The IHR (2005) is an international agreement between 194 States Parties and the World Health Organization to monitor, report and respond to all events that may pose a threat to international public health. The objective of the IHR (2005) is to prevent, protect and control the international spread of diseases and to provide a proportionate and limited public health response to public health risks and to avoid unnecessary interference with international traffic and trade. (International Health Regulations, art. 2). More information can be found in the IHR factsheets. The treaty clause – Article II, Section 2, Clause 2 of the Constitution – gives the President the power to conclude treaties by acting with the “Council and Consent” of the Senate. 21 Many researchers have concluded that the authors intended “deliberation” and “consent” to be separate aspects of the contract-making process.22 According to this interpretation, the “consultative element” required the Speaker to consult with the Senate during contract negotiations before obtaining final “consent” from the Senate. 23 President George Washington seems to have understood that the Senate had such an advisory role,24 but he and other early presidents quickly refused to ask for the Senate`s input during the negotiation process.25 In modern contractual practice,the executive generally assumes responsibility for negotiations, and the Supreme Court has stated in dictate that the authority of the president, 26 The Senate negotiated all but a few of the treaties negotiated by the Speaker and his representatives. In some cases, when Senate officials felt that a treaty did not provide enough support to be approved, the Senate simply did not vote on the treaty and it was eventually withdrawn by the president.
Since pending treaties do not need to be resubmitted at the beginning of each new Congress, they can be reviewed by the Senate Foreign Relations Committee for an extended period of time. Zschernig has been inactive for some time and, although he has recently been dealt with by the Court of Justice, he remains the only attitude in which the court has used a dormant power under foreign relations law to overturn state law. In the 1990s, Zschernig sparked renewed academic interest as some state and local governments sought ways to express dissatisfaction with foreign governments` human rights policies or restrict trade with disadvantaged countries.20Footnote, e.B. Michael D. Ramsey, The Power of the States in Foreign Affairs: The Original Understanding of Foreign Policy Federalism, 75 Notre Dame L. Rev. 341 (1999); Carlos Manuel Vazquez, Whither Zschernig?, 46 Vill. L. Rev. 1259 (2001); Jack L.
Goldsmith, Federal Courts, Foreign Affairs and Federalism, 83 Va. L. Rev. 1617 (1997); Peter J. Spiro, Foreign Relations Federalism, 70 U. Colo. L. Rev. 1223 (1999). See also Louis Henkin, Foreign Affairs and the Constitution 149–69 (2nd ed. 1996).
In 1999, the court struck down the Massachusetts Burma Sanctions Act on the basis of the legal right of first refusal and refused to consider the alternative position of the Court of Appeals applied by Zschernig.21FootnoteCrosby v. National Foreign Trade Council, 530 U.S. 363, 374 n.8 (2000). On the Court of Appeal`s action against Zschernig, see National Foreign Trade Council v Natsios, 181 F.3d 38, 49–61 (1 Cir. 1999). Similarly, in 2003, the court ruled that California`s Holocaust Victims Insurance Act was expected to be an interference in federal foreign policy reflected in executive agreements, and although the court discussed Zschernig at length, it did not find it necessary to resolve issues related to its scope.22FootnoteAmerican Ins. Ass`n v. Garamendi, 539 U.S.
at 419 & n.11 (2003). During the 19th century. 205 Congress has often authorized or directed the president207 to notify foreign governments of a termination of the treaty during this period. In rare cases, the Senate alone has passed a resolution authorizing the president to terminate a treaty.208 presidents regularly comply with the authorization or instructions of the legislature.209 On other occasions, Congress or the Senate have retrospectively approved the president`s resignation when the executive branch had already terminated the foreign government.210 Dictum in Garamendi recognizes some of the issues, which can be lifted via Zschernig. The Zschernig court did not establish which wording of the Constitution requires a pre-emption clause, and commentators noted that a respectable argument can be made that the Constitution does not require a general pre-emption of foreign policy that is not bound by the supremacy clause and that is broader and independent of the specific prohibitions of the Constitution,23Footnote for example, it is alleged that Article I, the specific prohibitions in § 10 against states that wage war, conclude treaties, maintain troops in peacetime and issue letters on stamps and reprisals would have been useless if a more general and dormant power of foreign relations had been desired. Similarly, it would not have been necessary to declare the treaties the supreme law of the land if a more general preventive power in foreign policy had existed outside the supremacy clause. See Ramsey, above. and the granting of powers.24Footnote In addition, part of the executive power conferred on the President by Article II, § 1 is a power of conduct of external relations. The Garamendi tribunal raised a legitimate question as to whether respect for the executive power in foreign policy requires a categorical choice between opposing theories of the field and the pre-emption of conflicts evident in Zschernig`s statements. Instead, according to Judge Souter of the Court, pre-emption on the ground might be appropriate if a State enacts laws just to take on a foreign policy issue, without serious pretensions to address traditional State responsibility, and pre-emption of conflicts may be appropriate if a State legislates in an area of traditional responsibility, but in a way that affects foreign relations.25Footnote539 U.S. to 419 n.11.
We will have to wait for further litigation to see whether the Court applies this distinction.26Footnote Ginsburg`s dissent in Garamendi, which the other three justices joined, proposed to restrict Zschernig in a manner that is generally consistent with Souter J.`s distinction. Zschernig`s preemption, according to Justice Ginsburg, resonates more audibly when the state`s action “reflects state policy that criticizes foreign governments and involves judging them.” 539 U.S. to 439 (Henkin city, above, 164). But Justice Ginsburg also expressed broader concerns that judges could become exposing to the nation`s foreign policy. Id. at 442. See, in this context, Goldsmith, loc. cit., of 1631, who describes Zschernig pre-emption as a form of federal customary law of foreign relations. Initially, most judges and academics believed that executive agreements based solely on the power of the president did not become the law of the land under the supremacy clause, as these agreements are not treaties ratified by the Senate.3FootnoteE.G., United States v. A bag with feathers of paradise, 256 F. 301, 306 (2d Cir.
1919); 1 W. Willoughby, above, p. 589. The State Department agreed. G. Hackworth, 5 Digest of International Law 426 (1944). However, the Supreme Court found another basis for state laws to be anticipated through executive agreements, and eventually relied on the Constitution to transfer power from foreign relations to the national government. The exclusive nature of federal power over foreign relations has long been affirmed by the Supreme Court. In 1840, for example, the Court stated that one of the main objectives of the Constitution was to make us one people and one nation with regard to our external relations; and cut off all communications between foreign governments and various state agencies.14FootnoteHolmes v. Jennison, 39 U.S.
(14 pet.) 540, 575–76 (1840). See also United States v. Belmont, 301 U.S. 324, 331 (1937) (The external powers of the United States are to be exercised without regard to state laws or directives…. [In keeping with our external relations in general, national borders disappear); The Chinese Exclusion Case, 130 U.S. 581, 606 (1889) (For local interests, the various states of the Union exist; but for national purposes encompassing our relations with foreign nations, we are one people, one nation, one power); Hines v Davidowitz, 312 U.S. 52, 63 (1941) (Our System of Government. . . demands that the federal power in the field of foreign relations remain completely free from local interference). One hundred years later, the Court has remained adamant about federal exclusivity.
No state can rewrite our foreign policy to adapt it to its own domestic policy. Power over foreign affairs is not shared by States; it is the exclusive responsibility of the national government. It is not necessary to exercise it in such a way as to be in conformity with the laws or policy of the State, whether expressed in constitutions, laws or court decisions. And state policies become completely irrelevant to the judicial inquiry when the United States, acting in its constitutional sphere, seeks to implement its foreign policy in court.15FootnoteUnited States v. Pink, 315 U.S. 203, 233–34 (1942). Stone C.J. and Roberts J.
disagreed. Executive Agreement, an agreement between the United States and a foreign government that is less formal than a treaty and is not subject to the constitutional requirement of ratification by two-thirds of the U.S. Senate. It is true, of course, that treaties with foreign nations are also interpreted carefully so as not to deviate from the authority and jurisdiction of the states of that nation, unless this is clearly necessary to achieve national policy. But the law of the State must yield if it is incompatible with or interferes with the policies or provisions of a treaty, covenant or international agreement. .