美国对外贸易法中“贸易促进权”模式研究

【作者】 陈功；

【导师】 杨树明；

【作者基本信息】 西南政法大学 ， 国际法学， 2005， 硕士

【摘要】 美国对外贸易法中的“贸易促进权”模式是重要的法定条约批准程序。在该模式中,国会将宪法赋予自己的部分权力让渡给行政部门,授权总统参与贸易谈判并签署贸易协议,在授权的时限内,国会对总统达成的最终协议没有修改权,只能在规定时限内批准或否决已通过谈判达成的整个贸易协议。该模式使行政和立法机关同时参与贸易谈判决策,增强了美国政府在贸易谈判中的信誉和谈判能力;确保了国会在贸易政策制订的权力分配上的核心地位,维持了“府会”良好的协作关系;使美国贸易政策的制定和对外多边、双边、区域谈判策略纳入整个国内经济发展方案来进行统一、协调与审议。 在大量研习现有资料的基础上,笔者注意到学界从法学、经济学和政治学角度较系统地论述“贸易促进权”模式的论著较少,大量的资料和分析都是散见于众多关于美国外贸政策、外贸法、美国对多边贸易体制的左右等著述中,未形成一个专门论述“贸易促进权”模式的体系。作为国际关系主导理论的现实主义学派认为,日趋增长的国际相互依存性使各国更难以单凭实力来达到预期目标。各国所拥有的不同外贸政策目标和对外贸政策的运用,都会使发展中国家有机会战胜发达国家。因此,笔者旨在从历史分析和实证分析角度入手,借拙文探究美国外贸法中“贸易促进权”的嬗变、“贸易促进权”与多边、双边和区域协定的互动关系,以及“贸易促进权”的功能性分析,预测和把握美国外贸政策的脉象,以期为维护我国的经济利益提供有益的探索。 本文分为五个部分。 第一部分 美国对外贸易法中“贸易促进权”模式的产生和发展。笔者首先以国会在贸易决策体制中的地位和国会的贸易政策制定权为基础,论述了“府会”与美国对外贸易政策制定权之间的关系。其次,立足对美国贸易体制受制的国内外因素的分析,探寻国会贸易决策权的变迁。最后,分析“贸易促进权”模式的法律机理,对“贸易促进权”的渊源、概念界定和运行方式均有详述。 第二部分 美国对外贸易法中“贸易促进权”授权的历史演变。笔者更多还原

【Abstract】 In U.S. foreign trade law, ’Trade Promotion Authority"(hereinafter referred to as TPA), formerly known as "Fast Track," first put in place under the Ford Administration, is essentially a "statutory" treaty approval procedure designed for what in U.S. domestic law are called "Executive Congressional Agreements."~①TPA is a further expression of the partnership between the President and the Congress in bringing down barriers to U.S.. exports. With TPA however, the United States can set the pace and timing of its most important trade negotiations, establish negotiating credibility, and ensure its success in the major multilateral and hemispheric trade negotiations. In 2002, Bush administration re-achieved the "Fast Track" with the term TPA, which carried out a new page for the development of "Fast Track". In practice, TPA gives the President credibility to negotiate tough trade deals, while ensuring Congress a central role before, during and after negotiations. The authority puts America in a strong position to negotiate major trade agreements and maintains a harmonious partnership between the President and Congress that has worked for more than 30 years. Under TPA, legislators agree to consider proposed trade agreements under a procedure with mandatory deadlines, no amendment, and limited debate. In other words, in exchange for the expedited considerations of implementing legislation, Congress retains a central role before and during the negotiating processes and retains an equally important role in determining how to implement trade agreements. Requests for TPA have always included extensive notification and consultation requirements for the President with Congress and with private sector advisory committees. In every trade agreement negotiated under TPA, Congress has been an active participant in identifying negotiating objectives, monitoring the actual negotiations, and drafting implementation legislation. Under the terms of the trade legislation, the Administration was granted the authority to negotiate international trade agreements subject to an up-or-down vote by Congress,not subject to congressional amendment. TPA would still give Congress and the public the opportunity to help shape U.S. policy before U.S. officials are sent to the negotiating table. This authority would strengthen the U.S. voice at key upcoming negotiations. By approving this legislation, Congress does not give up its right to review trade agreements carefully. The President is required by law to consult extensively with Congress at every step of the process so that the final agreement meets broad approval.Part One: Emergence and Development of TPA in U.S. Foreign Trade LawTaking the status and power of Congress in trade policy making system as the basis, the author analyzes the relationship between Congress & administrative department and foreign trade policymaking power. Then, after researching the inner and outer issues, which effect trade system in U.S., the author discusses the changes of trade policymaking power in Congress. After that, the notion and six main elements of TPA are given in this part.Part Two: Evolution of TPA in U.S. Foreign Trade LawIn this part, the author discusses the legal mechanism and historical evolution of TPA, analyzes the scope of application and its working process. Comparing each trade law enacted by U.S., the author holds the view that for over 60 years, the Congress and the President have recognized that the negotiations and implementation of trade agreements require special cooperation. This new attitude was first reflected in the Reciprocal Trade Agreements of 1934, which Congress first gave the President heightened power on negotiating reciprocal reductions of tariffs, and has remained part of U.S. trade law ever since. With non-tariff barriers to trade becoming important, the Trade Act of 1974 granted ’Tast Track" authority to the President for agreements reached over the next 5 years, and this was extended in 1979. After that, TPA was again renewed in 1984,1988,1991 and 1993. After long and complex negotiations, Congress granted President Bush in August 2002 as part of the Trade Act of 2OO2.The President holds this poweruntil June 1 2005, with a two-year extension automatically enacted unless Congress adopts a resolution of disapproval.Part Three: Analyzing the Relationship of TPA and Multilateral Trade SystemIn the development of multilateral trade system, the U.S. has different motive and objective of value to use TPA. In order to reveal the inner relationship of TPA and major multilateral trade agreements reached by TPA, the author took the Reciprocal Trade Agreements of 1934, the Kennedy Round of GAIT in 1962, the use of "Fast Track" procedures for the Tokyo Round of GAIT in 1979 and the implications of the Uruguay Round Agreements in 1994 as examples, The author believes that TPA has turn to be the best strategy to maintain the leading position and controlling power of U.S. in the new round of WTO, and become the best method to carry out democracy and values of U.S. constitutional system.Part Four: TPA and Bilateral Trade Agreement & Regional Trade ArrangementThe TPA approach to trade has yielded impressive fruit. In this part, the author takes U.S.-Israel Free Trade Agreement, U.S.-Canada Free Trade Agreement, NAFTA and FTAA as major examples, revealing the inner relationship between TPA and trade policy as well as bilateral trade agreement & regional trade arrangement. Besides that, the author also analyzes TPA as basis of U.S. domestic law and reveals that U.S. is trying to be pragmatic in its bilateral and regional trade arrangement. Using TPA, U.S. makes the challenge between U.S. and other countries become the challenge among many regional trade groups.Part Five: Function of TPA and its Influence to ChinaStarting immediately after September 11, the administration couched its battle for TPA as a fight against terrorists, rather than against legislative prerogative. Furthermore, in the turning point of the world economy and thesecond tenure of office for President George W. Bush, in order to firmly grasp the tendency of United States Foreign Trade Law, and maintain the interest of China in the world economic system, the author focuses on the function of TPA in these fields below: Discussing what is the function of TPA in balancing the trade policy-making power between President and Congress. Analyzing how can TPA reappear the trade policy of U.S. in recent years. Researching how can TPA maintain the economic supremacy of U.S. as well as its function in impelling the multilateral trade system. Pointing out the obstruction such as the controversy between Congress and President, the existing of powerful Congress and strengthen of it, trade protectionism and "Reverse Fast Track" etc, which making the renewing and extending of TPA full of great changes. At last, the author researches the effect of TPA towards China and looks forward to the developmental tendency of TPA in the future.更多还原