MEDELLIN v. DRETKE, DIRECTOR, TEXAS DEPART- MENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

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Syllabus
MEDELLIN v. DRETKE, DIRECTOR, TEXAS DEPART-
MENT OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
certiorari to the united states court of appeals for
the fifth circuit
No. 04–5928. Argued March 28, 2005—Decided May 23, 2005
Petitioner Mexican national sought federal habeas review of his state capi-
tal murder conviction, claiming that Texas had not notified him of his
right to consular access as required by the Vienna Convention. The
District Court denied relief. In declining to grant petitioner a certifi-
cate of appealibility, the Fifth Circuit gave no effect to an intervening
International Court of Justice (ICJ) ruling that United States courts
must reconsider petitioner’s Vienna Convention claim. After this
Court granted certiorari, President George W. Bush issued a memoran-
dum stating that the United States would discharge its international
obligations under the ICJ judgment by “having State courts give effect
to” it. Relying on this memorandum and the ICJ judgment, petitioner
filed a state habeas application shortly before oral argument here.
Held: The writ of certiorari is dismissed as improvidently granted. The
state proceeding may give petitioner the review and reconsideration of
his Vienna Convention claim that he now seeks in this proceeding. In
addition, merits briefing in this case has revealed several threshold is-
sues that could independently preclude federal habeas relief.
Certiorari dismissed. Reported below: 371 F. 3d 270.
Donald Francis Donovan argued the cause for petitioner.
With him on the briefs were Carl Micarelli, Catherine
M. Amirfar, Thomas J. Bollyky, and Gary Taylor.
R. Ted Cruz, Solicitor General of Texas, argued the cause
for respondent. With him on the brief were Greg Abbott,
Attorney General, Barry R. McBee, First Assistant Attor-
ney General, Don Clemmer, Deputy Attorney General, and
Sean D. Jordan, Kristofer S. Monson, and Adam W. Aston,
Assistant Solicitors General.
Deputy Solicitor General Dreeben argued the cause for
the United States as amicus curiae urging affirmance.
With him on the brief were Acting Solicitor General Clem-

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ent, Assistant Attorney General Wray, Irving L. Gornstein,
and Robert J. Erickson.*
Per Curiam.
We granted certiorari in this case to consider two ques-
tions: first, whether a federal court is bound by the Interna-
tional Court of Justice’s (ICJ) ruling that United States
*Briefs of amici curiae urging reversal were filed for the American Bar
Association by Robert J. Grey, Jr., and Jeffrey L. Bleich; for Bar Associa-
tions et al. by Kevin R. Sullivan, William J. Aceves, and Clifford S. An-
derson; for Foreign Sovereigns by Asim M. Bhansali and Steven A.
Hirsch; for Former United States Diplomats by Harold Hongju Koh,
Donald B. Ayer, and William K. Shirey II; for the Government of the
United Mexican States by Sandra L. Babcock; for NAFSA: Association of
International Educators et al. by Stephen F. Hanlon; and for Ambassador
L. Bruce Laingen et al. by Joseph Margulies.
Briefs of amici curiae urging affirmance were filed for the State of
Alabama et al. by Troy King, Attorney General of Alabama, and J. Clay-
ton Crenshaw and Charles B. Campbell, Assistant Attorneys General, and
by the Attorneys General for their respective States as follows: Terry
Goddard of Arizona, Bill Lockyer of California, John W. Suthers of Colo-
rado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Thur-
bert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Steve Carter of
Indiana, Phill Kline of Kansas, Jim Hood of Mississippi, Jeremiah W.
(Jay) Nixon of Missouri, Mike McGrath of Montana, Jim Petro of Ohio,
W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett of Pennsylvania,
Henry D. McMaster of South Carolina, Paul G. Summers of Tennessee,
Mark L. Shurtleff of Utah, and Judith Williams Jagdmann of Virginia;
for the Alliance Defense Fund by Nelson P. Miller, William Wagner, and
Benjamin Bull; for the Criminal Justice Legal Foundation by Kent S.
Scheidegger; for the Liberty Legal Institute by Kelly Shackelford; for the
National District Attorneys’ Association by Charles C. Olson and Thomas
J. Charron; for Professors of International Law et al. by Paul B. Stephan;
and for the Washington Legal Foundation et al. by Daniel J. Popeo and
Richard A. Samp.
Briefs of amici curiae were filed for the European Union et al. by
S. Adele Shank and John B. Quigley; for International Law Experts et
al. by Lori Fisler Damrosch and Charles Owen Verrill, Jr.; for the Moun-
tain States Legal Foundation by William Perry Pendley; and for Senator
John Cornyn by Charles J. Cooper, Vincent J. Colatriano, and David H.
Thompson.

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courts must reconsider petitioner Jose´ Medellı´n’s claim for
relief under the Vienna Convention on Consular Relations,
Apr. 24, 1963, [1970] 21 U. S. T. 77, 100–101, T. I. A. S.
No. 6820, without regard to procedural default doctrines; and
second, whether a federal court should give effect, as a
matter of judicial comity and uniform treaty interpretation,
to the ICJ’s judgment. 543 U. S. 1032 (2004). After we
granted certiorari, Medellı´n filed an application for a writ of
habeas corpus in the Texas Court of Criminal Appeals, rely-
ing in part upon a memorandum from President George W.
Bush that was issued after we granted certiorari. This
state-court proceeding may provide Medellı´n with the very
reconsideration of his Vienna Convention claim that he now
seeks in the present proceeding. The merits briefing in this
case also has revealed a number of hurdles Medellı´n must
surmount before qualifying for federal habeas relief in this
proceeding, based on the resolution of the questions he has
presented here. For these reasons we dismiss the writ as
improvidently granted. See Ticor Title Ins. Co. v. Brown,
511 U. S. 117, 121–122 (1994) (per curiam); The Monrosa v.
Carbon Black Export, Inc., 359 U. S. 180, 183–184 (1959);
Goins v. United States, 306 U. S. 622 (1939).
Medellı´n, a Mexican national, confessed to participating in
the gang rape and murder of two girls in 1993. He was con-
victed and sentenced to death, and the Texas Court of Crimi-
nal Appeals affirmed on direct appeal. Medellı´n then filed a
state habeas corpus action, claiming for the first time that
Texas failed to notify him of his right to consular access as
required by the Vienna Convention. The state trial court
rejected this claim, and the Texas Court of Criminal Appeals
summarily affirmed.
Medellı´n then filed this federal habeas corpus petition,
again raising the Vienna Convention claim. The District
Court denied the petition. Subsequently, while Medellı´n’s
application to the Court of Appeals for the Fifth Circuit for
a certificate of appealability was pending, see 28 U. S. C.

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§ 2253(c), the ICJ issued its decision in Case Concerning
Avena and other Mexican Nationals (Mex. v. U. S.), 2004
I. C. J. No. 128 (Judgment of Mar. 31), in which the Republic
of Mexico had alleged violations of the Vienna Convention
with respect to Medellı´n and other Mexican nationals facing
the death penalty in the United States. The ICJ deter-
mined that the Vienna Convention guaranteed individually
enforceable rights, that the United States had violated those
rights, and that the United States must “provide, by means
of its own choosing, review and reconsideration of the convic-
tions and sentences of the [affected] Mexican nationals” to
determine whether the violations “caused actual prejudice,”
without allowing procedural default rules to bar such review.
Id., ¶¶ 121–122, 153(a).
The Court of Appeals denied Medellı´n’s application for a
certificate of appealability. It did so based on Medellı´n’s
procedural default, see Breard v. Greene, 523 U. S. 371, 375
(1998) (per curiam), and its prior holdings that the Vienna
Convention did not create an individually enforceable right,
see, e. g., United States v. Jimenez-Nava, 243 F. 3d 192, 195
(CA5 2001). 371 F. 3d 270 (CA5 2004). While acknowledg-
ing the existence of the ICJ’s Avena judgment, the court
gave no dispositive effect to that judgment.
More than two months after we granted certiorari, and a
month before oral argument in this case, President Bush is-
sued a memorandum that stated the United States would
discharge its international obligations under the Avena judg-
ment by “having State courts give effect to the [ICJ] deci-
sion in accordance with general principles of comity in cases
filed by the 51 Mexican nationals addressed in that decision.”
George W. Bush, Memorandum for the Attorney General
(Feb. 28, 2005), App. 2 to Brief for United States as Amicus
Curiae 9a. Relying on this memorandum and the Avena
judgment as separate bases for relief that were not available
at the time of his first state habeas corpus action, Medellı´n
filed a successive state application for a writ of habeas corpus

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just four days before oral argument here. That state pro-
ceeding may provide Medellı´n with the review and reconsid-
eration of his Vienna Convention claim that the ICJ re-
quired, and that Medellı´n now seeks in this proceeding.
This new development, as well as the factors discussed
below, leads us to dismiss the writ of certiorari as improvi-
dently granted.1
There are several threshold issues that could independ-
ently preclude federal habeas relief for Medellı´n, and thus
render advisory or academic our consideration of the ques-
tions presented. These issues are not free from doubt.
First, even accepting, arguendo, the ICJ’s construction of
the Vienna Convention’s consular access provisions, a viola-
tion of those provisions may not be cognizable in a federal
habeas proceeding. In Reed v. Farley, 512 U. S. 339 (1994),
this Court recognized that a violation of federal statutory
rights ranked among the “nonconstitutional lapses we have
held not cognizable in a postconviction proceeding” unless
they meet the “fundamental defect” test announced in our
decision in Hill v. United States, 368 U. S. 424, 428 (1962).
512 U. S., at 349 (plurality opinion); see also id., at 355–356
(Scalia, J., concurring in part and concurring in judgment).
In order for Medellı´n to obtain federal habeas relief, Medellı´n
must therefore establish that Reed does not bar his treaty
claim.
Second, with respect to any claim the state court “adjudi-
cated on the merits,” habeas relief in federal court is avail-
able only if such adjudication “was contrary to, or an unrea-
sonable application of, clearly established Federal law, as
1 Of course Medellı´n, or the State of Texas, can seek certiorari in this
Court from the Texas courts’ disposition of the state habeas corpus appli-
cation. In that instance, this Court would in all likelihood have an oppor-
tunity to review the Texas courts’ treatment of the President’s memoran-
dum and Case Concerning Avena and other Mexican Nationals (Mex. v.
U. S.), 2004 I. C. J. No. 128 (Judgment of Mar. 31), unencumbered by the
issues that arise from the procedural posture of this action.

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determined by the Supreme Court.” 28 U. S. C. § 2254(d)(1);
see Woodford v. Visciotti, 537 U. S. 19, 22–27 (2002) (per cu-
riam). The state habeas court, which disposed of the case
before the ICJ rendered its judgment in Avena, arguably
“adjudicated on the merits” three claims. It found that the
Vienna Convention did not create individual, judicially en-
forceable rights and that state procedural default rules
barred Medellı´n’s consular access claim. Finally, and per-
haps most importantly, the state trial court found that Med-
ellı´n “fail[ed] to show that he was harmed by any lack of
notification to the Mexican consulate concerning his arrest
for capital murder; [Medellı´n] was provided with effective
legal representation upon [his] request; and [his] constitu-
tional rights were safeguarded.” App. to Pet. for Cert. 56a.2
Medellı´n would have to overcome the deferential standard
with regard to all of these findings before obtaining federal
habeas relief on his Vienna Convention claim.3
Third, a habeas corpus petitioner generally cannot enforce
a “new rule” of law. Teague v. Lane, 489 U. S. 288 (1989).
2 The Federal District Court reviewing that finding observed:
“Medellı´n’s allegations of prejudice are speculative. The police officers
informed Medellı´n of his right to legal representation before he confessed
to involvement in the murders. Medellı´n waived his right to advisement
by an attorney. Medellı´n does not challenge the voluntary nature of his
confession. There is no indication that, if informed of his consular rights,
Medellı´n would not have waived those rights as he did his right to counsel.
Medellı´n fails to establish a ‘causal connection between the [Vienna Con-
vention] violation and [his] statements.’ ” App. to Pet. for Cert. 84a–85a
(brackets in original).
3 In Breard v. Greene, 523 U. S. 371 (1998) (per curiam), we addressed
the claim that Virginia failed to notify a Paraguayan national of his Vienna
Convention right to consular access. In denying various writs, motions,
and stay applications, we noted that the Vienna Convention “arguably con-
fers on an individual the right to consular assistance following arrest”;
that Virginia’s procedural default doctrine applied to the Vienna Conven-
tion claim; and that a successful Vienna Convention claimant likely must
demonstrate prejudice. Id., at 375–377. At the time of our Breard deci-
sion, however, we confronted no final ICJ adjudication.

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Before relief could be granted, then, we would be obliged to
decide whether or how the Avena judgment bears on our
ordinary “new rule” jurisprudence.
Fourth, Medellı´n requires a certificate of appealability in
order to pursue the merits of his claim on appeal. 28
U. S. C. § 2253(c)(1). A certificate of appealability may be
granted only where there is “a substantial showing of the
denial of a constitutional right.” § 2253(c)(2) (emphasis
added). To obtain the necessary certificate of appealability
to proceed in the Court of Appeals, Medellı´n must demon-
strate that his allegation of a treaty violation could satisfy
this standard. See Slack v. McDaniel, 529 U. S. 473, 483
(2000).
Fifth, Medellı´n can seek federal habeas relief only on
claims that have been exhausted in state court. See 28
U. S. C. §§ 2254(b)(1)(A), (b)(3). To gain relief based on the
President’s memorandum or ICJ judgments, Medellı´n would
have to show that he exhausted all available state-court
remedies.4
In light of the possibility that the Texas courts will pro-
vide Medellı´n with the review he seeks pursuant to the
Avena judgment and the President’s memorandum, and the
potential for review in this Court once the Texas courts have
heard and decided Medellı´n’s pending action, we think it
would be unwise to reach and resolve the multiple hin-
4 On March 8, 2005, Medellı´n filed a successive state habeas action based
on Tex. Code Crim. Proc. Ann., Art. 11.071, § 5(a)(1) (Vernon 2005), claim-
ing that both the President’s memorandum and the Avena judgment inde-
pendently require the Texas court to grant review and reconsideration of
his Vienna Convention claim. See Subsequent Application for Post-
Conviction Writ of Habeas Corpus in Ex Parte Medellı´n, Trial Cause Nos.
67,5429 and 67,5430 (Tex. Crim. App.), p. 6 (filed Mar. 24, 2005) (“First, the
President’s determination requires this Court to comply with the Avena
Judgment and remand Mr. Medellı´n’s case for the mandated review and
reconsideration of his Vienna Convention claim. Second, the Avena Judg-
ment on its own terms provides the rule of decision in Mr. Medellı´n’s case
and should be given direct effect by this Court”).

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drances to dispositive answers to the questions here pre-
sented. Accordingly, we dismiss the writ as improvidently
granted.
It is so ordered.
Justice Ginsburg, with whom Justice Scalia joins as
to Part II, concurring.
Petitioner Jose´ Medellı´n, a Mexican national, was arrested,
detained, tried, convicted, and sentenced to death in Texas
without being informed of rights accorded him under the Vi-
enna Convention on Consular Relations, Apr. 24, 1963, [1970]
21 U. S. T. 77, 100–101, T. I. A. S. No. 6820. The Convention
called for prompt notice of Medellı´n’s arrest to the Mexi-
can consul. Medellı´n could then seek consular advice and
assistance.
After unsuccessful challenges to his conviction and sen-
tence, first in state court, later in federal court, Medellı´n
sought this Court’s review. His petition for certiorari,
which this Court granted, rests primarily on a judgment ren-
dered by the International Court of Justice (ICJ) on March
31, 2004: Case Concerning Avena and other Mexican Na-
tionals (Mex. v. U. S.), 2004 I. C. J. No. 128 (Avena). Medel-
lı´n’s petition also draws support from an ICJ judgment of
the same order earlier rendered against the United States:
LaGrand Case (F. R. G. v. U. S.), 2001 I. C. J. 466 (Judgment
of June 27) (LaGrand). The ICJ held in Avena that the
failure to accord Vienna Convention rights to Medellı´n and
other similarly situated Mexican nationals necessitated re-
view and reconsideration of their convictions and sentences
by United States courts. Further, the ICJ specified, proce-
dural default doctrines could not be invoked to bar the re-
quired review and reconsideration. Medellı´n sought certio-
rari on two questions: (1) Are courts in the United States
bound by the Avena judgment; (2) Should courts in the
United States give effect to the Avena and LaGrand judg-

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ments “in the interest of judicial comity and uniform treaty
interpretation.” Brief for Petitioner i.
On February 28, 2005, President Bush announced:
“[T]he United States will discharge its international ob-
ligations 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.” Memorandum for the Attorney General (Feb.
28, 2005), App. 2 to Brief for United States as Amicus
Curiae 9a (hereinafter President’s Memorandum).
Medellı´n thereupon moved to stay further proceedings in
this Court pending his pursuit of remedies in Texas court,
as contemplated by the President’s Memorandum. I would
grant Medellı´n’s stay motion as the most conservative among
courses the Court might take. That “least change” meas-
ure, however, has not garnered majority support.
I
The Court is divided between two responses to Medellı´n’s
petition in light of the President’s Memorandum: (1) remand
to the Court of Appeals for the Fifth Circuit for initial rul-
ings on a host of difficult issues, post, at 684, 690 (O’Connor,
J., dissenting), recognizing that court’s prerogative to hold
the case in abeyance pending Medellı´n’s pursuit of relief in
state court, post, at 690; or (2) dismiss the writ, recognizing
that “in all likelihood” this Court would be positioned “to
review the Texas courts’ treatment of the President’s [M]em-
orandum and [the Avena judgment] unencumbered by the
[threshold] issues that arise from the procedural posture of
this action,” ante, at 664, n. 1. The former course would
invite the Fifth Circuit to conduct proceedings rival to those
recently launched in state court, or to put the case on hold,
a cautionary measure this Court itself is unwilling to take.
The latter would leave nothing pending here, but would en-
able this Court ultimately to resolve, clearly and cleanly, the

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controlling effect of the ICJ’s Avena judgment, shorn of pro-
cedural hindrances that pervade the instant action.
II
For the reasons stated below, I join the Court’s election
to dismiss the writ as improvidently granted in light of the
President’s Memorandum and the state-court proceeding in-
stituted in accordance with that Memorandum. I do so rec-
ognizing that this Court would have jurisdiction to review
the final judgment in the Texas proceedings, and at that
time, to rule definitively on “the Nation’s obligation under
the judgment of the ICJ if that should prove necessary.”
Post, at 691 (Souter, J., dissenting).
The principal dissent would return the case to the Fifth
Circuit leaving unresolved a bewildering array of questions.
See post, at 684 (opinion of O’Connor, J.) (describing issues
not touched by this Court as “difficult”). Among inquiries
left open “for further proceedings”: Is a certificate of appeal-
ability (COA) available when the applicant is not complain-
ing of “the denial of a constitutional right”? Post, at 677
(O’Connor, J., dissenting) (internal quotation marks omit-
ted); see also post, at 677–679; cf. ante, at 666. What direc-
tions must a lower court take from Teague v. Lane, 489 U. S.
288 (1989), and perhaps from Reed v. Farley, 512 U. S. 339
(1994), and Hill v. United States, 368 U. S. 424 (1962)? Post,
at 681–682 (O’Connor, J., dissenting); cf. ante, at 664–666.
Is it open to a lower court to resolve the “conflict between
Avena and [this Court’s] decision in Breard v. Greene, 523
U. S. 371, 376 (1998) (per curiam)”? Post, at 684 (O’Con-
nor, J., dissenting).1 Has Medellı´n exhausted state avenues
for relief, see ante, at 666; Rhines v. Weber, ante, p. 269; Rose
v. Lundy, 455 U. S. 509, 518–520 (1982); cf. post, at 682–
683, n. 1 (O’Connor, J., dissenting), given that the Avena
1 See Rodriguez de Quijas v. Shearson/American Express, Inc., 490
U. S. 477, 484 (1989) (cautioning lower courts against disturbing this
Court’s decisions). But cf. post, at 691–692 (Souter, J., dissenting).

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judgment and the President’s response to it postdate the
rejection of Medellı´n’s pleas in Texas proceedings? While
contentious preliminary issues clog final determination of
Medellı´n’s claim for federal habeas relief based on the ICJ’s
judgments, action by the Texas courts could render the en-
tire array of questions moot. See post, at 692 (Souter, J.,
dissenting) (“[A]ction in the Texas courts might remove any
occasion to proceed under the federal habeas petition.”).
Further, at odds with the President’s determination to
“give effect to the [Avena] decision in accordance with gen-
eral principles of comity,” President’s Memorandum, and in
conspicuous conflict with the law of judgments, see Restate-
ment (Second) of Conflict of Laws § 98 (1988); Restatement
(Third) of Foreign Relations Law of the United States § 481
(1986); Restatement (Second) of Judgments § 17 (1980), the
principal dissent would instruct the Court of Appeals to
“hol[d] up the Avena interpretation of the [Vienna Conven-
tion] against the domestic court’s own conclusions.” Post, at
684 (opinion of O’Connor, J.). But cf. ALI, Recognition and
Enforcement of Foreign Judgments: Analysis and Proposed
Federal Statute § 2, Comment d, p. 38 (2005) (“[A] judgment
entitled to recognition will not be reexamined on the merits
by a second court.”). It is the long-recognized general rule
that, when a judgment binds or is respected as a matter of
comity, a “let’s see if we agree” approach is out of order.
See Hilton v. Guyot, 159 U. S. 113, 202–203 (1895) (where
“comity of this nation” calls for recognition of a judgment
rendered abroad, “the merits of the case should not . . . be
tried afresh . . . upon the mere assertion . . . that the judg-
ment was erroneous in law or in fact”); see also Restatement
(Second) of Conflict of Laws § 106 (1969) (“A judgment will
be recognized and enforced in other states even though an
error of fact or of law was made in the proceedings before
judgment . . . .”); id., § 106, Comment a (“Th[is] rule is . . .
applicable to judgments rendered in foreign nations . . . .”);
Reese, The Status in This Country of Judgments Rendered

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Abroad, 50 Colum. L. Rev. 783, 789 (1950) (“[Foreign] judg-
ments will not be denied effect merely because the original
court made an error either of fact or of law.”).2
Troubling as well, the principal dissent provides no clear
instructions to the Court of Appeals on which of the several
questions the dissenters would remit to that court comes
first, which others “should be part of ” the COA determina-
tion, post, at 682 (opinion of O’Connor, J.), and which are
meet for adjudication only if, as, or when a COA is granted.
The participation of a federal court in the fray at this point,
moreover, risks disturbance of, or collision with, the proceed-
ing Medellı´n has commenced in Texas. The principal dis-
sent appears ultimately to acknowledge that concern by ob-
serving that the Fifth Circuit might “hold the case on its
docket until Medellı´n’s successive petition was resolved in
state court.” Post, at 690 (opinion of O’Connor, J.); see also
2 The principal dissent maintains that the second question on which we
granted certiorari asks “whether and what weight [short of binding effect]
American courts should give to Avena,” in the course of independently
interpreting the treaty, “perhaps for sake of uniform treaty interpreta-
tion.” Post, at 684 (opinion of O’Connor, J.); see post, at 684–685, and
n. 2 (same). Significantly, Medellı´n chose not to break out for discrete
review in this Court questions underlying and subsumed in the ICJ’s judg-
ments in Avena, 2004 I. C. J. No. 128 (Judgment of Mar. 31), and LaGrand,
2001 I. C. J. 466 (Judgment of June 27), i. e., whether the Vienna Conven-
tion “creates a judicially enforceable individual right” and whether it
“sometimes requires state procedural default rules to be set aside so that
the treaty can be given ‘full effect,’ ” post, at 673 (O’Connor, J., dissent-
ing). Nor does Medellı´n’s invocation of “international comity,” Brief for
Petitioner 45, or his plea for “uniform treaty interpretation,” id., at 48,
seek this Court’s independent interpretation of the Convention. Instead,
he urges that comity is accorded, and uniformity achieved, by recognizing
as authoritative the ICJ’s interpretation as elaborated in successive judg-
ments against the United States. See id., at 49 (“Given its consent to
the ICJ’s jurisdiction, the United States should treat as authoritative any
interpretation or application of the Convention by that court.”); see also
Reply Brief 16 (observing that the United States “agreed that the ICJ
would have final authority to resolve disputes over the treaty’s interpreta-
tion and application” (emphasis added)).

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O’Connor, J., dissenting
post, at 692 (Souter, J., dissenting); post, at 694 (Breyer,
J., dissenting). But given this Court’s unwillingness to put
the case on hold here, one might ask what justifies parking
the case, instead, in the Court of Appeals.
The per curiam opinion which I join rests on two comple-
mentary grounds. First, the Texas proceeding “may pro-
vide Medellı´n with the very reconsideration of his Vienna
Convention claim that he now seeks in the present proceed-
ing.” Ante, at 662. Second, the instant proceeding comes
to us freighted with formidable threshold issues, ante, at
664–666, that deter definitive answers to the questions pre-
sented in the petition for certiorari.
Petitioner’s recent filing in the Texas Court of Criminal
Appeals raises two discrete bases for relief that were not
previously available for presentation to a state forum: the
ICJ’s Avena judgment and the President’s Memorandum.
See Subsequent Application for Post-Conviction Writ of Ha-
beas Corpus in Ex Parte Medellı´n, Trial Cause Nos. 67,5429
and 67,5430 (Tex. Crim. App.), p. 13 (filed Mar. 24, 2005)
(“President Bush’s determination and the Avena Judgment
constitute two separate sources of binding federal law.”).
The Texas courts are now positioned immediately to adjudi-
cate these cleanly presented issues in the first instance. In
turn, it will be this Court’s responsibility, at the proper time
and if need be, to provide the ultimate answers.
Justice O’Connor, with whom Justice Stevens, Jus-
tice Souter, and Justice Breyer join, dissenting.
Jose´ Ernesto Medellı´n offered proof to the Court of Ap-
peals that reasonable jurists would find debatable or wrong
the District Court’s disposition of his claim that Texas vio-
lated his rights under the Vienna Convention on Consular
Relations and that he is thereby entitled to review and re-
consideration of his conviction and sentence. Three specific
issues deserve further consideration: (1) whether the Inter-
national Court of Justice’s judgment in Medellı´n’s favor, Case

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O’Connor, J., dissenting
Concerning Avena and Other Mexican Nationals (Mex. v.
U. S.), 2004 I. C. J. No. 128 (Judgment of Mar. 31), is binding
on American courts; (2) whether Article 36(1)(b) of the Con-
vention creates a judicially enforceable individual right; and
(3) whether Article 36(2) of the Convention sometimes re-
quires state procedural default rules to be set aside so that
the treaty can be given “full effect.” Accordingly, I would
vacate the denial of a certificate of appealability and remand
for resolution of these issues.
The Court dismisses the writ (and terminates federal pro-
ceedings) on the basis of speculation: Medellı´n might obtain
relief in new state court proceedings—because of the Presi-
dent’s recent memorandum about whose constitutionality the
Court remains rightfully agnostic, or he might be unable to
secure ultimate relief in federal court—because of questions
about whose resolution the Court is likewise, rightfully, un-
decided. These tentative predictions are not, in my view,
reason enough to avoid questions that are as compelling now
as they were when we granted a writ of certiorari, and that
remain properly before this Court. It seems to me unsound
to avoid questions of national importance when they are
bound to recur. I respectfully dissent.
I
Article 36 of the Vienna Convention on Consular Relations
guarantees open channels of communication between de-
tained foreign nationals and their consulates in signatory
countries:
“[I]f he so requests, the competent authorities of the re-
ceiving State shall, without delay, inform the consular
post of the sending State if, within its consular district,
a national of that State is arrested or committed to
prison or to custody pending trial or is detained in any
other manner. Any communication addressed to the
consular post by the person arrested, in prison, custody
or detention shall also be forwarded by the said authori-

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674 MEDELLIN v. DRETKE
O’Connor, J., dissenting
ties without delay. The said authorities shall inform
the person concerned without delay of his rights under
this sub-paragraph.” Vienna Convention on Consular
Relations, Art. 36(1)(b), Apr. 24, 1963, [1970] 21 U. S. T.
77, 101, T. I. A. S. No. 6820.
Presently 167 nations are party to the Vienna Convention,
including our immediate neighbors to the north and south.
Multilateral Treaties Deposited with the Secretary-General
United Nations, N. Y., http://untreaty.un.org/English/ bible/
englishinternetbible/partI/chapterIII/treaty31.asp (all In-
ternet materials as visited May 19, 2005, and available in
Clerk of Court’s case file).
In this country, the individual States’ (often confessed)
noncompliance with the treaty has been a vexing problem.
See, e. g., United States v. Emuegbunam, 268 F. 3d 377, 391
(CA6 2001) (discussing cases about Vienna Convention viola-
tions). It has three times been the subject of proceedings
in the International Court of Justice (ICJ). See Case Con-
cerning Vienna Convention on Consular Relations (Para.
v. U. S.), 1998 I. C. J. 426 (Order of Nov. 10); LaGrand Case
(F. R. G. v. U. S.), 2001 I. C. J. 466 (Judgment of June 27);
Avena, supra. The problem may have considerable ramifi-
cations, because foreign nationals are regularly subject to
state criminal justice systems. For example, in 2003, over
56,000 noncitizens were held in state prisons. Noncitizens
accounted for over 10% of the prison populations in Califor-
nia, New York, and Arizona. U. S. Dept. of Justice, Bureau
of Justice Statistics Bull., p. 5 (rev. July 14, 2004), Prison and
Jail Inmates at Midyear 2003, http://www.ojp.usdoj.gov/ bjs/
pub/pdf/pjim03.pdf.
Noncompliance with our treaty obligations is especially
worrisome in capital cases. As of February 2005, 119 non-
citizens from 31 nations were on state death row. Foreign
Nationals and the Death Penalty in the United States, Re-
ported Foreign Nationals Under Sentence of Death in the
U. S., http://www.deathpenaltyinfo.org/article.php?did=198&

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O’Connor, J., dissenting
scid=31. In Avena, the ICJ determined that the United
States had breached its obligation to inform 51 Mexican na-
tionals, all sentenced to death in this country, of their right
to consular notification. Medellı´n is just one of them. 2004
I. C. J. No. 128, ¶ 106. His case thus presents, and the Court
in turn avoids, questions that will inevitably recur.
Jose´ Ernesto Medellı´n told the officers who arrested him
in Texas that he was born in Laredo, Mexico. App. JA15.
He also told the Harris County Pretrial Services that he is
not an American citizen. App. to Pet. for Cert. 165a.
Nonetheless, Medellı´n was arrested, detained, tried, con-
victed, and sentenced to death without ever being informed
that he could contact the Mexican consul. Mexican consular
authorities only became aware of Medellı´n’s predicament
some six weeks after his conviction was affirmed, when he
wrote them a letter from Texas’ death row. Since coming
into contact with his consul, Medellı´n has maintained that
Texas authorities violated his rights under the Convention
and has sought (among other relief) an evidentiary hearing
to determine whether he was prejudiced by the violation.
First, Medellı´n filed a state application for a writ of habeas
corpus. The Texas trial court denied relief, reasoning in rel-
evant part:
“13. Based on the applicant’s lack of objection at trial
to the alleged failure to inform him of his rights under
the Vienna Convention, the applicant is procedurally
barred from presenting his habeas claim that the alleged
violation of the Vienna Convention violated his constitu-
tional rights. Hodge v. State, 631 S. W. 2d 754, 757 (Tex.
Crim. App. 1982); Williams v. State, 549 S. W. 2d 183,
187 (Tex. Crim. App. 1977).
. . . . .
“15. In the alternative, the applicant, as a private in-
dividual, lacks standing to enforce the provisions of the
Vienna Convention. Hinojosa v. State, No. 72,932 (Tex.
Crim. App. Oct. 27, 1999) (holding that treaties operate

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676 MEDELLIN v. DRETKE
O’Connor, J., dissenting
as contracts among nations; thus, offended nation, not
individual, must seek redress for violation of sovereign
interests).” Id., at 55a–56a.
The Texas Court of Criminal Appeals affirmed.
Medellı´n next petitioned for habeas relief in the United
States District Court for the Southern District of Texas.
While that petition was pending, the ICJ announced its in-
terpretation of Article 36 in a case that Germany had
brought against the United States after Arizona failed to
advise two German capital defendants about consular notifi-
cation. LaGrand, supra. Consistent with Medellı´n’s own
arguments about the Convention’s meaning, the ICJ decided
in LaGrand that the treaty confers individual rights and re-
quires that state procedural default rules sometimes give
way when foreign national defendants raise Vienna Conven-
tion claims. See id., at 490–491, 497–498. Medellı´n argued
to the District Court that the ICJ’s interpretation of Article
36 was definitive, persuasive, and should control the resolu-
tion of his claim. Rejecting these and other arguments, the
District Court denied relief.
Medellı´n then sought to obtain a certificate of appealability
(COA) from the United States Court of Appeals for the Fifth
Circuit. See 28 U. S. C. § 2253(c). A COA may issue only if
the applicant has demonstrated that “reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner [in
the district court] or that the issues presented were ‘ “ade-
quate to deserve encouragement to proceed further.” ’ ”
Slack v. McDaniel, 529 U. S. 473, 484 (2000) (quoting Bare-
foot v. Estelle, 463 U. S. 880, 893, n. 4 (1983)).
Meanwhile, Mexico had initiated proceedings in the ICJ
against the United States on grounds that 54 Mexican capital
defendants, including Medellı´n, had been denied their Vienna
Convention rights. See Avena, supra. The ICJ’s decision
in Avena issued while Medellı´n’s application for a COA was
pending. Repeating the construction it had given to Article

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O’Connor, J., dissenting
36 in LaGrand, the ICJ decided that Medellı´n and 50 others
were entitled to review and reconsideration of their convic-
tions and sentences because the United States, through vari-
ous individual States, had violated their Vienna Convention
rights. Avena, supra, ¶ 153. The Court of Appeals noted
the ICJ’s pronouncements in LaGrand and Avena, and none-
theless concluded that Medellı´n’s treaty claim lacked the req-
uisite merit for a COA.
We granted certiorari on two questions. First, does
Avena have preclusive effect in our courts? Second, if our
courts are not bound to apply Avena as a rule of decision,
must they give the ICJ’s decision effect for sake of uniform
treaty interpretation or comity? These questions refer to
substantial, debatable issues in Medellı´n’s Vienna Conven-
tion claim. I would therefore vacate the denial of a COA
and remand for further proceedings.
II
A
At every step, the federal courts must evaluate Medellı´n’s
Vienna Convention claim through the framework of the Anti-
terrorism and Effective Death Penalty Act of 1996 (AEDPA),
which controls the process by which a state prisoner may
obtain federal habeas relief. And wherever the Convention,
which has been in continuous force since 1969, conflicts with
this subsequently enacted statute, the statute must govern.
Reid v. Covert, 354 U. S. 1, 18 (1957) (plurality opinion); see
also Whitney v. Robertson, 124 U. S. 190, 194 (1888).
At the outset, Texas and the United States argue that
AEDPA, 28 U. S. C. § 2253(c), precludes ruling for Medellı´n
no matter how meritorious his Vienna Convention claim may
be. According to § 2253(c)(2), a COA may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” Texas maintains that prisoners may
only appeal district courts’ adverse decisions involving con-
stitutional rights—that Congress did not use the word “con-

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678 MEDELLIN v. DRETKE
O’Connor, J., dissenting
stitutional” in the statute as shorthand for all of the federal
claims traditionally heard in habeas. But see 1 R. Hertz &
J. Liebman, Federal Habeas Corpus Practice and Procedure
448–449 (4th ed. 2001). See also Slack, supra, at 483 (noting
Congress’ substitution of “ ‘constitutional’ ” for “ ‘federal’ ” in
the standard for obtaining a certificate of probable cause—
the COA’s predecessor—without saying if the change is
meaningful).
Texas concedes that it raised this objection for the first
time in its merits brief to this Court. Tr. of Oral Arg. 29.
Normally this Court will not decide a question raised at this
stage. See Taylor v. Freeland & Kronz, 503 U. S. 638, 645–
646 (1992). But Texas contends that this is a nonwaivable
jurisdictional objection. So we must start with the question
of whether it actually is an objection that cannot be waived.
It is true that the COA is jurisdictional in the sense that it
is a “gateway” device. Miller-El v. Cockrell, 537 U. S. 322,
337 (2003). By obliging applicants to make a threshold
showing before their cases are aired out on appeal, the COA
serves an important screening function and conserves the
resources of appellate courts. To that end, the existence of
a COA is jurisdictional insofar as a prisoner cannot appeal
in habeas without one. See id., at 335–336. Accordingly, a
federal court must verify that a COA has issued before hear-
ing the merits of a habeas appeal.
It does not follow, however, that courts must raise and
decide predicate arguments about the validity of a COA in-
dependently, without prompting from the parties, even when
ordinary waiver rules would apply, as they must with true
jurisdictional arguments. If that were so, an appellate
court, presiding over an appeal after the district court had
issued a COA, would always be required to check that a
“substantial showing” had been made and a cognizable right
asserted—even in the absence of controversy between the
parties. We have never imposed such a rule, and it would
undermine the efficiency of the COA process. Cf. Young v.

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O’Connor, J., dissenting
United States, 124 F. 3d 794, 799 (CA7 1997). Predicate con-
siderations for a COA—whether a “substantial showing” has
been made or a “constitutional right” asserted—are not the
sorts of considerations that remain open for review through-
out the entire case. Compare Peguero v. United States, 526
U. S. 23 (1999) (considering whether a violation of Federal
Rule of Criminal Procedure 32(a)(2) provided a basis for col-
lateral relief), with Brief for United States in Peguero v.
United States, O. T. 1998, No. 97–9217, p. 6, n. 5 (arguing that
§ 2253(c) deprived the Court of jurisdiction because a consti-
tutional right was not at stake). Thus, because Texas did
not argue below that a treaty-based claim cannot support an
application for a COA, it cannot raise the argument now.
Texas also adverts to another AEDPA provision, 28
U. S. C. § 2254(d), which it says is fatal to Medellı´n’s treaty
claim. The statute provides that a writ of habeas corpus
shall not issue on behalf of a person in state custody with
respect to any claim “adjudicated on the merits in State
court proceedings unless the adjudication of the claim—(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
Whether Medellı´n’s claim clears these hurdles is an appro-
priate consideration for an appellate court contemplating
whether to grant a COA, and for this Court reviewing the
denial of a COA. See Miller-El, 537 U. S., at 349–350
(Scalia, J., concurring) (“A circuit justice or judge must
deny a COA . . . if all reasonable jurists would conclude that
a substantive provision of the federal habeas statute bars
relief ”); see also id., at 336 (majority opinion).
The Texas court’s disposition of Medellı´n’s Vienna Conven-
tion claim is not entitled to deference under § 2254(d), and
thus should not constrain a final decision in federal court
about whether he deserves habeas relief. The Texas court
gave two reasons for dismissing the claim. First, it applied
its procedural default rule to Medellı´n’s assertion of right

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680 MEDELLIN v. DRETKE
O’Connor, J., dissenting
under the Vienna Convention. See supra, at 675. In so
doing, it did not adjudicate the merits of the relevant federal
question—whether, under Article 36(2), the treaty overrides
state procedural default rules. Second, the Texas court ap-
pears to have reasoned that private individuals (as opposed
to offended nations) can never enforce any treaty in court.
See supra, at 675–676. This reasoning is “contrary to” our
precedents and, therefore, is not entitled to deference in sub-
sequent federal proceedings. “A state-court decision will
certainly be contrary to our clearly established precedent if
the state court applies a rule that contradicts the governing
law set forth in our cases.” Williams v. Taylor, 529 U. S.
362, 405 (2000); see also Brown v. Payton, ante, at 141. The
Texas court’s blanket rule plainly contradicts our governing
law, for it is axiomatic that, while treaties are compacts be-
tween nations, “a treaty may also contain provisions which
confer certain rights upon the citizens or subjects of one of
the nations residing in the territorial limits of the other,
which partake of the nature of municipal law, and which are
capable of enforcement as between private parties in the
courts of the country.” Head Money Cases, 112 U. S. 580,
598 (1884). The Texas court neither asked nor answered the
right question: whether an individual can bring a claim under
this particular treaty. Accordingly, any consideration of
Medellı´n’s Vienna Convention claim for habeas relief in fed-
eral court—including his assertion that Avena provides a
binding rule of decision—must proceed de novo. See Wil-
liams, supra, at 406.
B
The Court catalogs a number of other, nonjurisdictional
questions that, in its view, justify dismissing the case be-
cause they could preclude ultimate habeas relief for Medellı´n.
Ante, at 664–666. Apparently the Court agrees that it
would be impossible or imprudent to decide these questions
today. It seems odd to me to leave them undecided and yet
to rely on them as reason to avoid the weighty questions that

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O’Connor, J., dissenting
are undeniably properly before us. Given the posture of
this case, our modest task is to decide only whether Medellı´n
has presented claims worthy of a COA, and the majority
points to issues outside the scope of that inquiry. Anyway,
it is not our practice generally, when remanding a case to the
lower courts after resolving discrete questions, to canvass
all of the possible permutations of what could happen before
a final resolution. Thus, while the Court points to questions
that are, of course, important, none ought to detain us here.
First, Texas and the United States have made no mention
of Reed v. Farley, 512 U. S. 339 (1994), and Hill v. United
States, 368 U. S. 424 (1962), depriving Medellı´n of an opportu-
nity to discuss their applicability to his case—a complicated
question. Second, while Texas did argue in its certiorari
papers that Medellı´n had already received a prejudice analy-
sis in state habeas, see Brief in Opposition 14–16, it aban-
doned this argument in its brief on the merits. See United
States v. International Business Machines Corp., 517 U. S.
843, 855, n. 3 (1996) (the Court does not address abandoned
arguments). Here, Texas argues that Medellı´n cannot show
prejudice in a future proceeding, not that he has already
failed to show prejudice or that the state court thought (not
unreasonably) that the Vienna Convention had been satisfied
by its prejudice analysis. See Brief for Respondent 16–17.
Moreover, Medellı´n has maintained an unfulfilled request for
an evidentiary hearing about prejudice. The ICJ, for its
part, appears to believe that Medellı´n has yet to receive the
prejudice analysis that the Vienna Convention requires; oth-
erwise, it would not have ruled—after the state habeas pro-
ceedings had concluded—that the United States must still
provide “review and reconsideration” of his sentence to de-
termine if he suffered “actual prejudice.” Avena, 2004
I. C. J. No. 128, ¶¶ 121–122, 153. Third, the Court is correct
to observe that, before obtaining relief, Medellı´n would have
to contend with Teague v. Lane, 489 U. S. 288 (1989). The
Court of Appeals never discussed Teague’s applicability to

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O’Connor, J., dissenting
Medellı´n’s case. Whether Teague bars relief for Medellı´n is
itself a highly debatable question that should be part of a
proper COA analysis upon remand.
III
“While a COA ruling is not the occasion for a ruling on
the merit of petitioner’s claim,” Miller-El, 537 U. S., at 331,
some assessment of Medellı´n’s arguments is necessary to ex-
plain why the COA’s denial should be vacated.
A
The Optional Protocol to the Vienna Convention provides
that “[d]isputes arising out of the interpretation or applica-
tion of the Convention shall lie within the compulsory juris-
diction of the International Court of Justice.” Optional Pro-
tocol Concerning the Compulsory Settlement of Disputes,
Apr. 24, 1963, Art. I, [1970] 21 U. S. T. 326, T. I. A. S. No. 6820
(hereinafter Optional Protocol). The United States was
party to the Optional Protocol until recently. See Letter
from Condoleezza Rice, Secretary of State, to Kofi A. Annan,
Secretary-General of the United Nations (Mar. 7, 2005) (noti-
fying the Secretary-General that the United States hereby
withdraws from the Optional Protocol). And the ICJ de-
cided LaGrand and Avena pursuant to the Optional Proto-
col’s grant of authority. The first question on which we
granted certiorari asks whether American courts are now
bound to follow the ICJ’s decision in Avena when deciding
Vienna Convention claims.1
1 The Court suggests that Medellı´n’s reliance on Avena may be a distinct
claim, and that he may not have properly exhausted it in state court.
Ante, at 666. But Medellı´n has maintained a single claim throughout the
state and federal habeas proceedings—that Texas violated his rights
under the Vienna Convention and that he is entitled to a remedy for that
violation. Pointing to Avena as a rule of decision for the adjudication of
that claim is akin to pointing to a new decision from this Court to bolster

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If Medellı´n is right to say that they must, then the District
Court’s resolution of his Vienna Convention claim is not
merely debatable, but wrong in result and in reasoning. In
terms of result, the ICJ made clear that it would be improper
to dismiss Medellı´n’s claim, for once the United States had
committed “internationally wrongful acts,” the necessary
“remedy to make good these violations should consist in an
obligation on the United States to permit review and recon-
sideration of [the 51 Mexican] nationals’ cases by the United
States courts.” Avena, 2004 I. C. J. No. 128, ¶ 121. The
ICJ’s reasoning is also irreconcilable with the District
Court’s. The ICJ specified that the Convention confers
rights on individual defendants, and that applying state pro-
cedural default rules to prevent them from vindicating their
rights violates the treaty, for the treaty requires that its pur-
poses be given “ ‘full effect.’ ” Id., ¶¶ 106, 113.
Medellı´n argues that once the United States undertakes a
substantive obligation (as it did in the Vienna Convention),
and at the same time undertakes to abide by the result of a
specified dispute resolution process (as it did by submitting
to the ICJ’s jurisdiction through the Optional Protocol), it is
bound by the rules generated by that process no less than it
is by the treaty that is the source of the substantive obliga-
tion. In other words, because Avena was decided on the
back of a self-executing treaty, see infra, at 686, it must be
given effect in our domestic legal system just as the treaty
itself must be. Medellı´n asserts, at bottom, that Avena, like
a treaty, has the status of supreme law of the land.
On the other hand, Texas and the United States argue that
the issue turns in large part on how to interpret Article 94(1)
of the United Nations Charter, which provides that “[e]ach
Member of the United Nations undertakes to comply with
an existent claim for relief. In neither case has petitioner made a new
claim as opposed to a new argument supporting his pending claim.
Cf. Yee v. Escondido, 503 U. S. 519, 534–535 (1992).

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684 MEDELLIN v. DRETKE
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the decision of the International Court of Justice in any case
to which it is a party.” 59 Stat. 1051. They maintain that
the charter imposes an international duty only on our politi-
cal branches. A contrary result could deprive the Executive
of necessary discretion in foreign relations, and may improp-
erly displace this Court’s responsibilities to an international
body. For his part, Medellı´n says that Article 94(1) cannot
answer the question of whether, under domestic law and the
Supremacy Clause, our courts are bound to comply with the
international obligation reflected in Avena.
The Court of Appeals passed on whether it was bound by
Avena, and decided that the issue was not worthy of a COA.
In so doing, it noted some conflict between Avena and our
decision in Breard v. Greene, 523 U. S. 371, 376 (1998) (per
curiam). How to resolve that conflict is a difficult question.
Reasonable jurists can vigorously disagree about whether
and what legal effect ICJ decisions have in our domestic
courts, and about whether Medellı´n can benefit from such
effect in this posture. The Court of Appeals should have
granted a COA and given the issue further consideration.
B
We also granted certiorari on a second, alternative ques-
tion that asks whether and what weight American courts
should give to Avena, perhaps for sake of uniform treaty
interpretation, even if they are not bound to follow the ICJ’s
decision. That question can only be answered by holding up
the Avena interpretation of the treaty against the domestic
court’s own conclusions, and then deciding how and to what
extent the two should be reconciled. See Olympic Airways
v. Husain, 540 U. S. 644, 660–661 (2004) (Scalia, J., dissent-
ing); Air France v. Saks, 470 U. S. 392, 404 (1985). Accord-
ingly, the second question presented encompassed two other
issues, both pressed and passed upon below, that are them-
selves debatable and thus grounds for a COA: whether the

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Vienna Convention creates judicially enforceable rights and
whether it sometimes trumps state procedural default rules.2
This Court has remarked that Article 36 of the Vienna
Convention “arguably confers on an individual the right to
consular assistance following arrest.” Breard, supra, at
376. The United States maintains, on the contrary, that Ar-
ticle 36 does not give foreign nationals a judicially enforce-
able right to consular access. On that theory, a detained
foreign national may never complain in court—even in the
course of a trial or on direct review—about a State’s failure
to “inform the person concerned without delay of his rights
under” Article 36. 21 U. S. T., at 101. The complainant
must be the sending state, and any remedy is political, diplo-
matic, or between the states in international law.
When called upon to interpret a treaty in a given case or
controversy, we give considerable weight to the Executive
Branch’s understanding of our treaty obligations. See Ko-
lovrat v. Oregon, 366 U. S. 187, 194 (1961); Charlton v. Kelly,
229 U. S. 447, 468 (1913). But a treaty’s meaning is not be-
2 Justice Ginsburg gives an unduly narrow construction to the second
question presented. It asks: “[S]hould a court in the United States give
effect to the judgments in Avena and LaGrand”? Brief for Petitioner i.
This question cannot be read to ask for “ ‘effect’ ” to be given in the strict
sense of the law of judgments, ante, at 670–671 (Ginsburg, J., concurring):
Because Medellı´n was not a beneficiary of the judgment in LaGrand Case
(F. R. G. v. U. S.), 2001 I. C. J. 466 (Judgment of June 27), a case between
Germany and the United States, the judgment in LaGrand cannot be en-
forced as to Medellı´n. What he asks is that American courts reach the
same interpretation of the Vienna Convention as did the body charged
with adjudicating international disputes arising out of the Convention—in
part for the sake of “uniform treaty interpretation.” Brief for Petitioner
i. This understanding of the second question takes account, as it should,
of the fact that the correct, independent interpretation of the Vienna Con-
vention was the central question in the habeas proceedings below. More-
over, it is consistent with the practical way we decide what is “fairly in-
cluded” in a question presented. See this Court’s Rule 14.1(a); City of
Sherrill v. Oneida Indian Nation of N. Y., ante, at 213, n. 6; Ballard v.
Commissioner, ante, at 47, n. 2.

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yond debate once the Executive has interpreted it. Cf., e. g.,
Chan v. Korean Air Lines, Ltd., 490 U. S. 122, 136 (1989)
(Brennan, J., concurring in judgment) (observing that the
Court was rejecting a view of the Warsaw Convention that
had consistently been adopted by the Executive Branch and
had been pressed by the United States in that case); Perkins
v. Elg, 307 U. S. 325, 328, 337–342 (1939) (declining to adopt
Executive’s treaty interpretation); Johnson v. Browne, 205
U. S. 309, 319–321 (1907) (same); De Lima v. Bidwell, 182
U. S. 1, 181, 194–199 (1901) (same).
Article 36 of the Vienna Convention on Consular Relations
is, as the United States recognizes, a self-executing treaty.
Brief for United States as Amicus Curiae 26. Chief Justice
Marshall explained that a self-executing treaty is domestic
law. It “operates of itself,” as “a rule for the Court,” “equiv-
alent to an act of the legislature.” Foster v. Neilson, 2 Pet.
253, 314 (1829). Because the Convention is self-executing,
then, its guarantees are susceptible to judicial enforcement
just as the provisions of a statute would be. See Head
Money Cases, 112 U. S., at 598–599 (“A treaty, then, is a law
of the land as an act of Congress is, whenever its provisions
prescribe a rule by which the rights of the private citizen or
subject may be determined. And when such rights are of a
nature to be enforced in a court of justice, that court resorts
to the treaty for a rule of decision for the case before it as it
would to a statute”); see generally L. Henkin, Foreign Af-
fairs and the United States Constitution 206–209 (2d ed.
1996).
To ascertain whether Article 36 confers a right on individ-
uals, we first look to the treaty’s text as we would with a
statute’s. United States v. Alvarez-Machain, 504 U. S. 655,
663 (1992); Air France, supra, at 397. Article 36(1)(b) en-
tails three different obligations for signatory host countries.
Their competent authorities shall (1) inform the consul of
its nationals’ detentions, (2) forward communication from a
detained national to his consulate, and (3) “inform the person

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O’Connor, J., dissenting
concerned without delay of his rights under this sub-
paragraph.” 21 U. S. T., at 101 (emphasis added). Of these,
the third exclusively concerns the detained individual, and it
is the only obligation expressed in the language of rights.
If Article 36(1) conferred no rights on the detained individ-
ual, its command to “inform” the detainee of “his rights”
might be meaningless. Other provisions in the treaty ap-
pear to refer back to individual rights. See Art. 36(1)(a),
ibid.; Art. 36(2), ibid.
To be sure, the questions of whether a treaty is self-
executing and whether it creates private rights and remedies
are analytically distinct. If Article 36(1)(b) imposed only
two obligations on signatory countries—to notify the consul
and forward correspondence—then Medellı´n could not in-
voke the treaty as a source of personal rights by virtue of
its self-executing character. But the treaty goes further—
imposing an obligation to inform the individual of his rights
in the treaty. And if a statute were to provide, for example,
that arresting authorities “shall inform a detained person
without delay of his right to counsel,” I question whether
more would be required before a defendant could invoke that
statute to complain in court if he had not been so informed.
This Court has repeatedly enforced treaty-based rights of
individual foreigners, allowing them to assert claims arising
from various treaties. These treaties, often regarding reci-
procity in commerce and navigation, do not share any special
magic words. Their rights-conferring language is arguably
no clearer than the Vienna Convention’s is, and they do not
specify judicial enforcement. See, e. g., Asakura v. Seattle,
265 U. S. 332, 340 (1924) (allowing Japanese national to bring
a claim under a United States-Japan treaty requiring that
“ ‘citizens or subjects of each of the [two countries] shall have
liberty . . . to carry on trade’ ” in the other’s territory, and
holding that a local licensing ordinance for pawnbrokers
could not be applied to the Japanese petitioner without vio-
lating the treaty’s guarantee); Kolovrat, supra, at 191–192,

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O’Connor, J., dissenting
and n. 6 (sustaining Yugoslavians’ claim against enforcement
of Oregon inheritance law limiting their right to inherit,
when United States-Serbia Treaty promised that “ ‘[i]n all
that concerns the right of acquiring, possessing or disposing
of every kind of property . . . citizens of [each country in the
other] shall enjoy the rights which the respective laws grant
in each of these states to the subjects of the most favored
nation’ ”).
Likewise, the United States acknowledges with approval
that other provisions of the Vienna Convention, which relate
to consular privileges and immunities, have been the source
of judicially enforced individual rights. See Brief for United
States as Amicus Curiae 26, n. 7 (citing Risk v. Halvorsen,
936 F. 2d 393, 397 (CA9 1991) (deciding whether Article 43
of the Vienna Convention defeated jurisdiction under 28
U. S. C. § 1351 over defendant consular officials), and Gerrit-
sen v. de la Madrid Hurtado, 819 F. 2d 1511, 1515–1516 (CA9
1987) (same)). Although Article 43 is phrased in terms of
courts’ jurisdiction, its violations could theoretically also be
vindicated exclusively in political and diplomatic processes,
but have not been. See Art. 43(1), 21 U. S. T., at 104 (“Con-
sular officers and consular employees shall not be amenable
to the jurisdiction of the judicial or administrative authori-
ties of the receiving State in respect of acts performed in
the exercise of consular functions”); see also Kolovrat, 366
U. S., at 193; Hauenstein v. Lynham, 100 U. S. 483, 487
(1880).
There are plausible arguments for the Government’s con-
struction of Article 36. See generally Choctaw Nation v.
United States, 318 U. S. 423, 431–432 (1943) (looking to ex-
trinsic sources for treaty interpretation). The preamble to
the Vienna Convention, for example, states that “the purpose
of such privileges and immunities [contained in the treaty] is
not to benefit individuals but to ensure the efficient perform-
ance of functions by consular posts on behalf of their respec-
tive States.” 21 U. S. T., at 79. Moreover, State Depart-

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ment and congressional statements contemporaneous with
the treaty’s ratification say or indicate that the Convention
would not require significant departures from existing prac-
tice. See United States v. Li, 206 F. 3d 56, 64–65 (CA1 2000);
but see id., at 73–75 (Torruella, C. J., concurring in part and
dissenting in part). The United States interprets such
statements to mean that the political branches did not con-
template a role for the treaty in ordinary criminal proceed-
ings. See Brief for United States as Amicus Curiae 21–22.
The Government also asserts that the State Department’s
previous litigation behavior in Article 36 cases is consistent
with the Executive’s treaty interpretation presented here.
Id., at 22–23; see also Li, supra, at 64. I would allow fuller
consideration of this issue upon the granting of a COA.
Of course, even if the Convention does confer individual
rights, there remains the question of whether such rights
can be forfeited according to state procedural default rules.
Article 36(2) of the treaty provides: “The rights referred to
in paragraph 1 of this Article shall be exercised in conformity
with the laws and regulations of the receiving State, subject
to the proviso, however, that the said laws and regulations
must enable full effect to be given to the purposes for which
the rights accorded under this Article are intended.” 21
U. S. T., at 101. Medellı´n contends that this provision re-
quires that state procedural default rules sometimes be set
aside so that the treaty can be given “full effect.” Ibid. In
Breard, in the course of denying a stay of imminent execu-
tion and accompanying petitions, we concluded that the peti-
tioner had defaulted his Article 36 claim by failing to raise
it in state court prior to seeking collateral relief in federal
court. 523 U. S., at 375–376. Subsequently in Avena, as
explained above, the ICJ interpreted Article 36(2) differ-
ently. 2004 I. C. J. No. 128, ¶¶ 112–113. In the past the
Court has revisited its interpretation of a treaty when
new international law has come to light. See United States
v. Percheman, 7 Pet. 51, 89 (1833). Even if Avena is not

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Souter, J., dissenting
itself a binding rule of decision in this case, it may at least
be occasion to return to the question of Article 36(2)’s impli-
cations for procedural default.
Again, I would not decide that question today. All that is
required of Medellı´n now is to show that his case is debat-
able. He has done at least that much. Because of the COA
posture, we cannot, and I would not, construe Article 36 de-
finitively here. I would conclude only that Medellı´n’s argu-
ments about the treaty themselves warrant a COA.
IV
For the reasons explained, I would vacate the Court of
Appeals’ decision to deny Medellı´n a COA with which to
proceed, and remand for further proceedings. After we
granted certiorari in this case, the President informed his
Attorney General that the United States would discharge its
obligations under the Avena judgment “by having State
courts give effect to the decision.” George W. Bush, Memo-
randum for the Attorney General (Feb. 28, 2005), App. 2 to
Brief for United States as Amicus Curiae 9a. Medellı´n has
since filed a successive petition in state court. It is possible
that the Texas court will grant him relief on the basis of
the President’s memorandum. On remand, the Court of
Appeals for the Fifth Circuit may have wished to consider
that possibility when scheduling further federal proceedings,
and to hold the case on its docket until Medellı´n’s successive
petition was resolved in state court. See Landis v. North
American Co., 299 U. S. 248, 254 (1936).
Justice Souter, dissenting.
After the Court of Appeals denied the certificate of ap-
pealability (COA) necessary for Medellı´n to appeal the Dis-
trict Court’s denial of his claim for relief under the Vienna
Convention on Consular Relations, we granted certiorari on
two questions bearing on the order barring further appeal:
(1) whether the judgment of the International Court of Jus-

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Souter, J., dissenting
tice (ICJ) in Case Concerning Avena and other Mexican Na-
tionals (Mex. v. U. S.), 2004 I. C. J. No. 128 (Judgment of
Mar. 31) (Avena), supporting petitioner’s right to litigate a
claimed violation of the Convention, and to litigate free of
state and federal procedural bars, is preclusive in our domes-
tic courts; and (2) whether Avena and the ICJ’s earlier judg-
ment in LaGrand Case (F. R. G. v. U. S.), 2001 I. C. J. 466
(Judgment of June 27), are at least entitled to enforcement
for the sake of comity or uniform treaty interpretation.
Prior to argument here, the President advised the Attorney
General that the United States would discharge its interna-
tional obligations under the Avena judgment “by having
State courts give effect to the decision.” Memorandum for
the Attorney General (Feb. 28, 2005), App. 2 to Brief for
United States as Amicus Curiae 9a. Medellı´n accordingly
has gone back to state court in Texas to seek relief on the
basis of the Avena judgment and the President’s determina-
tion. Since action by the Texas courts could render moot
the questions on which we granted certiorari (not to mention
the subsidiary issues spotted in the per curiam and dissent-
ing opinions), I think the best course for this Court would
be to stay further action for a reasonable time as the Texas
courts decide what to do; that way we would not wipe out
the work done in this case so far, and we would not decide
issues that may turn out to require no action. We would,
however, remain in a position to address promptly the Na-
tion’s obligation under the judgment of the ICJ if that should
prove necessary.
Because a majority of the Court does not agree to a stay,
I think the next best course would be to take up the ques-
tions on which certiorari was granted, to the extent of their
bearing on the conclusion of the Court of Appeals that there
was no room for reasonable disagreement, meriting a COA,
about Medellı´n’s right to relief under the Convention. The
Court of Appeals understandably thought itself constrained
by our decision in Breard v. Greene, 523 U. S. 371 (1998) (per

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692 MEDELLIN v. DRETKE
Breyer, J., dissenting
curiam), which the court viewed as binding until this Court
said otherwise. It is of course correct to face the possibility
of saying otherwise today, since Medellı´n’s case now presents
a Vienna Convention claim in the shadow of a final ICJ judg-
ment that may be entitled to considerable weight, if not pre-
clusive effect. This case is therefore not Breard, and the
Court of Appeals should be free to take a fresh look.
That is one of several reasons why I join Justice O’Con-
nor’s dissenting opinion, but I do so subject to caveats. We
should not at this point limit the scope of proceedings on
remand; the issues outlined in Part III–B of Justice O’Con-
nor’s opinion are implicated here by Medellı´n’s request that
domestic courts defer to the ICJ for the sake of uniform
treaty interpretation. Whether these issues would be open
for consideration by the Court of Appeals in their own right,
independent of the ICJ’s judgment, is not before us here, nor
should our discussion of them and other matters in Part III
be taken as limiting the enquiry by the Court of Appeals,
were a remand possible. I would, however, limit further
proceedings by providing that the Court of Appeals should
take no further action until the anticipated Texas litigation
responding to the President’s position had run its course,
since action in the Texas courts might remove any occasion
to proceed under the federal habeas petition. Taking Jus-
tice O’Connor’s proposed course subject to this limitation
would eliminate the risk of further unnecessary federal rul-
ings, but would retain federal jurisdiction and the option
to act promptly, which petitioner deserves after litigating
this far.
Justice Breyer, with whom Justice Stevens joins,
dissenting.
I agree with Justice Ginsburg that, in light of recent
developments, this Court should simply grant Medellı´n’s mo-
tion for a stay. See ante, at 668 (concurring opinion); see

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also ante, at 691 (Souter, J., dissenting). But, in the ab-
sence of majority support for a stay, I would vacate the Fifth
Circuit’s judgment and remand the case rather than simply
dismiss the writ as improvidently granted. I join Justice
O’Connor’s dissent, for she would do the same. See ante,
at 677, 690.
For one thing, Medellı´n’s legal argument that “American
courts are now bound to follow the ICJ’s decision in Avena”
is substantial, and the Fifth Circuit erred in holding the con-
trary. Ante, at 682 (O’Connor, J., dissenting); see 371 F. 3d
270, 279–280 (2004). By vacating its judgment and remand-
ing the case, we would remove from the books an erroneous
legal determination that we granted certiorari to review.
Nor would a remand “invite the Fifth Circuit to conduct
proceedings rival to those” unfolding in the Texas courts.
Ante, at 668 (Ginsburg, J., concurring). Rather, I should
expect the Fifth Circuit to recognize two practical circum-
stances that favor its entering a stay. See ante, at 690
(O’Connor, J., dissenting); see also ante, at 692 (Souter,
J., dissenting).
First, the President has decided that state courts should
follow Avena. See Case Concerning Avena and Other Mex-
ican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128 (Judg-
ment of Mar. 31); George W. Bush, Memorandum for the At-
torney General (Feb. 28, 2005), App. 2 to Brief for United
States as Amicus Curiae 9a. And that fact permits Med-
ellı´n to argue in the Texas courts that the President’s deter-
mination—taken together with (1) the self-executing nature
of the treaty, (2) the Nation’s signature on the Optional Pro-
tocol, (3) the International Court of Justice’s (ICJ) determi-
nation that the United States give Medellı´n (and 50 other
Mexican nationals) “judicial,” i. e., court, “review and recon-
sideration” of their Convention-based claims, “by means of
[the United States’] own choosing,” and (4) the United
States’ “undertak[ing]” in the United Nations Charter to

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comply with ICJ judgments—requires Texas to follow the
Avena decision in Medellı´n’s case. Avena, supra, ¶¶ 138–
143, 153(9) (emphasis added); Charter of the United Nations,
Art. 94.1, 59 Stat. 1051; cf. Ware v. Hylton, 3 Dall. 199, 237
(1796) (treaties “superior to the Constitution and laws of any
individual state” (emphasis deleted)); Sale v. Haitian Centers
Council, Inc., 509 U. S. 155, 188 (1993) (President possesses
“unique responsibility” for the conduct of “foreign . . . af-
fairs”); see also American Ins. Assn. v. Garamendi, 539 U. S.
396, 414–416 (2003) (President has a degree of independent
authority to pre-empt state law); Tex. Code Crim. Proc.
Ann., Arts. 11.01, 11.071 (Vernon 2005) (Texas courts possess
jurisdiction to hear Medellı´n’s claims).
Second, several Members of this Court have confirmed
that the federal questions implicated in this case are impor-
tant, thereby suggesting that further review here after the
Texas courts reach their own decisions may well be appro-
priate. See ante, at 672 (Ginsburg, J., concurring) (it is
“this Court’s responsibility” to address and resolve any sig-
nificant legal ICJ-related issues that may arise in the state-
court proceedings).
The first consideration means that Medellı´n’s claims when
considered in state court are stronger than when considered
in federal court—and suggests the very real possibility of
his victory in state court. The second consideration means
that a loss in state court would likely be followed by review
in this Court. Taken together they mean that, by staying
the case on remand, the Fifth Circuit could well avoid the
need for any further federal proceedings, or at least obtain
additional guidance from this Court before taking further
action. Given these practical circumstances, it seems to me
unlikely that, were we to remand this case, the Fifth Circuit
would move forward on its own, rather than stay its hand
until the conclusion of proceedings in the state courts and
possibly here.

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Breyer, J., dissenting
For these reasons and those set forth by Justice O’Con-
nor, I agree with the course of action she suggests and re-
spectfully dissent from the Court’s decision to dismiss the
writ.