逃避条约权力?:非约束性协议的合宪性

Michael D. Ramsey
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引用次数: 2

摘要

美国宪法规定,总统可以在参议院的建议和同意下签订条约,前提是在场参议员的三分之二同意。如此高的同意门槛反映了条约制定者的担忧,即条约不能太容易制定。没有人说只有总统才能签订条约;许多人强调的恰恰相反。例如,詹姆斯·威尔逊(James Wilson)宣称:“总统和参议院都不能单独完成条约;它们相互制约,相互平衡,为人民带来安全”;汉密尔顿在《联邦党人文集》中也有类似的观察。然而,在现代,总统凭借自己的权力制定了看起来很像条约的国际协议。2015年提供了两个例子。首先,总统与伊朗、中国、法国、德国、俄罗斯、英国和欧盟就伊朗核发展问题达成了协议。该协议被称为联合全面行动计划(JCPOA),于2015年7月宣布,其主要目标是限制伊朗的非军事核发展,以换取美国和国际社会解除对伊朗的经济制裁。其次,总统与150多个国家的领导人共同制定了气候变化《巴黎协定》,并于2015年12月公布了最终版本。该协议试图促进和协调对碳排放的控制,以应对对人类造成的全球变暖的担忧。这两项协议似乎都涉及美国的实质性承诺,但都不取决于参议院(或国会)的批准。总统争辩说,根据国际法,这些协议不具有约束力,因此可以根据总统的唯一宪法权力制定。本文对这一说法进行了评估。它大体上同意总统的基本主张,但对该主张适用于《伊朗协议》和《巴黎协议》表示担忧。它的结论是,如果没有充分的保障,这种方法可以为总统提供逃避宪法对条约制定权力的检查的实质性能力。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements
The U.S. Constitution states that the President can make treaties with the advice and consent of the Senate, provided two thirds of Senators present concur. This high threshold for consent reflects the framers’ concern that treaties not be too easy to make. No one said the President alone could make treaties; many emphasized the contrary. James Wilson, for example, declared that “[n]either the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people”; Hamilton made similar observations in The Federalist. In modern times, however, Presidents on their own authority have made international agreements that look much like treaties. 2015 provides two examples. First, the President negotiated an agreement with Iran, China, France, Germany, Russia, Britain, and the European Union regarding Iran’s nuclear development. Known as the Joint Comprehensive Plan of Action (JCPOA) and announced in July 2015, its principal goal was to limit Iran to non-military nuclear development in return for lifting U.S. and international economic sanctions on Iran. Second, the President joined with leaders of over 150 nations to produce the Paris Agreement on climate change, with a final version announced in December 2015. The Agreement attempted to promote and coordinate controls on carbon emissions in response to concerns over human-caused global warming. Both agreements appear to involve substantial commitments by the United States, but neither will depend on approval by the Senate (or Congress).The President contends that these agreements are nonbinding under international law and so can be made on the President’s sole constitutional authority. This essay assesses that claim. It generally agrees with the President’s basic proposition but raises concerns about the application of that proposition to the Iran and Paris Agreements. It concludes that without adequate safeguards this approach can provide the President with substantial ability to evade the constitutional checks on the treaty-making power.
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