Medellin v. Texas

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MEDELLIN v. TEXAS

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS

No. 06–984. Argued October 10, 2007—Decided March 25, 2008
In the Case Concerning Avena and Other Mexican Nationals (Mex. v.
U. S.), 2004 I. C. J. 12 (Avena), the International Court of Justice
(ICJ) held that the United States had violated Article 36(1)(b) of the
Vienna Convention on Consular Relations (Vienna Convention or
Convention) by failing to inform 51 named Mexican nationals, includ­
ing petitioner Medellín, of their Vienna Convention rights. The ICJ
found that those named individuals were entitled to review and re­
consideration of their U. S. state-court convictions and sentences re­
gardless of their failure to comply with generally applicable state
rules governing challenges to criminal convictions. In Sanchez-
Llamas v. Oregon, 548 U. S. 331—issued after Avena but involving
individuals who were not named in the Avena judgment—this Court
held, contrary to the ICJ’s determination, that the Convention did
not preclude the application of state default rules. The President
then issued a memorandum (President’s Memorandum or Memoran­
dum) stating that the United States would “discharge its interna­
tional obligations” under Avena “by having State courts give effect to
the decision.”
Relying on Avena and the President’s Memorandum, Medellín filed
a second Texas state-court habeas application challenging his state
capital murder conviction and death sentence on the ground that he
had not been informed of his Vienna Convention rights. The Texas
Court of Criminal Appeals dismissed Medellín’s application as an
abuse of the writ, concluding that neither Avena nor the President’s
Memorandum was binding federal law that could displace the State’s
limitations on filing successive habeas applications.
Held: Neither Avena nor the President’s Memorandum constitutes di­
rectly enforceable federal law that pre-empts state limitations on the
filing of successive habeas petitions. Pp. 8–37.
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1. The Avena judgment is not directly enforceable as domestic law
in state court. Pp. 8–27.
(a) While a treaty may constitute an international commitment,
it is not binding domestic law unless Congress has enacted statutes
implementing it or the treaty itself conveys an intention that it be
“self-executing” and is ratified on that basis. See, e.g., Foster v. Neil-
son, 2 Pet. 253, 314. The Avena judgment creates an international
law obligation on the part of the United States, but it is not auto­
matically binding domestic law because none of the relevant treaty
sources—the Optional Protocol, the U. N. Charter, or the ICJ Stat­
ute—creates binding federal law in the absence of implementing leg­
islation, and no such legislation has been enacted.
The most natural reading of the Optional Protocol is that it is a
bare grant of jurisdiction. The Protocol says nothing about the effect
of an ICJ decision, does not commit signatories to comply therewith,
and is silent as to any enforcement mechanism. The obligation to
comply with ICJ judgments is derived from Article 94 of the U. N.
Charter, which provides that “[e]ach . . . Member . . . undertakes to
comply with the [ICJ’s] decision . . . in any case to which it is a
party.” The phrase “undertakes to comply” is simply a commitment
by member states to take future action through their political
branches. That language does not indicate that the Senate, in ratify­
ing the Optional Protocol, intended to vest ICJ decisions with imme­
diate legal effect in domestic courts.
This reading is confirmed by Article 94(2)—the enforcement provi­
sion—which provides the sole remedy for noncompliance: referral to
the U. N. Security Council by an aggrieved state. The provision of an
express diplomatic rather than judicial remedy is itself evidence that
ICJ judgments were not meant to be enforceable in domestic courts.
See Sanchez-Llamas, 548 U. S., at 347. Even this “quintessentially
international remed[y],” id., at 355, is not absolute. It requires a Se­
curity Council resolution, and the President and Senate were un­
doubtedly aware that the United States retained the unqualified
right to exercise its veto of any such resolution. Medellín’s construc­
tion would eliminate the option of noncompliance contemplated by
Article 94(2), undermining the ability of the political branches to de­
termine whether and how to comply with an ICJ judgment.
The ICJ Statute, by limiting disputes to those involving nations,
not individuals, and by specifying that ICJ decisions have no binding
force except between those nations, provides further evidence that
the Avena judgment does not automatically constitute federal law en­
forceable in U. S. courts. Medellín, an individual, cannot be consid­
ered a party to the Avena decision. Finally, the United States’ inter­
pretation of a treaty “is entitled to great weight,” Sumitomo Shoji
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America, Inc. v. Avagliano, 457 U. S., at 184–185, and the Executive
Branch has unfailingly adhered to its view that the relevant treaties
do not create domestically enforceable federal law. Pp. 8–17.
(b) The foregoing interpretive approach—parsing a treaty’s text
to determine if it is self-executing—is hardly novel. This Court has
long looked to the language of a treaty to determine whether the
President who negotiated it and the Senate that ratified it intended
for the treaty to automatically create domestically enforceable federal
law. See, e.g., Foster, supra. Pp. 18–20.
(c) The Court’s conclusion that Avena does not by itself constitute
binding federal law is confirmed by the “postratification understand­
ing” of signatory countries. See Zicherman v. Korean Air Lines Co.,
516 U. S. 217, 226. There are currently 47 nations that are parties to
the Optional Protocol and 171 nations that are parties to the Vienna
Convention. Yet neither Medellín nor his amici have identified a
single nation that treats ICJ judgments as binding in domestic
courts. The lack of any basis for supposing that any other country
would treat ICJ judgments as directly enforceable as a matter of
its domestic law strongly suggests that the treaty should not be so
viewed in our courts. See Sanchez-Llamas, 548 U. S., at 343–344,
and n. 3.
The Court’s conclusion is further supported by general principles of
interpretation. Given that the forum state’s procedural rules govern
a treaty’s implementation absent a clear and express statement to
the contrary, see e.g., id., at 351, one would expect the ratifying par­
ties to the relevant treaties to have clearly stated any intent to give
ICJ judgments such effect. There is no statement in the Optional
Protocol, the U. N. Charter, or the ICJ Statute that supports this no­
tion. Moreover, the consequences of Medellín’s argument give pause:
neither Texas nor this Court may look behind an ICJ decision and
quarrel with its reasoning or result, despite this Court’s holding in
Sanchez-Llamas that “[n]othing in the [ICJ’s] structure or purpose
. . . suggests that its interpretations were intended to be conclusive
on our courts.” id., at 354. Pp. 20–24.
(d) The Court’s holding does not call into question the ordinary
enforcement of foreign judgments. An agreement to abide by the re­
sult of an international adjudication can be a treaty obligation like
any other, so long as the agreement is consistent with the Constitu­
tion. In addition, Congress is up to the task of implementing non­
self-executing treaties, even those involving complex commercial dis­
putes. Medellín contends that domestic courts generally give effect to
foreign judgments, but the judgment Medellín asks us to enforce is
hardly typical: It would enjoin the operation of state law and force
the State to take action to “review and reconside[r]” his case. Foreign
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judgments awarding injunctive relief against private parties, let
alone sovereign States, “are not generally entitled to enforcement.”
Restatement (Third) of Foreign Relations Law of the United States
§481, Comment b, p. 595 (1986). Pp. 24–27.
2. The President’s Memorandum does not independently require
the States to provide review and reconsideration of the claims of the
51 Mexican nationals named in Avena without regard to state proce­
dural default rules. Pp. 27–37.
(a) The President seeks to vindicate plainly compelling interests
in ensuring the reciprocal observance of the Vienna Convention, pro­
tecting relations with foreign governments, and demonstrating com­
mitment to the role of international law. But those interests do not
allow the Court to set aside first principles. The President’s author­
ity to act, as with the exercise of any governmental power, “must
stem either from an act of Congress or from the Constitution itself.”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 585.
Justice Jackson’s familiar tripartite scheme provides the accepted
framework for evaluating executive action in this area. First,
“[w]hen the President acts pursuant to an express or implied authori­
zation of Congress, his authority is at its maximum, for it includes all
that he possesses in his own right plus all that Congress can dele­
gate.” Youngstown, 343 U. S., at 635 (Jackson, J., concurring). Sec­
ond, “[w]hen the President acts in absence of either a congressional
grant or denial of authority, he can only rely upon his own independ­
ent powers, but there is a zone of twilight in which he and Congress
may have concurrent authority, or in which its distribution is uncer­
tain.” Id., at 637. In such a circumstance, Presidential authority can
derive support from “congressional inertia, indifference or quies­
cence.” Ibid. Finally, “[w]hen the President takes measures incom­
patible with the expressed or implied will of Congress, his power is at
its lowest ebb,” and the Court can sustain his actions “only by dis­
abling the Congress from acting upon the subject.” Id., at 637–638.
Pp. 28–29.
(b) The United States marshals two principal arguments in favor
of the President’s authority to establish binding rules of decision that
preempt contrary state law. The United States argues that the rele­
vant treaties give the President the authority to implement the
Avena judgment and that Congress has acquiesced in the exercise of
such authority. The United States also relies upon an “independent”
international dispute-resolution power. We find these arguments, as
well as Medellín’s additional argument that the President’s Memo­
randum is a valid exercise of his “Take Care” power, unpersuasive.
Pp. 29–37.
(i) The United States maintains that the President’s Memo­
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randum is implicitly authorized by the Optional Protocol and the
U. N. Charter. But the responsibility for transforming an interna­
tional obligation arising from a non-self-executing treaty into domes­
tic law falls to Congress, not the Executive. Foster, 2 Pet., at 315. It
is a fundamental constitutional principle that “ ‘[t]he power to make
the necessary laws is in Congress; the power to execute in the Presi­
dent.’ ” Hamdan v. Rumsfeld, 548 U. S. 557, 591. A non-self­
executing treaty, by definition, is one that was ratified with the un­
derstanding that it is not to have domestic effect of its own force.
That understanding precludes the assertion that Congress has im­
plicitly authorized the President—acting on his own—to achieve pre­
cisely the same result. Accordingly, the President’s Memorandum
does not fall within the first category of the Youngstown framework.
Indeed, because the non-self-executing character of the relevant trea­
ties not only refutes the notion that the ratifying parties vested the
President with the authority to unilaterally make treaty obligations
binding on domestic courts, but also implicitly prohibits him from do­
ing so, the President’s assertion of authority is within Youngstown’s
third category, not the first or even the second.
The United States maintains that congressional acquiescence re­
quires that the President’s Memorandum be given effect as domestic
law. But such acquiescence is pertinent when the President’s action
falls within the second Youngstown category, not the third. In any
event, congressional acquiescence does not exist here. Congress’ fail­
ure to act following the President’s resolution of prior ICJ controver­
sies does not demonstrate acquiescence because in none of those prior
controversies did the President assert the authority to transform an
international obligation into domestic law and thereby displace state
law. The United States’ reliance on the President’s “related” statu­
tory responsibilities and on his “established role” in litigating foreign
policy concerns is also misplaced. The President’s statutory authori­
zation to represent the United States before the U. N., the ICJ, and
the U. N. Security Council speaks to his international responsibili­
ties, not to any unilateral authority to create domestic law.
The combination of a non-self-executing treaty and the lack of im­
plementing legislation does not preclude the President from acting to
comply with an international treaty obligation by other means, so
long as those means are consistent with the Constitution. But the
President may not rely upon a non-self-executing treaty to establish
binding rules of decision that pre-empt contrary state law. Pp. 30–
35.
(ii) The United States also claims that—independent of the
United States’ treaty obligations—the Memorandum is a valid exer­
cise of the President’s foreign affairs authority to resolve claims dis­
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putes. See, e.g., American Ins. Assn. v. Garamendi, 539 U. S. 396,
415. This Court’s claims-settlement cases involve a narrow set of cir­
cumstances: the making of executive agreements to settle civil claims
between American citizens and foreign governments or foreign na­
tionals. They are based on the view that “a systematic, unbroken,
executive practice, long pursued to the knowledge of the Congress
and never before questioned,” can “raise a presumption that the [ac­
tion] had been [taken] in pursuance of its consent.” Dames & Moore
v. Regan, 453 U. S. 654, 668. But “[p]ast practice does not, by itself,
create power.” Ibid. The President’s Memorandum—a directive is­
sued to state courts that would compel those courts to reopen final
criminal judgments and set aside neutrally applicable state laws—is
not supported by a “particularly longstanding practice.” The Execu­
tive’s limited authority to settle international claims disputes pursu­
ant to an executive agreement cannot stretch so far. Pp. 35–37.
(iii) Medellín’s argument that the President’s Memorandum is
a valid exercise of his power to “Take Care” that the laws be faith­
fully executed, U. S. Const., Art. II, §3, fails because the ICJ’s deci­
sion in Avena is not domestic law. P. 37.
223 S. W. 3d 315, affirmed.

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

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–984
_________________

JOSE ERNESTO MEDELLIN, PETITIONER v. TEXAS
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

[March 25, 2008]

CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The International Court of Justice (ICJ), located in the
Hague, is a tribunal established pursuant to the United
Nations Charter to adjudicate disputes between member
states. In the Case Concerning Avena and Other Mexican
Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Judgment of
Mar. 31) (Avena), that tribunal considered a claim brought
by Mexico against the United States. The ICJ held that,
based on violations of the Vienna Convention, 51 named
Mexican nationals were entitled to review and reconsid­
eration of their state-court convictions and sentences in
the United States. This was so regardless of any forfeiture
of the right to raise Vienna Convention claims because of a
failure to comply with generally applicable state rules
governing challenges to criminal convictions.
In Sanchez-Llamas v. Oregon, 548 U. S. 331 (2006)—
issued after Avena but involving individuals who were not
named in the Avena judgment—we held that, contrary to
the ICJ’s determination, the Vienna Convention did not
preclude the application of state default rules. After the
Avena decision, President George W. Bush determined,
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Opinion of the Court

through a Memorandum to the Attorney General (Feb. 28,
2005), App. to Pet. for Cert. 187a (Memorandum or Presi­
dent’s Memorandum), that the United States would “dis­
charge its international obligations” under Avena “by
having State courts give effect to the decision.”
Petitioner José Ernesto Medellín, who had been con­
victed and sentenced in Texas state court for murder, is
one of the 51 Mexican nationals named in the Avena deci­
sion. Relying on the ICJ’s decision and the President’s
Memorandum, Medellín filed an application for a writ of
habeas corpus in state court. The Texas Court of Criminal
Appeals dismissed Medellín’s application as an abuse of
the writ under state law, given Medellín’s failure to raise
his Vienna Convention claim in a timely manner under
state law. We granted certiorari to decide two questions.
First, is the ICJ’s judgment in Avena directly enforceable
as domestic law in a state court in the United States?
Second, does the President’s Memorandum independently
require the States to provide review and reconsideration of
the claims of the 51 Mexican nationals named in Avena
without regard to state procedural default rules? We
conclude that neither Avena nor the President’s Memo­
randum constitutes directly enforceable federal law that
pre-empts state limitations on the filing of successive
habeas petitions. We therefore affirm the decision below.
I

A

In 1969, the United States, upon the advice and consent
of the Senate, ratified the Vienna Convention on Consular
Relations (Vienna Convention or Convention), Apr. 24,
1963, [1970] 21 U. S. T. 77, T. I. A. S. No. 6820, and the
Optional Protocol Concerning the Compulsory Settlement
of Disputes to the Vienna Convention (Optional Protocol or
Protocol), Apr. 24, 1963, [1970] 21 U. S. T. 325, T. I. A. S.
No. 6820. The preamble to the Convention provides that
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Opinion of the Court

its purpose is to “contribute to the development of friendly
relations among nations.” 21 U. S. T., at 79; Sanchez-
Llamas, supra, at 337. Toward that end, Article 36 of the
Convention was drafted to “facilitat[e] the exercise of
consular functions.” Art. 36(1), 21 U. S. T., at 100. It
provides that if a person detained by a foreign country “so
requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the send­
ing State” of such detention, and “inform the [detainee] of
his righ[t]” to request assistance from the consul of his
own state. Art. 36(1)(b), id., at 101.
The Optional Protocol provides a venue for the resolu­
tion of disputes arising out of the interpretation or appli­
cation of the Vienna Convention. Art. I, 21 U. S. T., at
326. Under the Protocol, such disputes “shall lie within
the compulsory jurisdiction of the International Court of
Justice” and “may accordingly be brought before the [ICJ]
. . . by any party to the dispute being a Party to the pre­
sent Protocol.” Ibid.
The ICJ is “the principal judicial organ of the United
Nations.” United Nations Charter, Art. 92, 59 Stat. 1051,
T. S. No. 993 (1945). It was established in 1945 pursuant
to the United Nations Charter. The ICJ Statute—annexed
to the U. N. Charter—provides the organizational frame­
work and governing procedures for cases brought before
the ICJ. Statute of the International Court of Justice (ICJ
Statute), 59 Stat. 1055, T. S. No. 993 (1945).
Under Article 94(1) of the U. N. Charter, “[e]ach Mem­
ber of the United Nations undertakes to comply with the
decision of the [ICJ] in any case to which it is a party.” 59
Stat. 1051. The ICJ’s jurisdiction in any particular case,
however, is dependent upon the consent of the parties.
See Art. 36, 59 Stat. 1060. The ICJ Statute delineates two
ways in which a nation may consent to ICJ jurisdiction: It
may consent generally to jurisdiction on any question
arising under a treaty or general international law, Art.
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36(2), ibid., or it may consent specifically to jurisdiction
over a particular category of cases or disputes pursuant to
a separate treaty, Art. 36(1), ibid. The United States
originally consented to the general jurisdiction of the ICJ
when it filed a declaration recognizing compulsory juris­
diction under Art. 36(2) in 1946. The United States with­
drew from general ICJ jurisdiction in 1985. See U. S.
Dept. of State Letter and Statement Concerning Termina­
tion of Acceptance of ICJ Compulsory Jurisdiction (Oct. 7,
1985), reprinted in 24 I. L. M. 1742 (1985). By ratifying
the Optional Protocol to the Vienna Convention, the
United States consented to the specific jurisdiction of the
ICJ with respect to claims arising out of the Vienna Con­
vention. On March 7, 2005, subsequent to the ICJ’s judg­
ment in Avena, the United States gave notice of with­
drawal from the Optional Protocol to the Vienna
Convention. Letter from Condoleezza Rice, Secretary of
State, to Kofi A. Annan, Secretary-General of the United
Nations.
B
Petitioner José Ernesto Medellín, a Mexican national,
has lived in the United States since preschool. A member
of the “Black and Whites” gang, Medellín was convicted of
capital murder and sentenced to death in Texas for the
gang rape and brutal murders of two Houston teenagers.
On June 24, 1993, 14-year-old Jennifer Ertman and 16­
year-old Elizabeth Pena were walking home when they
encountered Medellín and several fellow gang members.
Medellín attempted to engage Elizabeth in conversation.
When she tried to run, petitioner threw her to the ground.
Jennifer was grabbed by other gang members when she, in
response to her friend’s cries, ran back to help. The gang
members raped both girls for over an hour. Then, to pre­
vent their victims from identifying them, Medellín and his
fellow gang members murdered the girls and discarded
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Opinion of the Court

their bodies in a wooded area. Medellín was personally
responsible for strangling at least one of the girls with her
own shoelace.
Medellín was arrested at approximately 4 a.m. on June
29, 1993. A few hours later, between 5:54 and 7:23 a.m.,
Medellín was given Miranda warnings; he then signed a
written waiver and gave a detailed written confession.
App. to Brief for Respondent 32–36. Local law enforce­
ment officers did not, however, inform Medellín of his
Vienna Convention right to notify the Mexican consulate
of his detention. Brief for Petitioner 6–7. Medellín was
convicted of capital murder and sentenced to death; his
conviction and sentence were affirmed on appeal. Medel­
lín v. State, No. 71,997 (Tex. Crim. App., May 16, 1997),
App. to Brief for Respondent 2–31.
Medellín first raised his Vienna Convention claim in his
first application for state postconviction relief. The state
trial court held that the claim was procedurally defaulted
because Medellín had failed to raise it at trial or on direct
review. The trial court also rejected the Vienna Conven­
tion claim on the merits, finding that Medellín had
“fail[ed] to show that any non-notification of the Mexican
authorities impacted on the validity of his conviction or
punishment.” Id., at 62.1 The Texas Court of Criminal
——————
1 The requirement of Article 36(1)(b) of the Vienna Convention that

the detaining state notify the detainee’s consulate “without delay” is
satisfied, according to the ICJ, where notice is provided within three
working days. Avena, 2004 I. C. J. 12, 52, ¶97 (Judgment of Mar. 31).
See Sanchez-Llamas v. Oregon, 548 U. S. 331, 362 (2006) (GINSBURG, J.,
concurring in judgment). Here, Medellín confessed within three hours
of his arrest—before there could be a violation of his Vienna Convention
right to consulate notification. App. to Brief for Respondent 32–36. In
a second state habeas application, Medellín sought to expand his claim
of prejudice by contending that the State’s noncompliance with the
Vienna Convention deprived him of assistance in developing mitigation
evidence during the capital phase of his trial. This argument, however,
was likely waived: Medellín had the assistance of consulate counsel
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Appeals affirmed. Id., at 64–65.
Medellín then filed a habeas petition in Federal District
Court. The District Court denied relief, holding that
Medellín’s Vienna Convention claim was procedurally
defaulted and that Medellín had failed to show prejudice
arising from the Vienna Convention violation. See
Medellín v. Cockrell, Civ. Action No. H–01–4078 (SD Tex.,
June 26, 2003), App. to Brief for Respondent 86–92.
While Medellín’s application for a certificate of appeal­
ability was pending in the Fifth Circuit, the ICJ issued its
decision in Avena. The ICJ held that the United States
had violated Article 36(1)(b) of the Vienna Convention by
failing to inform the 51 named Mexican nationals, includ­
ing Medellín, of their Vienna Convention rights. 2004
I. C. J., at 53–55. In the ICJ’s determination, the United
States was obligated “to provide, by means of its own
choosing, review and reconsideration of the convictions
and sentences of the [affected] Mexican nationals.” Id., at
72. The ICJ indicated that such review was required
without regard to state procedural default rules. Id., at
56–57.
The Fifth Circuit denied a certificate of appealability.
Medellín v. Dretke, 371 F. 3d 270, 281 (2004). The court
concluded that the Vienna Convention did not confer
individually enforceable rights. Id., at 280. The court
further ruled that it was in any event bound by this
Court’s decision in Breard v. Greene, 523 U. S. 371, 375
(1998) (per curiam), which held that Vienna Convention
claims are subject to procedural default rules, rather than
by the ICJ’s contrary decision in Avena. 371 F. 3d, at 280.
——————
during the preparation of his first application for state postconviction
relief, yet failed to raise this argument at that time. See Application
for Writ of Habeas Corpus in Ex parte Medellín, No. 675430–A (Tex.
Crim. App.), pp. 25–31. In light of our disposition of this case, we need
not consider whether Medellín was prejudiced in any way by the
violation of his Vienna Convention rights.
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Opinion of the Court

This Court granted certiorari. Medellín v. Dretke, 544
U. S. 660, 661 (2005) (per curiam) (Medellín I). Before we
heard oral argument, however, President George W. Bush
issued his Memorandum to the United States Attorney
General, providing:
I have determined, pursuant to the authority vested
in me as President by the Constitution and the laws of
the United States of America, that the United States
will discharge its international obligations under the
decision of the International Court of Justice in
[Avena], by having State courts give effect to the deci­
sion in accordance with general principles of comity in
cases filed by the 51 Mexican nationals addressed in
that decision. App. to Pet. for Cert. 187a.
Medellín, relying on the President’s Memorandum and
the ICJ’s decision in Avena, filed a second application for
habeas relief in state court. Ex parte Medellín, 223 S. W.
3d 315, 322–323 (Tex. Crim. App. 2006). Because the
state-court proceedings might have provided Medellín
with the review and reconsideration he requested, and
because his claim for federal relief might otherwise have
been barred, we dismissed his petition for certiorari as
improvidently granted. Medellín I, supra, at 664.
The Texas Court of Criminal Appeals subsequently
dismissed Medellín’s second state habeas application as an
abuse of the writ. 223 S. W. 3d, at 352. In the court’s
view, neither the Avena decision nor the President’s
Memorandum was “binding federal law” that could dis­
place the State’s limitations on the filing of successive
habeas applications. Ibid. We again granted certiorari.
550 U. S. ___ (2007).
II
Medellín first contends that the ICJ’s judgment in
Avena constitutes a “binding” obligation on the state and
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federal courts of the United States. He argues that “by
virtue of the Supremacy Clause, the treaties requiring
compliance with the Avena judgment are already the ‘Law
of the Land’ by which all state and federal courts in this
country are ‘bound.’ ” Reply Brief for Petitioner 1. Accord­
ingly, Medellín argues, Avena is a binding federal rule of
decision that pre-empts contrary state limitations on
successive habeas petitions.
No one disputes that the Avena decision—a decision
that flows from the treaties through which the United
States submitted to ICJ jurisdiction with respect to Vi­
enna Convention disputes—constitutes an international
law obligation on the part of the United States. But not
all international law obligations automatically constitute
binding federal law enforceable in United States courts.
The question we confront here is whether the Avena
judgment has automatic domestic legal effect such that the
judgment of its own force applies in state and federal
courts.
This Court has long recognized the distinction between
treaties that automatically have effect as domestic law,
and those that—while they constitute international law
commitments—do not by themselves function as binding
federal law. The distinction was well explained by Chief
Justice Marshall’s opinion in Foster v. Neilson, 2 Pet. 253,
315 (1829), overruled on other grounds, United States v.
Percheman, 7 Pet. 51 (1833), which held that a treaty is
“equivalent to an act of the legislature,” and hence self-
executing, when it “operates of itself without the aid of
any legislative provision.” Foster, supra, at 314. When, in
contrast, “[treaty] stipulations are not self-executing they
can only be enforced pursuant to legislation to carry them
into effect.” Whitney v. Robertson, 124 U. S. 190, 194
(1888). In sum, while treaties “may comprise interna­
tional commitments . . . they are not domestic law unless
Congress has either enacted implementing statutes or the
 Cite as: 552 U. S. ____ (2008) 9

Opinion of the Court

treaty itself conveys an intention that it be ‘self-executing’
and is ratified on these terms.” Igartúa-De La Rosa v.
United States, 417 F. 3d 145, 150 (CA1 2005) (en banc)
(Boudin, C. J.).2
A treaty is, of course, “primarily a compact between
independent nations.” Head Money Cases, 112 U. S. 580,
598 (1884). It ordinarily “depends for the enforcement of
its provisions on the interest and the honor of the govern­
ments which are parties to it.” Ibid.; see also The Federal­
ist No. 33, p. 207 (J. Cooke ed. 1961) (A. Hamilton) (com­
paring laws that individuals are “bound to observe” as “the
supreme law of the land” with “a mere treaty, dependent
on the good faith of the parties”). “If these [interests] fail,
its infraction becomes the subject of international negotia­
tions and reclamations . . . . It is obvious that with all this
the judicial courts have nothing to do and can give no
redress.” Head Money Cases, supra, at 598. Only “[i]f the
treaty contains stipulations which are self-executing, that
is, require no legislation to make them operative, [will]
they have the force and effect of a legislative enactment.”
Whitney, supra, at 194.3
——————
2 The label “self-executing” has on occasion been used to convey dif­

ferent meanings. What we mean by “self-executing” is that the treaty
has automatic domestic effect as federal law upon ratification. Con­
versely, a “non-self-executing” treaty does not by itself give rise to
domestically enforceable federal law. Whether such a treaty has
domestic effect depends upon implementing legislation passed by
Congress.
3 Even when treaties are self-executing in the sense that they create

federal law, the background presumption is that “[i]nternational
agreements, even those directly benefiting private persons, generally do
not create private rights or provide for a private cause of action in
domestic courts.” 2 Restatement (Third) of Foreign Relations Law of
the United States §907, Comment a, p. 395 (1986) (hereinafter Re­
statement). Accordingly, a number of the Courts of Appeals have
presumed that treaties do not create privately enforceable rights in the
absence of express language to the contrary. See, e.g., United States v.
Emuegbunam, 268 F. 3d 377, 389 (CA6 2001); United States v. Jimenez­
10 MEDELLIN v. TEXAS

Opinion of the Court

Medellín and his amici nonetheless contend that the
Optional Protocol, United Nations Charter, and ICJ Stat­
ute supply the “relevant obligation” to give the Avena
judgment binding effect in the domestic courts of the
United States. Reply Brief for Petitioner 5–6.4 Because
none of these treaty sources creates binding federal law in
the absence of implementing legislation, and because it is
uncontested that no such legislation exists, we conclude
that the Avena judgment is not automatically binding
domestic law.
A
The interpretation of a treaty, like the interpretation of
a statute, begins with its text. Air France v. Saks, 470
U. S. 392, 396–397 (1985). Because a treaty ratified by
the United States is “an agreement among sovereign
powers,” we have also considered as “aids to its interpreta­
tion” the negotiation and drafting history of the treaty as
well as “the postratification understanding” of signatory
nations. Zicherman v. Korean Air Lines Co., 516 U. S.
217, 226 (1996); see also United States v. Stuart, 489 U. S.
353, 365–366 (1989); Choctaw Nation v. United States, 318
——————
Nava, 243 F. 3d 192, 195 (CA5 2001); United States v. Li, 206 F. 3d 56,
60–61 (CA1 2000) (en banc); Goldstar (Panama) S. A. v. United States,
967 F. 2d 965, 968 (CA4 1992); Canadian Transp. Co. v. United States,
663 F. 2d 1081, 1092 (CADC 1980); Mannington Mills, Inc. v. Congo­
leum Corp., 595 F. 2d 1287, 1298 (CA3 1979).
4 The question is whether the Avena judgment has binding effect in

domestic courts under the Optional Protocol, ICJ Statute, and U. N.
Charter. Consequently, it is unnecessary to resolve whether the
Vienna Convention is itself “self-executing” or whether it grants
Medellín individually enforceable rights. See Reply Brief for Petitioner
5 (disclaiming reliance on the Vienna Convention). As in Sanchez-
Llamas, 548 U. S., at 342–343, we thus assume, without deciding, that
Article 36 grants foreign nationals “an individually enforceable right to
request that their consular officers be notified of their detention, and an
accompanying right to be informed by authorities of the availability of
consular notification.”
 Cite as: 552 U. S. ____ (2008) 11

Opinion of the Court

U. S. 423, 431–432 (1943).
As a signatory to the Optional Protocol, the United
States agreed to submit disputes arising out of the Vienna
Convention to the ICJ. The Protocol provides: “Disputes
arising out of the interpretation or application of the
[Vienna] Convention shall lie within the compulsory juris­
diction of the International Court of Justice.” Art. I, 21
U. S. T., at 326. Of course, submitting to jurisdiction and
agreeing to be bound are two different things. A party
could, for example, agree to compulsory nonbinding arbi­
tration. Such an agreement would require the party to
appear before the arbitral tribunal without obligating the
party to treat the tribunal’s decision as binding. See, e.g.,
North American Free Trade Agreement, U. S.-Can.-Mex.,
Art. 2018(1), Dec. 17, 1992, 32 I. L. M. 605, 697 (1993)
(“On receipt of the final report of [the arbitral panel re­
quested by a Party to the agreement], the disputing Par­
ties shall agree on the resolution of the dispute, which
normally shall conform with the determinations and rec­
ommendations of the panel”).
The most natural reading of the Optional Protocol is as
a bare grant of jurisdiction. It provides only that
“[d]isputes arising out of the interpretation or application
of the [Vienna] Convention shall lie within the compulsory
jurisdiction of the International Court of Justice” and
“may accordingly be brought before the [ICJ] . . . by any
party to the dispute being a Party to the present Protocol.”
Art. I, 21 U. S. T., at 326. The Protocol says nothing about
the effect of an ICJ decision and does not itself commit
signatories to comply with an ICJ judgment. The Protocol
is similarly silent as to any enforcement mechanism.
The obligation on the part of signatory nations to comply
with ICJ judgments derives not from the Optional Proto­
col, but rather from Article 94 of the United Nations Char-
ter—the provision that specifically addresses the effect of
ICJ decisions. Article 94(1) provides that “[e]ach Member
12 MEDELLIN v. TEXAS

Opinion of the Court

of the United Nations undertakes to comply with the deci­
sion of the [ICJ] in any case to which it is a party.” 59
Stat. 1051 (emphasis added). The Executive Branch
contends that the phrase “undertakes to comply” is not “an
acknowledgement that an ICJ decision will have immedi­
ate legal effect in the courts of U. N. members,” but rather
“a commitment on the part of U. N. Members to take
future action through their political branches to comply
with an ICJ decision.” Brief for United States as Amicus
Curiae in Medellín I, O. T. 2004, No. 04–5928, p. 34.
We agree with this construction of Article 94. The
Article is not a directive to domestic courts. It does not
provide that the United States “shall” or “must” comply
with an ICJ decision, nor indicate that the Senate that
ratified the U. N. Charter intended to vest ICJ decisions
with immediate legal effect in domestic courts. Instead,
“[t]he words of Article 94 . . . call upon governments to
take certain action.” Committee of United States Citizens
Living in Nicaragua v. Reagan, 859 F. 2d 929, 938 (CADC
1988) (quoting Diggs v. Richardson, 555 F. 2d 848, 851
(CADC 1976); internal quotation marks omitted). See also
Foster, 2 Pet., at 314, 315 (holding a treaty non-self­
executing because its text—“ ‘all . . . grants of land . . .
shall be ratified and confirmed’ ”—did not “act directly on
the grants” but rather “pledge[d] the faith of the United
States to pass acts which shall ratify and confirm them”).
In other words, the U. N. Charter reads like “a compact
between independent nations” that “depends for the en­
forcement of its provisions on the interest and the honor of
the governments which are parties to it.” Head Money
Cases, 112 U. S., at 598.5
——————
5 We do not read “undertakes” to mean that “ ‘ “[t]he United States . . .

shall be at liberty to make respecting th[e] matter, such laws as they
think proper.” ’ ” Post, at 17–18 (BREYER, J., dissenting) (quoting Todok
v. Union State Bank of Harvard, 281 U. S. 449, 453, 454 (1930) (holding
that a treaty with Norway did not “operat[e] to override the law of
 Cite as: 552 U. S. ____ (2008) 13

Opinion of the Court

The remainder of Article 94 confirms that the U. N.
Charter does not contemplate the automatic enforceability
of ICJ decisions in domestic courts.6 Article 94(2)—the
enforcement provision—provides the sole remedy for
noncompliance: referral to the United Nations Security
Council by an aggrieved state. 59 Stat. 1051.
The U. N. Charter’s provision of an express diplomatic—
that is, nonjudicial—remedy is itself evidence that ICJ
judgments were not meant to be enforceable in domestic
courts. See Sanchez-Llamas, 548 U. S., at 347. And even
this “quintessentially international remed[y],” id., at 355,
is not absolute. First, the Security Council must “dee[m]
necessary” the issuance of a recommendation or measure
to effectuate the judgment. Art. 94(2), 59 Stat. 1051.
Second, as the President and Senate were undoubtedly
aware in subscribing to the U. N. Charter and Optional
Protocol, the United States retained the unqualified right
to exercise its veto of any Security Council resolution.
This was the understanding of the Executive Branch
when the President agreed to the U. N. Charter and the
declaration accepting general compulsory ICJ jurisdiction.
——————
[Nebraska] as to the disposition of homestead property”)). Whether or
not the United States “undertakes” to comply with a treaty says noth­
ing about what laws it may enact. The United States is always “at
liberty to make . . . such laws as [it] think[s] proper.” Id., at 453.
Indeed, a later-in-time federal statute supersedes inconsistent treaty
provisions. See, e.g., Cook v. United States, 288 U. S. 102, 119–120
(1933). Rather, the “undertakes to comply” language confirms that
further action to give effect to an ICJ judgment was contemplated,
contrary to the dissent’s position that such judgments constitute
directly enforceable federal law, without more. See also post, at 1–3
(STEVENS, J., concurring in judgment).
6 Article 94(2) provides in full: “If any party to a case fails to perform

the obligations incumbent upon it under a judgment rendered by the
Court, the other party may have recourse to the Security Council,
which may, if it deems necessary, make recommendations or decide
upon measures to be taken to give effect to the judgment.” 59 Stat.
1051.
14 MEDELLIN v. TEXAS

Opinion of the Court

See, e.g., The Charter of the United Nations for the Main­
tenance of International Peace and Security: Hearings
before the Senate Committee on Foreign Relations, 79th
Cong., 1st Sess., 124–125 (1945) (“[I]f a state fails to per­
form its obligations under a judgment of the [ICJ], the
other party may have recourse to the Security Council”);
id., at 286 (statement of Leo Paslovsky, Special Assistant
to the Secretary of State for International Organizations
and Security Affairs) (“[W]hen the Court has rendered a
judgment and one of the parties refuses to accept it, then
the dispute becomes political rather than legal. It is as a
political dispute that the matter is referred to the Security
Council”); A Resolution Proposing Acceptance of Compul­
sory Jurisdiction of International Court of Justice: Hear­
ings on S. Res. 196 before the Subcommittee of the Senate
Committee on Foreign Relations, 79th Cong., 2d Sess., 142
(1946) (statement of Charles Fahy, State Dept. Legal
Adviser) (while parties that accept ICJ jurisdiction have “a
moral obligation” to comply with ICJ decisions, Article
94(2) provides the exclusive means of enforcement).
If ICJ judgments were instead regarded as automati­
cally enforceable domestic law, they would be immediately
and directly binding on state and federal courts pursuant
to the Supremacy Clause. Mexico or the ICJ would have
no need to proceed to the Security Council to enforce the
judgment in this case. Noncompliance with an ICJ judg­
ment through exercise of the Security Council veto—
always regarded as an option by the Executive and ratify­
ing Senate during and after consideration of the U. N.
Charter, Optional Protocol, and ICJ Statute—would no
longer be a viable alternative. There would be nothing to
veto. In light of the U. N. Charter’s remedial scheme,
there is no reason to believe that the President and Senate
signed up for such a result.
In sum, Medellín’s view that ICJ decisions are auto­
matically enforceable as domestic law is fatally under­
 Cite as: 552 U. S. ____ (2008) 15

Opinion of the Court

mined by the enforcement structure established by Article
94. His construction would eliminate the option of non­
compliance contemplated by Article 94(2), undermining
the ability of the political branches to determine whether
and how to comply with an ICJ judgment. Those sensitive
foreign policy decisions would instead be transferred to
state and federal courts charged with applying an ICJ
judgment directly as domestic law. And those courts
would not be empowered to decide whether to comply with
the judgment—again, always regarded as an option by the
political branches—any more than courts may consider
whether to comply with any other species of domestic law.
This result would be particularly anomalous in light of the
principle that “[t]he conduct of the foreign relations of our
Government is committed by the Constitution to the Ex­
ecutive and Legislative—‘the political’—Departments.”
Oetjen v. Central Leather Co., 246 U. S. 297, 302 (1918).
The ICJ Statute, incorporated into the U. N. Charter,
provides further evidence that the ICJ’s judgment in
Avena does not automatically constitute federal law judi­
cially enforceable in United States courts. Art. 59, 59
Stat. 1062. To begin with, the ICJ’s “principal purpose” is
said to be to “arbitrate particular disputes between na­
tional governments.” Sanchez-Llamas, supra, at 355
(citing 59 Stat. 1055). Accordingly, the ICJ can hear
disputes only between nations, not individuals. Art. 34(1),
59 Stat. 1059 (“Only states [i.e., countries] may be parties
in cases before the [ICJ]”). More important, Article 59 of
the statute provides that “[t]he decision of the [ICJ] has no
binding force except between the parties and in respect of
that particular case.” Id., at 1062 (emphasis added).7 The
——————
7 Medellín alters this language in his brief to provide that the ICJ

Statute makes the Avena judgment binding “in respect of [his] particu­
lar case.” Brief for Petitioner 22 (internal quotation marks omitted).
Medellín does not and cannot have a case before the ICJ under the
terms of the ICJ Statute.
16 MEDELLIN v. TEXAS

Opinion of the Court

dissent does not explain how Medellín, an individual, can
be a party to the ICJ proceeding.
Medellín argues that because the Avena case involves
him, it is clear that he—and the 50 other Mexican nation­
als named in the Avena decision—should be regarded as
parties to the Avena judgment. Brief for Petitioner 21–22.
But cases before the ICJ are often precipitated by disputes
involving particular persons or entities, disputes that a
nation elects to take up as its own. See, e.g., Case Con­
cerning the Barcelona Traction, Light & Power Co. (Belg.
v. Spain), 1970 I. C. J. 3 (Judgment of Feb. 5) (claim
brought by Belgium on behalf of Belgian nationals and
shareholders); Case Concerning the Protection of French
Nationals and Protected Persons in Egypt (Fr. v. Egypt),
1950 I. C. J. 59 (Order of Mar. 29) (claim brought by
France on behalf of French nationals and protected per­
sons in Egypt); Anglo-Iranian Oil Co. Case (U. K. v. Iran),
1952 I. C. J. 93, 112 (Judgment of July 22) (claim brought
by the United Kingdom on behalf of the Anglo-Iranian Oil
Company). That has never been understood to alter the
express and established rules that only nation-states may
be parties before the ICJ, Art. 34, 59 Stat. 1059, and—
contrary to the position of the dissent, post, at 23—that
ICJ judgments are binding only between those parties,
Art. 59, id., at 1062.8
——————
8 The dissent concludes that the ICJ judgment is binding federal law

based in large part on its belief that the Vienna Convention overrides
contrary state procedural rules. See post, at 19–20, 20–21, 23. But not
even Medellín relies on the Convention. See Reply Brief for Petitioner
5 (disclaiming reliance). For good reason: Such reliance is foreclosed by
the decision of this Court in Sanchez-Llamas, 548 U. S., at 351 (holding
that the Convention does not preclude the application of state proce­
dural bars); see also id., at 363 (GINSBURG, J., concurring in judgment).
There is no basis for relitigating the issue. Further, to rely on the
Convention would elide the distinction between a treaty—negotiated by
the President and signed by Congress—and a judgment rendered
pursuant to those treaties.
 Cite as: 552 U. S. ____ (2008) 17

Opinion of the Court

It is, moreover, well settled that the United States’
interpretation of a treaty “is entitled to great weight.”
Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176,
184–185 (1982); see also El Al Israel Airlines, Ltd. v. Tsui
Yuan Tseng, 525 U. S. 155, 168 (1999). The Executive
Branch has unfailingly adhered to its view that the rele­
vant treaties do not create domestically enforceable fed­
eral law. See Brief for United States as Amicus Curiae 4,
27–29.9
The pertinent international agreements, therefore, do
not provide for implementation of ICJ judgments through
direct enforcement in domestic courts, and “where a treaty
does not provide a particular remedy, either expressly or
implicitly, it is not for the federal courts to impose one on
the States through lawmaking of their own.” Sanchez-
Llamas, 548 U. S., at 347.

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

the ICJ itself, “giv[ing] respectful consideration to the interpretation of
an international treaty rendered by an international court with juris­
diction to interpret [the treaty].” Breard v. Greene, 523 U. S. 371, 375
(1998) (per curiam); see Sanchez-Llamas, supra, at 355–356. It is not
clear whether that principle would apply when the question is the
binding force of ICJ judgments themselves, rather than the substantive
scope of a treaty the ICJ must interpret in resolving disputes. Cf.
Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 805 (1985) (“[A] court
adjudicating a dispute may not be able to predetermine the res judicata
effect of its own judgment”); 18 C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure §4405, p. 82 (2d ed. 2002) (“The first
court does not get to dictate to other courts the preclusion consequences
of its own judgment”). In any event, nothing suggests that the ICJ
views its judgments as automatically enforceable in the domestic courts
of signatory nations. The Avena judgment itself directs the United
States to provide review and reconsideration of the affected convictions
and sentences “by means of its own choosing.” 2004 I. C. J., at 72
(emphasis added). This language, as well as the ICJ’s mere suggestion
that the “judicial process” is best suited to provide such review, id., at
65–66, confirm that domestic enforceability in court is not part and
parcel of an ICJ judgment.
18 MEDELLIN v. TEXAS

Opinion of the Court

B

The dissent faults our analysis because it “looks for the
wrong thing (explicit textual expression about self-
execution) using the wrong standard (clarity) in the wrong
place (the treaty language).” Post, at 26. Given our obli­
gation to interpret treaty provisions to determine whether
they are self-executing, we have to confess that we do
think it rather important to look to the treaty language to
see what it has to say about the issue. That is after all
what the Senate looks to in deciding whether to approve
the treaty.
The interpretive approach employed by the Court to­
day—resorting to the text—is hardly novel. In two early
cases involving an 1819 land-grant treaty between Spain
and the United States, Chief Justice Marshall found the
language of the treaty dispositive. In Foster, after distin­
guishing between self-executing treaties (those “equiva­
lent to an act of the legislature”) and non-self-executing
treaties (those “the legislature must execute”), Chief Jus­
tice Marshall held that the 1819 treaty was non-self­
executing. 2 Pet., at 314. Four years later, the Supreme
Court considered another claim under the same treaty,
but concluded that the treaty was self-executing. See
Percheman, 7 Pet., at 87. The reason was not because the
treaty was sometimes self-executing and sometimes not,
but because “the language of” the Spanish translation
(brought to the Court’s attention for the first time) indi­
cated the parties’ intent to ratify and confirm the land-
grant “by force of the instrument itself.” Id., at 89.
As against this time-honored textual approach, the
dissent proposes a multifactor, judgment-by-judgment
analysis that would “jettiso[n] relative predictability for
the open-ended rough-and-tumble of factors.” Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S.
527, 547 (1995). The dissent’s novel approach to deciding
which (or, more accurately, when) treaties give rise to
 Cite as: 552 U. S. ____ (2008) 19

Opinion of the Court

directly enforceable federal law is arrestingly indetermi­
nate. Treaty language is barely probative. Post, at 12–13
(“[T]he absence or presence of language in a treaty about a
provision’s self-execution proves nothing at all”). Deter­
mining whether treaties themselves create federal law is
sometimes committed to the political branches and some­
times to the judiciary. Post, at 13. Of those committed to
the judiciary, the courts pick and choose which shall be
binding United States law—trumping not only state but
other federal law as well—and which shall not. Post, at
13–27. They do this on the basis of a multifactor, “context-
specific” inquiry. Post, at 13. Even then, the same treaty
sometimes gives rise to United States law and sometimes
does not, again depending on an ad hoc judicial assess­
ment. Post, at 13–27.
Our Framers established a careful set of procedures that
must be followed before federal law can be created under
the Constitution—vesting that decision in the political
branches, subject to checks and balances. U. S. Const.,
Art. I, §7. They also recognized that treaties could create
federal law, but again through the political branches, with
the President making the treaty and the Senate approving
it. Art. II, §2. The dissent’s understanding of the treaty
route, depending on an ad hoc judgment of the judiciary
without looking to the treaty language—the very language
negotiated by the President and approved by the Senate—
cannot readily be ascribed to those same Framers.
The dissent’s approach risks the United States’ in­
volvement in international agreements. It is hard to
believe that the United States would enter into treaties
that are sometimes enforceable and sometimes not. Such
a treaty would be the equivalent of writing a blank check
to the judiciary. Senators could never be quite sure what
the treaties on which they were voting meant. Only a
judge could say for sure and only at some future date.
This uncertainty could hobble the United States’ efforts to
20 MEDELLIN v. TEXAS

Opinion of the Court

negotiate and sign international agreements.
In this case, the dissent—for a grab bag of no less than
seven reasons—would tell us that this particular ICJ
judgment is federal law. Post, at 13–27. That is no sort of
guidance. Nor is it any answer to say that the federal
courts will diligently police international agreements and
enforce the decisions of international tribunals only when
they should be enforced. Ibid. The point of a non-self­
executing treaty is that it “addresses itself to the political,
not the judicial department; and the legislature must
execute the contract before it can become a rule for the
Court.” Foster, supra, at 314 (emphasis added); Whitney,
124 U. S., at 195. See also Foster, supra, at 307 (“The
judiciary is not that department of the government, to
which the assertion of its interests against foreign powers
is confided”). The dissent’s contrary approach would
assign to the courts—not the political branches—the
primary role in deciding when and how international
agreements will be enforced. To read a treaty so that it
sometimes has the effect of domestic law and sometimes
does not is tantamount to vesting with the judiciary the
power not only to interpret but also to create the law.
C
Our conclusion that Avena does not by itself constitute
binding federal law is confirmed by the “postratification
understanding” of signatory nations. See Zicherman, 516
U. S., at 226. There are currently 47 nations that are
parties to the Optional Protocol and 171 nations that are
parties to the Vienna Convention. Yet neither Medellín
nor his amici have identified a single nation that treats
ICJ judgments as binding in domestic courts.10 In deter­
——————
10 Thebest that the ICJ experts as amici curiae can come up with is
the contention that local Moroccan courts have referred to ICJ judg­
ments as “dispositive.” Brief for ICJ Experts as Amici Curiae 20, n. 31.
Even the ICJ experts do not cite a case so holding, and Moroccan
 Cite as: 552 U. S. ____ (2008) 21

Opinion of the Court

mining that the Vienna Convention did not require certain
relief in United States courts in Sanchez-Llamas, we
found it pertinent that the requested relief would not be
available under the treaty in any other signatory country.
See 548 U. S., at 343–344, and n. 3. So too here the lack of
any basis for supposing that any other country would treat
ICJ judgments as directly enforceable as a matter of its
domestic law strongly suggests that the treaty should not
be so viewed in our courts.
Our conclusion is further supported by general princi­
ples of interpretation. To begin with, we reiterated in
Sanchez-Llamas what we held in Breard, that “ ‘absent a
clear and express statement to the contrary, the proce­
dural rules of the forum State govern the implementation
of the treaty in that State.’ ” 548 U. S., at 351 (quoting
Breard, 523 U. S., at 375). Given that ICJ judgments may
interfere with state procedural rules, one would expect the
ratifying parties to the relevant treaties to have clearly
stated their intent to give those judgments domestic effect,
if they had so intended. Here there is no statement in the
Optional Protocol, the U. N. Charter, or the ICJ Statute
that supports the notion that ICJ judgments displace state
procedural rules.
Moreover, the consequences of Medellín’s argument give
pause. An ICJ judgment, the argument goes, is not only
binding domestic law but is also unassailable. As a result,
neither Texas nor this Court may look behind a judgment

——————

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

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

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

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

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

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

Trib. Civ. de Bruxelles) (holding that judgments of the ICJ’s predeces­
sor, the Permanent Court of International Justice, were not domesti­
cally enforceable).

22 MEDELLIN v. TEXAS

Opinion of the Court

and quarrel with its reasoning or result. (We already
know, from Sanchez-Llamas, that this Court disagrees
with both the reasoning and result in Avena.) Medellín’s
interpretation would allow ICJ judgments to override
otherwise binding state law; there is nothing in his logic
that would exempt contrary federal law from the same
fate. See, e.g., Cook v. United States, 288 U. S. 102, 119
(1933) (later-in-time self-executing treaty supersedes a
federal statute if there is a conflict). And there is nothing
to prevent the ICJ from ordering state courts to annul
criminal convictions and sentences, for any reason deemed
sufficient by the ICJ. Indeed, that is precisely the relief
Mexico requested. Avena, 2004 I. C. J., at 58–59.
Even the dissent flinches at reading the relevant trea­
ties to give rise to self-executing ICJ judgments in all
cases. It admits that “Congress is unlikely to authorize
automatic judicial enforceability of all ICJ judgments, for
that could include some politically sensitive judgments
and others better suited for enforcement by other
branches.” Post, at 24. Our point precisely. But the
lesson to draw from that insight is hardly that the judici­
ary should decide which judgments are politically sensi­
tive and which are not.
In short, and as we observed in Sanchez-Llamas,
“[n]othing in the structure or purpose of the ICJ suggests
that its interpretations were intended to be conclusive on
our courts.” 548 U. S., at 354. Given that holding, it is
difficult to see how that same structure and purpose can
establish, as Medellín argues, that judgments of the ICJ
nonetheless were intended to be conclusive on our courts.
A judgment is binding only if there is a rule of law that
makes it so. And the question whether ICJ judgments can
bind domestic courts depends upon the same analysis
undertaken in Sanchez-Llamas and set forth above.
Our prior decisions identified by the dissent as holding a
number of treaties to be self-executing, see post, at 8–9,
 Cite as: 552 U. S. ____ (2008) 23

Opinion of the Court

Appendix A, stand only for the unremarkable proposition
that some international agreements are self-executing and
others are not. It is well settled that the “[i]nterpretation
of [a treaty] . . . must, of course, begin with the language of
the Treaty itself.” Sumitomo Shoji America, Inc., 457
U. S., at 180. As a result, we have held treaties to be self-
executing when the textual provisions indicate that the
President and Senate intended for the agreement to have
domestic effect.
Medellín and the dissent cite Comegys v. Vasse, 1 Pet.
193 (1828), for the proposition that the judgments of in­
ternational tribunals are automatically binding on domes­
tic courts. See post, at 9; Reply Brief for Petitioner 2; Brief
for Petitioner 19–20. That case, of course, involved a
different treaty than the ones at issue here; it stands only
for the modest principle that the terms of a treaty control
the outcome of a case.11 We do not suggest that treaties
can never afford binding domestic effect to international
tribunal judgments—only that the U. N. Charter, the
Optional Protocol, and the ICJ Statute do not do so. And
whether the treaties underlying a judgment are self-
executing so that the judgment is directly enforceable as
domestic law in our courts is, of course, a matter for this
Court to decide. See Sanchez-Llamas, supra, at 353–354.
——————
11 The other case Medellín cites for the proposition that the judg­

ments of international courts are binding, La Abra Silver Mining Co. v.
United States, 175 U. S. 423 (1899), and the cases he cites for the
proposition that this Court has routinely enforced treaties under which
foreign nationals have asserted rights, similarly stand only for the
principle that the terms of a treaty govern its enforcement. See Reply
Brief for Petitioner 4, 5, n. 2. In each case, this Court first interpreted
the treaty prior to finding it domestically enforceable. See, e.g., United
States v. Rauscher, 119 U. S. 407, 422–423 (1886) (holding that the
treaty required extradition only for specified offenses); Hopkirk v. Bell,
3 Cranch 454, 458 (1806) (holding that the treaty of peace between
Great Britain and the United States prevented the operation of a state
statute of limitations on British debts).
24 MEDELLIN v. TEXAS

Opinion of the Court

D

Our holding does not call into question the ordinary
enforcement of foreign judgments or international arbitral
agreements. Indeed, we agree with Medellín that, as a
general matter, “an agreement to abide by the result” of
an international adjudication—or what he really means,
an agreement to give the result of such adjudication do­
mestic legal effect—can be a treaty obligation like any
other, so long as the agreement is consistent with the
Constitution. See Brief for Petitioner 20. The point is
that the particular treaty obligations on which Medellín
relies do not of their own force create domestic law.
The dissent worries that our decision casts doubt on
some 70-odd treaties under which the United States has
agreed to submit disputes to the ICJ according to “roughly
similar” provisions. See post, at 4, 16–17. Again, under
our established precedent, some treaties are self-executing
and some are not, depending on the treaty. That the
judgment of an international tribunal might not automati­
cally become domestic law hardly means the underlying
treaty is “useless.” See post, at 17; cf. post, at 11 (describ­
ing the British system in which treaties “virtually always
requir[e] parliamentary legislation”). Such judgments
would still constitute international obligations, the proper
subject of political and diplomatic negotiations. See Head
Money Cases, 112 U. S., at 598. And Congress could elect
to give them wholesale effect (rather than the judgment­
by-judgment approach hypothesized by the dissent, post,
at 24) through implementing legislation, as it regularly
has. See, e.g., Foreign Affairs Reform and Restructuring
Act of 1998, Pub. L. 105–277, div. G, §2242, 112 Stat.
2681–822, note following 8 U. S. C. §1231 (directing the
“appropriate agencies” to “prescribe regulations to imple­
ment the obligations of the United States under Article 3”
of the Convention Against Torture and Other Forms of
Cruel, Inhuman or Degrading Treatment or Punishment);
 Cite as: 552 U. S. ____ (2008) 25

Opinion of the Court

see also infra, at 25–26 (listing examples of legislation
implementing international obligations).
Further, that an ICJ judgment may not be automati­
cally enforceable in domestic courts does not mean the
particular underlying treaty is not. Indeed, we have held
that a number of the “Friendship, Commerce, and Naviga­
tion” Treaties cited by the dissent, see post, Appendix B,
are self-executing—based on “the language of the[se]
Treat[ies].” See Sumitomo Shoji America, Inc., supra, at
180, 189–190. In Kolovrat v. Oregon, 366 U. S. 187, 191,
196 (1961), for example, the Court found that Yugoslavian
claimants denied inheritance under Oregon law were
entitled to inherit personal property pursuant to an 1881
Treaty of Friendship, Navigation, and Commerce between
the United States and Serbia. See also Clark v. Allen, 331
U. S. 503, 507–511, 517–518 (1947) (finding that the right
to inherit real property granted German aliens under the
Treaty of Friendship, Commerce, and Consular Rights
with Germany prevailed over California law). Contrary to
the dissent’s suggestion, see post, at 11, neither our ap­
proach nor our cases require that a treaty provide for self-
execution in so many talismanic words; that is a carica­
ture of the Court’s opinion. Our cases simply require
courts to decide whether a treaty’s terms reflect a deter­
mination by the President who negotiated it and the Sen­
ate that confirmed it that the treaty has domestic effect.
In addition, Congress is up to the task of implementing
non-self-executing treaties, even those involving complex
commercial disputes. Cf. post, at 24 (BREYER, J., dissent­
ing). The judgments of a number of international tribu­
nals enjoy a different status because of implementing
legislation enacted by Congress. See, e.g., 22 U. S. C.
§1650a(a) (“An award of an arbitral tribunal rendered
pursuant to chapter IV of the [Convention on the Settle­
ment of Investment Disputes] shall create a right arising
under a treaty of the United States. The pecuniary obliga­
26 MEDELLIN v. TEXAS

Opinion of the Court

tions imposed by such an award shall be enforced and
shall be given the same full faith and credit as if the
award were a final judgment of a court of general jurisdic­
tion of one of the several States”); 9 U. S C. §§201–208
(“The [U. N.] Convention on the Recognition and Enforce­
ment of Foreign Arbitral Awards of June 10, 1958, shall be
enforced in United States courts in accordance with this
chapter,” §201). Such language demonstrates that Con­
gress knows how to accord domestic effect to international
obligations when it desires such a result.12
Further, Medellín frames his argument as though giving
the Avena judgment binding effect in domestic courts
simply conforms to the proposition that domestic courts
generally give effect to foreign judgments. But Medellín
does not ask us to enforce a foreign-court judgment set­
tling a typical commercial or property dispute. See, e.g.,
Hilton v. Guyot, 159 U. S. 113 (1895); United States v.
Arredondo, 6 Pet. 691 (1832); see also Uniform Foreign
Money-Judgments Recognition Act §1(2), 13 U. L. A., pt. 2,
p. 44 (2002) (“ ‘[F]oreign judgment’ means any judgment of
a foreign state granting or denying recovery of a sum of
money”). Rather, Medellín argues that the Avena judg­
ment has the effect of enjoining the operation of state law.
What is more, on Medellín’s view, the judgment would
force the State to take action to “review and reconside[r]”
——————
12 That this Court has rarely had occasion to find a treaty non-self­

executing is not all that surprising. See post, at 8 (BREYER, J., dissent­
ing). To begin with, the Courts of Appeals have regularly done so. See,
e.g., Pierre v. Gonzales, 502 F. 3d 109, 119–120 (CA2 2007) (holding
that the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment is non-self­
executing); Singh v. Ashcroft, 398 F. 3d 396, 404, n. 3 (CA6 2005)
(same); Beazley v. Johnson, 242 F. 3d 248, 267 (CA5 2001) (holding that
the International Covenant on Civil and Political Rights is non-self­
executing). Further, as noted, Congress has not hesitated to pass
implementing legislation for treaties that in its view require such
legislation.
 Cite as: 552 U. S. ____ (2008) 27

Opinion of the Court

his case. The general rule, however, is that judgments of
foreign courts awarding injunctive relief, even as to pri­
vate parties, let alone sovereign States, “are not generally
entitled to enforcement.” See 2 Restatement §481, Com­
ment b, at 595.
In sum, while the ICJ’s judgment in Avena creates an
international law obligation on the part of the United
States, it does not of its own force constitute binding fed­
eral law that pre-empts state restrictions on the filing of
successive habeas petitions. As we noted in Sanchez-
Llamas, a contrary conclusion would be extraordinary,
given that basic rights guaranteed by our own Constitu­
tion do not have the effect of displacing state procedural
rules. See 548 U. S., at 360. Nothing in the text, back­
ground, negotiating and drafting history, or practice
among signatory nations suggests that the President or
Senate intended the improbable result of giving the judg­
ments of an international tribunal a higher status than
that enjoyed by “many of our most fundamental constitu­
tional protections.” Ibid.
III
Medellín next argues that the ICJ’s judgment in Avena
is binding on state courts by virtue of the President’s
February 28, 2005 Memorandum. The United States
contends that while the Avena judgment does not of its
own force require domestic courts to set aside ordinary
rules of procedural default, that judgment became the law
of the land with precisely that effect pursuant to the
President’s Memorandum and his power “to establish
binding rules of decision that preempt contrary state law.”
Brief for United States as Amicus Curiae 5. Accordingly,
we must decide whether the President’s declaration alters
our conclusion that the Avena judgment is not a rule of
28 MEDELLIN v. TEXAS

Opinion of the Court

domestic law binding in state and federal courts.13
A
The United States maintains that the President’s con­
stitutional role “uniquely qualifies” him to resolve the
sensitive foreign policy decisions that bear on compliance
with an ICJ decision and “to do so expeditiously.” Brief for
United States as Amicus Curiae 11, 12. We do not ques­
tion these propositions. See, e.g., First Nat. City Bank v.
Banco Nacional de Cuba, 406 U. S. 759, 767 (1972) (plu­
rality opinion) (The President has “the lead role . . . in
foreign policy”); American Ins. Assn. v. Garamendi, 539
U. S. 396, 414 (2003) (Article II of the Constitution places
with the President the “ ‘vast share of responsibility for the
conduct of our foreign relations’ ” (quoting Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610–611 (1952)
(Frankfurter, J., concurring)). In this case, the President
seeks to vindicate United States interests in ensuring the
reciprocal observance of the Vienna Convention, protect­
ing relations with foreign governments, and demonstrat­
ing commitment to the role of international law. These
interests are plainly compelling.
Such considerations, however, do not allow us to set
aside first principles. The President’s authority to act, as
with the exercise of any governmental power, “must stem
either from an act of Congress or from the Constitution
itself.” Youngstown, supra, at 585; Dames & Moore v.
Regan, 453 U. S. 654, 668 (1981).
——————
13 The dissent refrains from deciding the issue, but finds it “difficult

to believe that in the exercise of his Article II powers pursuant to a
ratified treaty, the President can never take action that would result in
setting aside state law.” Post, at 29. We agree. The questions here are
the far more limited ones of whether he may unilaterally create federal
law by giving effect to the judgment of this international tribunal
pursuant to this non-self-executing treaty, and, if not, whether he may
rely on other authority under the Constitution to support the action
taken in this particular case. Those are the only questions we decide.
 Cite as: 552 U. S. ____ (2008) 29

Opinion of the Court

Justice Jackson’s familiar tripartite scheme provides the
accepted framework for evaluating executive action in this
area. First, “[w]hen the President acts pursuant to an
express or implied authorization of Congress, his authority
is at its maximum, for it includes all that he possesses in
his own right plus all that Congress can delegate.”
Youngstown, 343 U. S., at 635 (Jackson, J., concurring).
Second, “[w]hen the President acts in absence of either a
congressional grant or denial of authority, he can only rely
upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent
authority, or in which its distribution is uncertain.” Id., at
637. In this circumstance, Presidential authority can
derive support from “congressional inertia, indifference or
quiescence.” Ibid. Finally, “[w]hen the President takes
measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb,” and the Court
can sustain his actions “only by disabling the Congress
from acting upon the subject.” Id., at 637–638.
B
The United States marshals two principal arguments in
favor of the President’s authority “to establish binding
rules of decision that preempt contrary state law.” Brief
for United States as Amicus Curiae 5. The Solicitor Gen­
eral first argues that the relevant treaties give the Presi­
dent the authority to implement the Avena judgment and
that Congress has acquiesced in the exercise of such au­
thority. The United States also relies upon an “independ­
ent” international dispute-resolution power wholly apart
from the asserted authority based on the pertinent trea­
ties. Medellín adds the additional argument that the
President’s Memorandum is a valid exercise of his power
to take care that the laws be faithfully executed.
30 MEDELLIN v. TEXAS

Opinion of the Court

1
The United States maintains that the President’s
Memorandum is authorized by the Optional Protocol and
the U. N. Charter. Brief for United States as Amicus
Curiae 9. That is, because the relevant treaties “create an
obligation to comply with Avena,” they “implicitly give the
President authority to implement that treaty-based obli­
gation.” Id., at 11 (emphasis added). As a result, the
President’s Memorandum is well grounded in the first
category of the Youngstown framework.
We disagree. The President has an array of political
and diplomatic means available to enforce international
obligations, but unilaterally converting a non-self­
executing treaty into a self-executing one is not among
them. The responsibility for transforming an interna­
tional obligation arising from a non-self-executing treaty
into domestic law falls to Congress. Foster, 2 Pet., at 315;
Whitney, 124 U. S., at 194; Igartúa-De La Rosa, 417 F. 3d,
at 150. As this Court has explained, when treaty stipula­
tions are “not self-executing they can only be enforced
pursuant to legislation to carry them into effect.” Whitney,
supra, at 194. Moreover, “[u]ntil such act shall be passed,
the Court is not at liberty to disregard the existing laws on
the subject.” Foster, supra, at 315.
The requirement that Congress, rather than the Presi­
dent, implement a non-self-executing treaty derives from
the text of the Constitution, which divides the treaty-
making power between the President and the Senate. The
Constitution vests the President with the authority to
“make” a treaty. Art. II, §2. If the Executive determines
that a treaty should have domestic effect of its own force,
that determination may be implemented “in mak[ing]” the
treaty, by ensuring that it contains language plainly pro­
viding for domestic enforceability. If the treaty is to be
self-executing in this respect, the Senate must consent to
the treaty by the requisite two-thirds vote, ibid., consis­
 Cite as: 552 U. S. ____ (2008) 31

Opinion of the Court

tent with all other constitutional restraints.
Once a treaty is ratified without provisions clearly
according it domestic effect, however, whether the treaty
will ever have such effect is governed by the fundamental
constitutional principle that “ ‘[t]he power to make the
necessary laws is in Congress; the power to execute in the
President.’ ” Hamdan v. Rumsfeld, 548 U. S. 557, 591
(2006) (quoting Ex parte Milligan, 4 Wall. 2, 139 (1866)
(opinion of Chase, C. J.)); see U. S. Const., Art. I, §1 (“All
legislative Powers herein granted shall be vested in a
Congress of the United States”). As already noted, the
terms of a non-self-executing treaty can become domestic
law only in the same way as any other law—through
passage of legislation by both Houses of Congress, com­
bined with either the President’s signature or a congres­
sional override of a Presidential veto. See Art. I, §7.
Indeed, “the President’s power to see that the laws are
faithfully executed refutes the idea that he is to be a law­
maker.” Youngstown, 343 U. S., at 587.
A non-self-executing treaty, by definition, is one that
was ratified with the understanding that it is not to have
domestic effect of its own force. That understanding pre­
cludes the assertion that Congress has implicitly author­
ized the President—acting on his own—to achieve pre­
cisely the same result. We therefore conclude, given the
absence of congressional legislation, that the non-self­
executing treaties at issue here did not “express[ly] or
implied[ly]” vest the President with the unilateral author­
ity to make them self-executing. See id., at 635 (Jackson,
J., concurring). Accordingly, the President’s Memorandum
does not fall within the first category of the Youngstown
framework.
Indeed, the preceding discussion should make clear that
the non-self-executing character of the relevant treaties
not only refutes the notion that the ratifying parties
vested the President with the authority to unilaterally
32 MEDELLIN v. TEXAS

Opinion of the Court

make treaty obligations binding on domestic courts, but
also implicitly prohibits him from doing so. When the
President asserts the power to “enforce” a non-self­
executing treaty by unilaterally creating domestic law, he
acts in conflict with the implicit understanding of the
ratifying Senate. His assertion of authority, insofar as it
is based on the pertinent non-self-executing treaties, is
therefore within Justice Jackson’s third category, not the
first or even the second. See id., at 637–638.
Each of the two means described above for giving do­
mestic effect to an international treaty obligation under
the Constitution—for making law—requires joint action
by the Executive and Legislative Branches: The Senate
can ratify a self-executing treaty “ma[de]” by the Execu­
tive, or, if the ratified treaty is not self-executing, Con­
gress can enact implementing legislation approved by the
President. It should not be surprising that our Constitu­
tion does not contemplate vesting such power in the Ex­
ecutive alone. As Madison explained in The Federalist No.
47, under our constitutional system of checks and bal­
ances, “[t]he magistrate in whom the whole executive
power resides cannot of himself make a law.” J. Cooke ed.,
p. 326 (1961). That would, however, seem an apt descrip­
tion of the asserted executive authority unilaterally to give
the effect of domestic law to obligations under a non-self­
executing treaty.
The United States nonetheless maintains that the
President’s Memorandum should be given effect as domes­
tic law because “this case involves a valid Presidential
action in the context of Congressional ‘acquiescence’.”
Brief for United States as Amicus Curiae 11, n. 2. Under
the Youngstown tripartite framework, congressional ac­
quiescence is pertinent when the President’s action falls
within the second category—that is, when he “acts in
absence of either a congressional grant or denial of author­
ity.” 343 U. S., at 637 (Jackson, J., concurring). Here,
 Cite as: 552 U. S. ____ (2008) 33

Opinion of the Court

however, as we have explained, the President’s effort to
accord domestic effect to the Avena judgment does not
meet that prerequisite.
In any event, even if we were persuaded that congres­
sional acquiescence could support the President’s asserted
authority to create domestic law pursuant to a non-self­
executing treaty, such acquiescence does not exist here.
The United States first locates congressional acquiescence
in Congress’s failure to act following the President’s reso­
lution of prior ICJ controversies. A review of the Execu­
tive’s actions in those prior cases, however, cannot support
the claim that Congress acquiesced in this particular
exercise of Presidential authority, for none of them re­
motely involved transforming an international obligation
into domestic law and thereby displacing state law.14
——————
14 Rather, in the Case Concerning Military and Paramilitary Activi­
ties in and Against Nicaragua (Nicar. v. U. S.), 1986 I. C. J. 14 (Judg­
ment of June 27), the President determined that the United States
would not comply with the ICJ’s conclusion that the United States owed
reparations to Nicaragua. In the Case Concerning Delimitation of the
Maritime Boundary in the Gulf of Maine Area (Can. v. U. S.), 1984
I. C. J. 246 (Judgment of Oct. 12), a federal agency—the National
Oceanic and Atmospheric Administration—issued a final rule which
complied with the ICJ’s boundary determination. The Case Concerning
Rights of Nationals of the United States of America in Morocco (Fr. v.
U. S.), 1952 I. C. J. 176 (Judgment of Aug. 27), concerned the legal
status of United States citizens living in Morocco; it was not enforced in
United States courts.
The final two cases arose under the Vienna Convention. In the La-
grand Case (F. R. G. v. U. S.), 2001 I. C. J. 466 (Judgment of June 27),
the ICJ ordered the review and reconsideration of convictions and
sentences of German nationals denied consular notification. In re­
sponse, the State Department sent letters to the States “encouraging”
them to consider the Vienna Convention in the clemency process. Brief
for United States as Amicus Curiae 20–21. Such encouragement did
not give the ICJ judgment direct effect as domestic law; thus, it cannot
serve as precedent for doing so in which Congress might be said to have
acquiesced. In the Case Concerning the Vienna Convention on Consular
Relations (Para. v. U. S.), 1998 I. C. J. 248 (Judgment of Apr. 9), the
34 MEDELLIN v. TEXAS

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The United States also directs us to the President’s
“related” statutory responsibilities and to his “established
role” in litigating foreign policy concerns as support for the
President’s asserted authority to give the ICJ’s decision in
Avena the force of domestic law. Brief for United States as
Amicus Curiae 16–19. Congress has indeed authorized
the President to represent the United States before the
United Nations, the ICJ, and the Security Council, 22
U. S. C. §287, but the authority of the President to repre­
sent the United States before such bodies speaks to the
President’s international responsibilities, not any unilat­
eral authority to create domestic law. The authority
expressly conferred by Congress in the international realm
cannot be said to “invite” the Presidential action at issue
here. See Youngstown, supra, at 637 (Jackson, J., concur­
ring). At bottom, none of the sources of authority identi­
fied by the United States supports the President’s claim
that Congress has acquiesced in his asserted power to
establish on his own federal law or to override state law.
None of this is to say, however, that the combination of
a non-self-executing treaty and the lack of implementing
legislation precludes the President from acting to comply
with an international treaty obligation. It is only to say
that the Executive cannot unilaterally execute a non-self­
——————
ICJ issued a provisional order, directing the United States to “take all
measures at its disposal to ensure that [Breard] is not executed pending
the final decision in [the ICJ’s] proceedings.” Breard, 523 U. S., at 374
(internal quotation marks omitted). In response, the Secretary of State
sent a letter to the Governor of Virginia requesting that he stay
Breard’s execution. Id., at 378. When Paraguay sought a stay of
execution from this Court, the United States argued that it had taken
every measure at its disposal: because “our federal system imposes
limits on the federal government’s ability to interfere with the criminal
justice systems of the States,” those measures included “only persua­
sion,” not “legal compulsion.” Brief for United States as Amicus Curiae,
O. T. 1997, No. 97–8214, p. 51. This of course is precedent contrary to
the proposition asserted by the Solicitor General in this case.
 Cite as: 552 U. S. ____ (2008) 35

Opinion of the Court

executing treaty by giving it domestic effect. That is, the
non-self-executing character of a treaty constrains the
President’s ability to comply with treaty commitments by
unilaterally making the treaty binding on domestic courts.
The President may comply with the treaty’s obligations by
some other means, so long as they are consistent with the
Constitution. But he may not rely upon a non-self­
executing treaty to “establish binding rules of decision
that preempt contrary state law.” Brief for United States
as Amicus Curiae 5.
2
We thus turn to the United States’ claim that—
independent of the United States’ treaty obligations—the
Memorandum is a valid exercise of the President’s foreign
affairs authority to resolve claims disputes with foreign
nations. Id., at 12–16. The United States relies on a
series of cases in which this Court has upheld the author­
ity of the President to settle foreign claims pursuant to an
executive agreement. See Garamendi, 539 U. S., at 415;
Dames & Moore, 453 U. S., at 679–680; United States v.
Pink, 315 U. S. 203, 229 (1942); United States v. Belmont,
301 U. S. 324, 330 (1937). In these cases this Court has
explained that, if pervasive enough, a history of congres­
sional acquiescence can be treated as a “gloss on ‘Execu­
tive Power’ vested in the President by §1 of Art. II.”
Dames & Moore, supra, at 686 (some internal quotation
marks omitted).
This argument is of a different nature than the one
rejected above. Rather than relying on the United States’
treaty obligations, the President relies on an independent
source of authority in ordering Texas to put aside its
procedural bar to successive habeas petitions. Neverthe­
less, we find that our claims-settlement cases do not sup­
port the authority that the President asserts in this case.
The claims-settlement cases involve a narrow set of
36 MEDELLIN v. TEXAS

Opinion of the Court

circumstances: the making of executive agreements to
settle civil claims between American citizens and foreign
governments or foreign nationals. See, e.g., Belmont,
supra, at 327. They are based on the view that “a system­
atic, unbroken, executive practice, long pursued to the
knowledge of the Congress and never before questioned,”
can “raise a presumption that the [action] had been
[taken] in pursuance of its consent.” Dames & Moore,
supra, at 686 (some internal quotation marks omitted). As
this Court explained in Garamendi,
Making executive agreements to settle claims of
American nationals against foreign governments is a
particularly longstanding practice . . . . Given the fact
that the practice goes back over 200 years, and has re­
ceived congressional acquiescence throughout its his­
tory, the conclusion that the President’s control of for­
eign relations includes the settlement of claims is
indisputable. 539 U. S., at 415 (internal quotation
marks and brackets omitted).
Even still, the limitations on this source of executive
power are clearly set forth and the Court has been careful
to note that “[p]ast practice does not, by itself, create
power.” Dames & Moore, supra, at 686.
The President’s Memorandum is not supported by a
“particularly longstanding practice” of congressional ac­
quiescence, see Garamendi, supra, at 415, but rather is
what the United States itself has described as “unprece­
dented action,” Brief for United States as Amicus Curiae
in Sanchez-Llamas, O. T. 2005, Nos. 05–51 and 04–10566,
pp. 29–30. Indeed, the Government has not identified a
single instance in which the President has attempted (or
Congress has acquiesced in) a Presidential directive issued
to state courts, much less one that reaches deep into the
heart of the State’s police powers and compels state courts
to reopen final criminal judgments and set aside neutrally
 Cite as: 552 U. S. ____ (2008) 37

Opinion of the Court

applicable state laws. Cf. Brecht v. Abrahamson, 507 U. S.
619, 635 (1993) (“States possess primary authority for
defining and enforcing the criminal law” (quoting Engle v.
Isaac, 456 U. S. 107, 128 (1982); internal quotation marks
omitted). The Executive’s narrow and strictly limited
authority to settle international claims disputes pursuant
to an executive agreement cannot stretch so far as to
support the current Presidential Memorandum.
3
Medellín argues that the President’s Memorandum is a
valid exercise of his “Take Care” power. Brief for Peti­
tioner 28. The United States, however, does not rely upon
the President’s responsibility to “take Care that the Laws
be faithfully executed.” U. S. Const., Art. II, §3. We think
this a wise concession. This authority allows the Presi­
dent to execute the laws, not make them. For the reasons
we have stated, the Avena judgment is not domestic law;
accordingly, the President cannot rely on his Take Care
powers here.
The judgment of the Texas Court of Criminal Appeals is
affirmed.
It is so ordered.
 Cite as: 552 U. S. ____ (2008) 1

STEVENS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–984
_________________

JOSE ERNESTO MEDELLIN, PETITIONER v. TEXAS
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

[March 25, 2008]

JUSTICE STEVENS, concurring in the judgment.
There is a great deal of wisdom in JUSTICE BREYER’s
dissent. I agree that the text and history of the Suprem­
acy Clause, as well as this Court’s treaty-related cases, do
not support a presumption against self-execution. See
post, at 5–10. I also endorse the proposition that the
Vienna Convention on Consular Relations, Apr. 24, 1963,
[1970] 21 U. S. T. 77, T. I. A. S. No. 6820, “is itself self-
executing and judicially enforceable.” Post, at 19. More­
over, I think this case presents a closer question than the
Court’s opinion allows. In the end, however, I am per­
suaded that the relevant treaties do not authorize this
Court to enforce the judgment of the International Court
of Justice (ICJ) in Case Concerning Avena and Other
Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Judg­
ment of Mar. 31) (Avena).
The source of the United States’ obligation to comply
with judgments of the ICJ is found in Article 94(1) of the
United Nations Charter, which was ratified in 1945.
Article 94(1) provides that “[e]ach Member of the United
Nations undertakes to comply with the decision of the
[ICJ] in any case to which it is a party.” 59 Stat. 1051,
T. S. No. 993 (emphasis added). In my view, the words
“undertakes to comply”—while not the model of either a
self-executing or a non-self-executing commitment—are
most naturally read as a promise to take additional steps
2 MEDELLIN v. TEXAS

STEVENS, J., concurring in judgment

to enforce ICJ judgments.
Unlike the text of some other treaties, the terms of the
United Nations Charter do not necessarily incorporate
international judgments into domestic law. Cf., e.g.,
United Nations Convention on the Law of the Sea, Annex
VI, Art. 39, Dec. 10, 1982, S. Treaty Doc. No. 103–39, 1833
U. N. T. S. 570 (“[D]ecisions of the [Seabed Disputes]
Chamber shall be enforceable in the territories of the
States Parties in the same manner as judgments or orders
of the highest court of the State Party in whose territory
the enforcement is sought”). Moreover, Congress has
passed implementing legislation to ensure the enforce­
ment of other international judgments, even when the
operative treaty provisions use far more mandatory lan­
guage than “undertakes to comply.”1
On the other hand Article 94(1) does not contain the
kind of unambiguous language foreclosing self-execution
that is found in other treaties. The obligation to under­
take to comply with ICJ decisions is more consistent with
self-execution than, for example, an obligation to enact
legislation. Cf., e.g., International Plant Protection Con­
vention, Art. I, Dec. 6, 1951, [1972] 23 U. S. T. 2770,
T. I. A. S. No. 7465 (“[T]he contracting Governments un­
dertake to adopt the legislative, technical and administra­
tive measures specified in this Convention”). Further­
——————
1 See, e.g., Convention on the Settlement of Investment Disputes

between States and Nationals of Other States (ICSID Convention), Art.
54(1), Mar. 18, 1965, [1966] 17 U. S. T. 1291, T. I. A. S. No. 6090 (“Each
Contracting State shall recognize an award rendered pursuant to this
Convention as binding and enforce the pecuniary obligations imposed
by that award within its territories as if it were a final judgment of a
court in that State”); 22 U. S. C. §1650a (“An award of an arbitral
tribunal rendered pursuant to chapter IV of the [ICSID Convention]
shall create a right arising under a treaty of the United States. The
pecuniary obligations imposed by such an award shall be enforced and
shall be given the same full faith and credit as if the award were a final
judgment of a court of general jurisdiction of one of the several States”).
 Cite as: 552 U. S. ____ (2008) 3

STEVENS, J., concurring in judgment

more, whereas the Senate has issued declarations of non­
self-execution when ratifying some treaties, it did not do
so with respect to the United Nations Charter.2
Absent a presumption one way or the other, the best
reading of the words “undertakes to comply” is, in my
judgment, one that contemplates future action by the
political branches. I agree with the dissenters that “Con­
gress is unlikely to authorize automatic judicial enforce­
ability of all ICJ judgments, for that could include some
politically sensitive judgments and others better suited for
enforcement by other branches.” Post, at 24. But this
concern counsels in favor of reading any ambiguity in
Article 94(1) as leaving the choice of whether to comply
with ICJ judgments, and in what manner, “to the political,
not the judicial department.” Foster v. Neilson, 2 Pet. 253,
314 (1829).3
The additional treaty provisions cited by the dissent do
not suggest otherwise. In an annex to the United Nations
Charter, the Statute of the International Court of Justice
(ICJ Statute) states that a decision of the ICJ “has no
binding force except between the parties and in respect of
that particular case.” Art. 59, 59 Stat. 1062. Because I
read that provision as confining, not expanding, the effect
of ICJ judgments, it does not make the undertaking to
comply with such judgments any more enforceable than
——————
2 Cf., e.g., U. S. Reservations, Declarations and Understandings, In­

ternational Covenant on Civil and Political Rights, 138 Cong. Rec. 8071
(1992) (“[T]he United States declares that the provisions of Articles 1
through 27 of the Covenant are not self-executing”).
3 Congress’ implementation options are broader than the dissent sug­

gests. In addition to legislating judgment-by-judgment, enforcing all
judgments indiscriminately, and devising “legislative bright lines,”
post, at 24, Congress could, for example, make ICJ judgments enforce­
able upon the expiration of a waiting period that gives the political
branches an opportunity to intervene. Cf., e.g., 16 U. S. C. §1823
(imposing a 120-day waiting period before international fishery agree­
ments take effect).
4 MEDELLIN v. TEXAS

STEVENS, J., concurring in judgment

the terms of Article 94(1) itself. That the judgment is
“binding” as a matter of international law says nothing
about its domestic legal effect. Nor in my opinion does the
reference to “compulsory jurisdiction” in the Optional
Protocol Concerning the Compulsory Settlement of Dis­
putes to the Vienna Convention, Art. I, Apr. 24, 1963,
[1970] 21 U. S. T. 325, T. I. A. S. No. 6820, shed any light
on the matter. This provision merely secures the consent
of signatory nations to the specific jurisdiction of the ICJ
with respect to claims arising out of the Vienna Conven­
tion. See ICJ Statute, Art. 36(1), 59 Stat. 1060 (“The
jurisdiction of the Court comprises . . . all matters spe­
cially provided for . . . in treaties and conventions in
force”).
Even though the ICJ’s judgment in Avena is not “the
supreme Law of the Land,” U. S. Const., Art. VI, cl. 2, no
one disputes that it constitutes an international law obli­
gation on the part of the United States. Ante, at 8. By
issuing a memorandum declaring that state courts should
give effect to the judgment in Avena, the President made a
commendable attempt to induce the States to discharge
the Nation’s obligation. I agree with the Texas judges and
the majority of this Court that the President’s memoran­
dum is not binding law. Nonetheless, the fact that the
President cannot legislate unilaterally does not absolve
the United States from its promise to take action neces­
sary to comply with the ICJ’s judgment.
Under the express terms of the Supremacy Clause, the
United States’ obligation to “undertak[e] to comply” with
the ICJ’s decision falls on each of the States as well as the
Federal Government. One consequence of our form of
government is that sometimes States must shoulder the
primary responsibility for protecting the honor and integ­
rity of the Nation. Texas’ duty in this respect is all the
greater since it was Texas that—by failing to provide
consular notice in accordance with the Vienna Conven­
 Cite as: 552 U. S. ____ (2008) 5

STEVENS, J., concurring in judgment

tion—ensnared the United States in the current contro­
versy. Having already put the Nation in breach of one
treaty, it is now up to Texas to prevent the breach of an­
other.
The decision in Avena merely obligates the United
States “to provide, by means of its own choosing, review
and reconsideration of the convictions and sentences of the
[affected] Mexican nationals,” 2004 I. C. J., at 72, ¶153(9),
“with a view to ascertaining” whether the failure to pro­
vide proper notice to consular officials “caused actual
prejudice to the defendant in the process of administration
of criminal justice,” id., at 60, ¶121. The cost to Texas of
complying with Avena would be minimal, particularly
given the remote likelihood that the violation of the Vi­
enna Convention actually prejudiced José Ernesto
Medellín. See ante, at 4–6, and n. 1. It is a cost that the
State of Oklahoma unhesitatingly assumed.4
——————
4 In Avena, the ICJ expressed “great concern” that Oklahoma had set

the date of execution for one of the Mexican nationals involved in
the judgment, Osbaldo Torres, for May 18, 2004. 2004 I. C. J., at
28, ¶21. Responding to Avena, the Oklahoma Court of Criminal
Appeals stayed Torres’ execution and ordered an evidentiary hearing
on whether Torres had been prejudiced by the lack of consular noti­
fication. See Torres v. Oklahoma, No. PCD–04–442 (May 13, 2004),
43 I. L. M. 1227. On the same day, the Governor of Oklahoma
commuted Torres’ death sentence to life without the possibility
of parole, stressing that (1) the United States signed the Vienna Con­
vention, (2) that treaty is “important in protecting the rights of Ameri­
can citizens abroad,” (3) the ICJ ruled that Torres’ rights had been
violated, and (4) the U. S. State Department urged his office to give
careful consideration to the United States’ treaty obligations. See
Office of Governor Brad Henry, Press Release: Gov. Henry Grants
Clemency to Death Row Inmate Torres (May 13, 2004), online at
http://www.ok.gov/governor/display_article.php?article_id=301&article_
type=1 (as visited Mar. 20, 2008, and available in Clerk of Court’s case
file). After the evidentiary hearing, the Oklahoma Court of Criminal
Appeals held that Torres had failed to establish prejudice with respect
to the guilt phase of his trial, and that any prejudice with respect to the
sentencing phase had been mooted by the commutation order. Torres v.
6 MEDELLIN v. TEXAS

STEVENS, J., concurring in judgment

On the other hand, the costs of refusing to respect the
ICJ’s judgment are significant. The entire Court and the
President agree that breach will jeopardize the United
States’ “plainly compelling” interests in “ensuring the
reciprocal observance of the Vienna Convention, protect­
ing relations with foreign governments, and demonstrat­
ing commitment to the role of international law.” Ante, at
28. When the honor of the Nation is balanced against the
modest cost of compliance, Texas would do well to recog­
nize that more is at stake than whether judgments of the
ICJ, and the principled admonitions of the President of the
United States, trump state procedural rules in the absence
of implementing legislation.
The Court’s judgment, which I join, does not foreclose
further appropriate action by the State of Texas.

——————

Oklahoma, 120 P. 3d 1184 (2005).

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

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–984
_________________

JOSE ERNESTO MEDELLIN, PETITIONER v. TEXAS
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

[March 25, 2008]

JUSTICE BREYER, with whom JUSTICE SOUTER and
JUSTICE GINSBURG join, dissenting.
The Constitution’s Supremacy Clause provides that “all
Treaties . . . which shall be made . . . under the Authority
of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound
thereby.” Art. VI, cl. 2. The Clause means that the
“courts” must regard “a treaty . . . as equivalent to an act
of the legislature, whenever it operates of itself without
the aid of any legislative provision.” Foster v. Neilson, 2
Pet. 253, 314 (1829) (majority opinion of Marshall, C. J.).
In the Avena case the International Court of Justice
(ICJ) (interpreting and applying the Vienna Convention
on Consular Relations) issued a judgment that requires
the United States to reexamine certain criminal proceed­
ings in the cases of 51 Mexican nationals. Case Concern­
ing Avena and Other Mexican Nationals (Mex. v. U. S.),
2004 I. C. J. 12 (Judgment of Mar. 31) (Avena). The ques­
tion here is whether the ICJ’s Avena judgment is en-
forceable now as a matter of domestic law, i.e., whether
it “operates of itself without the aid” of any further
legislation.
The United States has signed and ratified a series of
treaties obliging it to comply with ICJ judgments in cases
in which it has given its consent to the exercise of the
ICJ’s adjudicatory authority. Specifically, the United
2 MEDELLIN v. TEXAS

BREYER, J., dissenting

States has agreed to submit, in this kind of case, to the
ICJ’s “compulsory jurisdiction” for purposes of “compul­
sory settlement.” Optional Protocol Concerning the Com­
pulsory Settlement of Disputes (Optional Protocol or
Protocol), Art. I, Apr. 24, 1963, [1970] 21 U. S. T. 325, 326
T. I. A. S. No. 6820 (capitalization altered). And it agreed
that the ICJ’s judgments would have “binding force . . .
between the parties and in respect of [a] particular case.”
United Nations Charter, Art. 59, 59 Stat. 1062, T. S. No.
993 (1945). President Bush has determined that domestic
courts should enforce this particular ICJ judgment.
Memorandum to the Attorney General (Feb. 28, 2005),
App. to Pet. for Cert. 187a (hereinafter President’s Memo­
randum). And Congress has done nothing to suggest the
contrary. Under these circumstances, I believe the treaty
obligations, and hence the judgment, resting as it does
upon the consent of the United States to the ICJ’s jurisdic­
tion, bind the courts no less than would “an act of the
[federal] legislature.” Foster, supra, at 314.
I
To understand the issue before us, the reader must keep
in mind three separate ratified United States treaties and
one ICJ judgment against the United States. The first
treaty, the Vienna Convention, contains two relevant
provisions. The first requires the United States and other
signatory nations to inform arrested foreign nationals of
their separate Convention-given right to contact their
nation’s consul. The second says that these rights (of an
arrested person) “shall be exercised in conformity with the
laws and regulations” of the arresting nation, provided
that the “laws and regulations . . . enable full effect to be
given to the purposes for which” those “rights . . . are in­
tended.” See Vienna Convention on Consular Relations,
Arts. 36(1)(b), 36(2), Apr. 24, 1963, [1970] 21 U. S. T. 100–
101, T. I. A. S. No. 6820 (emphasis added).
 Cite as: 552 U. S. ____ (2008) 3

BREYER, J., dissenting

The second treaty, the Optional Protocol, concerns the
“compulsory settlement” of Vienna Convention disputes.
21 U. S. T., at 326. It provides that for parties that elect
to subscribe to the Protocol, “[d]isputes arising out of the
interpretation or application of the [Vienna] Convention”
shall be submitted to the “compulsory jurisdiction of the
International Court of Justice.” Art. I, ibid. It authorizes
any party that has consented to the ICJ’s jurisdiction (by
signing the Optional Protocol) to bring another such party
before that Court. Ibid.
The third treaty, the United Nations Charter, says that
every signatory Nation “undertakes to comply with the
decision of the International Court of Justice in any case
to which it is a party.” Art. 94(1), 59 Stat. 1051. In an
annex to the Charter, the Statute of the International
Court of Justice states that an ICJ judgment has “binding
force . . . between the parties and in respect of that par­
ticular case.” Art. 59, id., at 1062. See also Art. 60, id., at
1063 (ICJ “judgment is final and without appeal”).
The judgment at issue is the ICJ’s judgment in Avena, a
case that Mexico brought against the United States on
behalf of 52 nationals arrested in different States on dif­
ferent criminal charges. 2004 I. C. J., at 39. Mexico
claimed that state authorities within the United States
had failed to notify the arrested persons of their Vienna
Convention rights and, by applying state procedural law
in a manner which did not give full effect to the Vienna
Convention rights, had deprived them of an appropriate
remedy. Ibid. The ICJ judgment in Avena requires that
the United States reexamine “by means of its own choos­
ing” certain aspects of the relevant state criminal proceed­
ings of 51 of these individual Mexican nationals. Id., at
62. The President has determined that this should be
done. See President’s Memorandum.
The critical question here is whether the Supremacy
Clause requires Texas to follow, i.e., to enforce, this ICJ
4 MEDELLIN v. TEXAS

BREYER, J., dissenting

judgment. The Court says “no.” And it reaches its nega­
tive answer by interpreting the labyrinth of treaty provi­
sions as creating a legal obligation that binds the United
States internationally, but which, for Supremacy Clause
purposes, is not automatically enforceable as domestic
law. In the majority’s view, the Optional Protocol simply
sends the dispute to the ICJ; the ICJ statute says that the
ICJ will subsequently reach a judgment; and the U. N.
Charter contains no more than a promise to “ ‘undertak[e]
to comply’ ” with that judgment. Ante, at 3. Such a prom­
ise, the majority says, does not as a domestic law matter
(in Chief Justice Marshall’s words) “operat[e] of itself
without the aid of any legislative provision.” Foster, 2
Pet., at 314. Rather, here (and presumably in any other
ICJ judgment rendered pursuant to any of the approxi­
mately 70 U. S. treaties in force that contain similar pro­
visions for submitting treaty-based disputes to the ICJ for
decisions that bind the parties) Congress must enact
specific legislation before ICJ judgments entered pursuant
to our consent to compulsory ICJ jurisdiction can become
domestic law. See Brief for International Court of Justice
Experts as Amici Curiae 18 (“Approximately 70 U. S.
treaties now in force contain obligations comparable to
those in the Optional Protocol for submission of treaty-
based disputes to the ICJ”); see also id., at 18, n. 25.
In my view, the President has correctly determined that
Congress need not enact additional legislation. The ma­
jority places too much weight upon treaty language that
says little about the matter. The words “undertak[e] to
comply,” for example, do not tell us whether an ICJ judg­
ment rendered pursuant to the parties’ consent to compul­
sory ICJ jurisdiction does, or does not, automatically
become part of our domestic law. To answer that question
we must look instead to our own domestic law, in particu­
lar, to the many treaty-related cases interpreting the
Supremacy Clause. Those cases, including some written
 Cite as: 552 U. S. ____ (2008) 5

BREYER, J., dissenting

by Justices well aware of the Founders’ original intent,
lead to the conclusion that the ICJ judgment before us is
enforceable as a matter of domestic law without further
legislation.
A
Supreme Court case law stretching back more than 200
years helps explain what, for present purposes, the Foun­
ders meant when they wrote that “all Treaties . . . shall be
the supreme Law of the Land.” Art. VI, cl. 2. In 1796, for
example, the Court decided the case of Ware v. Hylton, 3
Dall. 199. A British creditor sought payment of an Ameri­
can’s Revolutionary War debt. The debtor argued that he
had, under Virginia law, repaid the debt by complying
with a state statute enacted during the Revolutionary War
that required debtors to repay money owed to British
creditors into a Virginia state fund. Id., at 220–221 (opin­
ion of Chase, J.). The creditor, however, claimed that this
state-sanctioned repayment did not count because a provi­
sion of the 1783 Paris Peace Treaty between Britain and
the United States said that “ ‘the creditors of either side
should meet with no lawful impediment to the recovery of
the full value . . . of all bona fide debts, theretofore con­
tracted’ ”; and that provision, the creditor argued, effec­
tively nullified the state law. Id., at 203–204. The Court,
with each Justice writing separately, agreed with the
British creditor, held the Virginia statute invalid, and
found that the American debtor remained liable for the
debt. Id., at 285.
The key fact relevant here is that Congress had not
enacted a specific statute enforcing the treaty provision at
issue. Hence the Court had to decide whether the provi­
sion was (to put the matter in present terms) “self­
executing.” Justice Iredell, a member of North Carolina’s
Ratifying Convention, addressed the matter specifically,
setting forth views on which Justice Story later relied to
6 MEDELLIN v. TEXAS

BREYER, J., dissenting

explain the Founders’ reasons for drafting the Supremacy
Clause. 3 J. Story, Commentaries on the Constitution of
the United States 696–697 (1833) (hereinafter Story). See
Vázquez, The Four Doctrines of Self-Executing Treaties,
89 Am. J. Int’l L. 695, 697–700 (1995) (hereinafter
Vázquez) (describing the history and purpose of the Su­
premacy Clause). See also Flaherty, History Right?: His­
torical Scholarship, Original Understanding, and Treaties
as “Supreme Law of the Land”, 99 Colum. L. Rev. 2095
(1999) (contending that the Founders crafted the Suprem­
acy Clause to make ratified treaties self-executing). But
see Yoo, Globalism and the Constitution: Treaties, Non­
Self-Execution, and the Original Understanding, 99
Colum. L. Rev. 1955 (1999).
Justice Iredell pointed out that some Treaty provisions,
those, for example, declaring the United States an inde­
pendent Nation or acknowledging its right to navigate the
Mississippi River, were “executed,” taking effect automati­
cally upon ratification. 3 Dall., at 272. Other provisions
were “executory,” in the sense that they were “to be car­
ried into execution” by each signatory nation “in the man­
ner which the Constitution of that nation prescribes.”
Ibid. Before adoption of the U. S. Constitution, all such
provisions would have taken effect as domestic law only if
Congress on the American side, or Parliament on the
British side, had written them into domestic law. Id., at
274–277.
But, Justice Iredell adds, after the Constitution’s adop­
tion, while further parliamentary action remained neces­
sary in Britain (where the “practice” of the need for an “act
of parliament” in respect to “any thing of a legislative
nature” had “been constantly observed,” id., at 275–276),
further legislative action in respect to the treaty’s debt-
collection provision was no longer necessary in the United
States. Id., at 276–277. The ratification of the Constitu­
tion with its Supremacy Clause means that treaty provi­
 Cite as: 552 U. S. ____ (2008) 7

BREYER, J., dissenting

sions that bind the United States may (and in this in­
stance did) also enter domestic law without further con­
gressional action and automatically bind the States and
courts as well. Id., at 277.
“Under this Constitution,” Justice Iredell concluded, “so
far as a treaty constitutionally is binding, upon principles
of moral obligation, it is also by the vigour of its own
authority to be executed in fact. It would not otherwise be
the Supreme law in the new sense provided for.” Ibid.; see
also Story, supra, §1833, at 697 (noting that the Suprem­
acy Clause’s language was crafted to make the Clause’s
“obligation more strongly felt by the state judges” and to
“remov[e] every pretense” by which they could “escape
from [its] controlling power”); see also The Federalist No.
42, p. 264 (C. Rossiter ed. 1961) (J. Madison) (Supremacy
Clause “disembarrassed” the Convention of the problem
presented by the Articles of Confederation where “treaties
might be substantially frustrated by regulations of the
States”). Justice Iredell gave examples of provisions that
would no longer require further legislative action, such as
those requiring the release of prisoners, those forbidding
war-related “future confiscations” and “ ‘prosecutions,’ ”
and, of course, the specific debt-collection provision at
issue in the Ware case itself. 3 Dall., at 273, 277.
Some 30 years later, the Court returned to the “self­
execution” problem. In Foster, 2 Pet. 253, the Court exam­
ined a provision in an 1819 treaty with Spain ceding Flor­
ida to the United States; the provision said that “ ‘grants of
land made’ ” by Spain before January 24, 1818, “ ‘shall be
ratified and confirmed’ ” to the grantee. Id., at 310. Chief
Justice Marshall, writing for the Court, noted that, as a
general matter, one might expect a signatory nation to
execute a treaty through a formal exercise of its domestic
sovereign authority (e.g., through an act of the legisla­
ture). Id., at 314. But in the United States “a different
principle” applies. Ibid. (emphasis added). The Suprem­
8 MEDELLIN v. TEXAS

BREYER, J., dissenting

acy Clause means that, here, a treaty is “the law of the
land . . . to be regarded in Courts of justice as equivalent
to an act of the legislature” and “operates of itself without
the aid of any legislative provision” unless it specifically
contemplates execution by the legislature and thereby
“addresses itself to the political, not the judicial depart­
ment.” Ibid. (emphasis added). The Court decided that
the treaty provision in question was not self-executing; in
its view, the words “shall be ratified” demonstrated that
the provision foresaw further legislative action. Id., at
315.
The Court, however, changed its mind about the result
in Foster four years later, after being shown a less legisla­
tively oriented, less tentative, but equally authentic Span-
ish-language version of the treaty. See United States v.
Percheman, 7 Pet. 51, 88–89 (1833). And by 1840, in­
stances in which treaty provisions automatically became
part of domestic law were common enough for one Justice
to write that “it would be a bold proposition” to assert
“that an act of Congress must be first passed” in order to
give a treaty effect as “a supreme law of the land.” Lessee
of Pollard’s Heirs v. Kibbe, 14 Pet. 353, 388 (1840) (Bald­
win, J., concurring).
Since Foster and Pollard, this Court has frequently held
or assumed that particular treaty provisions are self-
executing, automatically binding the States without more.
See Appendix A, infra (listing, as examples, 29 such cases,
including 12 concluding that the treaty provision invali­
dates state or territorial law or policy as a consequence).
See also Wu, Treaties’ Domains, 93 Va. L. Rev. 571, 583–
584 (2007) (concluding “enforcement against States is the
primary and historically most significant type of treaty
enforcement in the United States”). As far as I can tell,
the Court has held to the contrary only in two cases: Fos­
ter, supra, which was later reversed, and Cameron Septic
Tank Co. v. Knoxville, 227 U. S. 39 (1913), where specific
 Cite as: 552 U. S. ____ (2008) 9

BREYER, J., dissenting

congressional actions indicated that Congress thought
further legislation necessary. See also Vázquez 716. The
Court has found “self-executing” provisions in multilateral
treaties as well as bilateral treaties. See, e.g., Trans
World Airlines, Inc. v. Franklin Mint Corp., 466 U. S. 243,
252 (1984); Bacardi Corp. of America v. Domenech, 311
U. S. 150, 160, and n. 9, 161 (1940). And the subject mat­
ter of such provisions has varied widely, from extradition,
see, e.g., United States v. Rauscher, 119 U. S. 407, 411–
412 (1886), to criminal trial jurisdiction, see Wildenhus’s
Case, 120 U. S. 1, 11, 17–18 (1887), to civil liability, see,
e.g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525
U. S. 155, 161–163 (1999), to trademark infringement, see
Bacardi, supra, at 160, and n. 9, 161, to an alien’s freedom
to engage in trade, see, e.g., Jordan v. Tashiro, 278 U. S.
123, 126, n. 1 (1928), to immunity from state taxation, see
Nielsen v. Johnson, 279 U. S. 47, 50, 58 (1929), to land
ownership, Percheman, supra, at 88–89, and to inheri­
tance, see, e.g., Kolovrat v. Oregon, 366 U. S. 187, 191,
n. 6, 198 (1961).
Of particular relevance to the present case, the Court
has held that the United States may be obligated by treaty
to comply with the judgment of an international tribunal
interpreting that treaty, despite the absence of any con­
gressional enactment specifically requiring such compli­
ance. See Comegys v. Vasse, 1 Pet. 193, 211–212 (1828)
(holding that decision of tribunal rendered pursuant to a
United States-Spain treaty, which obliged the parties to
“undertake to make satisfaction” of treaty-based rights,
was “conclusive and final” and “not re-examinable” in
American courts); see also Meade v. United States, 9 Wall.
691, 725 (1870) (holding that decision of tribunal adjudi­
cating claims arising under United States-Spain treaty
“was final and conclusive, and bar[red] a recovery upon
the merits” in American court).
All of these cases make clear that self-executing treaty
10 MEDELLIN v. TEXAS

BREYER, J., dissenting

provisions are not uncommon or peculiar creatures of our
domestic law; that they cover a wide range of subjects;
that the Supremacy Clause itself answers the self-
execution question by applying many, but not all, treaty
provisions directly to the States; and that the Clause
answers the self-execution question differently than does
the law in many other nations. See supra, at 5–9. The
cases also provide criteria that help determine which
provisions automatically so apply—a matter to which I
now turn.
B
1
The case law provides no simple magic answer to the
question whether a particular treaty provision is self-
executing. But the case law does make clear that, insofar
as today’s majority looks for language about “self­
execution” in the treaty itself and insofar as it erects “clear
statement” presumptions designed to help find an answer,
it is misguided. See, e.g., ante, at 21 (expecting “clea[r]
state[ment]” of parties’ intent where treaty obligation
“may interfere with state procedural rules”); ante, at 30
(for treaty to be self-executing, Executive should at draft­
ing “ensur[e] that it contains language plainly providing
for domestic enforceability”).
The many treaty provisions that this Court has found
self-executing contain no textual language on the point
(see Appendix A, infra). Few, if any, of these provisions
are clear. See, e.g., Ware, 3 Dall., at 273 (opinion of Ire-
dell, J.). Those that displace state law in respect to such
quintessential state matters as, say, property, inheritance,
or debt repayment, lack the “clea[r] state[ment]” that the
Court today apparently requires. Compare ante, at 21
(majority expects “clea[r] state[ment]” of parties’ intent
where treaty obligation “may interfere with state proce­
dural rules”). This is also true of those cases that deal
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BREYER, J., dissenting

with state rules roughly comparable to the sort that the
majority suggests require special accommodation. See,
e.g., Hopkirk v. Bell, 3 Cranch 454, 457–458 (1806) (treaty
pre-empts Virginia state statute of limitations). Cf. ante,
at 21 (setting forth majority’s reliance on case law that is
apparently inapposite). These many Supreme Court cases
finding treaty provisions to be self-executing cannot be
reconciled with the majority’s demand for textual clarity.
Indeed, the majority does not point to a single ratified
United States treaty that contains the kind of “clea[r]” or
“plai[n]” textual indication for which the majority
searches. Ante, at 21, 30. JUSTICE STEVENS’ reliance upon
one ratified and one un-ratified treaty to make the point
that a treaty could speak clearly on the matter of self-
execution, see ante, at 2 and n. 1, does suggest that there
are a few such treaties. But that simply highlights how
few of them actually do speak clearly on the matter. And
that is not because the United States never, or hardly
ever, has entered into a treaty with self-executing provi­
sions. The case law belies any such conclusion. Rather, it
is because the issue whether further legislative action is
required before a treaty provision takes domestic effect in
a signatory nation is often a matter of how that Nation’s
domestic law regards the provision’s legal status. And
that domestic status-determining law differs markedly
from one nation to another. See generally Hollis, Com­
parative Approach to Treaty Law and Practice, in Na­
tional Treaty Law and Practice 1, 9–50 (D. Hollis, M.
Blakeslee, & L. Ederington eds. 2005) (hereinafter Hollis).
As Justice Iredell pointed out 200 years ago, Britain, for
example, taking the view that the British Crown makes
treaties but Parliament makes domestic law, virtually
always requires parliamentary legislation. See Ware,
supra, at 274–277; Sinclair, Dickson, & Maciver, United
Kingdom, in National Treaty Law and Practice, supra, at
727, 733, and n. 9 (citing Queen v. Secretary of State for
12 MEDELLIN v. TEXAS

BREYER, J., dissenting

Foreign and Commonwealth Affairs, ex parte Lord Rees-
Mogg, [1994] Q. B. 552 (1993) (in Britain, “ ‘treaties are
not self-executing’ ”)). See also Torruella, The Insular
Cases: The Establishment of a Regime of Political Apart­
heid, 29 U. Pa. J. Int’l L. 283, 337 (2007). On the other
hand, the United States, with its Supremacy Clause, does
not take Britain’s view. See, e.g., Ware, supra, at 277
(opinion of Iredell, J.). And the law of other nations, the
Netherlands for example, directly incorporates many
treaties concluded by the executive into its domestic law
even without explicit parliamentary approval of the
treaty. See Brouwer, The Netherlands, in National Treaty
Law and Practice, supra, at 483, 483–502.
The majority correctly notes that the treaties do not
explicitly state that the relevant obligations are self-
executing. But given the differences among nations, why
would drafters write treaty language stating that a provi­
sion about, say, alien property inheritance, is self-
executing? How could those drafters achieve agreement
when one signatory nation follows one tradition and a
second follows another? Why would such a difference
matter sufficiently for drafters to try to secure language
that would prevent, for example, Britain’s following treaty
ratification with a further law while (perhaps unnecessar­
ily) insisting that the United States apply a treaty provi­
sion without further domestic legislation? Above all, what
does the absence of specific language about “self­
execution” prove? It may reflect the drafters’ awareness of
national differences. It may reflect the practical fact that
drafters, favoring speedy, effective implementation, con­
clude they should best leave national legal practices alone.
It may reflect the fact that achieving international agree­
ment on this point is simply a game not worth the candle.
In a word, for present purposes, the absence or presence
of language in a treaty about a provision’s self-execution
proves nothing at all. At best the Court is hunting the
 Cite as: 552 U. S. ____ (2008) 13

BREYER, J., dissenting

snark. At worst it erects legalistic hurdles that can
threaten the application of provisions in many existing
commercial and other treaties and make it more difficult
to negotiate new ones. (For examples, see Appendix B,
infra.)
2
The case law also suggests practical, context-specific
criteria that this Court has previously used to help deter­
mine whether, for Supremacy Clause purposes, a treaty
provision is self-executing. The provision’s text matters
very much. Cf. ante, at 17–19. But that is not because it
contains language that explicitly refers to self-execution.
For reasons I have already explained, Part I–B–1, supra,
one should not expect that kind of textual statement.
Drafting history is also relevant. But, again, that is not
because it will explicitly address the relevant question.
Instead text and history, along with subject matter and
related characteristics will help our courts determine
whether, as Chief Justice Marshall put it, the treaty pro­
vision “addresses itself to the political . . . department[s]”
for further action or to “the judicial department” for direct
enforcement. Foster, 2 Pet., at 314; see also Ware, 3 Dall.,
at 244 (opinion of Chase, J.) (“No one can doubt that a
treaty may stipulate, that certain acts shall be done by the
Legislature; that other acts shall be done by the Execu­
tive; and others by the Judiciary”).
In making this determination, this Court has found the
provision’s subject matter of particular importance. Does
the treaty provision declare peace? Does it promise not to
engage in hostilities? If so, it addresses itself to the politi­
cal branches. See id., at 259–262 (opinion of Iredell, J.).
Alternatively, does it concern the adjudication of tradi­
tional private legal rights such as rights to own property,
to conduct a business, or to obtain civil tort recovery? If
so, it may well address itself to the Judiciary. Enforcing
14 MEDELLIN v. TEXAS

BREYER, J., dissenting

such rights and setting their boundaries is the bread-and­
butter work of the courts. See, e.g., Clark v. Allen, 331
U. S. 503 (1947) (treating provision with such subject
matter as self-executing); Asakura v. Seattle, 265 U. S. 332
(1924) (same).
One might also ask whether the treaty provision confers
specific, detailed individual legal rights. Does it set forth
definite standards that judges can readily enforce? Other
things being equal, where rights are specific and readily
enforceable, the treaty provision more likely “addresses”
the judiciary. See, e.g., Olympic Airways v. Husain, 540
U. S. 644 (2004) (specific conditions for air-carrier civil
liability); Geofroy v. Riggs, 133 U. S. 258 (1890) (French
citizens’ inheritance rights). Compare Foster, supra,
at 314–315 (treaty provision stating that landholders’
titles “shall be ratified and confirmed” foresees legislative
action).
Alternatively, would direct enforcement require the
courts to create a new cause of action? Would such en­
forcement engender constitutional controversy? Would it
create constitutionally undesirable conflict with the other
branches? In such circumstances, it is not likely that the
provision contemplates direct judicial enforcement. See,
e.g., Asakura, supra, at 341 (although “not limited by any
express provision of the Constitution,” the treaty-making
power of the United States “does not extend ‘so far as to
authorize what the Constitution forbids’ ”).
Such questions, drawn from case law stretching back
200 years, do not create a simple test, let alone a magic
formula. But they do help to constitute a practical, con­
text-specific judicial approach, seeking to separate run-of­
the-mill judicial matters from other matters, sometimes
more politically charged, sometimes more clearly the
responsibility of other branches, sometimes lacking those
attributes that would permit courts to act on their own
without more ado. And such an approach is all that we
 Cite as: 552 U. S. ____ (2008) 15

BREYER, J., dissenting

need to find an answer to the legal question now before us.
C
Applying the approach just described, I would find the
relevant treaty provisions self-executing as applied to the
ICJ judgment before us (giving that judgment domestic
legal effect) for the following reasons, taken together.
First, the language of the relevant treaties strongly
supports direct judicial enforceability, at least of judg­
ments of the kind at issue here. The Optional Protocol
bears the title “Compulsory Settlement of Disputes,”
thereby emphasizing the mandatory and binding nature of
the procedures it sets forth. 21 U. S. T., at 326. The body
of the Protocol says specifically that “any party” that has
consented to the ICJ’s “compulsory jurisdiction” may bring
a “dispute” before the court against any other such party.
Art. I, ibid. And the Protocol contrasts proceedings of the
compulsory kind with an alternative “conciliation proce­
dure,” the recommendations of which a party may decide
“not” to “accep[t].” Art. III, id., at 327. Thus, the Optional
Protocol’s basic objective is not just to provide a forum
for settlement but to provide a forum for compulsory
settlement.
Moreover, in accepting Article 94(1) of the Charter,
“[e]ach Member . . . undertakes to comply with the deci­
sion” of the ICJ “in any case to which it is a party.” 59
Stat. 1051. And the ICJ Statute (part of the U. N. Char­
ter) makes clear that, a decision of the ICJ between par­
ties that have consented to the ICJ’s compulsory jurisdic­
tion has “binding force . . . between the parties and in
respect of that particular case.” Art. 59, id., at 1062
(emphasis added). Enforcement of a court’s judgment
that has “binding force” involves quintessential judicial
activity.
True, neither the Protocol nor the Charter explicitly
states that the obligation to comply with an ICJ judgment
16 MEDELLIN v. TEXAS

BREYER, J., dissenting

automatically binds a party as a matter of domestic law
without further domestic legislation. But how could the
language of those documents do otherwise? The treaties
are multilateral. And, as I have explained, some signato­
ries follow British further-legislation-always-needed prin­
ciples, others follow United States Supremacy Clause
principles, and still others, e.g., the Netherlands, can
directly incorporate treaty provisions into their domestic
law in particular circumstances. See Hollis 9–50. Why,
given national differences, would drafters, seeking as
strong a legal obligation as is practically attainable, use
treaty language that requires all signatories to adopt
uniform domestic-law treatment in this respect?
The absence of that likely unobtainable language can
make no difference. We are considering the language for
purposes of applying the Supremacy Clause. And for that
purpose, this Court has found to be self-executing multi­
lateral treaty language that is far less direct or forceful (on
the relevant point) than the language set forth in the
present treaties. See, e.g., Trans World Airlines, 466
U. S., at 247, 252; Bacardi, 311 U. S., at 160, and n. 9,
161. The language here in effect tells signatory nations to
make an ICJ compulsory jurisdiction judgment “as bind-
ing as you can.” Thus, assuming other factors favor
self-execution, the language adds, rather than subtracts,
support.
Indeed, as I have said, supra, at 4, the United States
has ratified approximately 70 treaties with ICJ dispute
resolution provisions roughly similar to those contained in
the Optional Protocol; many of those treaties contemplate
ICJ adjudication of the sort of substantive matters (prop­
erty, commercial dealings, and the like) that the Court has
found self-executing, or otherwise appear addressed to the
judicial branch. See Appendix B, infra. None of the ICJ
provisions in these treaties contains stronger language
about self-execution than the language at issue here. See,
 Cite as: 552 U. S. ____ (2008) 17

BREYER, J., dissenting

e.g., Treaty of Friendship, Commerce and Navigation
between the United States of America and the Kingdom of
Denmark, Art. XXIV(2), Oct. 1, 1951, [1961] 12 U. S. T.
935, T. I. A. S. No. 4797 (“Any dispute between the Parties
as to the interpretation or application of the present
Treaty, not satisfactorily adjusted by diplomacy, shall be
submitted to the International Court of Justice, unless the
Parties agree to settlement by some other pacific means”).
In signing these treaties (in respect to, say, alien land
ownership provisions) was the United States engaging in a
near useless act? Does the majority believe the drafters
expected Congress to enact further legislation about, say,
an alien’s inheritance rights, decision by decision?
I recognize, as the majority emphasizes, that the U. N.
Charter uses the words “undertakes to comply,” rather
than, say, “shall comply” or “must comply.” But what is
inadequate about the word “undertak[e]”? A leading
contemporary dictionary defined it in terms of “lay[ing]
oneself under obligation . . . to perform or to execute.”
Webster’s New International Dictionary 2770 (2d ed.
1939). And that definition is just what the equally au­
thoritative Spanish version of the provision (familiar to
Mexico) says directly: The words “compromete a cumplir”
indicate a present obligation to execute, without any
tentativeness of the sort the majority finds in the English
word “undertakes.” See Carta de las Naciones Unidas,
Articulo 94, 59 Stat. 1175 (1945); Spanish and English
Legal and Commercial Dictionary 44 (1945) (defining
“comprometer” as “become liable”); id., at 59 (defining
“cumplir” as “to perform, discharge, carry out, execute”);
see also Art. 111, 59 Stat. 1054 (Spanish-language version
equally valid); Percheman, 7 Pet., at 88–89 (looking to
Spanish version of a treaty to clear up ambiguity in Eng­
lish version). Compare Todok v. Union State Bank of
Harvard, 281 U. S. 449, 453 (1930) (treating a treaty
provision as self-executing even though it expressly stated
18 MEDELLIN v. TEXAS

BREYER, J., dissenting

what the majority says the word “undertakes” implicitly
provides: that “ ‘[t]he United States . . . shall be at liberty
to make respecting this matter, such laws as they think
proper’ ”).
And even if I agreed with JUSTICE STEVENS that the
language is perfectly ambiguous (which I do not), I could
not agree that “the best reading . . . is . . . one that con­
templates future action by the political branches.” Ante,
at 3. The consequence of such a reading is to place the
fate of an international promise made by the United
States in the hands of a single State. See ante, at 4–6.
And that is precisely the situation that the Framers
sought to prevent by enacting the Supremacy Clause. See
3 Story 696 (purpose of Supremacy Clause “was probably
to obviate” the “difficulty” of system where treaties were
“dependent upon the good will of the states for their exe­
cution”); see also Ware, 3 Dall., at 277–278 (opinion of
Iredell, J.).
I also recognize, as the majority emphasizes (ante, at
13–14), that the U. N. Charter says that “[i]f any party to
a case fails to perform the obligations incumbent upon it
under a judgment rendered by the [ICJ], the other party
may have recourse to the Security Council.” Art. 94(2), 59
Stat. 1051. And when the Senate ratified the charter, it
took comfort in the fact that the United States has a veto
in the Security Council. See 92 Cong. Rec. 10694–10695
(1946) (statements of Sens. Pepper and Connally).
But what has that to do with the matter? To begin with,
the Senate would have been contemplating politically
significant ICJ decisions, not, e.g., the bread-and-butter
commercial and other matters that are the typical subjects
of self-executing treaty provisions. And in any event, both
the Senate debate and U. N. Charter provision discuss and
describe what happens (or does not happen) when a nation
decides not to carry out an ICJ decision. See Charter of
the United Nations for the Maintenance of International
 Cite as: 552 U. S. ____ (2008) 19

BREYER, J., dissenting

Peace and Security: Hearing before the Senate Committee
on Foreign Relations, 79th Cong., 1st Sess., 286 (1945)
(statement of Leo Pasvolsky, Special Assistant to the
Secretary of State for International Organization and
Security Affairs) (“[W]hen the Court has rendered a judg­
ment and one of the parties refuses to accept it, then the
dispute becomes political rather than legal”). The debates
refer to remedies for a breach of our promise to carry out
an ICJ decision. The Senate understood, for example, that
Congress (unlike legislatures in other nations that do not
permit domestic legislation to trump treaty obligations,
Hollis 47–49) can block through legislation self-executing,
as well as non-self-executing determinations. The debates
nowhere refer to the method we use for affirmatively
carrying out an ICJ obligation that no political branch has
decided to dishonor, still less to a decision that the Presi­
dent (without congressional dissent) seeks to enforce. For
that reason, these aspects of the ratification debates are
here beside the point. See infra, at 23–24.
The upshot is that treaty language says that an ICJ
decision is legally binding, but it leaves the implementa­
tion of that binding legal obligation to the domestic law of
each signatory nation. In this Nation, the Supremacy
Clause, as long and consistently interpreted, indicates
that ICJ decisions rendered pursuant to provisions for
binding adjudication must be domestically legally binding
and enforceable in domestic courts at least sometimes.
And for purposes of this argument, that conclusion is all
that I need. The remainder of the discussion will explain
why, if ICJ judgments sometimes bind domestic courts,
then they have that effect here.
Second, the Optional Protocol here applies to a dispute
about the meaning of a Vienna Convention provision that
is itself self-executing and judicially enforceable. The
Convention provision is about an individual’s “rights,”
namely, his right upon being arrested to be informed of his
20 MEDELLIN v. TEXAS

BREYER, J., dissenting

separate right to contact his nation’s consul. See Art.
36(1)(b), 21 U. S. T., at 101. The provision language is
precise. The dispute arises at the intersection of an indi­
vidual right with ordinary rules of criminal procedure; it
consequently concerns the kind of matter with which
judges are familiar. The provisions contain judicially
enforceable standards. See Art. 36(2), ibid. (providing for
exercise of rights “in conformity with the laws and regula­
tions” of the arresting nation provided that the “laws and
regulations . . . enable full effect to be given to the pur­
poses for which the rights accorded under this Article are
intended”). And the judgment itself requires a further
hearing of a sort that is typically judicial. See infra, at
25–26.
This Court has found similar treaty provisions self-
executing. See, e.g., Rauscher, 119 U. S., at 410–411, 429–
430 (violation of extradition treaty could be raised as
defense in criminal trial); Johnson v. Browne, 205 U. S.
309, 317–322 (1907) (extradition treaty required grant of
writ of habeas corpus); Wildenhus’s Case, 120 U. S., at 11,
17–18 (treaty defined scope of state jurisdiction in a crimi­
nal case). It is consequently not surprising that, when
Congress ratified the Convention, the State Department
reported that the “Convention is considered entirely self-
executive and does not require any implementing or com­
plementing legislation.” S. Exec. Rep. No. 91–9, p. 5
(1969); see also id., at 18 (“To the extent that there are
conflicts with Federal legislation or State laws the Vienna
Convention, after ratification, would govern”). And the
Executive Branch has said in this Court that other, indis­
tinguishable Vienna Convention provisions are self-
executing. See Brief for United States as Amicus Curiae in
Sanchez-Llamas v. Oregon, O. T. 2005, Nos. 05–51 and
04–10566, p. 14, n. 2; cf. ante, at 10, n. 4 (majority leaves
question open).
Third, logic suggests that a treaty provision providing
 Cite as: 552 U. S. ____ (2008) 21

BREYER, J., dissenting

for “final” and “binding” judgments that “settl[e]” treaty-
based disputes is self-executing insofar as the judgment in
question concerns the meaning of an underlying treaty
provision that is itself self-executing. Imagine that two
parties to a contract agree to binding arbitration about
whether a contract provision’s word “grain” includes rye.
They would expect that, if the arbitrator decides that the
word “grain” does include rye, the arbitrator will then
simply read the relevant provision as if it said “grain
including rye.” They would also expect the arbitrator to
issue a binding award that embodies whatever relief
would be appropriate under that circumstance.
Why treat differently the parties’ agreement to binding
ICJ determination about, e.g., the proper interpretation of
the Vienna Convention clauses containing the rights here
at issue? Why not simply read the relevant Vienna Con­
vention provisions as if (between the parties and in re­
spect to the 51 individuals at issue) they contain words
that encapsulate the ICJ’s decision? See Art. 59, 59 Stat.
1062 (ICJ decision has “binding force . . . between the
parties and in respect of [the] particular case”). Why
would the ICJ judgment not bind in precisely the same
way those words would bind if they appeared in the rele­
vant Vienna Convention provisions—just as the ICJ says,
for purposes of this case, that they do?
To put the same point differently: What sense would it
make (1) to make a self-executing promise and (2) to prom­
ise to accept as final an ICJ judgment interpreting that
self-executing promise, yet (3) to insist that the judgment
itself is not self-executing (i.e., that Congress must enact
specific legislation to enforce it)?
I am not aware of any satisfactory answer to these
questions. It is no answer to point to the fact that in
Sanchez-Llamas v. Oregon, 548 U. S. 331 (2006), this
Court interpreted the relevant Convention provisions
differently from the ICJ in Avena. This Court’s Sanchez­
22 MEDELLIN v. TEXAS

BREYER, J., dissenting

Llamas interpretation binds our courts with respect to
individuals whose rights were not espoused by a state
party in Avena. Moreover, as the Court itself recognizes,
see ante, at 1–2, and as the President recognizes, see
President’s Memorandum, the question here is the very
different question of applying the ICJ’s Avena judgment to
the very parties whose interests Mexico and the United
States espoused in the ICJ Avena proceeding. It is in
respect to these individuals that the United States has
promised the ICJ decision will have binding force. Art. 59,
59 Stat. 1062. See 1 Restatement (Second) of Conflict of
Laws §98 (1969); 2 Restatement (Third) of Foreign Rela­
tions §481 (1986); 1 Restatement (Second) of Judgments
§17 (1980) (all calling for recognition of judgment rendered
after fair hearing in a contested proceeding before a court
with adjudicatory authority over the case). See also 1
Restatement (Second) of Conflict of Laws §106 (“A judg­
ment will be recognized and enforced in other states even
though an error of fact or law was made in the proceedings
before judgment . . .”); id., §106, Comment a (“Th[is] rule
is . . . applicable to judgments rendered in foreign nations
. . .”); Reese, The Status in This Country of Judgments
Rendered Abroad, 50 Colum. L. Rev. 783, 789 (1950)
(“[Foreign] judgments will not be denied effect merely
because the original court made an error either of fact or
of law”).
Contrary to the majority’s suggestion, see ante, at 15–
16, that binding force does not disappear by virtue of the
fact that Mexico, rather than Medellín himself, presented
his claims to the ICJ. Mexico brought the Avena case in
part in “the exercise of its right of diplomatic protection of
its nationals,” e.g., 2004 I. C. J., at 21, ¶¶13(1), (3), includ­
ing Medellín, see id., at 25, ¶16. Such derivative claims
are a well-established feature of international law, and the
United States has several times asserted them on behalf of
its own citizens. See 2 Restatement (Third) of Foreign
 Cite as: 552 U. S. ____ (2008) 23

BREYER, J., dissenting

Relations, supra, §713, Comments a, b, at 217; Case Con­
cerning Elettronic Sicula S. p. A. (U. S. v. Italy), 1989
I. C. J. 15, 20 (Judgment of July 20); Case Concerning
United States Diplomatic and Consular Staff in Tehran
(U. S. v. Iran), 1979 I. C. J. 7, 8 (Judgment of Dec. 15);
Case Concerning Rights of Nationals of the United States
of America in Morocco (Fr. v. U. S.), 1952 I. C. J. 176, 180–
181 (Judgment of Aug. 27). They are treated in relevant
respects as the claims of the represented individuals
themselves. See 2 Restatement (Third) of Foreign Rela­
tions, supra, §713, Comments a, b. In particular, they can
give rise to remedies, tailored to the individual, that bind
the Nation against whom the claims are brought (here, the
United States). See ibid.; see also, e.g., Frelinghuysen v.
Key, 110 U. S. 63, 71–72 (1884).
Nor does recognition of the ICJ judgment as binding
with respect to the individuals whose claims were es­
poused by Mexico in any way derogate from the Court’s
holding in Sanchez-Llamas, supra. See ante, at 16, n. 8.
This case does not implicate the general interpretive
question answered in Sanchez-Llamas: whether the Vi­
enna Convention displaces state procedural rules. We are
instead confronted with the discrete question of Texas’
obligation to comply with a binding judgment issued by a
tribunal with undisputed jurisdiction to adjudicate the
rights of the individuals named therein. “It is inherent in
international adjudication that an international tribunal
may reject one country’s legal position in favor of an­
other’s—and the United States explicitly accepted this
possibility when it ratified the Optional Protocol.” Brief
for United States as Amicus Curiae 22.
Fourth, the majority’s very different approach has seri­
ously negative practical implications. The United States
has entered into at least 70 treaties that contain provi­
sions for ICJ dispute settlement similar to the Protocol
before us. Many of these treaties contain provisions simi­
24 MEDELLIN v. TEXAS

BREYER, J., dissenting

lar to those this Court has previously found self­
executing—provisions that involve, for example, property
rights, contract and commercial rights, trademarks, civil
liability for personal injury, rights of foreign diplomats,
taxation, domestic-court jurisdiction, and so forth. Com­
pare Appendix A, infra, with Appendix B, infra. If the
Optional Protocol here, taken together with the U. N.
Charter and its annexed ICJ Statute, is insufficient to
warrant enforcement of the ICJ judgment before us, it is
difficult to see how one could reach a different conclusion
in any of these other instances. And the consequence is to
undermine longstanding efforts in those treaties to create
an effective international system for interpreting and
applying many, often commercial, self-executing treaty
provisions. I thus doubt that the majority is right when it
says, “We do not suggest that treaties can never afford
binding domestic effect to international tribunal judg­
ments.” Ante, at 23–24. In respect to the 70 treaties that
currently refer disputes to the ICJ’s binding adjudicatory
authority, some multilateral, some bilateral, that is just
what the majority has done.
Nor can the majority look to congressional legislation for
a quick fix. Congress is unlikely to authorize automatic
judicial enforceability of all ICJ judgments, for that could
include some politically sensitive judgments and others
better suited for enforcement by other branches: for exam­
ple, those touching upon military hostilities, naval activ­
ity, handling of nuclear material, and so forth. Nor is
Congress likely to have the time available, let alone the
will, to legislate judgment-by-judgment enforcement of,
say, the ICJ’s (or other international tribunals’) resolution
of non-politically-sensitive commercial disputes. And as
this Court’s prior case law has avoided laying down bright-
line rules but instead has adopted a more complex ap­
proach, it seems unlikely that Congress will find it easy to
develop legislative bright lines that pick out those provi­
 Cite as: 552 U. S. ____ (2008) 25

BREYER, J., dissenting

sions (addressed to the Judicial Branch) where self-
execution seems warranted. But, of course, it is not neces­
sary for Congress to do so—at least not if one believes that
this Court’s Supremacy Clause cases already embody
criteria likely to work reasonably well. It is those criteria
that I would apply here.
Fifth, other factors, related to the particular judgment
here at issue, make that judgment well suited to direct
judicial enforcement. The specific issue before the ICJ
concerned “ ‘review and reconsideration’ ” of the “possible
prejudice” caused in each of the 51 affected cases by an
arresting State’s failure to provide the defendant with
rights guaranteed by the Vienna Convention. Avena, 2004
I. C. J., at 65, ¶138. This review will call for an under­
standing of how criminal procedure works, including
whether, and how, a notification failure may work preju­
dice. Id., at 56–57. As the ICJ itself recognized, “it is the
judicial process that is suited to this task.” Id., at 66,
¶140. Courts frequently work with criminal procedure
and related prejudice. Legislatures do not. Judicial stan­
dards are readily available for working in this technical
area. Legislative standards are not readily available.
Judges typically determine such matters, deciding, for
example, whether further hearings are necessary, after
reviewing a record in an individual case. Congress does
not normally legislate in respect to individual cases.
Indeed, to repeat what I said above, what kind of special
legislation does the majority believe Congress ought to
consider?
Sixth, to find the United States’ treaty obligations self-
executing as applied to the ICJ judgment (and conse­
quently to find that judgment enforceable) does not
threaten constitutional conflict with other branches; it
does not require us to engage in nonjudicial activity; and it
does not require us to create a new cause of action. The
only question before us concerns the application of the ICJ
26 MEDELLIN v. TEXAS

BREYER, J., dissenting

judgment as binding law applicable to the parties in a
particular criminal proceeding that Texas law creates
independently of the treaty. I repeat that the question
before us does not involve the creation of a private right of
action (and the majority’s reliance on authority regarding
such a circumstance is misplaced, see ante, at 9, n. 3).
Seventh, neither the President nor Congress has ex­
pressed concern about direct judicial enforcement of the
ICJ decision. To the contrary, the President favors en­
forcement of this judgment. Thus, insofar as foreign policy
impact, the interrelation of treaty provisions, or any other
matter within the President’s special treaty, military, and
foreign affairs responsibilities might prove relevant, such
factors favor, rather than militate against, enforcement of
the judgment before us. See, e.g., Jama v. Immigration
and Customs Enforcement, 543 U. S. 335, 348 (2005)
(noting Court’s “customary policy of deference to the
President in matters of foreign affairs”).
For these seven reasons, I would find that the United
States’ treaty obligation to comply with the ICJ judgment
in Avena is enforceable in court in this case without fur­
ther congressional action beyond Senate ratification of the
relevant treaties. The majority reaches a different conclu­
sion because it looks for the wrong thing (explicit textual
expression about self-execution) using the wrong standard
(clarity) in the wrong place (the treaty language). Hunt­
ing for what the text cannot contain, it takes a wrong turn.
It threatens to deprive individuals, including businesses,
property owners, testamentary beneficiaries, consular
officials, and others, of the workable dispute resolution
procedures that many treaties, including commercially
oriented treaties, provide. In a world where commerce,
trade, and travel have become ever more international,
that is a step in the wrong direction.
Were the Court for a moment to shift the direction of its
legal gaze, looking instead to the Supremacy Clause and to
 Cite as: 552 U. S. ____ (2008) 27

BREYER, J., dissenting

the extensive case law interpreting that Clause as applied
to treaties, I believe it would reach a better supported,
more felicitous conclusion. That approach, well embedded
in Court case law, leads to the conclusion that the ICJ
judgment before us is judicially enforceable without fur­
ther legislative action.
II
A determination that the ICJ judgment is enforceable
does not quite end the matter, for the judgment itself
requires us to make one further decision. It directs the
United States to provide further judicial review of the 51
cases of Mexican nationals “by means of its own choosing.”
Avena, 2004 I. C. J., at 72, ¶153(9). As I have explained, I
believe the judgment addresses itself to the Judicial
Branch. This Court consequently must “choose” the
means. And rather than, say, conducting the further
review in this Court, or requiring Medellín to seek the
review in another federal court, I believe that the proper
forum for review would be the Texas-court proceedings
that would follow a remand of this case.
Beyond the fact that a remand would be the normal
course upon reversing a lower court judgment, there are
additional reasons why further state-court review would
be particularly appropriate here. The crime took place in
Texas, and the prosecution at issue is a Texas prosecution.
The President has specifically endorsed further Texas
court review. See President’s Memorandum. The ICJ
judgment requires further hearings as to whether the
police failure to inform Medellín of his Vienna Convention
rights prejudiced Medellín, even if such hearings would
not otherwise be available under Texas’ procedural default
rules. While Texas has already considered that matter, it
did not consider fully, for example, whether appointed
counsel’s coterminous 6-month suspension from the prac­
tice of the law “caused actual prejudice to the defendant”—
28 MEDELLIN v. TEXAS

BREYER, J., dissenting

prejudice that would not have existed had Medellín known
he could contact his consul and thereby find a different
lawyer. Id., at 60, ¶121.
Finally, Texas law authorizes a criminal defendant to
seek postjudgment review. See Tex. Code Crim. Proc.
Ann., Art. 11.071, §5(a)(1) (Vernon Supp. 2006). And
Texas law provides for further review where American law
provides a “legal basis” that was previously “unavailable.”
See Ex parte Medellín, 223 S. W. 3d 315, 352 (Tex. Crim.
App. 2006). Thus, I would send this case back to the
Texas courts, which must then apply the Avena judgment
as binding law. See U. S. Const., Art. VI, cl. 2; see also,
e.g., Dominguez v. State, 90 Tex. Crim. 92, 99, 234 S. W.
79, 83 (1921) (recognizing that treaties are “part of the
supreme law of the land” and that “it is the duty of the
courts of the state to take cognizance of, construe and give
effect” to them (internal quotation marks omitted)).
III
Because the majority concludes that the Nation’s inter­
national legal obligation to enforce the ICJ’s decision is
not automatically a domestic legal obligation, it must then
determine whether the President has the constitutional
authority to enforce it. And the majority finds that he
does not. See Part III, ante.
In my view, that second conclusion has broader implica­
tions than the majority suggests. The President here
seeks to implement treaty provisions in which the United
States agrees that the ICJ judgment is binding with re­
spect to the Avena parties. Consequently, his actions
draw upon his constitutional authority in the area of
foreign affairs. In this case, his exercise of that power
falls within that middle range of Presidential authority
where Congress has neither specifically authorized nor
specifically forbidden the Presidential action in question.
See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
 Cite as: 552 U. S. ____ (2008) 29

BREYER, J., dissenting

579, 637 (1952) (Jackson, J., concurring). At the same
time, if the President were to have the authority he as­
serts here, it would require setting aside a state proce­
dural law.
It is difficult to believe that in the exercise of his Article
II powers pursuant to a ratified treaty, the President can
never take action that would result in setting aside state
law. Cf. United States v. Pink, 315 U. S. 203, 233 (1942)
(“No State can rewrite our foreign policy to conform to its
own domestic policies”). Suppose that the President be­
lieves it necessary that he implement a treaty provision
requiring a prisoner exchange involving someone in state
custody in order to avoid a proven military threat. Cf.
Ware, 3 Dall., at 205. Or suppose he believes it necessary
to secure a foreign consul’s treaty-based rights to move
freely or to contact an arrested foreign national. Cf. Vi­
enna Convention, Art. 34, 21 U. S. T., at 98. Does the
Constitution require the President in each and every such
instance to obtain a special statute authorizing his action?
On the other hand, the Constitution must impose signifi­
cant restrictions upon the President’s ability, by invoking
Article II treaty-implementation authority, to circumvent
ordinary legislative processes and to pre-empt state law as
he does so.
Previously this Court has said little about this question.
It has held that the President has a fair amount of author­
ity to make and to implement executive agreements, at
least in respect to international claims settlement, and
that this authority can require contrary state law to be set
aside. See, e.g., Pink, supra, at 223, 230–231, 233–234;
United States v. Belmont, 301 U. S. 324, 326–327 (1937).
It has made clear that principles of foreign sovereign
immunity trump state law and that the Executive, operat­
ing without explicit legislative authority, can assert those
principles in state court. See Ex parte Peru, 318 U. S. 578,
588 (1943). It has also made clear that the Executive has
30 MEDELLIN v. TEXAS

BREYER, J., dissenting

inherent power to bring a lawsuit “to carry out treaty
obligations.” Sanitary Dist. of Chicago v. United States,
266 U. S. 405, 425, 426 (1925). But it has reserved judg­
ment as to “the scope of the President’s power to preempt
state law pursuant to authority delegated by . . . a ratified
treaty”—a fact that helps to explain the majority’s inabil­
ity to find support in precedent for its own conclusions.
Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U. S.
298, 329 (1994).
Given the Court’s comparative lack of expertise in for­
eign affairs; given the importance of the Nation’s foreign
relations; given the difficulty of finding the proper consti­
tutional balance among state and federal, executive and
legislative, powers in such matters; and given the likely
future importance of this Court’s efforts to do so, I would
very much hesitate before concluding that the Constitu­
tion implicitly sets forth broad prohibitions (or permis­
sions) in this area. Cf. ante, at 27–28, n. 13 (stating that
the Court’s holding is “limited” by the facts that (1) this
treaty is non-self-executing and (2) the judgment of an
international tribunal is involved).
I would thus be content to leave the matter in the
constitutional shade from which it has emerged. Given
my view of this case, I need not answer the question.
And I shall not try to do so. That silence, however, cannot
be taken as agreement with the majority’s Part III
conclusion.
IV
The majority’s two holdings taken together produce
practical anomalies. They unnecessarily complicate the
President’s foreign affairs task insofar as, for example,
they increase the likelihood of Security Council Avena
enforcement proceedings, of worsening relations with our
neighbor Mexico, of precipitating actions by other nations
putting at risk American citizens who have the misfortune
 Cite as: 552 U. S. ____ (2008) 31

BREYER, J., dissenting

to be arrested while traveling abroad, or of diminishing
our Nation’s reputation abroad as a result of our failure to
follow the “rule of law” principles that we preach. The
holdings also encumber Congress with a task (postratifica­
tion legislation) that, in respect to many decisions of in­
ternational tribunals, it may not want and which it may
find difficult to execute. See supra, at 23–24 (discussing
the problems with case-by-case legislation). At the same
time, insofar as today’s holdings make it more difficult to
enforce the judgments of international tribunals, including
technical non-politically-controversial judgments, those
holdings weaken that rule of law for which our Constitu­
tion stands. Compare Hughes Defends Foreign Policies in
Plea for Lodge, N. Y. Times, Oct. 31, 1922, p. 1, col. 1, p. 4,
col. 1 (then-Secretary of State Charles Evans Hughes
stating that “we favor, and always have favored, an inter­
national court of justice for the determination according to
judicial standards of justiciable international disputes”);
Mr. Root Discusses International Problems, N. Y. Times,
July 9, 1916, section 6, book review p. 276 (former Secre­
tary of State and U. S. Senator Elihu Root stating that “ ‘a
court of international justice with a general obligation to
submit all justiciable questions to its jurisdiction and to
abide by its judgment is a primary requisite to any real
restraint of law’ ”); Mills, The Obligation of the United
States Toward the World Court, 114 Annals of the Ameri­
can Academy of Political and Social Science 128 (1924)
(Congressman Ogden Mills describing the efforts of then-
Secretary of State John Hay, and others, to establish a
World Court, and the support therefor).
These institutional considerations make it difficult to
reconcile the majority’s holdings with the workable Con­
stitution that the Founders envisaged. They reinforce the
importance, in practice and in principle, of asking Chief
Justice Marshall’s question: Does a treaty provision ad­
dress the “Judicial” Branch rather than the “Political
32 MEDELLIN v. TEXAS

BREYER, J., dissenting

Branches” of Government. See Foster, 2 Pet., at 314. And
they show the wisdom of the well-established precedent
that indicates that the answer to the question here is
“yes.” See Parts I and II, supra.
V
In sum, a strong line of precedent, likely reflecting the
views of the Founders, indicates that the treaty provisions
before us and the judgment of the International Court of
Justice address themselves to the Judicial Branch and
consequently are self-executing. In reaching a contrary
conclusion, the Court has failed to take proper account of
that precedent and, as a result, the Nation may well break
its word even though the President seeks to live up to that
word and Congress has done nothing to suggest the con­
trary.
For the reasons set forth, I respectfully dissent.
 Cite as: 552 U. S. ____ (2008) 33

Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting

APPENDIXES TO OPINION OF BREYER, J.
A
Examples of Supreme Court decisions considering a
treaty provision to be self-executing. Parentheticals indi­
cate the subject matter; an asterisk indicates that the
Court applied the provision to invalidate a contrary state
or territorial law or policy.
1. lympic Airways v. Husain, 540 U. S. 644, 649,
O
657 (2004) (air carrier liability)
2. l Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525
E
U. S. 155, 161–163, 176 (1999) (same)*
3. icherman v. Korean Air Lines Co., 516 U. S. 217,
Z
221, 231 (1996) (same)
4. ociété Nationale Industrielle Aérospatiale v.
S
United States Dist. Court for Southern Dist. of
Iowa, 482 U. S. 522, 524, 533 (1987) (international
discovery rules)
5. umitomo Shoji America, Inc. v. Avagliano, 457
S
U. S. 176, 181, 189–190 (1982) (employment prac­
tices)
6. rans World Airlines, Inc. v. Franklin Mint Corp.,
T
466 U. S. 243, 245, 252 (1984) (air carrier liability)
7. olovrat v. Oregon, 366 U. S. 187, 191, n. 6, 198
K
(1961) (property rights and inheritance)*
8. lark v. Allen, 331 U. S. 503, 507–508, 517–518
C
(1947) (same)*
9. acardi Corp. of America v. Domenech, 311 U. S.
B
150, 160, and n. 9, 161 (1940) (trademark)*
10. Todok v. Union State Bank of Harvard, 281 U. S.
449, 453, 455 (1930) (property rights and inheri­
tance)
11. Nielsen v. Johnson, 279 U. S. 47, 50, 58 (1929)
(taxation)*
12. Jordan v. Tashiro, 278 U. S. 123, 126–127, n. 1,
128–129 (1928) (trade and commerce)
34 MEDELLIN v. TEXAS

Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting

13. Asakura v. Seattle, 265 U. S. 332, 340, 343–344
(1924) (same)*
14. Maiorano v. Baltimore & Ohio R. Co., 213 U. S.
268, 273–274 (1909) (travel, trade, access to
courts)
15. Johnson v. Browne, 205 U. S. 309, 317–322 (1907)
(extradition)
16. Geofroy v. Riggs, 133 U. S. 258, 267–268, 273
(1890) (inheritance)*
17. Wildenhus’s Case, 120 U. S. 1, 11, 17–18 (1887)
(criminal jurisdiction)
18. United States v. Rauscher, 119 U. S. 407, 410–
411, 429–430 (1886) (extradition)
19. Hauenstein v. Lynham, 100 U. S. 483, 485–486,
490–491 (1880) (property rights and inheritance)*
20. American Ins. Co. v. 356 Bales of Cotton, 1 Pet.
511, 542 (1828) (property)
21. United States v. Percheman, 7 Pet. 51, 88–89
(1833) (land ownership)
22. United States v. Arredondo, 6 Pet. 691, 697, 749
(1832) (same)
23. Orr v. Hodgson, 4 Wheat. 453, 462–465 (1819)
(same)*
24. Chirac v. Lessee of Chirac, 2 Wheat. 259, 270–271,
274, 275 (1817) (land ownership and inheritance)*
25. Martin v. Hunter’s Lessee, 1 Wheat. 304, 356–357
(1816) (land ownership)
26. Hannay v. Eve, 3 Cranch 242, 248 (1806) (mone­
tary debts)
27. Hopkirk v. Bell, 3 Cranch 454, 457–458 (1806)
(same)*
28. Ware v. Hylton, 3 Dall. 199, 203–204, 285 (1796)
(same)*
29. Georgia v. Brailsford, 3 Dall. 1, 4 (1794) (same)
 Cite as: 552 U. S. ____ (2008)
35

Appendix B to ,opinion of BREYER, J.

BREYER J., dissenting

B

United States treaties in force containing provisions for
the submission of treaty-based disputes to the Interna­
tional Court of Justice. Parentheticals indicate subject
matters that can be the subject of ICJ adjudication that
are of the sort that this Court has found self-executing.

Economic Cooperation Agreements
1. Economic Aid Agreement Between the United
States of America and Spain, Sept. 26, 1953,
[1953] 4 U. S. T. 1903, 1920–1921, T. I. A. S. No.
2851 (property and contract)
2. Agreement for Economic Assistance Between the
Government of the United States of America and
the Government of Israel Pursuant to the General
Agreement for Technical Cooperation, May 9,
1952, [1952] 3 U. S. T. 4174, 4177, T. I. A. S. No.
2561 (same)
3. Economic Cooperation Agreement Between the
United States of America and Portugal, 62 Stat.
2861–2862 (1948) (same)
4. Economic Cooperation Agreement Between the
United States of America and the United King­
dom, 62 Stat. 2604 (1948) (same)
5. Economic Cooperation Agreement Between the
United States of America and the Republic of
Turkey, 62 Stat. 2572 (1948) (same)
6. Economic Cooperation Agreement Between the
United States of America and Sweden, 62 Stat.
2557 (1948) (same)
7. Economic Cooperation Agreement Between the
United States of America and Norway, 62 Stat.
2531 (1948) (same)
8. Economic Cooperation Agreement Between the
Governments of the United States of America and
the Kingdom of the Netherlands, 62 Stat. 2500
36 MEDELLIN v. TEXAS

Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting

(1948) (same)
9. Economic Cooperation Agreement Between the
United States of America and the Grand Duchy of
Luxembourg, 62 Stat. 2468 (1948) (same)
10. Economic Cooperation Agreement Between the
United States of America and Italy, 62 Stat. 2440
(1948) (same)
11. Economic Cooperation Agreement Between the
United States of America and Iceland, 62 Stat.
2390 (1948) (same)
12. Economic Cooperation Agreement Between the
United States of America and Greece, 62 Stat.
2344 (1948) (same)
13. Economic Cooperation Agreement Between the
United States of America and France, 62 Stat.
2232, 2233 (1948) (same)
14. Economic Cooperation Agreement Between the
United States of America and Denmark, 62 Stat.
2214 (1948) (same)
15. Economic Cooperation Agreement Between the
United States of America and the Kingdom of
Belgium, 62 Stat. 2190 (1948) (same)
16. Economic Cooperation Agreement Between the
United States of America and Austria, 62 Stat.
2144 (1948) (same)
 Cite as: 552 U. S. ____ (2008) 37

Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting

Bilateral Consular Conventions
1. Consular Convention Between the United States
of America and the Kingdom of Belgium, Sept. 2,
1969, [1974] 25 U. S. T. 41, 47–49, 56–57, 60–61,
75, T. I. A. S. No. 7775 (domestic court jurisdiction
and authority over consular officers, taxation of
consular officers, consular notification)
2. Consular Convention Between the United States
of America and the Republic of Korea, Jan. 8,
1963, [1963] 14 U. S. T. 1637, 1641, 1644–1648,
T. I. A. S. No. 5469 (same)

Friendship, Commerce, and Navigation Treaties
1. Treaty of Amity and Economic Relations Between
the United States of America and the Togolese
Republic, Feb. 8, 1966, [1967] 18 U. S. T. 1, 3–4,
10, T. I. A. S. No. 6193 (contracts and property)
2. Treaty of Friendship, Establishment and Naviga­
tion Between the United States of America and
The Kingdom of Belgium, Feb. 21, 1961, [1963] 14
U. S. T. 1284, 1290–1291, 1307, T. I. A. S. No.
5432 (same)
3. Treaty of Friendship, Establishment and Naviga­
tion between the United States of America and
the Grand Duchy of Luxembourg, Feb. 23, 1962,
[1963] 14 U. S. T. 251, 254–255, 262, T. I. A. S.
No. 5306 (consular notification; contracts and
property)
4. Treaty of Friendship, Commerce and Navigation
between the United States of America and the
Kingdom of Denmark, Oct. 1, 1951, [1961] 12
U. S. T. 908, 912–913, 935, T. I. A. S. No. 4797
(contracts and property)
5. Treaty of Friendship and Commerce Between the
United States of America and Pakistan, Nov. 12,
38 MEDELLIN v. TEXAS

Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting

1959, [1961] 12 U. S. T. 110, 113, 123, T. I. A. S.
No. 4863 (same)
6. Convention of Establishment Between the United
States of America and France, Nov. 25, 1959,
[1960] 11 U. S. T. 2398, 2401–2403, 2417,
T. I. A. S. No. 4625 (same)
7. Treaty of Friendship, Commerce and Navigation
Between the United States of America and the
Republic of Korea, Nov. 28, 1956, [1957] 8 U. S. T.
2217, 2221–2222, 2233, T. I. A. S. No. 3947 (same)
8. Treaty of Friendship, Commerce and Navigation
between the United States of America and the
Kingdom of the Netherlands, Mar. 27, 1956,
[1957] 8 U. S. T. 2043, 2047–2050, 2082–2083,
T. I. A. S. No. 3942 (freedom to travel, consular
notification, contracts and property)
9. Treaty of Amity, Economic Relations, and Consu­
lar Rights Between the United States of America
and Iran, Aug. 15, 1955, [1957] 8 U. S. T. 899,
903, 907, 913, T. I. A. S. No. 3853 (property and
freedom of commerce)
10. Treaty of Friendship, Commerce and Navigation
Between the United States of America and
the Federal Republic of Germany, Oct. 29,
1954, [1956] 7 U. S. T. 1839, 1844–1846, 1867,
T. I. A. S. No. 3593 (property and contract)
11. reaty f Friendship, Commerce and Naviga-
o
tion Between the United States of America and
Greece, Aug. 3, 1951, [1954] 5 U. S. T. 1829,
1841–1847, 1913–1915, T. I. A. S. No. 3057
(same)
12. Treaty of Friendship, Commerce and Navigation
Between the United States of America and Israel,
Aug. 23, 1951, [1954] 5 U. S. T 550, 555–556, 575,
T. I. A. S. No. 2948 (same)
13. Treaty of Amity and Economic Relations Between
 Cite as: 552 U. S. ____ (2008) 39

Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting

the United States of America and Ethiopia, Sept.
7, 1951, [1953] 4 U. S. T. 2134, 2141, 2145, 2147,
T. I. A. S. No. 2864 (property and freedom of
commerce)
14. Treaty of Friendship, Commerce and Navigation
Between the United States of America and Japan,
Apr. 2, 1953, [1953] 4 U. S. T. 2063, 2067–2069,
2080, T. I. A. S. No. 2863 (property and contract)
15. Treaty of Friendship, Commerce and Navigation
between the United States of America and Ire­
land, Jan. 21, 1950, [1950] 1 U. S. T. 785, 792–
794, 801, T. I. A. S. No. 2155 (same)
16. Treaty of Friendship, Commerce and Navigation
between the United States of America and the
Italian Republic, 63 Stat. 2262, 2284, 2294 (1948)
(property and freedom of commerce)

Multilateral Conventions
1. Patent Cooperation Treaty, June 19, 1970, [1976–
77] 28 U. S. T. 7645, 7652–7676, 7708, T. I. A. S.
No. 8733 (patents)
2. Universal Copyright Convention, July 24, 1971,
[1974] 25 U. S. T. 1341, 1345, 1366, T. I. A. S. No.
7868 (copyright)
3. Vienna Convention on Diplomatic Relations and
Optional Protocol Concerning the Compulsory
Settlement of Disputes, Apr. 18, 1961, [1972] 23
U. S. T. 3227, 3240–3243, 3375, T. I. A. S. No.
7502 (rights of diplomats in foreign nations)
4. Paris Convention for the Protection of Industrial
Property, July 14, 1967, [1970] 21 U. S. T. 1583,
1631–1639, 1665–1666, T. I. A. S. No. 6923 (pat­
ents)
5. Convention on the Privileges and Immunities of
the United Nations, Feb. 13, 1946, [1970] 21
U. S. T. 1418, 1426–1428, 1430–1432, 1438–1440,
40 MEDELLIN v. TEXAS

Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting

T. I. A. S. No. 6900 (rights of U. N. diplomats and
officials)
6. Convention on Offences and Certain Other Acts
Committed on Board Aircraft, Sept. 14, 1963,
[1969] 20 U. S. T. 2941, 2943–2947, 2952,
T. I. A. S. No. 6768 (airlines’ treatment of passen­
gers)
7. Agreement for Facilitating the International Cir­
culation of Visual and Auditory Materials of an
Educational, Scientific and Cultural Character,
July 15, 1949, [1966] 17 U. S. T. 1578, 1581,
1586, T. I. A. S. No. 6116 (customs duties on im­
portation of films and recordings)
8. Universal Copyright Convention, Sept. 6, 1952,
[1955] 6 U. S. T. 2731, 2733–2739, 2743, T. I. A. S.
No. 3324 (copyright)
9. Treaty of Peace with Japan, Sept. 8, 1951, [1952]
3 U. S. T. 3169, 3181–3183, 3188, T. I. A. S. No.
2490 (property)
10. Convention on Road Traffic, Sept. 19, 1949, [1952]
3 U. S. T. 3008, 3012–3017, 3020, T. I. A. S. No.
2487 (rights and obligations of drivers)
11. Convention on International Civil Aviation, 61
Stat. 1204 (1944) (seizure of aircraft to satisfy
patent claims)