Chapter 10 (Hierarchies of Law within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order ): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the second Chapter of Part II-- Hierarchies of Law and Governance; Sources and Uses, Chapter 10 (Hierarchies of Law within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order).

 

 

Chapter 10

Hierarchies of Law within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order

I. Introduction

            We have been considering the way in which the United States has developed a set of principles to systematically organize the relationship between law and the apparatus of state (its government).  We have seen how that initial decision produced a compromise of sorts between two competing ways of conceptualizing the state-law nexus.  The first understood law as inevitably tied to and produced only by the apparatus of state as a representative avatar for the people as sovereigns.  The second represented an evolution of the old medieval understanding of law as autonomous of the state (and its government). That autonomy, of course, was not absolute—the legislature could project power into law by enacting statutes.  Yet early on, there was also a sense that higher order values might not be interfered with by either the legislature (Parliament) or the executive (the Crown), though together (as Crown in Parliament) they might be vested with the authority to act as or for the sovereign people. We have come to understand how these premises shaped the development of a two tier structure of law with different relationships to the state.  Higher Order or Constitutional law remains somewhat autonomous of the state and can only be amended at great effort.  Other forms of law may be more easily made.  Yet even there the notion of separation remains lurking.   

            We have also begun to understand how this grounding notion of law-state structure produced a need for ordering among law.  If, as we have come to understand it, the law system fo the United States includes several sub-systemic strands that overlap, and if we also have come to understand the governmental system of the United States as layered among local, state and federal authority, then some structural guidance is necessary in order to make the U.S. legal system coherent rather than chaotic.  It is to that point that we considered the way in which hierarchies of law have been established both within states and between states and the general government in Washington D.C.

            With this chapter we broaden our gaze just a little more. This section introduces the student to the issues of legal hierarchy in the context of the state system on which the contemporary global legal and political order is founded. The student will examine the relationship between domestic and international law in relation to the obligation of the state and the obligations of individuals.  That has tended to be a complex business sin the United States, the outer limits of which remain quite lively areas of debate.  The problem at the end of the chapter is meant to help students apply some of the premises underlying U.S. approaches to the incorporation of international law and principles within its domestic jurisprudence and the way in which that international legalization can actually penetrate into the U.S. legal system.

II. Chapter Readings

·      Larry Catá Backer, Inter-Systemic Harmonization and Its Challenges for the Legal-State,[1] in FICHL Publication Series No. 11 (2011): The Law of the Future and the Future of the Law 427-437 (Editors: Sam Muller, Stavros Zouridis, MorlyFrishman and Laura Kistemaker; TorkelOpsahl Academic EPublisher, Oslo, 2011)

·      Medellín v. Texas[2],128 S.Ct. 1346 (2008) (READ MAJORITY OPINION and skim concurring and dissenting opinions

·      PruneYard Shopping Ctr. V. Robins,[3] 447 U. S. 74 (1980). Read pp 74-81

__________

Inter-Systemic Harmonization And Its Challenges For The Legal-State

Larry Catá Backer

HiiL Law of the Future Series, The Law of the Future and the Future of Law

(Sam Muller, Stavros Zouridis, Laura Kistemaker and Morly Frishman, eds., The Hague, Netherlands: Torkel Opsahi Academic Editor, forthcoming 2011).

1. Introduction.

We have been asked to consider, in a summary essay form, three fundamental questions affecting the law-state in this century: 

“What do you see as the most significant challenges for the development of the law? What developments are we likely to see in the coming two to three decades? What do those developments mean for national legal systems in the international legal order as a whole?”

The questions put at issue, in a precise way, the fundamental understanding of the basic building blocks of 20^th century socio-economic political culture—and particularly the character of law, the state and non-state actors. But these questions also raise issues that are dynamic and that implicate fundamental questions of institutional form, function and legitimacy. Those issues revolve around communication, autonomy and interdependence in the governance activities of state and non-state actors, and the forms in which communication is undertaken, autonomy revealed and interdependence manifested.  There is thus a dynamic element at the core of the questions that requires elaboration and that serves as the urtext for governance actors for this century. The thesis of this essay is this: Whatever the outcome in the decades to come, states and their domestic legal orders will not be able to maintain their isolation from the emerging non-national governance frameworks and retain a substantial relevance; to avoid irrelevance, states and their law systems must recognize governance polycentricism and more effectively communicate with the emerging extra-legal governance frameworks of public and private governance systems and by public and private actors. It is that dynamic element of inter-systemic harmonization and its challenges for that law-state that this essay considers, weaving this theme within the three questions initially posed.  

2. The Future: Divergence, Coordination, and Contradiction in Ideologies of Convergence.

            At the start of the 21^st century, governance harmonization has become a more complicated, more desired, and yet more elusive enterprise. Even as the enterprise of harmonization has grown, states have begun to more aggressively resist harmonization as its ability to serve as a framework for the transfer of governance power from states to new centres has been more widely felt. However, that element of resistance has been complicated by the entry of new actors within governance circles. Harmonization is currently proceeding simultaneously along a number of different lines—horizontal, vertical and inter-systemic—that reflects these ambiguous and multi-vector interactions and that also suggests the context in which the future of legal systems, however understood, will be determined.

            Horizontal harmonization occurs between entities (traditionally state entities) roughly similarly situated within hierarchies of authorities—for example between the states of the United States, between the Member States of the European Union, or between two less formally connected states, for example between India and Chile or between other states in the global community. It can be as simple a project as finding a common language for communication and as complicated a project as integrating legal systems. This push toward horizontal harmonization of laws among sovereigns describes the great project of comparative law with its origins in European 19^th century notions of the state. Much that passes for lawmaking remains at this level of 19^th century conceptions, even as the foundations for those conceptions—the superiority of the state and of the positive law produced by a sovereign demos—has been severely challenged.  The challenges are both horizontal and vertical.  Harmonization among states unequal in power or development is sometimes understood either as a form of colonialism (a political undertaking through law) or more insidiously, as a means of imposing the ideologies and political choices of powerful states on less developed ones under the guise of simplicity, communication and other virtues of legal harmonization. Even something as basic as the linguistics of a language, can have ideological effects when transposed, especially when words migrate from the legal cultures of developed states into those of developing states.  For example, the migration of developed state notions of property imported into Brazil or Panama to protect the rights of squatters on public lands has been used as a vehicle for developers to deprive these dwellers of their properties through sale or mortgage foreclosures. 

            The monopoly of horizontal harmonization was broken in the aftermath of the World Wars of the 20^th century. After 1945 the focus increasingly shifted from the state to a community of states, and from horizontal to vertical harmonization. Vertical harmonization, that is the harmonization between superior and inferior political entities, is less well developed and there is no real consensus about its utility or legitimacy. Yet it is the central element of the great 20^th century project of legal internationalization—and of the fundamental change in the understanding of the state—now deeply embedded within an increasingly managed community of states. The move towards internationalisation of standards and the communal management of certain behaviours (by individuals, enterprises or states) through positive law—corruption, human rights, and war—has become an important element of global and transnational governance. The financial crisis of 2007-08 brought this project into the foreground as the power of states, funnelled through the G-20 framework, sought to coordinate and channel state power through a supra-national entity whose consensus views would then be adopted by all states.  Transnational constitutionalism represents an important form of efforts to undertake development of a customary practice of vertical harmonization. The recent constitutional crisis in Honduras, and the critical role played by international norms in resolving that domestic constitutional crisis, provides a recent example of the development and growth of this form of harmonization. Yet, the project of vertical harmonization remains incomplete, and its fundamental premises continue to be challenged, even as the great edifices of supra-national institutions are created and public transnational law evolves. 

            However, vertical harmonization continues to be grounded at its core in the state.  Ironically, the great project of vertical harmonization—economic globalisation—has also served to illuminate the limitations of a state centred approach to law and harmonization. The 21^st century has witnessed the emergence of governance polycentricism, of the potential broadening of the mechanics of law beyond the memorialisation of the commands of territorially bounded states, of the rise of private law with public functions and of public entities as private actors.  This has substantially changed the landscape of law. These changes have given rise to the most controversial form of harmonization, at once the most interesting and potentially most far reaching variant—inter-systemic harmonization, or harmonization of public and private governance systems and by public and private actors.  States operating as private enterprises in economic markets and economic entities serving as substitutes for the state in weak governance zones suggests the context in which public and private governance systems remain autonomous but communicate and converge. The movement from customary and positive law to contract and the governance mechanisms of surveillance expand and change the nature and character of governance.  The great projects of sovereign investing by Norway and the People’s Republic of China through their sovereign wealth funds provide examples of one of the forms that inter-systemic harmonization is already taking. Sovereign investing integrates systems of traditional state law making, public policy, administrative mechanisms and participation in private markets to produce a comprehensive and transnational approach to governance objectives.

            These changes both augment the power of states (with respect to the expansion of the palette of legitimate governance tools) and shrink the scope of its control (as other governance communities emerge with authority over actors operating within the territory of states). The management of that convergence, communication and interaction has been a great challenge for current efforts to harmonize polycentric public-private systems, existing within states and outside of the domestic legal order of any state.  Projects like that of John Ruggie’s business and human rights governance framework—the Three Pillar Protect-Respect-Remedy Framework—provides a contemporary application of these issues and serves as a harbinger of things to come.  Indeed, within the cluster of governance issues understood as business and human rights, for example, the intersection among domestic and international public legal orders, private governance orders, the public role of private entities and the private role of public entities become acute.

            Consequently, in place of the traditional focus on the law-state and its obsession with the division between public and private, another focus is emerging, one in which the comparative law project will need to bridge gaps between public law based state systems and private social norm based systems. Just as lawmaking might have become unmoored from the state, the state has itself become unmoored. And so the issue of corporate citizenship serves as a proxy for the equally important converse issues—that of the private rights of states as participants in global markets. At the international level, states and other collectives might well have to meet more as equals, even as they interact within vertical hierarchies in particular contexts. But even those localized hierarchies are now unstable. Corporations negotiate “agreements” with small states; nations negotiate treaties. Large corporations can coerce small states in ways that mimic the ways in which larger states can do the same to smaller and more vulnerable ones. States and corporations are now capable of deploying forces in the field—sometimes states hire corporations that serve as mercenary armies for hire. The clear lines of public and private authority, and even the once clear lines of its Marxist-Leninist opposite, have become blurred.

3. The Challenge for the Development of Law: Avoiding Containment and  Irrelevance.

            The construction and management of inter-relations between public and private governance communities and the move from law to extra-legal systems of behaviour control will serve as the great project of the 21^st century. As a consequence, the greatest challenge for law in the 21^st century is to avoid becoming irrelevant in an emerging global governance order in which corporations use contracts to regulate their supply chains, states reconstitute themselves as private market actors and private enterprises assert regulatory control of markets through authoritative systems of assessment and rating.

            Consider for example, the conventionally understood relationship between public and private law. Private law has traditionally been understood to derive its power and legitimacy from the state. It is attached to the state.  The attachment of private law to the state provides a strong ideological basis for the management of private relationships by the state apparatus and the political community it represents.  That attachment also suggested a place outside of which law did not reach—but which was not considered legitimate or legal, whatever its binding effect. And that was the end of it—as far as the jurisdictional boundaries and legitimacy-dignity of law was understood to extend.  Thus, for example, with respect to limits on the use of real property, the focus is on the individual common law states, whose rights and obligations are mediated by the state through an application of the law of nuisance.  In China, the same limits start from the obligations of individuals to the community, memorialized in the great principles of Harmonious Society mediated through the state apparatus under the leadership of the Communist Party.  In theocratic systems, the focus is on the community of the faithful whose collective obligations are mediated by a priestly institution through religious law.

            Beyond the law of any of these variants lies a universe of morals, psychology, markets and religion to which law was opaque (though was not above deploying discretely from time to time through the device of “policy” focus, for example), and which existed subject to the pre-emptive power of law.  The ideology of law produced an incentive towards autarchy totalitarianism in which the highest authority is characterized as political and vested in territorially bounded states whose legitimating organs (today democracy, yesterday anything from the Kaiser to the priest) were solely vested with authority to bind all juridically recognized persons within the state.  The ideology of law permitted a certain variation—sustaining the political framework of the United States, the Soviet Union, Imperial Japan, and Nationalist Socialist Germany simultaneously.    

            But the 21^st century has witnessed the rise of a new institutional phenomenon—the functional detachment of private law from the state. This suggests a fundamental reorientation of governance, a movement away from the law-state binary to one grounded in the law-norm binary (within which the state is not necessarily present). That reorientation, in turn, suggests polycentricism, breaking the monopoly of power exercised by the state producing positive law through democratically elected institutions and reviving the autonomous force of custom.  Yet this is custom of a non-traditional sort; custom is now understood as producing rules that are given force through the state apparatus (the traditional understanding of customary domestic law) but it is also now understood as producing rules that memorialize the customs of other governance communities, from multi-national corporations, to supra-national actors. Law systems, in all their traditional variation, now co-exist with the regulatory contract systems of multi-national corporations, with the governance norms of transnational law-religion systems and with supra-national organizations that produce and seek to enforce their own sets of governance norms among their consenting members.

            But detachment also produces different forms of governance. Law tends to assume a simple and single dimension form—a command to be obeyed, usually in the form of an injunction to act or avoid acting in particular ways. However, the forms of governance have expanded well beyond this simple and ancient technique. The movement away from law to governance techniques has also made it easier for non-state communities to develop an institutional framework and mechanics of effective governance. Monitoring, surveillance, disclosure, standard setting, binding principles, and objective evaluation techniques are among the methods of governance that have acquired an increasing regulatory aspect.  One can govern as effectively by fine-tuning the classes of information required of an individual and providing consequences for the results of the evaluation thereof, as by the command of a statute.

            This challenge to law suggests another—an institutional convergence in governance capacity.  Developed states and the largest multinational corporations are closer in form and operation than either is to less developed states and smaller corporations. Larger corporations and developed states are then more likely to look to each other for governance harmonization than either would look to developing states or smaller corporations. That, in turn, suggests a fundamental reorientation of governance chains grounded in a functional abandonment of the public-private distinction. The resulting polycentricism becomes a powerful governance force as the historical movement toward the assertion of near monopoly power by states within their territories is reversed under the operative framework of economic globalisation.

            Opening borders to commerce and investment has a strong collateral effect on the extent of the empire of law as the operative instrument of the law-state.  Open borders permit a disaggregation of citizenship from residence, especially among investors and their investments. It also produces a power in individuals to consent to membership in communities with its own rules and institutional structures, whose objectives and functions straddle multiple territorial borders.  Law now finds itself in a competitive environment of a force unseen since the Enlightenment in Europe.  On the one hand, the character of law within states in changing.  On the other, new techniques of law making and porous borders have increased the sources of governance. Law, like the state, has not so much been reduced in scope and power, as it has now come to share governance space with a host of different institutions producing distinct forms of command that may have some of the effects of traditional law but are not law (classically understood as a legitimate command sourced in the apparatus of a political state).

4. Toward a Mechanics of Relevance for National Legal Systems in the International Legal Order as a Whole.

            States need not embrace the passive virtues of the philosophy of quietism. Indeed, it is essential for each state to not merely rethink the basis of its legitimacy, form and function within its territory, but also to stake out a space for its positive contribution within emerging jurisdictional challenges posed by new governance frameworks, especially with respect to its areas of control. The great challenge for states is to find a way in which they might more actively engage in the processes of inter-systemic and vertical harmonization without losing their fundamental character and democratic connection with their citizens. That requires a willingness to develop a domestic legal order that incorporates evolving international standards that are themselves a product of the active participation of states and other relevant stakeholders. This can work, for example, in the area of corporate governance, in standards for bribery, and in the regulation of conflict.  

            That task requires a number of actions. First, states must not pout. States that embrace insularity in the face of the emerging global polycentric governance orders, states that raise walls of domestic legal systems around the borders of their national territories (with the occasional extraterritorial foray) will, quite perversely, increase the ability and ease with which other regulatory actors might penetrate those barriers. The penetration would take advantage of the blindness of law-states to governance frameworks beyond the state, that is, they would take advantage of the limits inherent in the territorial borders that once served more positively as a means for asserting a monopoly of state power within them. Foreign multinational corporation regulation of host state suppliers through contract provisions with little connection to the domestic legal order of the host state, or the fidelity of host state actors to the requirements of foreign supra-national evaluation and standard setting bodies are examples of penetration that states would find difficult to prevent without foregoing those connections that are almost invariably essential to the well-being of its people.

            Second, states and their domestic legal orders will have to engage polycentricism within their territories. That might require some flexibility in communicating with autonomous systems and a willingness to harmonize their domestic legal order with those of important parallel systems. This future is likely to be represented by the governance communication and harmonization challenges faced recently by a multinational corporation in the mining business, which found itself in violation of the requirements of an autonomous international system of norms for the conduct of its subsidiary, operating a mine through a subsidiary jointly owned by it and a provincial government in the place where the mine was located, despite the fact that the highest national court had determined that the conduct at issue met all of the legal requirements imposed by the state in which that mine was located.  States without sufficient points of contact with non-state governance systems will find themselves isolated and less in control of the activities that occur within their national territory.

            Third, the complexities of governance, and the dispersion of governance authority pose institutional management problems for states.  One of the greatest is what John Ruggie has called problems of incoherence.  At the state level, incoherence denotes the failure of communication and coordination of policy and law making among the various ministries and regulatory agencies of a state apparatus. The classic example is that of the South African Republic, whose negotiation of bi-lateral investment treaty provisions by one ministry did not take into account the requisites of human rights based policy being implemented by another ministry.  The resulting conflicting obligations produced litigation to the detriment of state policy.  At the international level, incoherence is more common and illustrated by the disjunction between the rules applicable within a state through domestic law and the international obligations of the state without direct domestic effect.

            Fourth, states must avoid legal segmentation. In the context of 19^th century global horizontal harmonization legal segmentation produces a harmonized law for elites driven by the state and a local traditionalist law/custom for everyone else.  In places like Japan before 1945 this produced a tendency towards multiple domestic legal orders within a single territory.  The same effects are sometimes exhibited in developing states subject to significant harmonization pressure through their entanglements with the global financial community regulators—the International Monetary Fund and the World Bank.  In the context of inter-systemic harmonization, similar patterns produce a challenge of multiple domestic legal orders that harmonize rules applicable, at least functionally, to distinct segments of the national population. There is already evidence of this; China exhibits a tendency toward bifurcated labour markets depending on whether labour is hired for production within foreign dominated supply chains or domestic ones.  Bi-lateral investment treaties create pockets of private law and rule making with respect to which the domestic legal order may not play a decisive role. 

            Taken together, these strategies suggest in the briefest form, the contours of the challenges posed by inter-systemic harmonization, and the dangers of resisting harmonization among these governance frameworks of “unequal” and distinctive governance organs—states, intergovernmental organizations, transnational private actors and multinational corporations and religions, to name only a few. States seek to remain effective and powerful autonomous actors. The expression of state power through law must remain vital.  Yet these two objectives have become complicated in a world in which states—and law—no longer occupy the governance stage without competitors. States that can accommodate the new realities of power diffusion and governance variety—of corporations that regulate, of states that seek to project their power through traditionally private juridical persons (corporations, transnational public and private organizations, and sovereign investment funds), of functional law effectuated through survey, surveillance, disclosure, standards, conditional income support programs, supply chain relations, religious command and the like, are likely to be more effective actors within and without their territories than those who hide from these changes or resist them. 

            But the processes of inter-systemic harmonization, like those of horizontal and vertical harmonization, will neither be harmonious nor a rationally unfolding well-managed process compelled by the power of its internal coherence and its external incentives.  The process will be messy—and the results uneven. Vanguard states will become both more powerful internally and more influential within global governance communities; rejectionist states will seek to preserve traditional approaches in solidarity with like minded states but become, in the process, less relevant globally.  An important factor determining the extent of conflict in moving to a world organized on principles of inter-systemic harmonization, of course, and the effects of these transformations, are also largely dependent on variations in state power. The least developed and least powerful states (politically, culturally or economically) are likely to face these challenges in a more direct and consequential form than the largest or most powerful states. China and the United States can resist emerging trends longer, and reach accommodations with the products of such trends in ways which are impossible for the least developed African states. And indeed, in some ways, and though it seeks to turn the process to advance its own interests, China has already begun to move toward an inter-systemic harmonization model more successfully than the United States. A most interesting set of challenges face states that are already deeply enmeshed in supra-national governance organizations.  The Member States of the European Union have greater experience in the dynamics of cooperation within loosely bound normative structures. They also have experience in governance within diffuse governance frameworks in which power is shared among a number of stakeholders.  Yet all of this diffusion remains confined to the state and its supra-national creatures. Much can be learned from the experience of Europe, though European states will have much to learn, as well, from the experiences of developing states that confront the power of transnational non-state governance.  Inter-systemic harmonization suggests the possibility that law might preserve its relevance and autonomy. But it can achieve this objective only by conceding its monopoly on governance.

__________

JOSE ERNESTO MEDELLIN, Petitioner v. TEXAS

No. 06-984

SUPREME COURT OF THE UNITED STATES

552 U.S. 491; 128 S. Ct. 1346; 170 L. Ed. 2d 190

October 10, 2007, Argued
March 25, 2008, Decided

[Available at: http://www.law.cornell.edu/supct/html/06-984.ZS.html]

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.

. . . .

Petitioner Jose Ernesto Medellin, 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, Medellin filed an application for a writ of habeas corpus in state court.  The Texas Court of Criminal Appeals dismissed Medellin’s application as an abuse of the writ under state law, given Medellin’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, 126 S. Ct. 2669, 165 L. Ed. 2d 557.  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, id., at 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 Jose Ernesto Medellin, a Mexican national, has lived in the United States since preschool.  A member of the  “Black and Whites” gang, Medellin was convicted of capital murder and sentenced to death in Texas for the gang rape and brutal murders of two Houston teenagers.

* * *

Medellin was arrested at approximately 4 a.m. on June 29, 1993.  A few hours later, between 5:54 and 7:23 a.m., Medellin 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 Medellin of his Vienna Convention right to notify the Mexican consulate of his detention.  Brief for Petitioner 6-7.  Medellin was convicted of capital murder and sentenced to death; his conviction and sentence were affirmed on appeal.  Medellin v. State, No. 71,997 (Tex. Crim. App., May 16, 1997), App. to Brief for Respondent 2-31.

Medellin first raised his Vienna Convention claim in his first application for state post conviction relief.  The state trial court held that the claim was procedurally defaulted because Medellin 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 Medellin 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.  The Texas Court of Criminal Appeals affirmed.  Id., at 64-65.

. . . .

Medellin then filed a habeas petition in Federal District Court.  The District Court denied relief, holding   that Medellin’s Vienna Convention claim was procedurally defaulted and that Medellin had failed to show prejudice arising from the Vienna Convention violation.  See Medellin v. Cockrell, 2003 U.S. Dist. LEXIS 27339, Civ. Action No. H-01-4078 (SD Tex., June 26, 2003), App. to Brief for Respondent 66, 86-92.

While Medellin’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 Medellin, 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, P 153(9)..  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. . .

This Court granted certiorari.  Medellin v. Dretke, 544 U.S. 660, 661, 125 S. Ct. 2088, 161 L. Ed. 2d 982 (2005) (per curiam) (Medellin I).  Before we heard oral argument, however, President George W. Bush issued his Memorandum for 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.

Medellin, 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 Medellin, 223 S. W. 3d 315, 322-323 (Tex. Crim. App. 2006).  . . .

The Texas Court of Criminal Appeals subsequently dismissed Medellin’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. 917, 127 S. Ct. 2129, 167 L. Ed. 2d 862 (2007).

II

Medellin 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, Medellin 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, 27 U.S. 253, 2 Pet. 253, 315, 7 L. Ed. 415 (1829),  overruled on other grounds, United States v. Percheman, 32 U.S. 51, 7 Pet. 51, 8 L. Ed. 604 (1833), which held that a treaty is “equivalent to an act of the legislature,” and hence self-executing, when it “operates of itself without the aid of any legislative provision.”Foster, supra, at 314, 2 Pet. 253, 315, 7 L. Ed. 415.  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, 8 S. Ct. 456, 31 L. Ed. 386 (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.”Igartua-De La Rosa v. United States, 417 F.3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).

A treaty is, of course, “primarily a compact between independent nations.”Head Money Cases, 112 U.S. 580, 598, 5 S. Ct. 247, 28 L. Ed. 798 (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.. . . .  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, 8 S. Ct. 456, 31 L. Ed. 386.

. . . .

Medellin 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.. . . .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,  105 S. Ct. 1338, 84 L. Ed. 2d 289 (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 post ratification understanding” of signatory nations.  Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226, 116 S. Ct. 629, 133 L. Ed. 2d 596 (1996). . . .

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.  [13] 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 Medellin 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, 273 U.S. App. D.C. 266, 859 F.2d 929, 938 (CADC 1988) (quoting Diggs v. Richardson, 180 U.S. App. D.C. 376, 555 F.2d 848, 851 (CADC 1976); internal quotation marks omitted).  . . . .  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, 5 S. Ct. 247, 28 L. Ed. 798.

The remainder of Article 94 confirms  that the U. N. Charter does not contemplate the automatic enforceability of ICJ decisions in domestic courts.. . .   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, 126 S. Ct. 2669, 165 L. Ed. 2d 557.  And even this “quintessentially internationalremed[y],”id., at 355, 126 S. Ct. 2669, 165 L. Ed. 2d 557, 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.  . . . .

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, Medellin’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, 38 S. Ct. 309, 62 L. Ed. 726 (1918).

. . . .

Medellin 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. . . . .   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 ____, 170 L. Ed. 2d, at 244―that ICJ judgments are binding only between those parties, Art. 59, Stat. 1062.

. . . .

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, 102 S. Ct. 2374, 72 L. Ed. 2d 765 (1982). . .  .   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.

. . . .

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, 126 S. Ct. 2669, 165 L. Ed. 2d 557.

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 ____, 170 L. Ed. 2d, at 246.  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. 27 U.S. 253, 2 Pet., at 314, 7 L. Ed. 415.  Four years later, the Supreme Court considered another claim under the same treaty, but concluded that the treaty was self-executing.  See Percheman, 32 U.S. 51, 7 Pet., at 87, 8 L. Ed. 604.  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., 32 U.S. 51, 7 Pet., at 89, 8 L. Ed. 604.

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, 115 S. Ct. 1043, 130 L. Ed. 2d 1024 (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 ____ - ____, 170 L. Ed. 2d, at 237-238 (“[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 ____, 170 L. Ed. 2d, at 238-246.  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 ____ - ____, 170 L. Ed. 2d, at 238.  They do this on the basis of a multifactor, “context-specific” inquiry. Post, at ____, 170 L. Ed. 2d, at 238.  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 ____ - ____, 170 L. Ed. 2d, at 238-246.

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 ____ - ____, 170 L. Ed. 2d, at 238-246.  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, 27 U.S. 253, 2 Pet., at 314, 7 L. Ed. 415 (emphasis added); Whitney, 124 U.S., at 195,8 S. Ct. 456, 31 L. Ed. 386.  See also Foster, 27 U.S. 253, 2 Pet. , at 307, 7 L. Ed. 415 (“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 “post ratification understanding” of signatory nations.  See Zicherman, 516 U.S., at 226, 116 S. Ct. 629, 133 L. Ed. 2d 596.  There are currently 47 nations that are parties to the Optional Protocol and 171 nations that are parties to the Vienna Convention.  Yet neither Medellin nor his amici have identified a single nation that treats ICJ judgments as binding in domestic 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, 126 S. Ct. 2669, 165 L. Ed. 2d 557 (quoting Breard, 523 U.S., at 375, 118 S. Ct. 1352, 140 L. Ed. 2d 529).  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 Medellin’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.) Medellin’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, 53 S. Ct. 305, 77 L. Ed. 641 (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. . . .

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, 126 S. Ct. 2669, 165 L. Ed. 2d 557.  Given that holding, it is difficult to see how that same structure and purpose can establish, as Medellin 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 ____ - ____, 170 L. Ed. 2d, at 235, and Appendix A, stand only for the unremarkable proposition that some international agreements are self-executing and others are not.  . . .

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, 126 S. Ct. 2669, 165 L. Ed. 2d 557.

D

Our holding does not call into question the ordinary enforcement of foreign judgments or international arbitral agreements.  Indeed, we agree with Medellin 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 Medellin relies do not of their own force create domestic law.

. . . .

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, 102 S. Ct. 2374, 72 L. Ed. 2d 765.  In Kolovrat v.  Oregon, 366 U.S. 187, 191, 196, 81 S. Ct. 922, 6 L. Ed. 2d 218 (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, 67 S. Ct. 1431, 91 L. Ed. 1633 (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 ____, 170 L. Ed. 2d, at 236-237, 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 ____, 170 L. Ed. 2d, at 244 (Breyer, J., dissenting).  The judgments of a number of international tribunals enjoy a different status because of implementing legislation enacted by Congress. . . .    Such language demonstrates that Congress knows how to accord domestic effect to international obligations when it desires such a result.

Further, Medellin 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 Medellin does not ask us to enforce a foreign-court judgment settling a typical commercial or property dispute. . . .   What is more, on Medellin’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 1 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, 126 S. Ct. 2669, 165 L. Ed. 2d 557. 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

Medellin 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. . . .

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.  . . . .  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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417; Dames & Moore v. Regan, 453 U.S. 654, 668, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (opinion 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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417

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.  Medellin 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, 27 U.S. 253, 2 Pet., at 315, 7 L. Ed. 415; Whitney, 124 U.S., at 194, 8 S. Ct. 456, 31 L. Ed. 386; Igartua-De La Rosa, 417 F.3d at 150.

. . . . .

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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417.

. . . .

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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (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. . . . . .^.

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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (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 preclude 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, 123 S. Ct. 2374, 156 L. Ed. 2d 376; Dames & Moore, 453 U.S., at 679-680, 101 S. Ct. 2972, 69 L. Ed. 2d 918; United States v. Pink, 315 U.S. 203, 229, 62 S. Ct. 552, 86 L. Ed. 796 (1942);  United States v. Belmont, 301 U.S. 324, 330, 57 S. Ct. 758, 81 L. Ed. 1134 (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, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (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.

. . . .

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, 101 S. Ct. 2972, 69 L. Ed. 2d 918.

The President’s Memorandum is not supported by a “particularly longstanding practice” of congressional acquiescence, see Garamendi, supra, at 415,123 S. Ct. 2374, 156 L. Ed. 2d 376, 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, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)“States possess primary authority for defining and enforcing the criminal law” (quoting Engle v. Isaac, 456 U.S. 107, 128, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (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

Medellin argues that the President’s Memorandum is a valid exercise of his “[T]ake 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.

---

447 U.S. 74
PruneYard Shopping Center v. Robins

APPEAL FROM THE SUPREME COURT OF CALIFORNIA

No. 79-289 Argued: March 18, 1980 ―- Decided: June 9, 1980
[Available at: http://supreme.justia.com/cases/federal/us/447/74/case.html]

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

We postponed jurisdiction of this appeal from the Supreme Court of California to decide the important federal constitutional questions it presented. Those are whether state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, violate the shopping center owner’s property rights under the Fifth [p77] and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments.

I

Appellant PruneYard is a privately owned shopping center in the City of Campbell, Cal. It covers approximately 21 acres ― 5 devoted to parking and 16 occupied by walkways, plazas, sidewalks, and buildings that contain more than 65 specialty shops, 10 restaurants, and a movie theater. The PruneYard is open to the public for the purpose of encouraging the patronizing of its commercial establishments. It has a policy not to permit any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes. This policy has been strictly enforced in a nondiscriminatory fashion. The PruneYard is owned by appellant Fred Sahadi.

Appellees are high school students who sought to solicit support for their opposition to a United Nations resolution against “Zionism.” On a Saturday afternoon they set up a card table in a corner of PruneYard’s central courtyard. They distributed pamphlets and asked passersby to sign petitions, which were to be sent to the President and Members of Congress. Their activity was peaceful and orderly, and, so far as the record indicates, was not objected to by PruneYard’s patrons.

Soon after appellees had begun soliciting signatures, a security guard informed them that they would have to leave because their activity violated PruneYard regulations. The guard suggested that they move to the public sidewalk at the PruneYard’s perimeter. Appellees immediately left the premises and later filed this lawsuit in the California Superior Court of Santa Clara County. They sought to enjoin appellants from denying them access to the PruneYard for the purpose of circulating their petitions.

The Superior Court held that appellees were not entitled under either the Federal or California Constitution to exercise [p78] their asserted rights on the shopping center property. App. to Juris.Statement A-2. It concluded that there were “adequate, effective channels of communication for [appellees] other than soliciting on the private property of the [PruneYard].”Id. at A-3. The California Court of Appeal affirmed.

The California Supreme Court reversed, holding that the California Constitution protects “speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.”23 Cal.3d 899, 910, 592 P.2d 341, 347 (1979).. . .

Before this Court, appellants contend that their constitutionally established rights under the Fourteenth Amendment to exclude appellees from adverse use of appellants’ private property cannot be denied by invocation of a state constitutional provision or by judicial reconstruction of a State’s laws of private property. We postponed consideration of the question of jurisdiction until the hearing of the case on the merits. 444 U.S. 949. We now affirm.

II

We initially conclude that this case is properly before us as an appeal under 28 U.S.C. § 1257(2). . . .

III

Appellants first contend that Lloyd Corp. v. Tanner,407 U.S. 551 (1972), prevents the State from requiring a private shopping center owner to provide access to persons exercising their state constitutional rights of free speech and petition when adequate alternative avenues of communication are available. Lloyd dealt with the question whether, under the Federal Constitution, a privately owned shopping center may prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center’s operations. Id. at 552. The shopping center had adopted a strict policy against the distribution of handbills within the building complex and its malls, and it made no exceptions to this rule. Id. at 555. . .  Respondents in Lloyd argued that, because the shopping center was open to the public, the First Amendment prevents the private owner from enforcing the handbilling restriction on shopping center premises. Id. at 564.. . . [p81] In rejecting this claim, we substantially repudiated the rationale of 407 U.S. 551 (1972), prevents the State from requiring a private shopping center owner to provide access to persons exercising their state constitutional rights of free speech and petition when adequate alternative avenues of communication are available. Lloyd dealt with the question whether, under the Federal Constitution, a privately owned shopping center may prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center’s operations. Id. at 552. The shopping center had adopted a strict policy against the distribution of handbills within the building complex and its malls, and it made no exceptions to this rule. Id. at 555.. . . Respondents in Lloyd argued that, because the shopping center was open to the public, the First Amendment prevents the private owner from enforcing the handbilling restriction on shopping center premises. Id. at 564.. . .  [p81] In rejecting this claim, we substantially repudiated the rationale of Food Employees v. Logan Valley Plaza,391 U.S. 308]391 U.S. 308 (198), which was later overruled in 391 U.S. 308 (198), which was later overruled in Hudgens v. NLRB,424 U.S. 507 (1976). We stated that property does not lose its private character merely because the public is generally invite to use it for designated purposes,” and that “ [t]he essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center.”407 U.S. at 569.

Our reasoning in Lloyd, however, does not, ex propriovigore, limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. Cooper v. California,386 U.S. 58, 62 (1967). See also 407 U.S. at 569-570. In Lloyd, supra, there was no state constitutional or statutory provision that had been construed to create rights to the use of private property by strangers, comparable to those found to exist by the California Supreme Court here. It is, of course, well established that a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. See, e.g., Euclid v. Ambler Realty Co.,272 U.S. 365 (1926); Young v. American Mini Theatres, Inc.,427 U.S. 50 (1976).Lloyd held that, when a shopping center owner opens his private property to the public for the purpose of shopping, the First Amendment to the United States Constitution does not thereby create individual rights in expression beyond those already existing under applicable law. See also Hudgens v. NLRB, supra at 517-521. [p82]

IV

Appellants next contend that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation and the Fourteenth Amendment guarantee against the deprivation of property without due process of law. .  . .

Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants’ property right under the Taking Clause. There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center. . .  .

There is also little merit to appellants’ argument that they have been denied their property without due process of law. . .  .

V

Appellants finally contend that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.. . . They [p86] state that, in Wooley v. Maynard,430 U.S. 705 (1977), this Court concluded that a State may not constitutionally require an individual to participate in the dissemination of an ideological [p87] message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. This rationale applies here, they argue, because the message of Wooley is that the State may not force an individual to display any message at all.

Wooley, however, was a case in which the government itself prescribed the message, required it to be displayed openly on appellee’s personal property that was used “as part of his daily life,” and refused to permit him to take any measures to cover up the motto even though the Court found that the display of the motto served no important state interest. Here, by contrast, there are a number of distinguishing factors. Most important, the shopping center, by choice of its owner, is not limited to the personal use of appellants. It is instead a business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Second, no specific message is dictated by the State to be displayed on appellants’ property. There consequently is no danger of governmental discrimination for or against a particular message. Finally, as far as appears here, appellants can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law.

. . .

We conclude that neither appellants’ federally recognized property rights nor their First Amendment right have been infringed by the California Supreme Court’s decision recognizing a right of appellees to exercise state-protected rights of expression and petition on appellants’ property. The judgment of the Supreme Court of California is therefore

Affirmed.

MR. JUSTICE BLACKMUN joins the opinion of the Court except that sentence thereof, ante at 84, which reads:

Nor [p89] as a general proposition is the United States, as opposed to the several States, possessed of residual authority that enables it to define “property” in the first instance.

__________

III. Hierarchies of Law within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order

            Over the course of the last several classes the student has been introduced to the relationship between the state, its government and systems of law as it has developed in the West. We started with an exploration of the premises of most important approaches to the construction of relationships between law, the state and a government. Beyond the substantive characteristics of each, and their similarities and differences, the student was also introduced to the effects of each set of ordering premises on the fundamental relationship between the individual, the political community and their government. On an as applied basis, it provides the student with the tools that make an understanding of different political systems, and their relationship to law, more understandable. In addition, the student was also exposed to the way in which each of these approaches communicate. Ultimately the object was to provide students with the outlines of the framework within which the modern law-state has been created and deployed in domestic and global governance.

            The class then turned to the issue of ordering law within each of these framing structures. In the face of the structuring characteristics of the modern law-state, how do states order law, and by ordering law, implement theoretical premises about the relationship of the individual to government and government to law. The focus of the class was on two principal objectives. The first was to explore the creation and the legitimacy of “higher law” that both constrains the state and its government, which has become the basis of modern constitutional law. The second was to explore a consequence of this establishment of a “higher law” system for ordering government, and its effects for ordering “inferior” law that may otherwise be declared or enacted by courts, legislatures or administrative bodies. Together these two facets of law-ordering creates what is commonly understood as the domestic legal order of a state. That is, the domestic legal order of a state refers both to the ordering of law within a state and also to the mechanics by which government is constituted, constrained, and legitimated by a states “higher law” and by which a government contributes to the enactment, implementation and enforcement of law.

            The management of legal hierarchies in the United States was then introduced.  The doctrine of preemption serves as the tool through which multi-jurisdictional states—federal states like the United States, and federative unions of states, like the European Union—manage the multi-system legal orders.  The object is coherence within a governance space in which law operates through multiple autonomous but related sub systems (common law, statutes, etc.) organized in simple hierarchies (recall the Indiana statute on legal hierarchy) within states, and in more complex relationships between state hierarchically ordered law systems and those of a superior governmental system (the United States general government), which share authority over the subject of legal regulation.  The system of preemption is made complicated precisely because multi-level federations now legislate in areas traditionally left to non-state social norm systems, and because of a shift on political consensus that once favored local law making and now favors law making at the national level. 

            In a world in which the state represented the repository of the highest law of the territory within which its authority could be enforced, the domestic legal order of states expressed both a description of a system of law-states, and also gave expression to the premise that the law-state was the highest form of legitimate law making. Beyond that was the world of the “law of nations” in a modern version not far different from its conception at the time of the Institutes (e.g., Emer de Vattel, Le Droit des Gens[4] (James Brown Scott ed., translation of the 1758 edition by Charles G. Fenwick (another English language version[5])), and from the 19th century a more formalized structure of contract relations between states, managed under a system of treaties and custom understood as international law.[6] These applied as contracts among equals among the family of civilized nations but could be used to support colonization or the making of unequal treaties when superior nations engaged in state to state relations with an inferior state. Before 1945, this system, of international law produced a bifurcated approach to law systems. On the one hand the system of law produced within a state, the sum of which constituted its domestic legal order, was understood to apply directly to individuals and understood as the legitimate expression of popular sovereignty because it proceeded from the people or their representatives in ways sanctioned by the “higher (constitutional) law” of the state. On the other hand, the obligations incurred by states among each other were said to bind states, as juridical entities, but had no effect within the territory of a state unless, under the rules provided for this purpose within a state, these treaty or customary obligations, were incorporated into the domestic legal order of a state. In the absence of that incorporation there was no automatic transposition of international into domestic law and individuals within a state had neither rights nor obligations under these provisions, however much they might want either.

            But especially since the middle of the 20th century, law and law systems have once again become more detached from the state, and assumed an autonomy that might produce a direct connection between international law and individuals wherever situated irrespective of the action or inaction of an intermediary state. This change is described in your reading, Larry Catá Backer, Inter-Systemic Harmonization and Its Challenges for the Legal-State,[7] in FICHL Publication Series No. 11 (2011): The Law of the Future and the Future of the Law 427-437 (Editors: Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker; Torkel Opsahl Academic EPublisher, Oslo, 2011). Again, the object is coherence, but the vantage point has changed.  Were the state once stood at the apex of legal regulation, now it is increasingly subsumed within higher order systems, both public (international state based institutions) and private. Harmonization is currently proceeding along different lines that reflect ambiguous and multi-vector interactions between traditional and emerging governance actors and that suggest the context in which the future of legal systems, however understood, will be determined. This think piece first considers the foundations. The great 19th century project of horizontal harmonization, centered on states and their domestic law systems. The 20th century project of vertical harmonization focused on legal internationalization, from which the edifices of supra-national institutions and public transnational law evolve. It then turns to the current challenge of inter-systemic harmonization. Founded on governance polycentricity, of the mechanics of law beyond the domestic legal orders of states, of the rise of private law with public functions, and of public entities as private actors, it is changing the landscape of law. The greatest challenge for law is to avoid becoming irrelevant where corporations use contracts to govern their supply chains, states become private market actors, and private enterprises regulate markets by assessment and rating.

            The development of supra-national norm making, at first centered on the United Nations and its related organizations, and then spreading to a number of the multilateral public organizations, have created a system of norm and law making that seeks to regulate areas of conduct once reserved to states. More importantly, these international organizations not only began producing regulation and law but also began to understand their governance role as inter connected with the law of the domestic legal orders of the member states of these organizations. (e.g., José E. Alvarez, International Organizations as Law-Makers, Oxford University Press, 2006). Globalization also tended to shift regulatory emphasis from states to a “transnational” space beyond, though not clearly vertically arranged against the domestic legal orders of states with which they came in contact. (e.g., Gunther Teubner,‘Global Bukowina’[8]: Legal Pluralism in the World Society,[9]in Global Law Without a State 3-28 (Gunther Teubner ed., 1997)). Some states created mechanisms for the automatic incorporation of their international law obligations within their domestic legal orders. Others placed international law obligations within the hierarchy of their laws, sometimes placing international law above and sometimes on the same level as domestic statutes. Still others retained a high wall between the international obligations of the state and its domestic legal order, requiring a positive transposition of international law by legislative action or by the inclusion in the treaty itself of an explicit provision for automatic incorporation upon approval of the treaty by the legislature. In any case, the relation of the international obligations of states to other aspects of law has always been treated, and especially so in the United States, as something apart from domestic legislation. Complicating the situation was the rise of international organizations with authority to create international rules or set standards with sometimes binding effects. Lastly, some aspects of both international treaty law and custom have come to be accepted by many, if not most states as binding whether or not a state consents to their application. These peremptory norms, jus cogens,[10] remain quite controversial (e.g., Inter-American Court, The Legal Status and Rights of Undocumented Migrants, Mexico,[11] Advisory Opinion OC-18/03 (Decision No) Inter-Am. Ct. H.R. (Ser. A) No. 18 (Official Case No)IHRL 3237 (IACHR 2003), issued September 17, 2003).

For today’s class students will consider these issues as applied in the United States. We will use as the basis of our examination the discussion in Medellín v. Texas,[12] 128 S.Ct. 1346 (2008). The case presents a useful example of the way in which state, federal and national governments, and their legal orders, now intersect within the law-state system of the United States. Its complexity provides a window on the realities of the application of law where multiple jurisdictions and systems of law may apply simultaneously to a single event or series of events.

The facts of the case are fairly straightforward:

Petitioner Jose Ernesto Medellin, a Mexican national, has lived in the United States since preschool. A member of the “Black and Whites” gang, Medellin was convicted of capital murder and sentenced to death in Texas for the gang rape and brutal murders of two Houston teenagers.

. . . .

Medellin was arrested at approximately 4 a.m. on June 29, 1993. A few hours later, between 5:54 and 7:23 a.m., Medellin 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 Medellin of his Vienna Convention right to notify the Mexican consulate of his detention. Brief for Petitioner 6-7. Medellin was convicted of capital murder and sentenced to death; his conviction and sentence were affirmed on appeal. Medellin v. State, No. 71,997 (Tex. Crim. App., May 16, 1997), App. to Brief for Respondent 2-31.

But because Medellin was a Mexican national, the interests of Mexico in the welfare of its citizens and as memorialized in agreements between the United States and Mexico might also play a part. In 1969, the United States ratified the Vienna Convention on Consular Relations[13] and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention[14] (Optional Protocol or Protocol) on Apr. 24, 1963. The preamble to the Convention sets out as one of its purposes to “contribute to the development of friendly relations among nations.” 21 U.S.T., at 79. Consequently, Convention Article 36, to “facilitat[e] the exercise of consular functions” (Art. 36(1), 21 U.S.T., at 100), 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. Disputes arising out of an interpretation of the Convention are to be resolved in the International Court of Justice[15] under its compulsory jurisdiction. U.N. member states undertake to comply with ICJ decisions.

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. (Medellin, supra ).

No issue of international law was raised during the course of the arrest, or trial court proceedings. “Medellin first raised his Vienna Convention claim in his first application for state post-conviction relief. The state trial court held that the claim was procedurally defaulted because Medellin 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 Medellin 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. The Texas Court of Criminal Appeals affirmed.” (Ibid). At this point, Medellin filed a federal habeas corpus[16]petition in the federal district court. It was denied. While this denial was on appeal to the Fifth Circuit,

“the ICJ issued its decision in Avena [and Other Mexican Nationals; Mexico v. United States of America, 2004 I. C. J. 12[17] (Judgment of Mar. 31). 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 Medellin, 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, P 153(9).. The ICJ indicated that such review was required without regard to state procedural default rules. Id., at 56-57.” (Ibid).

The Fifth Circuit then ruled against Medellin. The U.S. Supreme Court then granted certiorari,[18] Medellin v. Dretke, 544 U.S. 660, 661, 125 S. Ct. 2088, 161 L. Ed. 2d 982 (2005) (per curiam) (Medellin I). Before the Supreme Court heard oral argument, however, then President George W. Bush issued a Memorandum for the United States Attorney General, which provided:

“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. (Medellin, supra).

Relying on both the Presidential Memorandum and the ICJ Avena decision, Medellin filed a second application for habeas relief in state court. Ex parte Medellin, 223 S. W. 3d 315, 322-323 (Tex. Crim. App. 2006). That appeal was then dismissed by the Texas Court of Criminal Appeals as an abuse of the writ. Ex Parte Medellín, 223 S. W. 3d, 315, at 352 (Tex. Ct. Crim. App. 2006). In that 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. The U.S. Supreme Court granted certiorari. 550 U.S. 917, 127 S. Ct. 2129, 167 L. Ed. 2d 862 (2007). The U.S. Supreme Court then had two significant issues to deal with―the first was the effect of international law on American jurisprudence and its incorporation into the decisions of American courts. The second was an issue of federalism, touching on the effect of a Presidential Memorandum purportedly issued under the President’s foreign affairs powers on the application and interpretation of the criminal law of a state.

With respect to the first issue, the Supreme Court first summarized its view of the relationship of international law to the domestic law of the United States.

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, 27 U.S. 253, 2 Pet. 253, 315, 7 L. Ed. 415 (1829), overruled on other grounds, United States v. Percheman, 32 U.S. 51, 7 Pet. 51, 8 L. Ed. 604 (1833), which held that a treaty is “equivalent to an act of the legislature,” and hence self-executing, when it “operates of itself without the aid of any legislative provision.” Foster, supra, at 314, 2 Pet. 253, 315, 7 L. Ed. 415. 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, 8 S. Ct. 456, 31 L. Ed. 386 (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.” Igartua-De La Rosa v. United States, 417 F.3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).

A treaty is, of course, “primarily a compact between independent nations.” Head Money Cases, 112 U.S. 580, 598, 5 S. Ct. 247, 28 L. Ed. 798 (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..... 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, 8 S. Ct. 456, 31 L. Ed. 386.

So far so good, but Medellin then suggested that the Avena decision was binding as law within the United States because the relevant U.N. Charter provisions, the Optional Protocol and the ICJ Statute were effectively self-executing. A majority of the justices disagreed.

To arrive at this determination, the Supreme Court described what it considered the appropriate interpretive analysis for cases of this kind. Because statutes are at issue, it interpretation starts with the relevant text (Ibid; Part II.A). But, “‘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 post ratification understanding” of signatory nations. Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226, 116 S. Ct. 629, 133 L. Ed. 2d 596 (1996).” (Ibid). The majority suggested that the “most natural reading of the Optional Protocol is as a bare grant of jurisdiction.” (Ibid). In any case, they reasoned, the obligation to comply with ICJ judgments arises from the U.N. Charter and not the Optional Protocol. But if that is the case, the Court determined, then the operative language, that each member state undertakes to comply with ICJ decisions means only that the member state commits “to take future action through their political branches to comply with an ICJ decision.” Brief for United States as Amicus Curiae in Medellin I, O. T. 2004, No. 04-5928, p 34.” (Ibid). Thus, the undertaking is a political undertaking not a legal one. In effect, the U.N. Charter, the majority suggests, commits the United States only to endeavor to transpose ICJ judgments into domestic law. For this purpose, the Supreme Court relied on both the position of the U.S. government and its application of prior cases, and its inference from the framework for the enforcement of ICJ decisions. “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, 102 S. Ct. 2374, 72 L. Ed. 2d 765 (1982). . . . 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.” (Ibid).

In sum, Medellin’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, 38 S. Ct. 309, 62 L. Ed. 726 (1918).

The majority then faults the dissenting opinion for misreading the texts and misinterpreting the other sources relied on. The dissent, the majority tells the reader, failed to appropriately consider the text. “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, 115 S. Ct. 1043, 130 L. Ed. 2d 1024 (1995).” (Ibid., Part II.B). Lastly, in Part II.C., the majority supported its reading by considering the understanding of other signatory states after ratification. (Part II.C.). There is a suggestion of the anti-democratic character of holding that the ICJ decision is self-executing as well as the suggestion that this result might interfere with the constitutional prerogatives of the federal courts. (Ibid).

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, 126 S. Ct. 2669, 165 L. Ed. 2d 557. 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. Part II.D.)

But what about the power of the President to compel the Texas courts to apply the treaty? The Supreme Court agrees that the interests of the United States that the president was seeking to advance were compelling. But however compelling, the court argued, in the absence of a constitutionally sufficient power, the President could not assert authority (or better put, the State of Texas could refuse to comply with any purported assertion).

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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (opinion 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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 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, 72 S. Ct. 863, 96 L. Ed. 1153, 62 Ohio Law Abs. 417 (Ibid., Part III.A).

The United States and Medellin advanced three arguments in support of the President’s authority: (1) 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; (2) that the President exercised an “independent” international dispute-resolution power wholly apart from the asserted authority based on the pertinent treaties, and (3) that the President’s Memorandum is a valid exercise of his power to take care that the laws be faithfully executed.

The majority rejected the first argument on the ground that “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.” (Ibid., III.B.1). In any event, the Court concluded, Congress never acquiesced to this sort of assertion of Presidential power. The Court emphasized that no President has the authority to unilaterally execute a non-self-executing treaty. (Ibid). The Court also rejected the claim that the president had sufficient authority under his foreign affairs powers. (Ibid., III.B.2). This claim depended on Congressional acquiescence, of which the Court found none. The court rejected the third argument on the grounds that the power to execute the laws did not include within it the power to enact them. (Ibid., III.B.3). For those reasons, the State of Texas was free to ignore the Presidential memorandum as of no legal effect.

Whatever one thinks of the merits of the majority’s reasoning, the Medellin case thus provides a very clear picture of the construction of the hierarchy of law in the United States, and especially the application of international law within the American domestic legal order. International law that is self-executing when made has the same effect as statutes passed by Congress. They need not be enacted anew. On the other hand, they can be repealed, modified or ignored by subsequent enactments of Congress, even if the language of the treaty itself committed the United States to refrain from doing any of those things. Unlike other states, self-executed international law has no special or superior place within the American hierarchy of law. The same is true of law enacted by Congress to transpose international obligations into national law. The techniques of statutorily interpretation will be applied to determine whether a treaty is self-executed and the focus, in these cases will be on the text of the treaty and the intent of the executive in negotiating the treaty. The post ratification behavior of the state parties may also serve as evidence of the intent of the parties relating to the meaning of the treaty. The President may not compel states to comply with the treaty obligations that the United States has ratified, absent legitimately enacted statutes that transpose these state to state obligations into domestic law. Neither may the President appear to effectively legislate such compliance in the absence of Congressional acquiesce or action. Where the Federal Constitution fails to give the President power, states are free to ignore his command, and state law and practice may prevail over Presidential desires, even those backed by international commitments to which the United States (through its federal government) is bound. Thus the internal and external dimensions of the authority of international law in the United States and its role in the hierarchy of U.S. law.

It must be remembered, however, that the premises out of which the majority Justices reached their conclusion remain highly contested. That contestation exists on two levels. One level is focused on the peculiarities of U.S. constitutional law. Within the parameters of American constitutional law, the narrow textualism[19]that produced the majority opinion is countered by a functional[20] approach well illustrated by the dissenting Justices. Rather than focusing on the logic of the text at issue and the intent of the drafters in the interpretive construction of the text, the functionalist justice will look to achieving the intent objective of the drafters rather than privileging the textual and formal logic of the text. As the majority in the Medellin case suggested, formalists tend to view the functional approach as veering too close to and sometimes embracing a legislative power that is not for courts to wield. Thus the issue of interpretation, the issue of legal hierarchies and the role of international law in the United States becomes one not merely of the application of law and constitutional principles, but also of the theory of separation of powers (which organ of government has the authority to make these determinations) and of the character of interpretation itself (e.g., when does interpretation become legislation). (Medellin, Part II.B).

The other level of contestation focuses on the emerging structural framework of international law and organizations. Internationalists tend to reject the foundational premises on which the Medellin justices relied. Here the readings may be useful (Larry Catá Backer, Inter-Systemic Harmonization and Its Challenges for the Legal-State,[21] supra). Traditional hierarchies of law, grounded in the ultimate supremacy of the law-state is sometimes rejected in favor of a legal hierarchy on which at least conventional international law[22] and jus cogens is treated as equal or superior to the statutory law of states. This is a set of presumptions that may be implicitly built into international governance instruments sometimes (U.N. Guiding Principles of Business and Human Rights).[23] Many states continue to reject this notion, but internationalists and international public and private organizations increasingly take the view that international law is both superior and binding not just on states but also directly on the residents and juridical persons residing in any state that may be part of the community of states that have produced this law. One approach is based on the premise that the community of nations, especially where each is legitimately established under democratic principles, has the authority to constrict common laws of nations that ought to be directly applied to all members of that governance community. But this is countered by those who view this as illegitimate because of the democratic deficit[24] in its development―that is that international law is developed and agreed by institutions with no direct connection with the people in whom sovereignty is vested. In either case, what is becoming clear is that, while the Medellin opinion represents a very nice application of the classical theory of legal hierarchy between domestic and international law, one that still has strong adherents, that classical theory is in fact under sustained challenge. But that challenge is coming not form the law-state but form the emerging international community and with respect to the law/governance structures they are producing.

The final reading for this class session, PruneYard Shopping Ctr. V. Robins,[25] 447 U. S. 74 (1980), suggests the limits of federal authority to shape or constrain state law. In this case the Supreme Court held that a state could interpret its constitution to prohibit the private owner of a shopping center from using state trespass law to exclude peaceful expressive activity in the open areas of the shopping center. The issue turned on the ability of the State of California to impose constitutional requirements under its own state constitution different form that sufficient under the Federal Constitution. Thus two principles emerge. First, under the U.S. Constitution,[26] states[27] can provide their citizens with broader rights in their constitutions than under the federal Constitution, so long as those rights do not infringe on any federal constitutional rights. Second under the constitution of the State of California, that power extends to the protection of the right to free speech. For the student concerned with issues of hierarchy another insight emerges―legal hierarchies in the United States may not be entirely rigid, and indeed may be porous in certain respects. Thus while in this case federal constitutional law could constrain the scope of California’s constitution, where the state sought to act in a way that was different from but not in opposition to the federal constitutional principle, that action might not be deemed impermissible. But the arbiter of this porosity is the court.

PruneYard reminds us again, of course, of the importance of hierarchy in law. In that case, state constitutional law, which is supreme within the domestic legal order of a state, must itself conform to the superior effects of the constitution of the community of states to which California is a member. It is thus against the overriding constraints of federal constitutional (and to some extent statutory) law, that the California constitution must be read. PruneYard also provides an insight into the arguments rejected in Medellin. There the plurality rejected the application of a similar relationship between international law and the constitutional law of the United States. They rejected the idea of a hierarchy in which international law sat atop the constitutional and domestic legal order of states in favor of a view that treated the two systems as distinct through connected through the intermediation of consent in which legislatures evidenced acquiescence through legal transposition (the enactment of international obligation into domestic law through statutes and the like).

Yet it is also important to remember that there is a hierarchy of international law, one that in some ways is as contested that that within domestic legal orders (Larry Catá Backer, Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets,[28] 29 American University International Law Review – (forthcoming 2013)). Sometimes the hierarchy is explicitly bound up with the issues of the appropriate sources of law to be applied by international bodies. The Statute of the International Court of Justice,[29] which played a prominent role in Medellin, for example, provides:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations , as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono,[30] if the parties agree thereto. (Statute ¶ 38).

This suggests both the scope of international law that is generally and conventionally recognized by public international law and also the hierarchy within which they are woven together for purposes of application and interpretation. It also suggests that, like the law of the United States, international law recognizes both a customary element as well as a private element, the latter of which might invoke equity. More interesting still, and reflecting practices in civil law countries, international law sometimes permits the persuasive use of academic writing as well as the reasoned opinions of other courts, that is of courts whose decisions do not otherwise bind.

A harder question for international law is the extent to which “soft law” fits into the hierarchy of international law. Soft laware instruments that may be produced by international public organizations but that do not have the binding effect of either domestic or international law. Traditionally these were viewed as aspirational with no binding effect. But sometimes their provisions become so well accepted that they become part of customary law and to some extent binding, or are otherwise taken up and incorporated into traditional international law instruments. They are thus seen as valuable as transitional instruments. The Universal Declaration of Human Rights[31] is a good example. (e.g., Roberto Andorno, “The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics”,[32] paper at a Workshop jointly organized by the German Ministry of Foreign Affairs and the German UNESCO Commission, Berlin, 15 February 2007). Some soft law instruments, such as the Guidelines for Multinational Enterprises[33] of the Organization for Economic Cooperation and Development[34] provide more complex examples of soft law. Here soft law contains not just a set of substantive standards that, though not binding, are require OECD Member States to provide mechanisms through which parties may seek to complain of violations of the Guidelines. (Backer, Larry Catá, Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations,[35] Melbourne Journal of International Law, Vol. 10, 2010). Lastly private codes of conduct are the most problematic governance instrument within conventional international law. Many traditionalists don’t consider them either soft or law―at most private contract or quasi contract among its parties. (considered in Jan Klabbers, Reflections on Soft International Law in a Privatized World[36]) Others view these as the elements of emerging systems of transnational governance. (Gunther Teubner, Global Bukowina: Legal Pluralism in the World Society,[37] Gunther Teubner (ed.), Global Law Without a State (Dartmouth, Aldershot 1997, 3-28 Backer, Larry Catá, Multinational Corporations as Objects and Sources of Transnational Regulation.[38] ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008).

IV. Problem.

            The object of the problem that follows is to provide the student with an opportunity to synthesize the materials presented and to apply it in a slightly different context.  The object for the student is to think through the ramifications both of the way in which legal hierarchies are ordered and the constraining principles that serve to mediate their application.

Problem:

            Assume the following facts: You are a member of the Attorney General’s office of the State of New Mexico. New Mexico has extensively regulated the sale of liquor within its borders.  Among other statutes, New Mexico law provides that beer and wine may not be sold in the same store.   In addition, New Mexico limits sale of liquor other than beer and wine to persons who can demonstrate that they are older than 26 years of age.  However, liquor may be sold bi licensed establishments any day of the week between the hours of 9 AM and 7 PM.  

            The United States and Mexico have been concerned about liquor fueled crime in the border area.  They are particularly concerned in places around El Paso Texas and Juarez Mexico.  The governments of both nations determine that a comprehensive approach is in order and enter into the U.S. Mexico Liquor Control Treaty.  Among its provisions are the following: (1) no establishment may sell liquor from Friday evening at 8 PM through Sunday noon if located on an interstate highway (U.S.) or national road (Mexico) within 100 miles of the border, or in any case within thirty (30) miles of the border; and (2) any person with a valid proof of age may purchase beer wine and other liquor in either country upon proof of age of 21 or older. The Treaty  entered into force in January and in the same month Congress enacted and the President signed a bill that enacted all of the Treaty’s provisions into law. 

            The new Mexico Governor is furious and she directs the Attorney General to determine whether the President and Congress have the authority to effectively void New Mexico liquor law.  Write a short memo analyzing the issue and stating your conclusion. The following materials may provide you with some guidance in addition to the materials read earlier in the chapter.

State of Missouri v. Holland

252 U.S. 416 (1920)

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill in equity brought by the State of Missouri to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act of [p431] July 3, 1918, c. 128, 40 Stat. 755, and the regulations made by the Secretary of Agriculture in pursuance of the same. The ground of the bill is that the statute is an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and that the acts of the defendant done and threatened under that authority invade the sovereign right of the State and contravene its will manifested in statutes. The State also alleges a pecuniary interest, as owner of the wild birds within its borders and otherwise, admitted by the Government to be sufficient, but it is enough that the bill is a reasonable and proper means to assert the alleged quasi sovereign rights of a State. Kansas v. Colorado, 185 U.S. 125, 142. Georgia v. Tennessee Copper Co., 206 U.S. 230, 237. Marshall Dental Manufacturing Co. v. Iowa, 226 U.S. 460, 462. A motion to dismiss was sustained by the District Court on the ground that the act of Congress is constitutional. 258 Fed. Rep. 479. Acc., United States v. Thompson, 258 Fed. Rep. 257; United States v. Rockefeller, 260 Fed.Rep. 346. The State appeals.

On December 8, 1916, a treaty between the United States and Great Britain was proclaimed by the President. It recited that many species of birds in their annual migrations traversed certain parts of the United States and of Canada, that they were of great value as a source of food and in destroying insects injurious to vegetation, but were in danger of extermination through lack of adequate protection. It therefore provided for specified close seasons and protection in other forms, and agreed that the two powers would take or propose to their lawmaking bodies the necessary measures for carrying the treaty out. 39 Stat. 1702. The above mentioned Act of July 3, 1918, entitled an act to give effect to the convention, prohibited the killing, capturing or selling any of the migratory birds included in the terms of the treaty except as permitted by regulations compatible with those terms, to be made by [p432] the Secretary of Agriculture. Regulations were proclaimed on July 31, and October 25, 1918. 40 Stat. 1812; 1863. It is unnecessary to go into any details because, as we have said, the question raised is the general one whether the treaty and statute are void as an interference with the rights reserved to the States.

To answer this question, it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because, by Article II, § 2, the power to make treaties is delegated expressly, and by Article VI treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land. If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government. The language of the Constitution as to the supremacy of treaties being general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed.

It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. An earlier act of Congress that attempted by itself and not in pursuance of a treaty to regulate the killing of migratory birds within the States had been held bad in the District Court. United States v. Shauver, 214 Fed.Rep. 154. United States v. McCullagh, 221 Fed.Rep. 288. Those decisions were supported by arguments that migratory birds were owned by the States in their sovereign capacity for the benefit of their people, and that, under cases like Geer v. Connecticut, 161 U.S. 519, this control was one that Congress had no power to displace. The same argument is supposed to apply now with equal force. [p433]

Whether the two cases cited were decided rightly or not, they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power, but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national wellbeing that an act of Congress could not deal with, but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, "a power which must belong to and somewhere reside in every civilized government" is not to be found. Andrews v Andrews, 188 U.S. 14, 33. What was said in that case with regard to the powers of the States applies with equal force to the powers of the nation in cases where the States individually are incompetent to act. We are not yet discussing the particular case before us, but only are considering the validity of the test proposed. With regard to that we may add that, when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [p434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved.

The State, as we have intimated, founds its claim of exclusive authority upon an assertion of title to migratory birds, an assertion that is embodied in statute. No doubt it is true that, as between a State and its inhabitants, the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers. To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone, and possession is the beginning of ownership. The whole foundation of the State's rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State, and, in a week, a thousand miles away. If we are to be accurate, we cannot put the case of the State upon higher ground than that the treaty deals with creatures that, for the moment are within the state borders, that it must be carried out by officers of the United States within the same territory, and that, but for the treaty, the State would be free to regulate this subject itself.

As most of the laws of the United States are carried out within the States and as many of them deal with matters which, in the silence of such laws, the State might regulate, such general grounds are not enough to support Missouri's claim. Valid treaties, of course, "are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States." Baldwin v. Franks, 120 U.S. 678, 683. No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power. We do not have to invoke the later developments of constitutional law for this proposition; it was recognized as early as Hopkirk v. Bell, 3 Cranch 454, with regard to statutes [p435] of limitation, and even earlier, as to confiscation, in Ware v. Hylton, 3 Dall.199. It was assumed by Chief Justice Marshall with regard to the escheat of land to the State in Chirac v. Chirac, 2 Wheat. 259, 275. Haguenstein v. Lynham, 100 U.S. 483. Geofroy v. Riggs, 133 U.S. 258. Blythe v. Hinckley, 180 U.S. 333, 340. So as to a limited jurisdiction of foreign consuls within a State. Wildenhus' Case, 120 U.S. 1. See Ross v. McIntyre, 140 U.S. 453. Further illustration seems unnecessary, and it only remains to consider the application of established rules to the present case.

Here, a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State, and has no permanent habitat therein. But for the treaty and the statute, there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld. Carey v. South Dakota, 250 U.S. 118.

Decree affirmed.

Notes and Questions.

1.  What result if the President entered into a Treaty ratified by the Senate in which the United States agreed to purchase property from another state; would the ratification of the Treaty serve also to compel Congress to appropriate the funds necessary to meet this Treaty obligation?  Consider that the federal Constitution specifically vests the legislative power in Congress and that appropriation measures must commence in the House of Representatives.

2.  The regulation of liquor has a long and contentious history in the United States.  After a long campaign, the federal Constitution had been amended to prohibit sales and consumption of most liquor in the early part of the 20^th century.  The 18^th Amendment (1919) provided in relevant part that “After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.” After a tumultuous decade or so that constitutional amendment was repealed.  Section 2 of the 21^st Amendment (1933) provided that “The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

3.  The effect of the 21^st Amendment was to confer regulatory authority on states with respect to liquor.  In a series of decisions the Supreme Court held that power to be quite broad, even when it resulted in the erection of barriers to trade that would otherwise be prohibited.  See, e.g., tate Board of Equalization v. Young’s Market Co., 299 U.S. 59 (1936) (California licensing fee for importation); Seagram & Sons v. Hostetter, 384 U.S. 35 (upholding state law regulating liquor pricing). However, the Supreme Court has refused to validate state laws that appear to interfere with commerce.  In Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573 (1986), the Supreme Court invalidated a state law prohibiting wholesalers form charging lower prices for out of state sales than those permitted for in state sales under state law.

4.  In Granholm v. Heald, 544 U.S. 460 (2005), the Supreme Court appeared to narrow the scope of state freedom to regulate liquor sales that have a discriminatory effect on commerce, appearing to substantially narrow the rule of Young’s Market. The Court held that the 21^st Amendment does not supersede other provisions of the Constitution, especially those that prohibit state regulation that inhibits interstate commerce.  It concluded that state liquor laws are valid even when they have a discriminatory effect State's regime "advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives," (citing New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 278 (1988)).

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[1] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1789190

[2]http://www.law.cornell.edu/supct/html/06-984.ZS.html

[3]http://supreme.justia.com/cases/federal/us/447/74/case.html

[4]http://books.google.com/books?id=DeyiAAAAMAAJ&pg=PR30&dq=Le+droit+des+gens++Library+Company+of+Philadelphia&hl=en&ei=SHK4TanFFoXEgAfemuBm&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCkQ6AEwAA#v=onepage&q&f=false

[5] http://www.constitution.org/vattel/vattel_01.htm

[6] http://en.wikipedia.org/wiki/International_law

[7] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1789190

[8] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896478

[9] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896478

[10] http://en.wikipedia.org/wiki/Peremptory_norm

[11] http://www1.umn.edu/humanrts/iachr/series_A_OC-18.html

[12] http://www.law.cornell.edu/supct/html/06-984.ZS.html

[13]http://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf

[14]http://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963_disputes.pdf

[15] http://www.icj-cij.org/homepage/

[16] http://en.wikipedia.org/wiki/Habeas_corpus

[17] http://www.worldcourts.com/icj/eng/decisions/2004.03.31_avena.htm

[18] http://en.wikipedia.org/wiki/Certiorari

[19] http://en.wikipedia.org/wiki/Textualism

[20] http://en.wikipedia.org/wiki/Textualism

[21] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1789190

[22] http://www.brooklynpeace.org/brooklynforpeace/committees/international-law/fact-sheet-downloads/conventional-and-customary-international-law.pdf

[23] http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf

[24] http://en.wikipedia.org/wiki/Democratic_deficit_in_the_European_Union

[25] http://supreme.justia.com/cases/federal/us/447/74/case.html

[26] http://en.wikipedia.org/wiki/U.S._Constitution

[27] http://en.wikipedia.org/wiki/U.S._state

[28] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2177778

[29] http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0

[30] http://en.wikipedia.org/wiki/Ex_aequo_et_bono

[31] http://www.ohchr.org/en/udhr/pages/introduction.aspx

[32] http://www.unesco.de/1507.html

[33]http://www.oecd.org/corporate/mne/1922428.pdf

[34] http://www.oecd.org/

[35] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1427883

[36] http://www.helsinki.fi/eci/Publications/Klabbers/JKSoft_law_and_public.pdf

[37] http://www.jura.uni-frankfurt.de/42852872/Bukowina_english.pdf

[38] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1092167