405, 425, 426, 45 S.Ct. 176, 69L.Ed. 352 (1925). But it has reservedjudgment as to ‘‘the scope of the Presi-dent’s power to preempt state law pursu-ant to authority delegated by TTT a ratifiedtreaty’’—a fact that helps to explain themajority’s inability to find support in prec-edent for its own conclusions. BarclaysBank PLC v. Franchise Tax Bd. of Cal.,512 U.S. 298, 329, 114 S.Ct. 2268, 129L.Ed.2d 244 (1994).

Given the Court’s comparative lack ofexpertise in foreign affairs; given the im-portance of the Nation’s foreign relations;given the difficulty of finding the properconstitutional balance among state andfederal, executive and legislative, powersin such matters; and given the likely fu-ture importance of this Court’s efforts todo so, I would very much hesitate beforeconcluding that the Constitution implicitlysets forth broad prohibitions (or permis-sions) in this area. Cf. ante, at 1367, n. 13(stating that the Court’s holding is ‘‘limit-ed’’ by the facts that (1) this treaty is non-self-executing and (2) the judgment of aninternational tribunal is involved).

I would thus be content to leave thematter in the constitutional shade fromwhich it has emerged. Given my view ofthis case, I need not answer the question.And I shall not try to do so. That silence,

however, cannot be taken as agreementwith the majority’s Part III conclusion.

IV

The majority’s two holdings taken to-gether produce practical anomalies. Theyunnecessarily complicate the President’sforeign affairs task insofar as, for example,they increase the likelihood of SecurityCouncil Avena enforcement proceedings,of worsening relations with our neighborMexico, of precipitating actions by othernations putting at risk American citizenswho have the misfortune to be arrestedwhile traveling abroad, or of diminishingour Nation’s reputation abroad as a resultof our failure to follow the ‘‘rule of law’’principles that we preach. The holdingsalso encumber Congress with a task (pos-tratification legislation) that, in respect tomany decisions of international tribunals,it may not want and which it may finddifficult to execute. See supra, at 1364 –1365 (discussing the problems with case-by-case legislation). At the same time,insofar as today’s holdings make it moredifficult to enforce the judgments of inter-national tribunals, including technical non-politically-controversial judgments, thoseholdings weaken that rule of law for whichour Constitution stands. CompareHughes Defends Foreign Policies in Pleafor Lodge, N.Y. Times, Oct. 31, 1922, p. 1,col. 1, p. 4, col. 1 (then-Secretary of StateCharles Evans Hughes stating that ‘‘wefavor, and always have favored, an interna-tional court of justice for the determinationaccording to judicial standards of justicia-ble international disputes’’); Mr. Root Dis-cusses International Problems, N.Y.Times, July 9, 1916, section 6, book reviewp. 276 (former Secretary of State and U.S.Senator Elihu Root stating that ‘‘ ‘a courtof international justice with a general obli-gation to submit all justiciable questions toits jurisdiction and to abide by its judg-ment is a primary requisite to any real


restraint of law’ ’’); Mills, The Obligationof the United States Toward the WorldCourt, 114 Annals of the American Acade-my of Political and Social Science 128(1924) (Congressman Ogden Mills describ-ing the efforts of then-Secretary of StateJohn Hay, and others, to establish a WorldCourt, and the support therefor).

These institutional considerations makeit difficult to reconcile the majority’s hold-ings with the workable Constitution thatthe Founders envisaged. They reinforcethe importance, in practice and in princi-ple, of asking Chief Justice Marshall’squestion: Does a treaty provision addressthe ‘‘Judicial’’ Branch rather than the ‘‘Po-litical Branches’’ of Government. See Fos-ter, 2 Pet., at 314. And they show thewisdom of the well-established precedentthat indicates that the answer to the ques-tion here is ‘‘yes.’’ See Parts I and II,supra.

V

In sum, a strong line of precedent, likelyreflecting the views of the Founders, indi-cates that the treaty provisions before usand the judgment of the InternationalCourt of Justice address themselves to theJudicial Branch and consequently are self-executing. In reaching a contrary conclu-sion, the Court has failed to take properaccount of that precedent and, as a result,the Nation may well break its word eventhough the President seeks to live up tothat word and Congress has done nothingto suggest the contrary.

For the reasons set forth, I respectfullydissent.

APPENDIXES TO OPINIONOF BREYER, J.

A

Examples of Supreme Court decisionsconsidering a treaty provision to be self-

APPENDIXES TO OPINION OFBREYER, J.—Continued

executing. Parentheticals indicate thesubject matter; an asterisk indicates thatthe Court applied the provision to invali-date a contrary state or territorial law orpolicy.

1. Olympic Airways v. Husain, 540U.S. 644, 649, 657, 124 S.Ct. 1221,157 L.Ed.2d 1146 (2004) (air carrierliability)

2. El Al Israel Airlines, Ltd. v. TsuiYuan Tseng, 525 U.S. 155, 161–163,176, 119 S.Ct. 662, 142 L.Ed.2d 576(1999) (same)*

3. Zicherman v. Korean Air Lines Co.,516 U.S. 217, 221, 231, 116 S.Ct. 629,133 L.Ed.2d 596 (1996) (same)

4. Societe Nationale Industrielle Ae-rospatiale v. United States Dist.Court for Southern Dist. of Iowa,482 U.S. 522, 524, 533, 107 S.Ct.2542, 96 L.Ed.2d 461 (1987) (interna-tional discovery rules)

5. Sumitomo Shoji America, Inc. v.Avagliano, 457 U.S. 176, 181, 189–190, 102 S.Ct. 2374, 72 L.Ed.2d 765(1982) (employment practices)

6. Trans World Airlines, Inc. v.Franklin Mint Corp., 466 U.S. 243,245, 252, 104 S.Ct. 1776, 80 L.Ed.2d273 (1984) (air carrier liability)

7. Kolovrat v. Oregon, 366 U.S. 187,191, n. 6, 198, 81 S.Ct. 922, 6L.Ed.2d 218 (1961) (property rightsand inheritance)*

8. Clark v. Allen, 331 U.S. 503, 507–508, 517–518, 67 S.Ct. 1431, 91 L.Ed.1633 (1947) (same)*

9. Bacardi Corp. of America v. Dome-nech, 311 U.S. 150, 160, and n. 9,161, 61 S.Ct. 219, 85 L.Ed. 98 (1940)(trademark)*

10. Todok v. Union State Bank of Har-vard, 281 U.S. 449, 453, 455, 50



S.Ct. 363, 74 L.Ed. 956 (1930)(property rights and inheritance)

11. Nielsen v. Johnson, 279 U.S. 47, 50,58, 49 S.Ct. 223, 73 L.Ed. 607(1929) (taxation)*

12. Jordan v. Tashiro, 278 U.S. 123,126–127, n. 1, 128–129, 49 S.Ct. 47,73 L.Ed. 214 (1928) (trade andcommerce)

13. Asakura v. Seattle, 265 U.S. 332,340, 343–344, 44 S.Ct. 515, 68 L.Ed.1041 (1924) (same)*

14. Maiorano v. Baltimore & Ohio R.Co., 213 U.S. 268, 273–274, 29 S.Ct.424, 53 L.Ed. 792 (1909) (travel,trade, access to courts)

15. Johnson v. Browne, 205 U.S. 309,317–322, 27 S.Ct. 539, 51 L.Ed. 816(1907) (extradition)

16. Geofroy v. Riggs, 133 U.S. 258,267–268, 273, 10 S.Ct. 295, 33 L.Ed.642 (1890) (inheritance)*

17. Wildenhus’s Case, 120 U.S. 1, 11,17–18, 7 S.Ct. 385, 30 L.Ed. 565(1887) (criminal jurisdiction)

18. United States v. Rauscher, 119U.S. 407, 410–411, 429–430, 7 S.Ct.234, 30 L.Ed. 425 (1886) (extradi-tion)

19. Hauenstein v. Lynham, 100 U.S.483, 485–486, 490–491, 25 L.Ed. 628(1880) (property rights and inheri-tance)*

20. American Ins. Co. v. 356 Bales ofCotton, 1 Pet. 511, 542, 7 L.Ed. 242(1828) (property)

21. United States v. Percheman, 7 Pet.51, 88–89, 8 L.Ed. 604 (1833) (landownership)

22. United States v. Arredondo, 6 Pet.691, 697, 749, 8 L.Ed. 547 (1832)(same)


23. Orr v. Hodgson, 4 Wheat. 453, 462–465, 4 L.Ed. 613 (1819) (same)*

24. Chirac v. Lessee of Chirac, 2Wheat. 259, 270–271, 274, 275, 4L.Ed. 234 (1817) (land ownershipand inheritance)*

25. Martin v. Hunter’s Lessee, 1Wheat. 304, 356–357, 4 L.Ed. 97(1816) (land ownership)

26. Hannay v. Eve, 3 Cranch 242, 248,2 L.Ed. 427 (1806) (monetarydebts)

27. Hopkirk v. Bell, 3 Cranch 454, 457–458, 2 L.Ed. 497 (1806) (same)*

28. Ware v. Hylton, 3 Dall. 199, 203–204, 285, 1 L.Ed. 568 (1796)(same)*

29. Georgia v. Brailsford, 3 Dall. 1, 4, 1L.Ed. 483 (1794) (same)

BUnited States treaties in force contain-

ing provisions for the submission of treaty-based disputes to the International Courtof Justice. Parentheticals indicate subjectmatters that can be the subject of ICJadjudication that are of the sort that thisCourt has found self-executing.Economic Cooperation Agreements

1. Economic Aid Agreement Betweenthe United States of America andSpain, Sept. 26, 1953, [1953] 4 U.S.T.1903, 1920–1921, T.I.A.S. No. 2851(property and contract)

2. Agreement for Economic AssistanceBetween the Government of theUnited States of America and theGovernment of Israel Pursuant tothe General Agreement for Techni-cal Cooperation, May 9, 1952, [1952]3 U.S.T. 4174, 4177, T.I.A.S. No.2561 (same)

3. Economic Cooperation AgreementBetween the United States of Amer-



ica and Portugal, 62 Stat. 2861–2862(1948) (same)

4. Economic Cooperation AgreementBetween the United States of Amer-ica and the United Kingdom, 62Stat. 2604 (1948) (same)

5. Economic Cooperation AgreementBetween the United States of Amer-ica and the Republic of Turkey, 62Stat. 2572 (1948) (same)

6. Economic Cooperation AgreementBetween the United States of Amer-ica and Sweden, 62 Stat. 2557 (1948)(same)

7. Economic Cooperation AgreementBetween the United States of Amer-ica and Norway, 62 Stat. 2531 (1948)(same)

8. Economic Cooperation AgreementBetween the Governments of theUnited States of America and theKingdom of the Netherlands, 62Stat. 2500 (1948) (same)

9. Economic Cooperation AgreementBetween the United States of Amer-ica and the Grand Duchy of Luxem-bourg, 62 Stat. 2468 (1948) (same)

10. Economic Cooperation AgreementBetween the United States ofAmerica and Italy, 62 Stat. 2440(1948) (same)

11. Economic Cooperation AgreementBetween the United States ofAmerica and Iceland, 62 Stat. 2390(1948) (same)

12. Economic Cooperation AgreementBetween the United States ofAmerica and Greece, 62 Stat. 2344(1948) (same)

13. Economic Cooperation AgreementBetween the United States ofAmerica and France, 62 Stat. 2232,2233 (1948) (same)


14. Economic Cooperation AgreementBetween the United States ofAmerica and Denmark, 62 Stat.2214 (1948) (same)

15. Economic Cooperation AgreementBetween the United States ofAmerica and the Kingdom of Belgi-um, 62 Stat. 2190 (1948) (same)

16. Economic Cooperation AgreementBetween the United States ofAmerica and Austria, 62 Stat. 2144(1948) (same)

Bilateral Consular Conventions1. Consular Convention Between the

United States of America and theKingdom of Belgium, Sept. 2, 1969,[1974] 25 U.S.T. 41, 47–49, 56–57,60–61, 75, T.I.A.S. No. 7775 (domes-tic court jurisdiction and authorityover consular officers, taxation ofconsular officers, consular notifica-tion)

2. Consular Convention Between theUnited States of America and theRepublic of Korea, Jan. 8, 1963,[1963] 14 U.S.T. 1637, 1641, 1644–1648, T.I.A.S. No. 5469 (same)

Friendship, Commerce, and navigationTreaties

1. Treaty of Amity and Economic Rela-tions Between the United States ofAmerica and the Togolese Republic,Feb. 8, 1966, [1967] 18 U.S.T. 1, 3–4,10, T.I.A.S. No. 6193 (contracts andproperty)

2. Treaty of Friendship, Establishmentand Navigation Between the UnitedStates of America and The Kingdomof Belgium, Feb. 21, 1961, [1963] 14U.S.T. 1284, 1290–1291, 1307,T.I.A.S. No. 5432 (same)

3. Treaty of Friendship, Establishmentand Navigation between the United



States of America and the GrandDuchy of Luxembourg, Feb. 23,1962, [1963] 14 U.S.T. 251, 254–255,262, T.I.A.S. No. 5306 (consular noti-fication; contracts and property)

4. Treaty of Friendship, Commerceand Navigation between the UnitedStates of America and the Kingdomof Denmark, Oct. 1, 1951, [1961] 12U.S.T. 908, 912–913, 935, T.I.A.S.No. 4797 (contracts and property)

5. Treaty of Friendship and CommerceBetween the United States of Amer-ica and Pakistan, Nov. 12, 1959,[1961] 12 U.S.T. 110, 113, 123,T.I.A.S. No. 4863 (same)

6. Convention of Establishment Be-tween the United States of Americaand France, Nov. 25, 1959, [1960] 11U.S.T. 2398, 2401–2403, 2417,T.I.A.S. No. 4625 (same)

7. Treaty of Friendship, Commerceand Navigation Between the UnitedStates of America and the Republicof Korea, Nov. 28, 1956, [1957] 8U.S.T. 2217, 2221–2222, 2233,T.I.A.S. No. 3947 (same)

8. Treaty of Friendship, Commerceand Navigation between the UnitedStates of America and the Kingdomof the Netherlands, Mar. 27, 1956,[1957] 8 U.S.T.2043, 2047–2050,2082–2083, T.I.A.S. No. 3942 (free-dom to travel, consular notification,contracts and property)

9. Treaty of Amity, Economic Rela-tions, and Consular Rights Betweenthe United States of America andIran, 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, Commerceand Navigation Between the Unit-ed States of America and the Fed-


eral Republic of Germany, Oct. 29,1954, [1956] 7 U.S.T. 1839, 1844–1846, 1867, T.I.A.S. No. 3593 (prop-erty and contract)

11. Treaty of Friendship, Commerceand Navigation Between the Unit-ed 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, Commerceand Navigation Between the Unit-ed 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 Re-lations Between the United Statesof America and Ethiopia, Sept. 7,1951, [1953] 4 U.S.T. 2134, 2141,2145, 2147, T.I.A.S. No. 2864 (prop-erty and freedom of commerce)

14. Treaty of Friendship, Commerceand Navigation Between the Unit-ed 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, Commerceand Navigation between the UnitedStates 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, Commerceand Navigation between the UnitedStates of America and the ItalianRepublic, 63 Stat. 2262, 2284, 2294(1948) (property and freedom ofcommerce)

Multilateral Conventions1. 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 (copy-right)

3. Vienna Convention on DiplomaticRelations and Optional ProtocolConcerning the Compulsory Settle-ment of Disputes, Apr. 18, 1961,[1972] 23 U.S.T. 3227, 3240–3243,3375, T.I.A.S. No. 7502 (rights ofdiplomats in foreign nations)

4. Paris Convention for the Protectionof Industrial Property, July 14, 1967,[1970] 21 U.S.T. 1583, 1631–1639,1665–1666, T.I.A.S. No. 6923 (pat-ents)

5. Convention on the Privileges andImmunities 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 CertainOther Acts Committed on BoardAircraft, Sept. 14, 1963, [1969] 20U.S.T. 2941, 2943–2947, 2952,T.I.A.S. No. 6768 (airlines’ treat-ment of passengers)

7. Agreement for Facilitating the In-ternational Circulation of Visual andAuditory Materials of an Education-al, Scientific and Cultural Character,July 15, 1949, [1966] 17 U.S.T. 1578,1581, 1586, T.I.A.S. No. 6116 (cus-toms duties on importation of filmsand 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 (prop-erty)


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 CivilAviation, 61 Stat. 1204 (1944) (sei-zure of aircraft to satisfy patentclaims)

,

HALL STREET ASSOCIATES,L.L.C., Petitioner,

v.

MATTEL, INC.No. 06–989.

Argued Nov. 7, 2007.

Decided March 25, 2008.Background: Lessor brought actionagainst lessee and its predecessors, seek-ing order that lessee was required to meetits contractual lease obligations. The Unit-ed States District Court for the District ofOregon, Robert E. Jones, J., 145F.Supp.2d 1211, refused to enforce arbitra-tion award. On appeal, the Ninth CircuitCourt of Appeals, 113 Fed.Appx. 272, af-firmed in part, reversed in part, and re-manded. On remand, District Court againrefused to enforce arbitration award, andplaintiff appealed. The Court of Appeals,196 Fed.Appx. 476, reversed and remand-ed. Certiorari was granted.Holdings: The Supreme Court, JusticeSouter, held that:(1) grounds stated in the Federal Arbitra-

tion Act (FAA) either for vacating, orfor modifying or correcting, arbitrationaward constitute the exclusive groundsfor expedited vacatur and modification

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