미국 대통령의 헌법상 전쟁권한에 대한 국제법 규범 통합에 의한 입법적 규제

The U.S. Constitution accords the President the power to serve as the commander-in-chief of U.S. armed forces and also grants the Congress the power to declare war and the power to provide for and maintain military forces and traditionally brought about debates on the division of war powers between the President and the Congress. The key issue is whether either the President or the Congress has the superior war power. The 9/11 terrorist attacks on the United States in 2001 spurred the Bush doctrine. As the debates go through the impact of the 9/11 terrorist attacks, the pendulum has considerably swung to the president-centered view. In international law, the use of armed force by a state is generally prohibited under UN Charter Article 2(4) and only exceptionally allowed in such a case as self-defense under UN Charter Article 51. The Bush doctrine has caused serious controversies because its underpinning is the expansive view of the right to self-defense: the pre-emptive self-defense. The Bush doctrine justifies the use of force even in the absence of, or not necessarily in an immediate response to, armed attack by a state. The U.S. Constitution does not clearly set out whether the President can initiate war in the absence of congressional declaration of war and has left the question unsettled. In practice, the President has exercised his war power expansively and initiated almost all of the wars that the United Stated conducted thus far. This practice has been supported by the inherent prerogative theory and the theory of repetition-based validity. In addressing the question of the division of war powers, Judge Jackson’s three-prong test has been able to shed lights on the issue of the constitutionality of the president’s exercise of war powers. This test sets forth three kinds of situation when the constitutionality of the president’s exercise of war power is debated. The President may exercise the war power (i) in pursuance of congressional permission, whether explicit or implicit, (ii) in the absence of congressional permission or opposition, or (iii) in defiance of congressional intention, whether explicit or implicit. Through these three situations, the presumption of constitutionality of the President’s power ranges from the maximum to the minimum. The U.S. Congress enacted the War Powers Resolution in the aftermath of the Vietnam War in order to restrain the President’s exercise of war powers and also passed the Authorization for the Use of Military Force(AUMF) in response to the 9/11 terrorist attacks. The critical loophole has been that the Supreme Court in practice has avoided to carry out the judicial review on presidential acts of war on the basis of the political question doctrine. Given that the UN Charter and rules of international law specify conditions under which the right of self-defense can be limitedly exercised, an alternative way of restraining the president’s exercise of war power may be to incorporate such rules as necessity and proportionality into domestic legislations. It can harmonize both the needs for addressing new security threats such as terrorism and the regulatory demand for restraining the use of armed force, in a manner that respects the principle of separation of powers and the principle of checks and balances.