OPINION OF THE COURT
MEDELLIN V. TEXAS
552 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NO. 06-984
JOSE ERNESTO MEDELLIN, PETITIONER
v.
TEXAS
on writ of certiorari to the court of criminal
appeals of texas
[March 25, 2008]
Chief Justice Roberts delivered
the opinion of the Court.
The International Court of
Justice (ICJ), located in the Hague, is a tribunal established
pursuant to the United Nations Charter to adjudicate disputes
between member states. In the
Case Concerning Avena and Other
Mexican Nationals (
Mex. v.
U. S.), 2004
I. C. J. 12 (Judgment of Mar. 31) (
Avena), that
tribunal considered a claim brought by Mexico against the United
States. The ICJ held that, based on violations of the Vienna
Convention, 51 named Mexican nationals were entitled to review and
reconsideration of their state-court convictions and sentences in
the United States. This was so regardless of any forfeiture of the
right to raise Vienna Convention claims because of a failure to
comply with generally applicable state rules governing challenges
to criminal convictions.
In
Sanchez-Llamas v.
Oregon,
548 U. S. 331 (2006)—issued after
Avena but involving individuals who were not named in the
Avena judgment—we held that, contrary to the ICJ’s
determination, the Vienna Convention did not preclude the
application of state default rules. After the
Avena
decision, President George W. Bush determined, through a Memorandum
to the Attorney General (Feb. 28, 2005), App. to Pet. for Cert.
187a (Memorandum or President’s Memorandum), that the United States
would “discharge its international obligations” under
Avena “by having State courts give effect to the
decision.”
Petitioner José Ernesto Medellín, who had been
convicted and sentenced in Texas state court for murder, is one of
the 51 Mexican nationals named in the
Avena decision.
Relying on the ICJ’s decision and the President’s Memorandum,
Medellín filed an application for a writ of habeas corpus in state
court. The Texas Court of Criminal Appeals dismissed Medellín’s
application as an abuse of the writ under state law, given
Medellín’s failure to raise his Vienna Convention claim in a timely
manner under state law. We granted certiorari to decide two
questions.
First, is the ICJ’s judgment in
Avena
directly enforceable as domestic law in a state court in the United
States?
Second, does the President’s Memorandum
independently require the States to provide review and
reconsideration of the claims of the 51 Mexican nationals named in
Avena without regard to state procedural default rules? We
conclude that neither
Avena nor the President’s Memorandum
constitutes directly enforceable federal law that pre-empts state
limitations on the filing of successive habeas petitions. We
therefore affirm the decision below.
I
A
In 1969, the United States, upon
the advice and consent of the Senate, ratified the Vienna
Convention on Consular Relations (Vienna Convention or Convention),
Apr. 24, 1963, [1970] 21 U. S. T. 77,
T. I. A. S. No. 6820, and the Optional Protocol
Concerning the Compulsory Settlement of Disputes to the Vienna
Convention (Optional Protocol or Protocol), Apr. 24, 1963, [1970]
21 U. S. T. 325, T. I. A. S. No. 6820. The
preamble to the Convention provides that its purpose is to
“contribute to the development of friendly relations among
nations.” 21 U. S. T., at 79;
Sanchez-Llamas, supra,
at 337. Toward that end, Article 36 of the Convention was drafted
to “facilitat[e] the exercise of consular functions.” Art. 36(1),
21 U. S. T., at 100. It provides that if a person detained by
a foreign country “so requests, the competent authorities of the
receiving State shall, without delay, inform the consular post of
the sending State” of such detention, and “inform the [detainee] of
his righ[t]” to request assistance from the consul of his own
state. Art. 36(1)(b),
id., at 101.
The Optional Protocol provides a
venue for the resolution of disputes arising out of the
interpretation or application of the Vienna Convention.
Art. I, 21 U. S. T., at 326. Under the Protocol, such
disputes “shall lie within the compulsory jurisdiction of the
International Court of Justice” and “may accordingly be brought
before the [ICJ] … by any party to the dispute being a Party to the
present Protocol.”
Ibid.
The ICJ is “the principal judicial organ of
the United Nations.” United Nations Charter, Art. 92, 59 Stat.
1051, T. S. No. 993 (1945). It was established in 1945
pursuant to the United Nations Charter. The ICJ Statute—annexed to
the U. N. Charter—provides the organizational framework and
governing procedures for cases brought before the ICJ. Statute of
the International Court of Justice (ICJ Statute), 59 Stat. 1055,
T. S. No. 993 (1945).
Under Article 94(1) of the U. N. Charter,
“[e]ach Member of the United Nations undertakes to comply with the
decision of the [ICJ] in any case to which it is a party.” 59 Stat.
1051. The ICJ’s jurisdiction in any particular case, however, is
dependent upon the consent of the parties. See Art. 36, 59 Stat.
1060. The ICJ Statute delineates two ways in which a nation may
consent to ICJ jurisdiction: It may consent generally to
jurisdiction on any question arising under a treaty or general
international law, Art. 36(2),
ibid., or it may consent
specifically to jurisdiction over a particular category of cases or
disputes pursuant to a separate treaty, Art. 36(1),
ibid.
The United States originally consented to the general jurisdiction
of the ICJ when it filed a declaration recognizing compulsory
jurisdiction under Art. 36(2) in 1946. The United States withdrew
from general ICJ jurisdiction in 1985. See U. S. Dept. of State
Letter and Statement Concerning Termination of Acceptance of ICJ
Compulsory Jurisdiction (Oct. 7, 1985), reprinted in 24
I. L. M. 1742 (1985). By ratifying the Optional Protocol
to the Vienna Convention, the United States consented to the
specific jurisdiction of the ICJ with respect to claims arising out
of the Vienna Convention. On March 7, 2005, subsequent to the ICJ’s
judgment in
Avena, the United States gave notice of
withdrawal from the Optional Protocol to the Vienna Convention.
Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan,
Secretary-General of the United Nations.
B
Petitioner José Ernesto Medellín,
a Mexican national, has lived in the United States since preschool.
A member of the “Black and Whites” gang, Medellín was convicted of
capital murder and sentenced to death in Texas for the gang rape
and brutal murders of two Houston teenagers.
On June 24, 1993, 14-year-old
Jennifer Ertman and 16-year-old Elizabeth Pena were walking home
when they encountered Medellín and several fellow gang members.
Medellín attempted to engage Elizabeth in conversation. When she
tried to run, petitioner threw her to the ground. Jennifer was
grabbed by other gang members when she, in response to her friend’s
cries, ran back to help. The gang members raped both girls for over
an hour. Then, to prevent their victims from identifying them,
Medellín and his fellow gang members murdered the girls and
discarded their bodies in a wooded area. Medellín was personally
responsible for strangling at least one of the girls with her own
shoelace.
Medellín was arrested at approximately 4 a.m.
on June 29, 1993. A few hours later, between 5:54 and 7:23 a.m.,
Medellín was given
Miranda warnings; he then signed a
written waiver and gave a detailed written confession. App. to
Brief for Respondent 32–36. Local law enforcement officers did not,
however, inform Medellín of his Vienna Convention right to notify
the Mexican consulate of his detention. Brief for Petitioner 6–7.
Medellín was convicted of capital murder and sentenced to death;
his conviction and sentence were affirmed on appeal.
Medellín v.
State, No. 71,997 (Tex. Crim. App.,
May 16, 1997), App. to Brief for Respondent 2–31.
Medellín first raised his Vienna Convention
claim in his first application for state postconviction relief. The
state trial court held that the claim was procedurally defaulted
because Medellín had failed to raise it at trial or on direct
review. The trial court also rejected the Vienna Convention claim
on the merits, finding that Medellín had “fail[ed] to show that any
non-notification of the Mexican authorities impacted on the
validity of his conviction or punishment.”
Id., at
62.[
Footnote 1] The Texas Court
of Criminal Appeals affirmed.
Id., at 64–65.
Medellín then filed a habeas petition in
Federal District Court. The District Court denied relief, holding
that Medellín’s Vienna Convention claim was procedurally defaulted
and that Medellín had failed to show prejudice arising from the
Vienna Convention violation. See
Medellín v.
Cockrell, Civ. Action No. H–01–4078 (SD Tex., June 26,
2003), App. to Brief for Respondent 86–92.
While Medellín’s application for a certificate
of appealability was pending in the Fifth Circuit, the ICJ issued
its decision in
Avena. The ICJ held that the United States
had violated Article 36(1)(b) of the Vienna Convention by failing
to inform the 51 named Mexican nationals, including Medellín, of
their Vienna Convention rights. 2004 I. C. J., at 53–55.
In the ICJ’s determination, the United States was obligated “to
provide, by means of its own choosing, review and reconsideration
of the convictions and sentences of the [affected] Mexican
nationals.”
Id., at 72. The ICJ indicated that such review
was required without regard to state procedural default rules.
Id., at 56–57.
The Fifth Circuit denied a certificate of
appealability.
Medellín v.
Dretke, 371 F. 3d
270, 281 (2004). The court concluded that the Vienna Convention did
not confer individually enforceable rights.
Id., at 280.
The court further ruled that it was in any event bound by this
Court’s decision in
Breard v.
Greene,
523 U. S. 371, 375 (1998) (
per
curiam), which held that Vienna Convention claims are subject
to procedural default rules, rather than by the ICJ’s contrary
decision in
Avena. 371 F. 3d, at 280.
This Court granted certiorari.
Medellín v.
Dretke,
544 U. S. 660, 661
(2005) (
per curiam) (
Medellín I). Before we heard
oral argument, however, President George W. Bush issued his
Memorandum to the United States Attorney General, providing:
I have determined, pursuant to the authority vested
in me as President by the Constitution and the laws of the United
States of America, that the United States will discharge its
international obligations under the decision of the International
Court of Justice in [
Avena], by having State courts give
effect to the decision in accordance with general principles of
comity in cases filed by the 51 Mexican nationals addressed in that
decision. App. to Pet. for Cert. 187a.
Medellín, relying on the
President’s Memorandum and the ICJ’s decision in
Avena,
filed a second application for habeas relief in state court.
Ex
parte Medellín, 223 S. W. 3d 315, 322–323 (Tex. Crim.
App. 2006). Because the state-court proceedings might have provided
Medellín with the review and reconsideration he requested, and
because his claim for federal relief might otherwise have been
barred, we dismissed his petition for certiorari as improvidently
granted.
Medellín I,
supra, at 664.
The Texas Court of Criminal Appeals
subsequently dismissed Medellín’s second state habeas application
as an abuse of the writ. 223 S. W. 3d, at 352. In the court’s
view, neither the
Avena decision nor the President’s
Memorandum was “binding federal law” that could displace the
State’s limitations on the filing of successive habeas
applications.
Ibid. We again granted certiorari. 550 U. S.
___ (2007).
II
Medellín first contends that the
ICJ’s judgment in
Avena constitutes a “binding” obligation
on the state and federal courts of the United States. He argues
that “by virtue of the Supremacy Clause, the treaties requiring
compliance with the
Avena judgment are
already
the ‘Law of the Land’ by which all state and federal courts in this
country are ‘bound.’ ” Reply Brief for Petitioner 1.
Accordingly, Medellín argues,
Avena is a binding federal
rule of decision that pre-empts contrary state limitations on
successive habeas petitions.
No one disputes that the
Avena decision—a decision that flows from the treaties
through which the United States submitted to ICJ jurisdiction with
respect to Vienna Convention disputes—constitutes an
international law obligation on the part of the United
States. But not all international law obligations automatically
constitute binding federal law enforceable in United States courts.
The question we confront here is whether the
Avena
judgment has automatic
domestic legal effect such that the
judgment of its own force applies in state and federal courts.
This Court has long recognized the distinction
between treaties that automatically have effect as domestic law,
and those that—while they constitute international law
commitments—do not by themselves function as binding federal law.
The distinction was well explained by Chief Justice Marshall’s
opinion in
Foster v.
Neilson, 2 Pet. 253, 315
(1829), overruled on other grounds,
United States v.
Percheman, 7 Pet. 51 (1833), which held that a treaty is
“equivalent to an act of the legislature,” and hence
self-executing, when it “operates of itself without the aid of any
legislative provision.”
Foster, supra, at 314. When, in
contrast, “[treaty] stipulations are not self-executing they can
only be enforced pursuant to legislation to carry them into
effect.”
Whitney v.
Robertson,
124 U. S. 190, 194
(1888). In sum, while treaties “may comprise international
commitments . . . they are not domestic law unless Congress has
either enacted implementing statutes or the treaty itself conveys
an intention that it be ‘self-executing’ and is ratified on these
terms.”
Igartúa-De La Rosa v.
United States, 417
F. 3d 145, 150 (CA1 2005) (en banc) (Boudin,
C. J.).[
Footnote 2]
A treaty is, of course, “primarily a compact
between independent nations.”
Head Money Cases,
112 U. S. 580, 598
(1884). It ordinarily “depends for the enforcement of its
provisions on the interest and the honor of the governments which
are parties to it.”
Ibid.; see also The Federalist No. 33,
p. 207 (J. Cooke ed. 1961) (A. Hamilton) (comparing laws that
individuals are “bound to observe” as “the supreme law of the land”
with “a mere treaty, dependent on the good faith of the parties”).
“If these [interests] fail, its infraction becomes the subject of
international negotiations and reclamations … . It is obvious
that with all this the judicial courts have nothing to do and can
give no redress.”
Head Money Cases, supra, at 598. Only
“[i]f the treaty contains stipulations which are self-executing,
that is, require no legislation to make them operative, [will] they
have the force and effect of a legislative enactment.”
Whitney,
supra, at 194.[
Footnote 3]
Medellín and his
amici nonetheless
contend that the Optional Protocol, United Nations Charter, and ICJ
Statute supply the “relevant obligation” to give the
Avena
judgment binding effect in the domestic courts of the United
States. Reply Brief for Petitioner 5–6.[
Footnote 4] Because none of these treaty sources creates
binding federal law in the absence of implementing legislation, and
because it is uncontested that no such legislation exists, we
conclude that the
Avena judgment is not automatically
binding domestic law.
A
The interpretation of a treaty,
like the interpretation of a statute, begins with its text.
Air
France v.
Saks,
470 U. S. 392, 396–397
(1985). Because a treaty ratified by the United States is “an
agreement among sovereign powers,” we have also considered as “aids
to its interpretation” the negotiation and drafting history of the
treaty as well as “the postratification understanding” of signatory
nations.
Zicherman v.
Korean Air Lines Co.,
516 U. S. 217,
226 (1996); see also
United States v.
Stuart,
489 U. S. 353,
365–366 (1989);
Choctaw Nation v.
United States,
318 U. S. 423,
431–432 (1943).
As a signatory to the Optional
Protocol, the United States agreed to submit disputes arising out
of the Vienna Convention to the ICJ. The Protocol provides:
“Disputes arising out of the interpretation or application of the
[Vienna] Convention shall lie within the compulsory jurisdiction of
the International Court of Justice.” Art. I, 21 U. S. T.,
at 326. Of course, submitting to jurisdiction and agreeing to be
bound are two different things. A party could, for example, agree
to compulsory nonbinding arbitration. Such an agreement would
require the party to appear before the arbitral tribunal without
obligating the party to treat the tribunal’s decision as binding.
See,
e.g., North American Free Trade Agreement, U.
S.-Can.-Mex., Art. 2018(1), Dec. 17, 1992, 32 I. L. M.
605, 697 (1993) (“On receipt of the final report of [the arbitral
panel requested by a Party to the agreement], the disputing Parties
shall agree on the resolution of the dispute, which normally shall
conform with the determinations and recommendations of the
panel”).
The most natural reading of the Optional
Protocol is as a bare grant of jurisdiction. It provides only that
“[d]isputes arising out of the interpretation or application of the
[Vienna] Convention shall lie within the compulsory jurisdiction of
the International Court of Justice” and “may accordingly be brought
before the [ICJ] . . . by any party to the dispute being a Party to
the present Protocol.” Art. I, 21 U. S. T., at 326. The
Protocol says nothing about the effect of an ICJ decision and does
not itself commit signatories to comply with an ICJ judgment. The
Protocol is similarly silent as to any enforcement mechanism.
The obligation on the part of signatory
nations to comply with ICJ judgments derives not from the Optional
Protocol, but rather from Article 94 of the United Nations
Charter—the provision that specifically addresses the effect of ICJ
decisions. Article 94(1) provides that “[e]ach Member of the United
Nations
undertakes to comply with the decision of the
[ICJ] in any case to which it is a party.” 59 Stat. 1051 (emphasis
added). The Executive Branch contends that the phrase “undertakes
to comply” is not “an acknowledgement that an ICJ decision will
have immediate legal effect in the courts of U. N. members,”
but rather “a
commitment on the part of U. N. Members
to take
future action through their political branches to
comply with an ICJ decision.” Brief for United States as
Amicus
Curiae in
Medellín I, O. T. 2004, No.
04–5928, p. 34.
We agree with this construction of Article 94.
The Article is not a directive to domestic courts. It does not
provide that the United States “shall” or “must” comply with an ICJ
decision, nor indicate that the Senate that ratified the U. N.
Charter intended to vest ICJ decisions with immediate legal effect
in domestic courts. Instead, “[t]he words of Article 94 . . . call
upon governments to take certain action.”
Committee of United
States Citizens Living in Nicaragua v.
Reagan, 859
F. 2d 929, 938 (CADC 1988) (quoting
Diggs v.
Richardson, 555 F. 2d 848, 851 (CADC 1976); internal
quotation marks omitted). See also
Foster, 2 Pet., at 314,
315 (holding a treaty non-self-executing because its
text—“ ‘all . . . grants of land . . . shall be ratified and
confirmed’ ”—did not “act directly on the grants” but rather
“pledge[d] the faith of the United States to pass acts which shall
ratify and confirm them”). In other words, the U. N. Charter
reads like “a compact between independent nations” that “depends
for the enforcement of its provisions on the interest and the honor
of the governments which are parties to it.”
Head Money
Cases, 112 U. S., at 598.[
Footnote 5]
The remainder of Article 94 confirms that the
U. N. Charter does not contemplate the automatic
enforceability of ICJ decisions in domestic courts.[
Footnote 6] Article 94(2)—the enforcement
provision—provides the sole remedy for noncompliance: referral to
the United Nations Security Council by an aggrieved state. 59 Stat.
1051.
The U. N. Charter’s provision of an
express diplomatic—that is, nonjudicial—remedy is itself evidence
that ICJ judgments were not meant to be enforceable in domestic
courts. See
Sanchez-
Llamas, 548 U. S., at 347.
And even this “quintessentially
international remed[y],”
id., at 355, is not absolute. First, the Security Council
must “dee[m] necessary” the issuance of a recommendation or measure
to effectuate the judgment. Art. 94(2), 59 Stat. 1051. Second, as
the President and Senate were undoubtedly aware in subscribing to
the U. N. Charter and Optional Protocol, the United States
retained the unqualified right to exercise its veto of any Security
Council resolution.
This was the understanding of the Executive
Branch when the President agreed to the U. N. Charter and the
declaration accepting general compulsory ICJ jurisdiction. See,
e.g., The Charter of the United Nations for the
Maintenance of International Peace and Security: Hearings before
the Senate Committee on Foreign Relations, 79th Cong., 1st Sess.,
124–125 (1945) (“[I]f a state fails to perform its obligations
under a judgment of the [ICJ], the other party may have recourse to
the Security Council”);
id., at 286 (statement of Leo
Paslovsky, Special Assistant to the Secretary of State for
International Organizations and Security Affairs) (“[W]hen the
Court has rendered a judgment and one of the parties refuses to
accept it, then the dispute becomes political rather than legal. It
is as a political dispute that the matter is referred to the
Security Council”); A Resolution Proposing Acceptance of Compulsory
Jurisdiction of International Court of Justice: Hearings on S. Res.
196 before the Subcommittee of the Senate Committee on Foreign
Relations, 79th Cong., 2d Sess., 142 (1946) (statement of Charles
Fahy, State Dept. Legal Adviser) (while parties that accept ICJ
jurisdiction have “a moral obligation” to comply with ICJ
decisions, Article 94(2) provides the exclusive means of
enforcement).
If ICJ judgments were instead regarded as
automatically enforceable domestic law, they would be immediately
and directly binding on state and federal courts pursuant to the
Supremacy Clause. Mexico or the ICJ would have no need to proceed
to the Security Council to enforce the judgment in this case.
Noncompliance with an ICJ judgment through exercise of the Security
Council veto—always regarded as an option by the Executive and
ratifying Senate during and after consideration of the U. N.
Charter, Optional Protocol, and ICJ Statute—would no longer be a
viable alternative. There would be nothing to veto. In light of the
U. N. Charter’s remedial scheme, there is no reason to believe
that the President and Senate signed up for such a result.
In sum, Medellín’s view that ICJ decisions are
automatically enforceable as domestic law is fatally undermined by
the enforcement structure established by Article 94. His
construction would eliminate the option of noncompliance
contemplated by Article 94(2), undermining the ability of the
political branches to determine whether and how to comply with an
ICJ judgment. Those sensitive foreign policy decisions would
instead be transferred to state and federal courts charged with
applying an ICJ judgment directly as domestic law. And those courts
would not be empowered to decide whether to comply with the
judgment—again, always regarded as an option by the political
branches—any more than courts may consider whether to comply with
any other species of domestic law. This result would be
particularly anomalous in light of the principle that “[t]he
conduct of the foreign relations of our Government is committed by
the Constitution to the Executive and Legislative—‘the
political’—Departments.”
Oetjen v.
Central Leather
Co.,
246 U. S.
297, 302 (1918).
The ICJ Statute, incorporated into the
U. N. Charter, provides further evidence that the ICJ’s
judgment in
Avena does not automatically constitute
federal law judicially enforceable in United States courts. Art.
59, 59 Stat. 1062. To begin with, the ICJ’s “principal purpose” is
said to be to “arbitrate particular disputes between national
governments.”
Sanchez-Llamas, supra, at 355 (citing 59
Stat. 1055). Accordingly, the ICJ can hear disputes only between
nations, not individuals. Art. 34(1), 59 Stat. 1059 (“Only states
[
i.e., countries] may be parties in cases before the
[ICJ]”). More important, Article 59 of the statute provides that
“[t]he decision of the [ICJ] has
no binding force except
between the parties and in respect of that particular case.”
Id., at 1062 (emphasis added).[
Footnote 7] The dissent does not explain how Medellín, an
individual, can be a party to the ICJ proceeding.
Medellín argues that because the
Avena case involves him, it is clear that he—and the 50
other Mexican nationals named in the
Avena decision—should
be regarded as parties to the
Avena judgment. Brief for
Petitioner 21–22. But cases before the ICJ are often precipitated
by disputes involving particular persons or entities, disputes that
a nation elects to take up as its own. See,
e.g.,
Case
Concerning the Barcelona Traction, Light & Power Co.
(
Belg. v.
Spain), 1970 I. C. J. 3
(Judgment of Feb. 5) (claim brought by Belgium on behalf of Belgian
nationals and shareholders);
Case Concerning the Protection of
French Nationals and Protected Persons in Egypt (
Fr.
v.
Egypt), 1950 I. C. J. 59 (Order of Mar. 29)
(claim brought by France on behalf of French nationals and
protected persons in Egypt);
Anglo-Iranian Oil Co. Case
(
U. K. v.
Iran), 1952 I. C. J. 93,
112 (Judgment of July 22) (claim brought by the United Kingdom on
behalf of the Anglo-Iranian Oil Company). That has never been
understood to alter the express and established rules that only
nation-states may be parties before the ICJ, Art. 34, 59 Stat.
1059, and—contrary to the position of the dissent,
post,
at 23—that ICJ judgments are binding only between those parties,
Art. 59,
id., at 1062.[
Footnote 8]
It is, moreover, well settled that the United
States’ interpretation of a treaty “is entitled to great weight.”
Sumitomo Shoji America, Inc. v.
Avagliano,
457 U. S. 176,
184–185 (1982); see also
El Al Israel Airlines, Ltd. v.
Tsui Yuan Tseng,
525 U. S. 155, 168
(1999). The Executive Branch has unfailingly adhered to its view
that the relevant treaties do not create domestically enforceable
federal law. See Brief for United States as
Amicus Curiae
4, 27–29.[
Footnote 9]
The pertinent international agreements,
therefore, do not provide for implementation of ICJ judgments
through direct enforcement in domestic courts, and “where a treaty
does not provide a particular remedy, either expressly or
implicitly, it is not for the federal courts to impose one on the
States through lawmaking of their own.”
Sanchez-
Llamas, 548 U. S., at 347.
B
The dissent faults our analysis
because it “looks for the wrong thing (explicit textual expression
about self-execution) using the wrong standard (clarity) in the
wrong place (the treaty language).”
Post, at 26. Given our
obligation to interpret treaty provisions to determine whether they
are self-executing, we have to confess that we do think it rather
important to look to the treaty language to see what it has to say
about the issue. That is after all what the Senate looks to in
deciding whether to approve the treaty.
The interpretive approach
employed by the Court today—resorting to the text—is hardly novel.
In two early cases involving an 1819 land-grant treaty between
Spain and the United States, Chief Justice Marshall found the
language of the treaty dispositive. In
Foster, after
distinguishing between self-executing treaties (those “equivalent
to an act of the legislature”) and non-self-executing treaties
(those “the legislature must execute”), Chief Justice Marshall held
that the 1819 treaty was non-self-executing. 2 Pet., at 314. Four
years later, the Supreme Court considered another claim under the
same treaty, but concluded that the treaty was self-executing. See
Percheman, 7 Pet., at 87. The reason was not because the
treaty was sometimes self-executing and sometimes not, but because
“the language of” the Spanish translation (brought to the Court’s
attention for the first time) indicated the parties’ intent to
ratify and confirm the land-grant “by force of the instrument
itself.”
Id., at 89.
As against this time-honored textual approach,
the dissent proposes a multifactor, judgment-by-judgment analysis
that would “jettiso[n] relative predictability for the open-ended
rough-and-tumble of factors.”
Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co.,
513 U. S. 527, 547
(1995). The dissent’s novel approach to deciding which (or, more
accurately, when) treaties give rise to directly enforceable
federal law is arrestingly indeterminate. Treaty language is barely
probative.
Post, at 12–13 (“[T]he absence or presence of
language in a treaty about a provision’s self-execution proves
nothing at all”). Determining whether treaties themselves create
federal law is sometimes committed to the political branches and
sometimes to the judiciary.
Post, at 13. Of those
committed to the judiciary, the courts pick and choose which shall
be binding United States law—trumping not only state but other
federal law as well—and which shall not.
Post, at 13–27.
They do this on the basis of a multifactor, “context-specific”
inquiry.
Post, at 13. Even then, the same treaty sometimes
gives rise to United States law and sometimes does not, again
depending on an ad hoc judicial assessment.
Post, at
13–27.
Our Framers established a careful set of
procedures that must be followed before federal law can be created
under the Constitution—vesting that decision in the political
branches, subject to checks and balances. U. S. Const.,
Art. I, §7. They also recognized that treaties could create
federal law, but again through the political branches, with the
President making the treaty and the Senate approving it.
Art. II, §2. The dissent’s understanding of the treaty route,
depending on an ad hoc judgment of the judiciary without looking to
the treaty language—the very language negotiated by the President
and approved by the Senate—cannot readily be ascribed to those same
Framers.
The dissent’s approach risks the United
States’ involvement in international agreements. It is hard to
believe that the United States would enter into treaties that are
sometimes enforceable and sometimes not. Such a treaty would be the
equivalent of writing a blank check to the judiciary. Senators
could never be quite sure what the treaties on which they were
voting meant. Only a judge could say for sure and only at some
future date. This uncertainty could hobble the United States’
efforts to negotiate and sign international agreements.
In this case, the dissent—for a grab bag of no
less than seven reasons—would tell us that this
particular
ICJ judgment is federal law.
Post, at 13–27. That is no
sort of guidance. Nor is it any answer to say
that the federal courts will diligently police international
agreements and enforce the decisions of international tribunals
only when they
should be enforced.
Ibid. The
point of a non-self-executing treaty is that it “addresses itself
to the political,
not the judicial department; and the
legislature must execute the contract before it can become a rule
for the Court.”
Foster,
supra, at 314 (emphasis
added);
Whitney, 124 U. S., at 195. See also
Foster,
supra, at 307 (“The judiciary is not that
department of the government, to which the assertion of its
interests against foreign powers is confided”). The dissent’s
contrary approach would assign to the courts—not the political
branches—the primary role in deciding when and how international
agreements will be enforced. To read a treaty so that it sometimes
has the effect of domestic law and sometimes does not is tantamount
to vesting with the judiciary the power not only to interpret but
also to create the law.
C
Our conclusion that
Avena does not by itself constitute binding federal law is
confirmed by the “postratification understanding” of signatory
nations. See
Zicherman, 516 U. S., at 226. There are
currently 47 nations that are parties to the Optional Protocol and
171 nations that are parties to the Vienna Convention. Yet neither
Medellín nor his
amici have identified a single nation
that treats ICJ judgments as binding in domestic courts.[
Footnote 10] In determining that the
Vienna Convention did not require certain relief in United States
courts in
Sanchez-Llamas, we found it pertinent that the
requested relief would not be available under the treaty in any
other signatory country. See 548 U. S., at 343–344, and n. 3.
So too here the lack of any basis for supposing that any other
country would treat ICJ judgments as directly enforceable as a
matter of their domestic law strongly suggests that the treaty
should not be so viewed in our courts.
Our conclusion is further
supported by general principles of interpretation. To begin with,
we reiterated in
Sanchez-
Llamas what we held in
Breard, that “ ‘absent a clear and express statement
to the contrary, the procedural rules of the forum State govern the
implementation of the treaty in that State.’ ” 548 U. S., at
351 (quoting
Breard, 523 U. S., at 375). Given that ICJ
judgments may interfere with state procedural rules, one would
expect the ratifying parties to the relevant treaties to have
clearly stated their intent to give those judgments domestic
effect, if they had so intended. Here there is no statement in the
Optional Protocol, the U. N. Charter, or the ICJ Statute that
supports the notion that ICJ judgments displace state procedural
rules.
Moreover, the consequences of Medellín’s
argument give pause. An ICJ judgment, the argument goes, is not
only binding domestic law but is also unassailable. As a result,
neither Texas nor this Court may look behind a judgment and quarrel
with its reasoning or result. (We already know, from
Sanchez-Llamas, that this Court disagrees with both the
reasoning and result in
Avena.) Medellín’s interpretation
would allow ICJ judgments to override otherwise binding state law;
there is nothing in his logic that would exempt contrary federal
law from the same fate. See,
e.g.,
Cook v.
United States,
288 U. S. 102, 119 (1933)
(later-in-time self-executing treaty supersedes a federal statue if
there is a conflict). And there is nothing to prevent the ICJ from
ordering state courts to annul criminal convictions and sentences,
for any reason deemed sufficient by the ICJ. Indeed, that is
precisely the relief Mexico requested.
Avena, 2004
I. C. J., at 58–59.
Even the dissent flinches at reading the
relevant treaties to give rise to self-executing ICJ judgments in
all cases. It admits that “Congress is unlikely to authorize
automatic judicial enforceability of
all ICJ judgments,
for that could include some politically sensitive judgments and
others better suited for enforcement by other branches.”
Post, at 24. Our point precisely. But the lesson to draw
from that insight is hardly that the judiciary should decide which
judgments are politically sensitive and which are not.
In short, and as we observed in
Sanchez-Llamas, “[n]othing in the structure or purpose of
the ICJ suggests that its interpretations were intended to be
conclusive on our courts.” 548 U. S., at 354. Given that holding,
it is difficult to see how that same structure and purpose can
establish, as Medellín argues, that
judgments of the ICJ
nonetheless were intended to be conclusive on our courts. A
judgment is binding only if there is a rule of law that makes it
so. And the question whether ICJ judgments can bind domestic courts
depends upon the same analysis undertaken in
Sanchez-Llamas and set forth above.
Our prior decisions identified by the dissent
as holding a number of treaties to be self-executing, see
post, at 8–9, Appendix A, stand only for the unremarkable
proposition that some international agreements are self-executing
and others are not. It is well settled that the
“[i]nterpretation of [a treaty] . . . must, of course, begin with
the language of the Treaty itself.”
Sumitomo Shoji
America, Inc., 457 U. S., at 180. As a result, we have held
treaties to be self-executing when the textual provisions indicate
that the President and Senate intended for the agreement to have
domestic effect.
Medellín and the dissent cite
Comegys
v.
Vasse, 1 Pet. 193 (1828), for the proposition that the
judgments of international tribunals are automatically binding on
domestic courts. See
post, at 9; Reply Brief for
Petitioner 2; Brief for Petitioner 19–20. That case, of course,
involved a different treaty than the ones at issue here; it stands
only for the modest principle that the terms of a treaty control
the outcome of a case.[
Footnote
11] We do not suggest that treaties can never afford binding
domestic effect to international tribunal judgments—only that the
U. N. Charter, the Optional Protocol, and the ICJ Statute do
not do so. And whether the treaties underlying a judgment are
self-executing so that the judgment is directly enforceable as
domestic law in our courts is, of course, a matter for this Court
to decide. See
Sanchez-Llamas,
supra, at
353–354.
D
Our holding does not call into
question the ordinary enforcement of foreign judgments or
international arbitral agreements. Indeed, we agree with Medellín
that, as a general matter, “an agreement to abide by the result” of
an international adjudication—or what he really means, an agreement
to give the result of such adjudication domestic legal effect—can
be a treaty obligation like any other, so long as the agreement is
consistent with the Constitution. See Brief for Petitioner 20. The
point is that the particular treaty obligations on which Medellín
relies do not of their own force create domestic law.
The dissent worries that our
decision casts doubt on some 70-odd treaties under which the United
States has agreed to submit disputes to the ICJ according to
“roughly similar” provisions. See
post, at 4, 16–17.
Again, under our established precedent, some treaties are
self-executing and some are not, depending on the treaty. That the
judgment of an international tribunal might not automatically
become domestic law hardly means the underlying treaty is
“useless.” See
post, at 17; cf.
post, at 11
(describing the British system in which treaties “virtually always
requir[e] parliamentary legislation”). Such judgments would still
constitute international obligations, the proper subject of
political and diplomatic negotiations. See
Head Money
Cases, 112 U. S., at 598. And Congress could elect to give
them wholesale effect (rather than the judgment-by-judgment
approach hypothesized by the dissent,
post, at 24) through
implementing legislation, as it regularly has. See,
e.g.,
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L.
105–277, div. G, §2242, 112 Stat. 2681–822, note following 8 U. S.
C. §1231 (directing the “appropriate agencies” to “prescribe
regulations to implement the obligations of the United States under
Article 3” of the Convention Against Torture and Other Forms of
Cruel, Inhuman or Degrading Treatment or Punishment); see also
infra, at 25–26 (listing examples of legislation
implementing international obligations).
Further, that an ICJ judgment may not be
automatically enforceable in domestic courts does not mean the
particular underlying treaty is not. Indeed, we have held that a
number of the “Friendship, Commerce, and Navigation” Treaties cited
by the dissent, see
post, Appendix B, are
self-executing—based on “the language of the[se] Treat[ies].” See
Sumitomo Shoji America, Inc., supra, at 180, 189–190. In
Kolovrat v.
Oregon,
366 U. S. 187, 191, 196
(1961), for example, the Court found that Yugoslavian claimants
denied inheritance under Oregon law were entitled to inherit
personal property pursuant to an 1881 Treaty of Friendship,
Navigation, and Commerce between the United States and Serbia. See
also
Clark v.
Allen,
331 U. S. 503, 507–511,
517–518 (1947) (finding that the right to inherit real property
granted German aliens under the Treaty of Friendship, Commerce, and
Consular Rights with Germany prevailed over California law).
Contrary to the dissent’s suggestion, see
post, at 11,
neither our approach nor our cases require that a treaty provide
for self-execution in so many talismanic words; that is a
caricature of the Court’s opinion. Our cases simply require courts
to decide whether a treaty’s terms reflect a determination by the
President who negotiated it and the Senate that confirmed it that
the treaty has domestic effect.
In addition, Congress is up to the task of
implementing non-self-executing treaties, even those involving
complex commercial disputes. Cf.
post, at 24
(Breyer, J., dissenting). The judgments of a number of
international tribunals enjoy a different status because of
implementing legislation enacted by Congress. See,
e.g.,
22 U. S. C. §1650a(a) (“An award of an arbitral tribunal
rendered pursuant to chapter IV of the [Convention on the
Settlement of Investment Disputes] shall create a right arising
under a treaty of the United States. The pecuniary obligations
imposed by such an award shall be enforced and shall be given the
same full faith and credit as if the award were a final judgment of
a court of general jurisdiction of one of the several States”); 9
U. S.C. §§201–208 (“The [U. N.] Convention on the Recognition
and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall
be enforced in United States courts in accordance with this
chapter,” §201). Such language demonstrates that Congress knows how
to accord domestic effect to international obligations when it
desires such a result.[
Footnote
12]
Further, Medellín frames his argument as
though giving the
Avena judgment binding effect in
domestic courts simply conforms to the proposition that domestic
courts generally give effect to foreign judgments. But Medellín
does not ask us to enforce a foreign-court judgment settling a
typical commercial or property dispute. See,
e.g.,
Hilton v.
Guyot,
159 U. S. 113 (1895);
United States v.
Arredondo, 6 Pet. 691 (1832);
see also Uniform Foreign Money-Judgments Recognition Act §1(2), 13
U. L. A., pt. 2, p. 44 (2002) (“ ‘[F]oreign judgment’ means
any judgment of a foreign state granting or denying recovery of a
sum of money”). Rather, Medellín argues that the
Avena
judgment has the effect of enjoining the operation of state law.
What is more, on Medellín’s view, the judgment would force the
State to take action to “review and reconside[r]” his case. The
general rule, however, is that judgments of foreign courts awarding
injunctive relief, even as to private parties, let alone sovereign
States, “are not generally entitled to enforcement.” See 2
Restatement §481, Comment
b, at 595.
In sum, while the ICJ’s judgment in
Avena creates an international law obligation on the part
of the United States, it does not of its own force constitute
binding federal law that pre-empts state restrictions on the filing
of successive habeas petitions. As we noted in
Sanchez-Llamas, a contrary conclusion would be
extraordinary, given that basic rights guaranteed by our own
Constitution do not have the effect of displacing state procedural
rules. See 548 U. S., at 360. Nothing in the text, background,
negotiating and drafting history, or practice among signatory
nations suggests that the President or Senate intended the
improbable result of giving the judgments of an international
tribunal a higher status than that enjoyed by “many of our most
fundamental constitutional protections.”
Ibid.
III
Medellín next argues that the
ICJ’s judgment in Avena is binding on state courts by virtue
of the President’s February 28, 2005 Memorandum. The United States
contends that while the
Avena judgment does not of its own
force require domestic courts to set aside ordinary rules of
procedural default, that judgment became the law of the land with
precisely that effect pursuant to the President’s Memorandum and
his power “to establish binding rules of decision that preempt
contrary state law.” Brief for United States as
Amicus
Curiae 5. Accordingly, we must decide whether the President’s
declaration alters our conclusion that the
Avena judgment
is not a rule of domestic law binding in state and federal
courts.[
Footnote 13]
A
The United States maintains that
the President’s constitutional role “uniquely qualifies” him to
resolve the sensitive foreign policy decisions that bear on
compliance with an ICJ decision and “to do so expeditiously.” Brief
for United States as
Amicus Curiae 11, 12. We do not
question these propositions. See,
e.g.,
First Nat.
City Bank v.
Banco Nacional de Cuba,
406 U. S. 759, 767
(1972) (plurality opinion) (The President has “the lead role . . .
in foreign policy”);
American Ins. Assn. v.
Garamendi,
539 U. S. 396, 414
(2003) (Article II of the Constitution places with the President
the “ ‘vast share of responsibility for the conduct of our
foreign relations’ ” (quoting
Youngstown Sheet & Tube
Co. v.
Sawyer,
343 U. S. 579, 610–611
(1952) (Frankfurter, J., concurring)). In this case, the President
seeks to vindicate United States interests in ensuring the
reciprocal observance of the Vienna Convention, protecting
relations with foreign governments, and demonstrating commitment to
the role of international law. These interests are plainly
compelling.
Such considerations, however, do
not allow us to set aside first principles. The President’s
authority to act, as with the exercise of any governmental power,
“must stem either from an act of Congress or from the Constitution
itself.”
Youngstown, supra, at 585;
Dames &
Moore v.
Regan,
453 U. S. 654, 668
(1981).
Justice Jackson’s familiar tripartite scheme
provides the accepted framework for evaluating executive action in
this area. First, “[w]hen the President acts pursuant to an express
or implied authorization of Congress, his authority is at its
maximum, for it includes all that he possesses in his own right
plus all that Congress can delegate.”
Youngstown, 343 U.
S., at 635 (Jackson, J., concurring). Second, “[w]hen the President
acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers, but
there is a zone of twilight in which he and Congress may have
concurrent authority, or in which its distribution is uncertain.”
Id., at 637. In this circumstance, Presidential authority
can derive support from “congressional inertia, indifference or
quiescence.”
Ibid. Finally, “[w]hen the President takes
measures incompatible with the expressed or implied will of
Congress, his power is at its lowest ebb,” and the Court can
sustain his actions “only by disabling the Congress from acting
upon the subject.”
Id., at 637–638.
B
The United States marshals two
principal arguments in favor of the President’s authority “to
establish binding rules of decision that preempt contrary state
law.” Brief for United States as
Amicus Curiae 5. The
Solicitor General first argues that the relevant treaties give the
President the authority to implement the
Avena judgment
and that Congress has acquiesced in the exercise of such authority.
The United States also relies upon an “independent” international
dispute-resolution power wholly apart from the asserted authority
based on the pertinent treaties. Medellín adds the additional
argument that the President’s Memorandum is a valid exercise of his
power to take care that the laws be faithfully executed.
1
The United States maintains that
the President’s Memorandum is authorized by the Optional Protocol
and the U. N. Charter. Brief for United States as
Amicus
Curiae 9. That is, because the relevant treaties “create an
obligation to comply with
Avena,” they
“
implicitly give the President authority to implement that
treaty-based obligation.”
Id., at 11 (emphasis added). As
a result, the President’s Memorandum is well grounded in the first
category of the
Youngstown framework.
We disagree. The President has an
array of political and diplomatic means available to enforce
international obligations, but unilaterally converting a
non-self-executing treaty into a self-executing one is not among
them. The responsibility for transforming an international
obligation arising from a non-self-executing treaty into domestic
law falls to Congress.
Foster, 2 Pet., at 315;
Whitney, 124 U. S., at 194;
Igartúa-De La Rosa,
417 F. 3d, at 150. As this Court has explained, when treaty
stipulations are “not self-executing they can only be enforced
pursuant to legislation to carry them into effect.”
Whitney,
supra, at 194. Moreover, “[u]ntil such act shall be passed,
the Court is not at liberty to disregard the existing laws on the
subject.”
Foster, supra, at 315.
The requirement that Congress, rather than the
President, implement a non-self-executing treaty derives from the
text of the Constitution, which divides the treaty-making power
between the President and the Senate. The Constitution vests the
President with the authority to “make” a treaty. Art. II, §2. If
the Executive determines that a treaty should have domestic effect
of its own force, that determination may be implemented “in
mak[ing]” the treaty, by ensuring that it contains language plainly
providing for domestic enforceability. If the treaty is to be
self-executing in this respect, the Senate must consent to the
treaty by the requisite two-thirds vote,
ibid., consistent
with all other constitutional restraints.
Once a treaty is ratified without provisions
clearly according it domestic effect, however, whether the treaty
will ever have such effect is governed by the fundamental
constitutional principle that “ ‘[t]he power to make the
necessary laws is in Congress; the power to execute in the
President.’ ”
Hamdan v.
Rumsfeld,
548 U. S. 557, 591
(2006) (quoting
Ex parte Milligan, 4 Wall. 2, 139 (1866)
(opinion of Chase, C. J.)); see U. S. Const., Art. I, §1 (“All
legislative Powers herein granted shall be vested in a Congress of
the United States”). As already noted, the terms of a
non-self-executing treaty can become domestic law only in the same
way as any other law—through passage of legislation by both Houses
of Congress, combined with either the President’s signature or a
congressional override of a Presidential veto. See Art. I, §7.
Indeed, “the President’s power to see that the laws are faithfully
executed refutes the idea that he is to be a lawmaker.”
Youngstown, 343 U. S., at 587.
A non-self-executing treaty, by definition, is
one that was ratified with the understanding that it is not to have
domestic effect of its own force. That understanding precludes the
assertion that Congress has implicitly authorized the
President—acting on his own—to achieve precisely the same result.
We therefore conclude, given the absence of congressional
legislation, that the non-self-executing treaties at issue here did
not “express[ly] or implied[ly]” vest the President with the
unilateral authority to make them self-executing. See
id.,
at 635 (Jackson, J., concurring). Accordingly, the President’s
Memorandum does not fall within the first category of the
Youngstown framework.
Indeed, the preceding discussion should make
clear that the non-self-executing character of the relevant
treaties not only refutes the notion that the ratifying parties
vested the President with the authority to unilaterally make treaty
obligations binding on domestic courts, but also implicitly
prohibits him from doing so. When the President asserts the power
to “enforce” a non-self-executing treaty by unilaterally creating
domestic law, he acts in conflict with the implicit understanding
of the ratifying Senate. His assertion of authority, insofar as it
is based on the pertinent non-self-executing treaties, is therefore
within Justice Jackson’s third category, not the first or even the
second. See
id., at 637–638.
Each of the two means described above for
giving domestic effect to an international treaty obligation under
the Constitution—for making law—requires joint action by the
Executive and Legislative Branches: The Senate can ratify a
self-executing treaty “ma[de]” by the Executive, or, if the
ratified treaty is not self-executing, Congress can enact
implementing legislation approved by the President. It should not
be surprising that our Constitution does not contemplate vesting
such power in the Executive alone.
As Madison explained
in The Federalist No. 47, under our constitutional system of checks
and balances, “[t]he magistrate in whom the whole executive power
resides cannot of himself make a law.” J. Cooke ed., p. 326 (1961).
That would, however, seem an apt description of the asserted
executive authority unilaterally to give the effect of domestic law
to obligations under a non-self-executing treaty.
The United States nonetheless
maintains that the President’s Memorandum should be given effect as
domestic law because “this case involves a valid Presidential
action in the context of Congressional ‘acquiescence’.” Brief for
United States as Amicus Curiae 11, n. 2. Under the
Youngstown tripartite framework, congressional
acquiescence is pertinent when the President’s action falls within
the second category—that is, when he “acts in absence of either a
congressional grant or denial of authority.” 343 U. S., at 637
(Jackson, J., concurring). Here, however, as we have explained, the
President’s effort to accord domestic effect to the Avena
judgment does not meet that prerequisite.
In any event, even if we were
persuaded that congressional acquiescence could support the
President’s asserted authority to create domestic law pursuant to a
non-self-executing treaty, such acquiescence does not exist here.
The United States first locates congressional acquiescence in
Congress’s failure to act following the President’s resolution of
prior ICJ controversies. A review of the Executive’s actions in
those prior cases, however, cannot support the claim that Congress
acquiesced in this particular exercise of Presidential authority,
for none of them remotely involved transforming an international
obligation into domestic law and thereby displacing state
law.[Footnote 14]
The United States also directs us
to the President’s “related” statutory responsibilities and to his
“established role” in litigating foreign policy concerns as support
for the President’s asserted authority to give the ICJ’s decision
in Avena the force of domestic law. Brief for United
States as Amicus Curiae 16–19. Congress has indeed
authorized the President to represent the United States before the
United Nations, the ICJ, and the Security Council, 22 U. S. C.
§287, but the authority of the President to represent the United
States before such bodies speaks to the President’s
international responsibilities, not any unilateral
authority to create domestic law. The authority expressly conferred
by Congress in the international realm cannot be said to “invite”
the Presidential action at issue here. See Youngstown,
supra, at 637 (Jackson, J., concurring). At bottom, none of
the sources of authority identified by the United States supports
the President’s claim that Congress has acquiesced in his asserted
power to establish on his own federal law or to override state
law.
None of this is to say, however,
that the combination of a non-self-executing treaty and the lack of
implementing legislation precludes the President from acting to
comply with an international treaty obligation. It is only to say
that the Executive cannot unilaterally execute a non-self-executing
treaty by giving it domestic effect. That is, the
non-self-executing character of a treaty constrains the President’s
ability to comply with treaty commitments by unilaterally making
the treaty binding on domestic courts. The President may comply
with the treaty’s obligations by some other means, so long as they
are consistent with the Constitution. But he may not rely upon a
non-self-executing treaty to “establish binding rules of decision
that preempt contrary state law.” Brief for United States as
Amicus Curiae 5.
2
We thus turn to the
United States’ claim that—independent of the United States’ treaty
obligations—the Memorandum is a valid exercise of the President’s
foreign affairs authority to resolve claims disputes with foreign
nations. Id., at 12–16. The United States relies on a
series of cases in which this Court has upheld the authority of the
President to settle foreign claims pursuant to an executive
agreement. See Garamendi, 539 U. S., at 415; Dames
& Moore, 453 U. S., at 679–680; United States v.
Pink, 315
U. S. 203, 229 (1942); United States v.
Belmont, 301 U. S. 324, 330
(1937). In these cases this Court has explained that, if pervasive
enough, a history of congressional acquiescence can be treated as a
“gloss on ‘Executive Power’ vested in the President by §1 of
Art. II.” Dames & Moore, supra, at 686
(some internal quotation marks omitted).
This argument is of a
different nature than the one rejected above. Rather than relying
on the United States’ treaty obligations, the President relies on
an independent source of authority in ordering Texas to put aside
its procedural bar to successive habeas petitions. Nevertheless, we
find that our claims-settlement cases do not support the authority
that the President asserts in this case.
The claims-settlement cases
involve a narrow set of circumstances: the making of executive
agreements to settle civil claims between American citizens and
foreign governments or foreign nationals. See, e.g.,
Belmont, supra, at 327. They are based on the view that “a
systematic, unbroken, executive practice, long pursued to the
knowledge of the Congress and never before questioned,” can “raise
a presumption that the [action] had been [taken] in pursuance of
its consent.” Dames & Moore, supra, at 686 (some
internal quotation marks omitted). As this Court explained in
Garamendi,
Making executive agreements to settle
claims of American nationals against foreign governments is a
particularly longstanding practice … . Given the fact that the
practice goes back over 200 years, and has received congressional
acquiescence throughout its history, the conclusion that the
President’s control of foreign relations includes the settlement of
claims is indisputable. 539 U. S., at 415 (internal quotation marks
and brackets omitted).
Even still, the limitations on this
source of executive power are clearly set forth and the Court has
been careful to note that “[p]ast practice does not, by itself,
create power.” Dames & Moore, supra, at
686.
The President’s Memorandum is not
supported by a “particularly longstanding practice” of
congressional acquiescence, see Garamendi, supra, at 415,
but rather is what the United States itself has described as
“unprecedented action,” Brief for United States as Amicus
Curiae in Sanchez-Llamas, O. T. 2005, Nos. 05–51
and 04–10566, pp. 29–30. Indeed, the Government has not
identified a single instance in which the President has attempted
(or Congress has acquiesced in) a Presidential directive issued to
state courts, much less one that reaches deep into the heart of the
State’s police powers and compels state courts to reopen final
criminal judgments and set aside neutrally applicable state laws.
Cf. Brecht v. Abrahamson, 507 U. S. 619, 635
(1993) (“States possess primary authority for defining and
enforcing the criminal law” (quoting Engle v.
Isaac, 456
U. S. 107, 128 (1982); internal quotation marks omitted). The
Executive’s narrow and strictly limited authority to settle
international claims disputes pursuant to an executive agreement
cannot stretch so far as to support the current Presidential
Memorandum.
3
Medellín argues that
the President’s Memorandum is a valid exercise of his “Take Care”
power. Brief for Petitioner 28. The United States, however, does
not rely upon the President’s responsibility to “take Care that the
Laws be faithfully executed.” U. S. Const., Art. II, §3. We think
this a wise concession. This authority allows the President to
execute the laws, not make them. For the reasons we have stated,
the Avena judgment is not domestic law; accordingly, the
President cannot rely on his Take Care powers here.
The judgment of the
Texas Court of Criminal Appeals is affirmed.
It is so ordered.
Footnote 1
The requirement of Article
36(1)(b) of the Vienna Convention that the detaining state notify
the detainee’s consulate “without delay” is satisfied, according to
the ICJ, where notice is provided within three working days.
Avena, 2004 I. C. J. 12, 52, ¶97 (Judgment of
Mar. 31). See Sanchez-Llamas v. Oregon, 548 U. S. 331, 362 (2006) (Ginsburg,
J., concurring in judgment). Here, Medellín confessed within three
hours of his arrest—before there could be a violation of his Vienna
Convention right to consulate notification. App. to Brief for
Respondent 32–36. In a second state habeas application, Medellín
sought to expand his claim of prejudice by contending that the
State’s noncompliance with the Vienna Convention deprived him of
assistance in developing mitigation evidence during the capital
phase of his trial. This argument, however, was likely waived:
Medellín had the assistance of consulate counsel during the
preparation of his first application for state
postconviction relief, yet failed to raise this argument at that
time. See Application for Writ of Habeas Corpus in Ex parte
Medellín, No. 675430–A (Tex. Crim. App.), pp. 25–31. In light
of our disposition of this case, we need not consider whether
Medellín was prejudiced in any way by the violation of his Vienna
Convention rights.
Footnote 2
The label “self-executing” has on
occasion been used to convey different meanings. What we mean by
“self-executing” is that the treaty has automatic domestic effect
as federal law upon ratification. Conversely, a
“non-self-executing” treaty does not by itself give rise to
domestically enforceable federal law. Whether such a treaty has
domestic effect depends upon implementing legislation passed by
Congress.
Footnote 3
Even when treaties are
self-executing in the sense that they create federal law, the
background presumption is that “[i]nternational agreements, even
those directly benefiting private persons, generally do not create
private rights or provide for a private cause of action in domestic
courts.” 2 Restatement (Third) of Foreign Relations Law of the
United States §907, Comment a, p. 395 (1986) (hereinafter
Restatement). Accordingly, a number of the Courts of Appeals have
presumed that treaties do not create privately enforceable rights
in the absence of express language to the contrary. See,
e.g., United States v. Emuegbunam, 268
F. 3d 377, 389 (CA6 2001); United States v.
Jimenez-Nava, 243 F. 3d 192, 195 (CA5 2001);
United States v. Li, 206 F. 3d 56, 60–61
(CA1 2000) (en banc); Goldstar (Panama) S. A. v.
United States, 967 F. 2d 965, 968 (CA4 1992);
Canadian Transp. Co. v. United States, 663
F. 2d 1081, 1092 (CADC 1980); Mannington Mills, Inc.
v. Congoleum Corp., 595 F. 2d 1287, 1298 (CA3
1979).
Footnote 4
The question is whether the
Avena judgment has binding effect in domestic courts under
the Optional Protocol, ICJ Statute, and U. N. Charter.
Consequently, it is unnecessary to resolve whether the Vienna
Convention is itself “self-executing” or whether it grants Medellín
individually enforceable rights. See Reply Brief for Petitioner 5
(disclaiming reliance on the Vienna Convention). As in
Sanchez-Llamas, 548 U. S., at 342–343, we thus assume,
without deciding, that Article 36 grants foreign nationals “an
individually enforceable right to request that their consular
officers be notified of their detention, and an accompanying right
to be informed by authorities of the availability of consular
notification.”
Footnote 5
We do not read “undertakes” to
mean that “ ‘ “[t]he United States . . . shall be at
liberty to make respecting th[e] matter, such laws as they think
proper.” ’ ” Post, at 17–18 (Breyer, J.,
dissenting) (quoting Todok v. Union State Bank of
Harvard, 281 U.
S. 449, 453, 454 (1930) (holding that a treaty with Norway did
not “operat[e] to override the law of [Nebraska] as to the
disposition of homestead property”)). Whether or not the United
States “undertakes” to comply with a treaty says nothing about what
laws it may enact. The United States is always “at liberty
to make . . . such laws as [it] think[s] proper.” Id., at
453. Indeed, a later-in-time federal statute supersedes
inconsistent treaty provisions. See, e.g., Cook
v. United States, 288 U. S. 102, 119–120 (1933). Rather,
the “undertakes to comply” language confirms that further action to
give effect to an ICJ judgment was contemplated, contrary to the
dissent’s position that such judgments constitute directly
enforceable federal law, without more. See also post, at
1–3 (Stevens, J., concurring in judgment).
Footnote 6
Article 94(2) provides in full:
“If any party to a case fails to perform the obligations incumbent
upon it under a judgment rendered by the Court, the other party may
have recourse to the Security Council, which may, if it deems
necessary, make recommendations or decide upon measures to be taken
to give effect to the judgment.” 59 Stat. 1051.
Footnote 7
Medellín alters this language in
his brief to provide that the ICJ Statute makes the Avena
judgment binding “in respect of [his] particular case.” Brief for
Petitioner 22 (internal quotation marks omitted). Medellín does not
and cannot have a case before the ICJ under the terms of the ICJ
Statute.
Footnote 8
The dissent concludes that the
ICJ judgment is binding federal law based in large part on its
belief that the Vienna Convention overrides contrary state
procedural rules. See post, at 19–20, 20–21, 23. But not
even Medellín relies on the Convention. See Reply Brief for
Petitioner 5 (disclaiming reliance). For good reason: Such reliance
is foreclosed by the decision of this Court in
Sanchez-Llamas, 548 U. S., at 351 (holding that the
Convention does not preclude the application of state procedural
bars); see also id., at 363 (Ginsburg, J., concurring
in judgment). There is no basis for relitigating the issue.
Further, to rely on the Convention would elide the distinction
between a treaty—negotiated by the President and signed by
Congress—and a judgment rendered pursuant to those
treaties.
Footnote 9
In interpreting our treaty
obligations, we also consider the views of the ICJ itself,
“giv[ing] respectful consideration to the interpretation of an
international treaty rendered by an international court with
jurisdiction to interpret [the treaty].” Breard v.
Greene, 523 U. S. 371, 375 (1998) (per
curiam); see Sanchez-Llamas, supra, at
355–356. It is not clear whether that principle would apply when
the question is the binding force of ICJ judgments themselves,
rather than the substantive scope of a treaty the ICJ must
interpret in resolving disputes. Cf. Phillips Petroleum
Co. v. Shutts, 472 U. S. 797, 805
(1985) (“[A] court adjudicating a dispute may not be able to
predetermine the res judicata effect of its own judgment”); 18 C.
Wright, A. Miller, & E. Cooper, Federal Practice and Procedure
§4405, p. 82 (2d ed. 2002) (“The first court does not get to
dictate to other courts the preclusion consequences of its own
judgment”). In any event, nothing suggests that the ICJ views its
judgments as automatically enforceable in the domestic courts of
signatory nations. The Avena judgment itself directs the
United States to provide review and reconsideration of the affected
convictions and sentences “by means of its own choosing.”
2004 I. C. J., at 72 (emphasis added). This language, as
well as the ICJ’s mere suggestion that the “judicial process” is
best suited to provide such review, id., at 65–66, confirm
that domestic enforceability in court is not part and parcel of an
ICJ judgment.
Footnote
10
The best that the ICJ experts as
amici curiae can come up with is the contention that local
Moroccan courts have referred to ICJ judgments as “dispositive.”
Brief for ICJ Experts as Amici Curiae 20, n. 31. Even the
ICJ experts do not cite a case so holding, and Moroccan practice is
at best inconsistent, for at least one local Moroccan court has
held that ICJ judgments are not binding as a matter of municipal
law. See, e.g., Mackay Radio & Tel. Co. v.
Lal-La Fatma Bent si Mohamed el Khadar, [1954] 21 Int’l
L. Rep. 136 (Tangier, Ct. App. Int’l Trib.) (holding that ICJ
decisions are not binding on Morocco’s domestic courts); see also
“Socobel” v. Greek State, [1951] 18 Int’l
L. Rep. 3 (Belg., Trib. Civ. de Bruxelles) (holding that
judgments of the ICJ’s predecessor, the Permanent Court of
International Justice, were not domestically
enforceable).
Footnote
11
The other case Medellín cites for
the proposition that the judgments of international courts are
binding, La Abra Silver Mining Co. v. United
States, 175 U.
S. 423 (1899), and the cases he cites for the proposition that
this Court has routinely enforced treaties under which foreign
nationals have asserted rights, similarly stand only for the
principle that the terms of a treaty govern its enforcement. See
Reply Brief for Petitioner 4, 5, n. 2. In each case, this
Court first interpreted the treaty prior to finding it domestically
enforceable. See, e.g., United States v.
Rauscher, 119 U. S. 407, 422–423
(1886) (holding that the treaty required extradition only for
specified offenses); Hopkirk v. Bell, 3 Cranch
454, 458 (1806) (holding that the treaty of peace between Great
Britain and the United States prevented the operation of a state
statute of limitations on British debts).
Footnote
12
That this Court has rarely had
occasion to find a treaty non-self-executing is not all that
surprising. See post, at 8 (Breyer, J., dissenting).
To begin with, the Courts of Appeals have regularly done so. See,
e.g., Pierre v. Gonzales, 502 F. 3d
109, 119–120 (CA2 2007) (holding that the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment is non-self-executing); Singh v.
Ashcroft, 398 F. 3d 396, 404, n. 3 (CA6 2005)
(same); Beazley v. Johnson, 242 F. 3d 248,
267 (CA5 2001) (holding that the International Covenant on Civil
and Political Rights is non-self-executing). Further, as noted,
Congress has not hesitated to pass implementing legislation for
treaties that in its view require such legislation.
Footnote
13
The dissent refrains from
deciding the issue, but finds it “difficult to believe that in the
exercise of his Article II powers pursuant to a ratified treaty,
the President can never take action that would result in
setting aside state law.” Post, at 29. We agree. The
questions here are the far more limited ones of whether he may
unilaterally create federal law by giving effect to the judgment of
this international tribunal pursuant to this non-self-executing
treaty, and, if not, whether he may rely on other authority under
the Constitution to support the action taken in this particular
case. Those are the only questions we decide.
Footnote
14
Rather, in the Case
Concerning Military and Paramilitary Activities in and Against
Nicaragua (Nicar. v. U. S.), 1986
I. C. J. 14 (Judgment of June 27), the President
determined that the United States would not comply with
the ICJ’s conclusion that the United States owed reparations to
Nicaragua. In the Case Concerning Delimitation of the Maritime
Boundary in the Gulf of Maine Area (Can. v. U.
S./em>.), 1984 I. C. J. 246 (Judgment of Oct. 12), a
federal agency—the National Oceanic and Atmospheric
Administration—issued a final rule which complied with the ICJ’s
boundary determination. The Case Concerning Rights of
Nationals of the United States of America in Morocco
(
Fr. v.
U. S.), 1952 I. C. J. 176
(Judgment of Aug. 27), concerned the legal status of United States
citizens living in Morocco; it was not enforced in United States
courts.
The final two cases arose under the Vienna Convention. In the
Lagrand Case (
F. R. G. v.
U.
S.), 2001 I. C. J. 466 (Judgment of June 27), the
ICJ ordered the review and reconsideration of convictions and
sentences of German nationals denied consular notification. In
response, the State Department sent letters to the States
“encouraging” them to consider the Vienna Convention in the
clemency process. Brief for United States as
Amicus Curiae
20–21. Such encouragement did not give the ICJ judgment direct
effect as domestic law; thus, it cannot serve as precedent for
doing so in which Congress might be said to have acquiesced. In the
Case Concerning the Vienna Convention on Consular
Relations (
Para. v.
U. S.), 1998
I. C. J. 248 (Judgment of Apr. 9), the ICJ issued a
provisional order, directing the United States to “
take all
measures at its disposal to ensure that [Breard] is not
executed pending the final decision in [the ICJ’s] proceedings.”
Breard, 523 U. S., at 374 (internal quotation marks
omitted). In response, the Secretary of State sent a letter to the
Governor of Virginia requesting that he stay Breard’s execution.
Id., at 378. When Paraguay sought a stay of execution from
this Court, the United States argued that it had taken every
measure at its disposal: because “our federal system imposes limits
on the federal government’s ability to interfere with the criminal
justice systems of the States,” those measures included “only
persuasion,” not “legal compulsion.” Brief for United States as
Amicus Curiae, O. T. 1997, No. 97–8214, p. 51. This
of course is precedent contrary to the proposition asserted by the
Solicitor General in this case.
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