Dean Harold Koh Comments on Recent High Court Decision Regarding Treaties

March 26, 2008

"[A]ll Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."  U.S. CONST. art. VI.  However, when the Senate ratifies a treaty with a two-thirds vote, does that mean the treaty provisions are binding on the states?  According to a new ruling by the Supreme Court, they are binding only if the treaty explicitly says so or if there is legislation to make that clear. 

The decision is Medell¡n v. Texas, at is available at:   As a background note, in the Case Concerning Avena and Other Mexican Nationals (Mex.U.S.), 2004 I.C.J. 12 ( Avena ), the International Court of Justice (ICJ) held that the United States had violated Article 36(1)(b) of the Vienna Convention on Consular Relations (Vienna Convention or Convention) by failing to inform 51 named Mexican nationals, including petitioner Medell¡n, of their Vienna Convention rights. The ICJ found that those named individuals were entitled to review and reconsideration of their U.S. state-court convictions and sentences regardless of their failure to comply with generally applicable state rules governing challenges to criminal convictions. In Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) issued after Avena but involving individuals who were not named in the Avena judgment-the Supreme Court held, contrary to the ICJ's determination, that the Convention did not preclude the application of state default rules. The President then issued a memorandum stating that the United States would ?discharge its international obligations? under Avena ?by having State courts give effect to the decision.  ?Relying on Avena and the President's Memorandum, Medell¡n filed a second Texas state-court habeas application challenging his state capital murder conviction and death sentence on the ground that he had not been informed of his Vienna Convention rights. The Texas Court of Criminal Appeals dismissed Medell¡n's application as an abuse of the writ, concluding that neither Avena nor the President's Memorandum was binding federal law that could displace the State's limitations on filing successive habeas applications.  On Tuesday, the Supreme Court ruled 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.

Yale Law School Dean Harold Koh, who served as a State Department official in the Clinton administration, expressed some concerns over the decision in a statement to National Public Radio:  "If our international allies have no assurance that we're actually going to keep our word, then they have much less incentive to keep their word when they're being obliged to do something."  To listen to the entire NPR story, go to:

For more information on treaty research, please see: Marci Hoffman, Researching U.S. Treaties and Agreements (LLRX, May 15, 2001) available at:

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