Sarah H. Cleveland, Marrs McLean Professor in Law, University of Texas School of Law, Winter, 2006 (31 Yale J. Int'l L. 1, “Our International Constitution”, lexis)
Reference to international and foreign sources in constitutional analysis has provoked a sharp backlash from other members of the Court.Justice Scalia condemned the Court's "discussion of ... foreign views" in Lawrence as "dangerous" dicta, n7 and invoked Justice Thomas for the proposition that "this Court ... should not impose foreign moods, fads, or fashions on Americans." n8 Dissenting in Atkins, Chief Justice Rehnquist criticized the majority's invocation of "the views of other countries," emphasizing that under the Eighth Amendment, ""American conceptions of decency ... are dispositive.'" n9 Likewise in Roper, Justice Scalia argued that the majority's assumption "that American law should conform to the law of the rest of the world ... ought to be rejected out of hand." n10 Indeed, in a recent address, Justice Scalia argued that "modern foreign legal material can never be relevant to an interpretation of ... the meaning of ... the U.S. Constitution." n11 [*4] Academic, n12 press, n13 and particularly congressional n14 criticisms have been equally sharp. One proposed House resolution opposing the use of foreign authority criticized the Lawrence and Atkins majorities for "employing a new technique of interpretation called "transjudicialism.'" n15 Congressman Tom Feeney of Florida, who co-sponsored another proposed resolution, has argued that "the people of the United States have never authorized ... any federal court to use foreign laws to essentially make new law or establish some rights or deny rights here in the United States." n16 At congressional hearings on the issue, witnesses have referred to the judiciary's use of international and foreign sources as impeachable and "subversive." n17 In his recent confirmation hearings, Chief Justice John Roberts condemned the practice for expanding judicial discretion and granting unaccountable foreign judges influence over American lawmaking. n18 And Attorney General Alberto Gonzales contends that "the use of foreign law poses a direct threat to legitimacy, including to the legitimacy of the Court itself." n19
CIL Bad – Democracy (1/2) International law is un-American and un-democratic
Lee Casey and David B. Rivkin, fellows at Hertiage foundation, 8/18/06 (August 18, 2006, “International Law and the Nation-State at the U.N.: A Guide for U.S. Policymakers”, “Lee A. Casey and David B. Rivkin, Jr.”, http://www.heritage.org/Research/WorldwideFreedom/bg1961.cfm)
The reason is simple enough. A genuine system of international law, comparable to domestic legal systems in its reach and authority, would require a universally accepted institution entitled both to adjudicate the conduct of states and, by extension, their individual officials and citizens and to implement its judgments through compulsory process with or without consent of the states concerned. Such a universal authority, however, would be fundamentally at odds with the founding principles of the American Republic. It would require the American people to accept that there is, in fact, a legal power that has legitimate authority over them but is not accountable to them for its actions. Pending this revolution in American beliefs and principles, U.S. officials and diplomats should recall two basic points in their approach to international law: As an independent sovereign, the United States is fully entitled to interpret international law for itself. The views of international organizations, including the United Nations, other states, and non-governmental organizations (NGOs) may be informative, but they are not legally binding unless, and only to the extent that, the United States agrees to be bound. Any institution or individual invoking international law as the measure of U.S. policy choices is only expounding an opinion of what international law is or should be. That opinion may be well or poorly informed, but it is not and cannot be authoritative. There is no supreme international judicial body with the inherent right to interpret international law for states. In short, the United States, like all other states, is bound by international law; but, like all other states, it is also entitled to interpret international law for itself. Whether the U.S. or any other state has been reasonable in its interpretation is ultimately a political determination.
CIL is comparatively the worst legal basis for democratic accountability
John McGinnis, Professor of law at Northwestern University, and Somin Assistant Professor of Law at the George Manson University School of Law 07 (Should International Law be Part of Our Law?, Stanford Law Review, March 2007 59 STAN. L. REV. 1175)
Domestic legislation is enacted by elected officials and is relatively visible to the public through press coverage, thus scoring fairly well on both transparency and accountability. Ratified international law also must be enacted by elected officials, thus leading to high electoral accountability. But it is less transparent than domestic legislation because citizens generally know less about the institutions through which international law is made than the institutions through which domestic law is enacted and find it more difficult to keep track of international than domestic norms.87 Domestic judicial review is undertaken by actors with little or no electoral accountability, but is arguably more transparent than raw international law; judicial confirmations and decisions are often a focus of public attention.88 Finally, raw international law—the main focus of our inquiry—is both nontransparent and created by political actors with little or no electoral accountability. It thus suffers from a greater democracy deficit than any of the other three major sources of legal norms. CIL Bad – Democracy (2/2) CIL is vague – means that law proffesors get to effectively create the law, which is undemocratic
Mark Weisburd, Professor of Law at UNC Chapel Hill, 2002, (American Judges and International Law, Public Law & Legal Theory Research Paper No. 02-16 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=338440)
More and more frequently, American courts find themselves dealing with cases that raise issues under public international law. These cases may involve claims against foreign governments,1 claims based on acts by foreign individuals,2 or claims against corporations alleged to have cooperated with foreign governments.3 While such claims may depend substantively on treaties or on federal statutes, very frequently they also rely on customary international law (CIL). And claims so based raise a problem. To understand the difficulty it is helpful to start with the concept of CIL. The Restatement (Third) of Foreign Relations Law (“Restatement”) describes customary international law as resulting “from a general and consistent practice of states followed by them from a sense of legal obligation.”5 [In this article, the term “state” will be applied in the sense in which it is normally employed in international law, that is, as referring to independent countries.] Although this article will take issue with a number of assertions made in the Restatement, this definition raises little controversy. It does, however, illustrate the considerable difficulty facing a court forced to address an issue of CIL. How does the court determine, at the most basic level, what the various governments of the world have done regarding a particular matter?What counts as “practice”? How does one determine whether a practice is “general”? Federal courts have sought to escape this morass by relying primarily on academic writings, the Restatement, and decisions by American and international courts - and herein lies the difficulty. For,with respect to some areas of CIL - particularly the law of human rights, the aspect of CIL most frequently considered in American courts - neither modern academic writing nor the Restatement nor most judicial decisions purport to derive CIL from evidence of what governments actually do. Rather, they rely on other academic writings, other decisions of international courts, non-binding resolutions of international bodies, and hazy notions of natural law to justify their assertions regarding this CIL. This article will seek to demonstrate that the approach the American courts have taken to determining the content of international law is fundamentally flawed. It leads courts to treat as law norms whose legal basis is either more circumscribed than the courts assert or, in some cases, non-existent. More fundamentally, it essentially converts law professors into philosopher kings, imposing their ideas of what the law should be under the guise of describing the law’s content. The discussion which follows will first explain just how strange CIL is when viewed from the perspective of the American legal system, and discuss as well the difficulties of determining the content of CIL. The article will then describe the traditional approach taken by American courts to deal with these difficulties. It will illustrate the contemporary approach to such matters by discussing the treatment of the concept of jus cogens by the federal courts of appeals. As will be shown, these courts have relied on doubtful authorities when forced to deal with this concept, and some doubtful results have, not surprisingly, followed. The final substantive section will suggest an alternative approach for the element of customary international law most frequently before American courts, that is, international human rights law.
CIL Bad - Enviornment International law leads to a race to the bottom on environmental policy
David Bederman, Professor of Law at the Emory University School of Law, summer 2001 (National Security: GLobalizaiton, International Law and United States Foreign Policy,, Emory Law Journal, 50 Emory L.J. 717)
Rationality and cooperation can also come into bitter conflict. Today, at least, the global trade regime has been bitterly criticized by environmental advocates who maintain that it unnecessarily punishes the unilateral acts of environmentally progressive nations. When the United States imposed import restrictions on tuna caught by foreign fishermen with insufficient regard for the safety of dolphins (which swim with tuna and are often killed when nets are thrown), the affected nations sought relief before the institutions of the General Agreement on Tariffs and Trade ("GATT") and, later, the World Trade Organization ("WTO"). In a series of decisions, n40 GATT/WTO panels have ruled that nations may not unilaterally impose trade restrictions on tuna caught with dolphin (or shrimp caught with turtles), nor may they unreasonably require heightened environmental protection as a condition for trading in their markets (such as rules against certain fuel additives or hormones in beef). The difficulty with all this is that much recent international environmental lawmaking has been made by progressive states, with the international community following behind. WTO's requirement that environmental restrictions on trade can only be imposed multilaterally may delay some needed innovations. However, it will ensure that, once consensus is reached, effective international enforcement through global trade disciplines will be available. Rationality - as a surrogate for progress in the development of international law norms - can thus be seen to conflict with principles of cooperation, which tend to promote lowest-common-denominator diplomacy and "race to the bottom" economics. The trade/environment conflict is one reflection of this paradox. Likewise, rational outcomes are not necessarily fair ones. So [*738] questions of global distributive justice may well be on a collision course with other international law objectives. Indeed, some U.N. bodies have already observed that treaty protections granted for intellectual property rights (such as patents on seed varietals or copyrights on folklore produced by indigenous peoples) are in direct conflict with human rights to food, health, cultural identity, and scientific progress. n41 While certainly generating intellectual curiosity (and a substantial scholarly literature), the conflicts I have so far described tend to implicate either marginal doctrinal concerns or expected value choices. None of these seem to debilitate international law or deny it of any essential vigor. Some of these paradoxes we can readily live with and embrace, just as many other legal systems have accepted similar disparate results in the pursuit of multiple objectives. But some of them push the limits of any system's tolerance for contradiction. These challenges, however, do pose major challenges to U.S. foreign policymakers. Adherence to WTO trade disciplines or North American Free Trade Agreement ("NAFTA") free investment policies can cause inevitable degradations of sovereignty, and these will pose problems for the new Administration. Whether in the form of WTO panels penalizing certain forms of U.S. environmental or labor legislation, or NAFTA Chapter 11 arbitrations finding impermissible regulatory takings of Canadian investments, certain forms of domestic legislative, regulatory and adjudicative authority will be shifting to international institutions. Of course, the same thing will be happen-ing with our trade and investment partners, although to a more extensive degree. Globalization in this sense causes marginal transfers of power to those who stand to benefit by trade and investment liberalization.
Pakistan CP 1NC CP: The United States congress should ban the use of unmanned aerial vehicles (UAVs) in Pakistan. The United States federal government should provide necessary financial and infrastructure-based aid to Pakistan. 1. Congress is comparatively better than the courts at solving CIL.
Joseph Keller, Associate, O'Melveny & Meyers, New York. B.A. University of Illinois Urbana-Champaign, J.D. University of Michigan. Former clerk for the Eastern District of Virginia, Fall 2005 ("Article: Sovereignty vs. Internationalism and Where United States Courts Should Find International Law", 24 Penn St. Int'l L. Rev. 353, lexis law)
United States courts are currently addressing important questions of international law that should be decided in accordance with the Constitution of the United States and the separation of powers principle. Specifically, the courts must respect the will of Congress when interpreting treaties and the private rights they provide in federal courts. The courts should define customary international law by reference to state practice and in this context must be careful not to give inappropriate weight to the writings of academics. As a further matter, courts should not look to the concept of jus cogens or customary international law generally when defining legal relationships between the United States and its own citizens. In sum, concerns of democratic accountability and respect for the sovereignty of the United States and the constitutionally based separation of powers principle buttress the doctrinal contention that it is theduty of Congress to incorporate international law into federal law through the appropriate democratic processes. The incorporation of international law into U.S. law may be a laudable goal, especially with respect to human rights law, but the ends cannot justify improper means. Judges and law professors wishing for the rule of international law in U.S. courts must respect the Constitution of the United States and await further action by the democratically elected officials in the legislative branch of government. 2. The U.S. Must Abandon Drones in Pakistan in Favor of Intelligence—The U.S. Must Cooperate With and Assist Pakistan to Address Terrorism – their author
Maleeha Lodhi, Former Ambassador of Pakistan to US, April 2009, INSS Special Report, “The Future of Pakistan-U.S. Relations: Opportunities and Challenges,” http://oai.dtic.mil/oai/oai?verb=getRecord&metadataPrefix=html&identifier=ADA497485
An even more significant worry for Islamabad is the military escalation signaled by the focus on rooting out “safe havens” in Pakistan’s border region and redefining the war as a regional conflict. President Obama’s suggestion that if Pakistan did not take action, the United States would step in, implies a widening of the war into western Pakistan even if the President later explained that he would consult Pakistani leaders before terrorist hideouts were pursued. All this has still left open the prospect of increased U.S. Predator strikes against targets in FATA, a risky course since this action will only inflame public opinion in Pakistan and have destabilizing effects. Drone attacks have already evoked condemnation from the National, Frontier, and Balochistan Assemblies. Any policy that is vehemently opposed by the people will ultimately be unsustainable. The tactical gains claimed from these strikes must be set against the costs in terms of undermining strategic goals. Such a perilous approach should be abjured in favor of the only viable one, which is based on the sharing of intelligence and technology, to enable Pakistan and its forces to address the terrorist threat in its own territory. The United States should show strategic patience as well as respect for a sovereign country’s red lines in deeds, and not just in words. Moreover, an approach that attempts to deal with al Qaeda only militarily ignores the fact that the organization has to be defeated in the ideological battle because it is ideology that finds followers who are ever ready to replace those “taken out.” A counter–al Qaeda strategy must attempt to neutralize the network’s ideological appeal in Afghanistan, Pakistan, and other parts of the world where it finds recruits and allies. Al Qaeda is now more of an idea. Terrorist operations are increasingly conducted mostly by self-generated “affiliates” drawn from young men in various countries who have been radicalized by al Qaeda’s ideology. The notion of fighting al Qaeda only militarily will remain only a partial response. Islamabad and Washington will also need to close the gap in their perceptions over how they identify the strategic center of gravity of the threat that has to be addressed. Islamabad has long argued that the core of the problem and its solution lies in Afghanistan while acknowledging that support for the insurgency is provided by fighters using Pakistani soil. In Washington’s view, it is the safe havens in Pakistan that are now the central front of the battle to defeat international terrorism. Islamabad believes that U.S. strategy downplays the fact that the situation in FATA is the consequence of the collapse of security in Afghanistan and not the other way around. Islamabad also finds the notion of treating Pakistan and Afghanistan’s border region as a“single theater of combat” unsettling, not least because the security trajectories, causes, contexts, and capacities are so different and because it would be a grave error to think one size fits both. If the flawed concept of “AfPak” has achieved anything so far, it is to unite the militants on both sides of the border in a new alliance to resist the troop reinforcements in Afghanistan ordered by President Obama. The United States recognizes that the attainment of its redefined goals depends critically on Pakistan’s stability. That is the rationale for the economic and security assistance that President Obama has pledged to give Pakistan. He has urged Congress to pass the bill sponsored by Senators John Kerry and Richard Lugar that authorizes $1.5 billion in nonmilitary aid over the next 5 years. But Islamabad has taken strong exception to the proposed conditions and benchmarking of the aid, linking this to its counterterrorism performance. In stating that Washington will not provide a blank check to Pakistan, President Obama struck a note that is counterproductive. This stance reinforces the transactional nature of the relationship that Pakistanis resent, and it strengthens rather than breaks from the paradigm of treating Pakistan as hired help rather than a valued ally.
Solvency – Courts – ext.
***Public debate and elected govenrment is key to widespread adoption of international law standards
Michael Ignatieff, Carr professor of human rights at the Kennedy School of Government, Harvard University, May/June 2002 (“No Exceptions?”, Legal Affairs, http://www.legalaffairs.org/issues/May-June-2002 review_ignatieff_mayjun2002.msp)
Views on capital punishment are a good example. In the 1960s, only a minority of Americans supported the death penalty—a 1966 Gallup poll showed 42 percent in favor, a 50-year low—and the number of executions dropped sharply. But a complex set of causes, including sharply rising crime rates, reversed the trend by the end of the decade. Now a moratorium on the death penalty in Illinois, along with rising evidence that capital punishment is sometimes inflicted arbitrarily and with racial bias, may again shift American opinion away from executions. There is an important message here for American human rights activists who are troubled by the hypocrisy of the United States' exceptionalism. Domestic debate and politics, not international pressures, will have much greater impact on America's relationship to international standards. Instead of insisting that the U.S. subscribe to values because most of the world endorses them, human rights activists need to win favor by engaging directly in American politics. They need to focus on the support that America's own traditions about rights lend to the adoption of international standards and to mass that support for the cause of human rights. Just as it was the authentic American language of freedom—civil rights and blacks' religious faith—that struck down Jim Crow in the South, so it will be national discussion of fair process and legal equality that will change America's standards of punishment. Americans will not believe any truths to be self-evident to which their own men and women of greatness haven't committed themselves. International human rights will have its place, as it had in Martin Luther King Jr.'s strikingly international conception of his own struggle, but these rights will become strong in America only when their advocates speak in the American vein