Tampa Prep 2009-2010 Impact Defense File
AT: Customary International Law
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- 2. Other countries solve the impact—US not key Benvenisti 8
- 3. ILaw cannot produce change – status quo legal standards solve Estreicher, professor of law @ NYU, 3
- 4. Ilaw good impacts aren’t responsive—domestic law is comparatively superior
- (John O. and Ilya, Stanford Law Review, “Should International Law be Part of Our Law” 59 Stan. L. Rev. 1175, Lexis)
AT: Customary International Law1. ILaw won’t be enforced – even the UN is weak on the issue Eviatar, staff writer, 1/23/09 (Daphne, “The Pitfalls of International Law,” Washington Independent, http://washingtonindependent.com/26663/the-pitfalls-of-international-law) There’s no question that international law is supposed to govern the Israel-Hamas conflict; but the persistent recriminations raise an important question: Does it matter? So what if Israel and Hamas are violating international humanitarian law, or even intentionally committing war crimes? Who’s going to stop them? It’s an age-old problem of international law; while the laws have been carefully negotiated and in some cases, interpreted over centuries, they’re notoriously difficult to enforce. And because they rely heavily on international pressure, advocates say the United States’ own refusal to apply international humanitarian laws such as the Geneva Conventions to its own conflicts with al Qaeda and the Taliban has undermined the influence of these laws on conflicts around the world. “In general when you’re talking about international law enforcement, measures are weak and uneven,” said Jessica Montel, Executive Director of B’Tselem, a human rights group in Israel that monitors the occupied territories. “You don’t have an international court and police force and prosecutor’s office to investigate and arrest and try people the way a domestic court would function.” As a result, perpetrators can often dismiss accusations of legal violations as biased and vindictive. The UN Human Rights Council, for example, is dominated by Muslim nations and their allies, and has managed to shield such countries as Iran and Zimbabwe from official investigations and condemnation, while issuing more than 15 different resolutions criticizing Israel in less than two years. Even toward Sudan, widely believed to have supported genocide, it has expressed only “deep concern.” So when the Council issued its condemnation last week, Israel was able to easily dismiss it as one-sided and reflecting the “fairytale world” of the 47-member Council. 2. Other countries solve the impact—US not key Benvenisti 8 –Professor of Law, Tel Aviv University (Eval, “Reclaiming Democracy: The Strategic Uses Of Foreign And International Law By National Courts,” 102 A.J.I.L. 241, http://law.bepress.com/cgi/viewcontent.cgi?article=1061&context=taulwps) It wasn’t so long ago that the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. These courts conformed to a policy of avoiding any application of foreign sources of law that would clash with the position of their domestic governments. For many jurists, recourse to foreign and international law is inappropriate.1 But even the supporters of the reference to external sources of law share the thus-unexplored assumption that reliance on foreign and international law is inevitably in tension with the value of national sovereignty. Hence the scholarly debate is framed along the lines of the well-known broader debate on “the counter-majoritarian difficulty.”2 This Article questions this assumption of tension. It argues that for courts in most democratic countries – even if not for U.S. courts at present – referring to foreign and international law has become an effective instrument for empowering the domestic democratic processes by shielding them from external economic, political and even legal pressures. Citing international law, therefore, actually bolsters domestic democratic processes and reclaims national sovereignty from the diverse forces of globalization. Stated differently, most national courts, seeking to maintain the vitality of their national political institutions and to safeguard their own domestic status vis-à-vis the political branches, cannot afford to ignore foreign and international law. In recent years, courts in several democracies have begun to engage quite seriously in the interpretation and application of international law and to heed the constitutional jurisprudence of other national courts. 3. ILaw cannot produce change – status quo legal standards solve Estreicher, professor of law @ NYU, 3 (Samuel, professor of law @ NYU, Virginia Journal of International Law Association, Fall, Lexis) As for the subsidiary law that an increasingly interdependent world needs in advance of treaties, traditional CIL could not easily play this role as it was essentially backwards looking. The new, instantaneous customary law tries to play this role, but in a way that hardly comports with legitimacy. Without relying on CIL, states, intemational organizations, and other actors have ample means of identifying problems requiring interstate cooperation, drafting instruments that might command state support, and marshaling the forces of moral suasion. It is hard to see that the “law" aspiration of CIL offers the prospect of a signiticant incremental gain. ln any event, the ultimate question is whether any such benefit warrants the accompanying costs—to which I now turn. 4. Ilaw good impacts aren’t responsive—domestic law is comparatively superior McGinnis and Somin 7 – *Professor of Law at Northwestern and former deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice and **Assistant Professor of Law at George Mason University (John O. and Ilya, Stanford Law Review, “Should International Law be Part of Our Law?” 59 Stan. L. Rev. 1175, Lexis) If we are right to argue that raw international has a relative democracy deficit compared to U.S. domestic law, this conclusion undermines claims that the United States should simply evaluate international law norms on a case-by-case basis, following only those that have beneficial consequences. The key question is: who does the evaluating? If it is the ordinary domestic lawmaking process, then this approach is fully in accord with our position: that the United States should only allow international law to override domestic law if the former has been ratified by the domestic political process. If, on the other hand, the mere existence of a norm of raw international law is taken as justification for the claim that it is likely to have beneficial consequences, then the democracy deficit provides good reason to reject this conclusion. To the extent that international law suffers from a comparative democracy deficit, allowing it to override domestic law will, on average, result in beneficial norms being replaced by relatively more harmful ones. n104 This point holds true even if most rules of raw international law actually produce beneficial results. For example, let us assume that raw international law promotes "good" results 70% of the time, but because of its relatively smaller democracy deficit, domestic law does so 75% of the time. Even in this stylized situation, domestic law is likely to produce better results than raw international law when the two conflict. Assuming that there are only two alternative legal rules, one "good" and the other "bad," in this scenario domestic law is likely to pick the good option and international law the bad one in about 56% of the cases where the two diverge. n105 It is important to remember that our argument is comparative. International norms are less likely to be of sound quality than those created by an established democracy such as the United States. This will be true both in cases where U.S. [*1199] law and international law directly conflict and in those situations where international law seeks to regulate an issue that American law has left to executive discretion or to the private sector. A domestic decision to leave an issue to official discretion or to private initiative is just as likely to be superior to a competing international law norm as a domestic decision to impose a legal rule by statute. Directory: files -> documents documents -> North Mankato Taylor Library documents -> In the Red and Brown Water documents -> - documents -> I. Disaster Summary Sheet II. 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