1 Strother v. Lucas, 37 U.S. (12 Pet.) 410, 439 (1838).

2 Medellín v. Texas, 128 S.Ct. 1346 (2008).

3 Id. at 1356 (“No one disputes that the Avena decision … constitutes an international law obligation on the part of the United States.”), 1367 (2008).

4 George, W. Bush, Memorandum for the Attorney General (Feb. 28, 2005)Google Scholar, reprinted in John, R. Crook, Contemporary Practice of the United States, 99 AJIL 489 (2005).Google Scholar

5 In the Medellín opinion, following the introductory part I, part II considers the treaty obligations at issue. The legal effect of the president’s memorandum is considered separately in part III of the opinion.

6 128 S.Ct. at 1360 (“automatically enforceable domestic law,” “automatically enforceable as domestic law,” “Avena does not automatically constitute federal law …. ”). In a computer search of previous Supreme Court cases adjudicating self-execution of a treaty, this author could not find any use of the word “automatic” in that context.

7 Id. at 1356.

8 Id. at 1356 (three instances), 1356 n.2, 1357, 1359, 1360 (three instances), 1361 n.9, 1364, 1365 (two instances).

9 Id. at 1360; see also id. at 1359-60, 1361 n.9, 1364, 1365 (two instances).

10 See id. at 1360 (“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.”).

11 Id. at 1364 (“contrary federal law” could receive “same fate” as state law). Of course, if the Court had reversed the Texas judgment, and the case had returned to federal courts, there would have been an issue of the implications of a federal law, the Antiterrorism and Effective Death Penalty Act of 1996.

12 Article 94(1) states: “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a parry.” UN Charter Art. 94(1).

13 Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).

14 Carlos Manuel Vázquez, The Four Doctrines of Self-Executing Treaties, 89 AJIL 695, 702 n.35 (1995).

15 Restatement (Third) of the Foreign Relations Law of the United States §111 reporters’ n.5 (1987).

16 Foster, 27 U.S. at 314.

17 Indeed, prior federal law would have precluded such executive action. Carlos M. Vázquez, Foster v. Neilson and United States v. Percheman: Judicial Enforcement of Treaties , in International Law Stories 151, 167 (John, E. Noyes, Laura, A. Dickinson, & Mark, W. Janis eds., 2007).Google Scholar

18 Foster, 27 U.S. at 315.

19 United States v. Percheman, 32 U.S. (7 Pet.) 51, 89 (1833).

20 Id.

21 Vázquez, supra note 14, at 701.

22 128 S.Ct. at 1372 (quoting Brief for the United States as Amicus Curiae Supporting Respondents at 29–30, Sanchez-Llamas v. Oregon, 126 S.Ct. 2669 (2006) (Nos. 05-51, 04-10566), 2006 WL 271823).

23 Brief of International Court of Justice Experts as Amici Curiae in Support of Petitioner at 25, Medellín v. Texas, 128 S.Ct. 1346 (2008) (No. 06-984), 2007 WL 1886207 (suggesting a “presumption in favor of compliance with international obligations”); Shabtai Rosenne, The International Court of Justice 88 – 89 (1957) (“The duty to carry out, or comply with, such a judgment [by the ICJ] is imposed upon the courts of a State party to litigation before the International Court no less than it is incumbent upon the other organs of that State …. ”).

24 See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 420 (2003) (suggesting that when a state acts within its traditional competence, a conflict with national policy must be shown that would vary with the strength or the traditional importance of the state concern asserted); Fisler, Lori Damrosch, The Justiciability of Paraguay’s Claim of Treaty Violation , 92 AJIL 697, 703 (1998)Google Scholar (suggesting that the Supreme Court exercise “searching scrutiny” of states’ actions affecting U.S. foreign relations that may provoke consequences for the nation as a whole); Harold, G. Maier, Preemption of State Law: A Recommended Analysis , 83 AJIL 832, 838 (1989)Google Scholar (suggesting that preemption would follow if the adverse effects of the decision being made by the state would fall upon the entire nation and not be merely localized within the state).

25 128 S.Ct. at 1356 n.2.

26 See id. at 1356 (“and is ratified on these terms”) (quoting Igartua–De La Rosa v. United States, (417 F.3d 145, 150 (1st Cir. 2005)), 1358 (“Senate that ratified”), 1364) (“President and Senate intended”), 1366 (“determination by the President who negotiated it and the Senate that confirmed it”), 1367 (“President or Senate intended”), 1369 (“[o]nce a treaty is ratified”), (“ratified with the understanding”).

27 Id. at 1361 (quoting Sumitomo Shoji Am. v. Avagliano, 457 U.S. 176, 184–85 (1982)).

28 Id. at 1357 (quoting Zicherman v. Korean Air Lines, 516 U.S. 217, 226 (1996)), 1367.

29 Id. at 1363.

30 Id. at 1363 n. 10. The Court took issue with the portrayal of municipal implementation in an amicus brief filed by ICJ experts, supra note 23, in particular as regards Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), 1952 ICJ Rep. 176 (Aug. 27).

31 Or perhaps it would not have done so. Most of the Court’s discussion of the postratification understanding of nations appears in part II.C of the opinion after the Court has concluded that ICJ judgments are not directly enforceable in domestic courts. Moreover, the Court says that its conclusion is “confirmed by” the postratification understanding. 128 S.Ct. at 1363. Thus, a narrower reading of the Court’s opinion might be that the foreign practice discussed was only relevant to confirm the majority’s conclusion and would not have been mentioned if foreign practice had called the conclusion into question. If so, that would constitute a selective and biased use of foreign legal sources.

32 The Court seems to have been thrown off by the fact that the Bush administration argued that Article 94(1) and Avena were not self-executing. Thus, the Court did not consider possibilities for holding that Article 94(1) could be enforced by the Court as a result of the president’s memorandum.

33 128 S.Ct. at 1389 (Breyer, J., dissenting); see also id. at 1385 (including within the first reason that the president seeks to enforce the ICJ obligation).

34 128 S.Ct. at 1364.

35 Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2685 (2006).

36 128 S.Ct. at 1367 (quoting Brief for the United States as Amicus Curiae Supporting Petitioner at 11, 12, Medellín v. Texas, 128 S.Ct. 1346 (2008) (No. 06-984), 2007 WL 1909462).

37 Article 94(2) provides: “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 …. ” UN Charter Art. 94(2).

38 128 S.Ct. at 1359 (ascribing an “express diplomatic—that is, nonjudicial—remedy” to drafters of Article 94); 1360 (automatic enforceability is “fatally undermined by the enforcement structure established by Article 94”), (petitioner’s construction of Article 94 “would eliminate the option of noncompliance”).

39 Id. at 1385 (Breyer, J., dissenting).

40 Of course, if Congress had legislated to forbid compliance with Avena (or to require it), that would be a different matter.

41 128 S.Ct. at 1367. The interests noted by the Court are “ensuring the reciprocal observance” of the Vienna Convention on Consular Relations, “protecting relations with foreign governments, and demonstrating commitment to the role of international law.” Id.

42 Id. at 1360.

43 United States v. Belmont, 301 U.S. 324,331 (1937). Medellín differs from Belmontbecause the latter involved a diplomatic agreement and claim assignment pursuant to the recognition of the Soviet Union.

44 Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413 (2003) (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1964)). The dissent in Garamendi would have upheld the California law and noted that it would “reserve foreign affairs preemption for circumstances where the President, acting under statutory or constitutional authority, has spoken clearly to the issue at hand.” Id. at 442 (Ginsburg, J., dissenting). In Garamendi, the position of the executive branch had been announced by subcabinet officials, not by the president, and the executive agreements at issue had not expressly preempted state law. By contrast, in Medellín, the president announced the position of the executive branch in his memorandum and expressly addressed the state courts.

45 Susan, L. Karamanian, Briefly Resuscitating the Great Writ: The International Court of Justice and the U.S. Death Penalty , 69 Albany L. Rev. 745, 758–61 (2006)Google Scholar; John, R. Crook, Contemporary Practice of the United States, 100 AJIL 462 (2006).Google Scholar

46 See Garamendi, 539 U.S. at 420 (suggesting that “it would be reasonable to consider the strength of the state interest, judged by standards of traditional practice, when deciding how serious a conflict must be shown before declaring the state law preempted”). The State of Texas’s interest was presented to the Supreme Court by the solicitor general of Texas.

47 See Chy Lung v. Freeman, 92 U.S. 275, 280 (1876) (posing the question and answering no as to whether the Constitution has “done so foolish a thing as to leave it in the power of the States to pass laws whose enforcement renders the general government liable to just reclamations which it must answer, while it does not prohibit to the States the acts for which it is held responsible”).

48 128 S.Ct. at 1358 (quoting Brief for the United States as Amicus Curiae Supporting Respondent at 34, Medellín v. Dretke, 544 U.S. 916 (2005) (No. 04-5928), 2005 WL 504490). As the Court explains, the “‘undertakes to comply’ language confirms that further action to give effect to an ICJ judgment was contemplated.” Id. At 1359 n.5. But further action does not necessarily mean legislative action.

49 Or it normally is. The Court admitted that it was not saying that the power of Congress to implement a treaty is exclusive and that the president would never have power pursuant to a treaty to set aside state law. Id. at 1367 n. 13.

50 Id. at 1367 (quoting First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 767 (1972)); see also Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 348 (2005) (noting the “customary policy of deference to the President in matters of foreign affairs”). Jama was cited in the Medellín dissenting opinion, but not the majority opinion. 128 S.Ct. at 1389 (Breyer, J., dissenting).

51 128 S.Ct. at 1371 (majority opinion).

52 See id. at 1365 (stating that the UN Charter does not afford binding domestic effect).

53 Id at 1369.

54 See, e.g., Manuel, Carlos Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties , available at <http://ssm.com/abstract=1118063> >Google Scholar, revised in 122 Harv. L. Rev. (forthcoming 2008) (noting that if Article 94 were considered non-self-executing, it could reasonably be interpreted as authorizing the president to decide whether and when the nation would comply with it). Edward Swaine has raised concerns about the view that Article 94 delegates authority to the president. Edward, T. Swaine, Taking Care of Treaties , 108 Colum. L. Rev. 331, 354, 373–77 (2008)Google Scholar. Instead, Swaine suggests that the president’s memorandum could be justified under the “Take Care” Clause of the U.S. Constitution. The clause states that the president “shall take Care that the Laws be faithfully executed.” U.S. Const. Art. II, §3.

55 128 S.Ct. at 1364.

56 Moreover, as Sean Murphy has noted, “The International Court is unlikely to issue a decision that … is regarded by international lawyers generally as misguided, or by the global community at large as politically unacceptable.” Sean, D. Murphy, The United States and the International Court of Justice: Coping with Antinomies , in The Sword and the Scales: The United States and International Courts and Tribunals (R., P. Cesare Romano ed., forthcoming 2008).Google Scholar

57 128 S.Ct. at 1362; see also id. at 1363 (“sometimes has the effect of domestic law and sometimes does not”). The majority opinion further criticized the dissenting opinion by stating that its “contrary approach would assign to the courts—not the political branches—the primary role in deciding when and how international agreements will be enforced.” Id. at 1363. Yet under the thesis offered here, the courts would follow the decisions made by political branches.

58 Editorial, How to Treat a Treaty: Texas Murder Case Has International Ramifications, Dallas Morning News, Mar. 27, 2008, at 12A.

59 128 S.Ct. at 1372.

60 See, e.g., id. at 1365 (Congress could elect to give ICJ judgment “wholesale effect”), 1366 (“Congress knows how to accord domestic effect”), 1368–69 (“requirement that Congress, rather than the President, implement a non-self-executing treaty”), 1369 (“absence of congressional legislation”).

61 See John, H. Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis , 86 AJIL 310, 323–29 (1992)Google Scholar (discussing the benefits of transformational legislation over direct application of treaties).

62 128 S.Ct. at 1374 (Stevens, J., concurring).

63 For the Act and updated information on it, see the Web site of the National Conference of Commissioners on Uniform State Laws, <http://www.nccusl.org/Update/>.

64 128 S.Ct. at 1366-67.

65 Id. at 1366.

66 Some precedents exist in the trade field for presidential compliance actions following international panel decisions adverse to the United States. When Congress enacted implementing legislation for the Tokyo Round multilateral trade agreements in 1979, the law authorized the president to submit legislation to Congress to amend, repeal, or enact statutes to implement requirements or recommendations under the trade agreements. The legislation was to be considered under a fast-track arrangement where an up-or-down vote was guaranteed. 19 U.S.C. §2504(c) (2006). These provisions were never used. Another example is the Forest Resources Conservation and Shortage Relief Act, which bans the export of unprocessed timber from public lands and authorizes the president to suspend this provision in the event that a dispute panel finds that it violates a U.S. trade agreement. 16 U.S.C. §620c(a), (g) (2006).

67 19 U.S.C. §3512(a)(l) (2006).

68 19 U.S.C. §3512(b)(2)(A) (2006).

69 19 U.S.C. §3512(b)(2)(B)(ii) (2006).

70 In Crosby v. NFTC, the Supreme Court referred to this provision and to the possibility of challenging state law “based on inconsistency with any of the ‘Uruguay Round Agreements.’” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 386 n.24 (2000).

71 19 U.S.C. §3512(b)(2)(B)(i) (2006). On the other hand, the Statement of Administrative Action (SAA) explains that a court may consider the view expressed in WTO panel reports. Statement of Administrative Action, in H.R. DOC. NO. 103-316, vol. 1, at 656, 675 (1994). The SAA was approved by Congress as an “authoritative expression” for any judicial proceeding. 19 U.S.C. §3512(d) (2006).

72 128 S.Ct. at 1369 (“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 …. ”), 1361, 1363–65.

73 Id. at 1381, 1383 (Breyer, J., dissenting).

74 Reisman, W. M., The Enforcement of International Judgments , 63 AJIL 1, 27, app. 2 (1969).Google Scholar

75 See Wilfred, C. Jenks, The Prospects of International Adjudication 716 (1964)Google Scholar (discussing how international instruments might cover implementation of international decisions).

76 128 S.Ct. at 1383 (Breyer, J., dissenting).

77 North American Agreement on Environmental Cooperation, Can.-Mex.-U.S., Art. 36 & Annex 36A, Sept. 14, 1993, 32 ILM 1480, 1482 (1993). So far, no environmental dispute panel has been established; therefore, this treaty provision has not been tested.

78 Edward, S. Corwin, National Supremacy: Treaty Power vs. State Power 285–86 (1913)Google Scholar. Corwin gives an example of a state’s violation of treaty rights of aliens. Corwin’s reference to tribunals refers to international arbitral tribunals agreed to by the United States.