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Home > Journals > Michigan Law Review > MLR > Volume 104 > Issue 8 (2006)

 

Abstract

This Note argues that, should the President exercise his override authority to prohibit or restrict the donation of humanitarian articles during an armed conflict involving the United States, the resulting prohibition or restriction would cause the United States to violate its obligations under the Conventions. This Note does not assert that the United States should not have the ability to put in place controls to prevent terrorists from benefiting from donations of funds and other humanitarian items; instead, it asserts that domestic law must tread as lightly and narrowly as possible where a widely accepted multilateral treaty exists and that domestic law ought not to override humanitarian law under the later-in-time rule unless absolutely necessary. IEEPA's breadth permits, and the war on terror and related conflicts are likely to encourage, restrictions and prohibitions that disrupt the balance that the Conventions demand. Part I contends that when the President exercises the full power granted to him in the override authority, such action violates international law because the restrictions permitted by IEEPA conflict with humanitarian organizations' right of access under the Conventions. Part II discusses the implications of a violation of the Conventions on both the international and domestic planes. Part II demonstrates that an analysis under the Charming Betsy doctrine does not necessarily dispose of the question, and that Congress's established ability to override treaties under the later-in-time doctrine is inapplicable in this case, where IEEPA's lack of specificity creates legal difficulties and political dilemmas for the United States.

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