The Status of Positive International Law in the United States

In reaching a contrary conclusion, the Court has failed to take proper account of that precedent and, as a result, the Nation may well break its word even though the President seeks to live up to that word and Congress has done nothing to suggest the contrary.” Justice Breyer’s dissent[1]

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The United States Constitution seems to provide treaties with legal authority. Article II, section two provides that the U.S. may enter into treaties with the consent of the President and two-thirds of the Senate;[2] and the Supremacy Clause in Article VI provides that federal law, including “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”[3] Taken together, these provisions appear to suggest that treaties have binding legal force similar to that of federal statutes. At the time that the U.S. Constitution was ratified, positive international law was understood to play a much different role in the world than it does today.

A recent increase in multilateral treaties created through international organizations such as the United Nations has resulted in an expansion in the scope of positive international law.[4] One way to view this expansion of positive international law is that diverse nations are beginning to agree on common solutions to international problems. However, in the U.S., this expansion of positive international law has led some to become concerned about the increasing influence of international organizations.[5] So, what exactly has been the effect of the increase in multilateral treaties on the law of the United States? Well, as a result of the U.S. Supreme Court’s decision in Medellín v. Texas,[6] the legal authority of multilateral treaties is left in a state of absolute uncertainty.


Medellín v. Texas

Medellín involved the criminal case of José Ernesto Medellín, a Mexican national, for the gang rape and murder of two teenage girls.[7] Medellín confessed to his involvement in the crimes after his arrest, but he was never informed of his right to contact the Mexican consulate under the Vienna Convention on Consular Relations.[8] After being convicted, Medellín petitioned for post-conviction relief, claiming that he was not properly afforded his Vienna Convention rights.[9]

While an appeal was pending in the Fifth Circuit,[10] the International Court of Justice (ICJ) decided the Case Concerning Avena and Other Mexican Nationals (Avena),[11] which involved a claim by Mexico that the U.S. “violated its international legal obligations to Mexico” under the Vienna Convention “by failing to inform, without delay,” fifty-two named Mexican nationals,[12] including Medellín,[13] “of their right to consular notification and access” after being arrested.[14] The ICJ held that the U.S. was obligated “to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals . . . by taking account . . . of the violation of the rights set forth in . . . the Convention.”[15] Furthermore, the ICJ held that “procedural default rules” should not preclude U.S. courts from reviewing and reconsidering the convictions and sentences of the named Mexican nationals.[16]

Medellín’s efforts to have his case reconsidered in accordance with the Avena decision culminated with the issue being brought before the U.S. Supreme Court.[17] The Court rejected Medellín’s claim for relief.[18] While the majority agreed that the Avena decision created an obligation for the U.S.,[19] it held that the ICJ’s resolution in Avena was not legally binding authority.[20] Medellín execution was carried out later that year.[21]


Potential Ramifications  

The decision to disregard the ruling in Avena is significant because the ICJ’s compulsory jurisdiction to resolve disputes arising from the Vienna Convention seems to be definitively provided for in the terms of several treaties to which the U.S. was a party. The Optional Protocol to the Vienna Convention on Consular Relations provides that “[d]isputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the [ICJ].”[22] Article 36 of the Statute of the ICJ states that the ICJ has jurisdiction over “all cases which the parties refer to it and all matters specially provided for in the Charter . . . or in treaties and conventions in force.”[23] The UN Charter incorporates the ICJ Statute by reference and declares the ICJ as “the principal judicial organ of the [U.N.].”[24] Furthermore, the Charter goes on to provide that Members of the UN “undertake[] to comply with the decision of the [ICJ] in any case to which it is a party.”[25] Obviously, the U.S. Supreme Court did not adhere to the terms of these important treaties in deciding Medellín.

The Court justified its disregard for the Avena decision by claiming that the three relevant treaties—the UN Charter, the ICJ Statute, and the Optional Protocol—are all not “self-executing” treaties.[26] That is, these treaties do not have binding authority in the U.S. unless Congress passes separate legislation giving effect to the terms of the treaties. However, the Court completely failed to provide clear-cut criteria for determining whether a treaty is “self-executing.” The Court seems to suggest that in order to be self-executing a treaty’s terms must convey such an intention, or that the treaty be ratified with the understanding that it is to be self-executing.[27]



Medellín essentially represents a realignment of power among the federal branches of government when it comes to treaties. The Constitution vests the power to make treaties with the executive branch, and requires two-thirds of the Senate to approve ratification.[28] However, according to the Supreme Court, if a treaty is “non-self-executing,” then Congress must enact implementing legislation. This means that a majority of both houses of Congress would need to agree to the terms of the treaty and pass legislation. Despite the fact that the Constitution does not contemplate a bicameralism requirement for treaties, the Court has created such a requirement for those treaties that it believes not to be “self-executing.” Moreover, the ambiguous criteria given by the Court to determine whether or not a treaty is self-executing provides the judicial branch with substantial discretion in interpreting the enforceability of treaties.

Under Medillín, the augmented role of the House of Representatives and the judiciary in giving effect to treaties upsets the balance provided in the Constitution for making international law. The Court’s decision has left the role and applicability of international law in the U.S. in a state of unpredictability. John F. Murphy,[29] a law professor at Villanova University, has credited Medellín with causing “a considerable lack of certainty regarding the appropriate methodology to employ” for determining whether or not a treaty is self-executing, and states “that this lack of certainty serves to undermine U.S. support for the rule of law in international affairs.”[30] This uncertainty is a significant impediment to progress when it comes to respect and appreciation for positive international law.


[1] Medellin v. Texas, 552 U.S. 491 (2008).
[2] U.S. Const. art. II, § 2. cl. 2.
[3] U.S. Const. art. VI, cl. 2.
[4] See John F. Murphy, Medellín v. Texas: Implications of the Supreme Court’s Decision for the United States and the Rule of Law in International Affairs, 31 Suffolk Transnat’l L. Rev. 247, 275 (2008).
[5] See id.
[6] 552 U.S. 491 (2008).
[7] Id. at 500-01.
[8] Id. at 501.
[9] Id.
[10] Id. at 502.
[11] (Mex. v. U.S.), 2004 I.C.J. 12 (Judgment of Mar. 31) [hereinafter Avena].
[12] Id. at 23, ¶ 14 (Judgment of Mar. 31) (internal quotation marks omitted).
[13] Id. at 25, ¶ 16.
[14] Id. at 23, ¶ 14 (internal quotation marks omitted).
[15] Id. at 72, ¶ 153(9).
[16] Id. at 56-57, ¶¶ 111-13.
[17] Medellín, 552 U.S. at 503-04.
[18] Id. at 532.
[19] Id. at 504.
[20] Id. at 522-23.
[21] Reed Johnson, Texas Executes Mexican Killer Amid International Protests, LA Times (Aug. 6, 2008),
[22] Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487, art. I. The Court in Medellín noted that the U.S. withdrew from the Optional Protocol subsequent to the Avena decision, but did not argue that the withdrawal had any effect on the decision’s legal authority. Medellín, 552 U.S. at 500.
[23] Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, T.S. 993, art. 36.
[24] U.N. Charter, art. 92.
[25] Id. art. 94, para 1.
[26] Medellín, 552 U.S. at 504-05.
[27] See id.
[28] See U.S. Const. art. II, § 2. cl. 2.
[29] See John F. Murphy – Biography, Villanova University, (last visited Feb. 14, 2016).
[30] Murphy, supra note 3, at 248.