CIL Can’t solve – Vague
Customary international law lacks a consensus of practice and a definitive evidence base.
Guzman 6 (Andrew, Professor of Law and Director of the Advanced Law degree Programs at Berkeley Law School, Michigan Journal of International Law 27(115), February 26th, 2006, http://students.law.umich.edu/mjil/article-pdfs/v27n1-guzman.pdf) NK
Ultimately, the question is one of the overall importance of practice, and there is no consensus on that issue. In the Anglo-Norwegian Fisheries case, the ICJ stated that “the Court considers that too much importance need not be attached to the few uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have discovered in Norwegian practice.”50 Though this quote seems to indicate that practice is of modest consequence, the court then emphasized the importance of “constant and sufficiently long practice.”51 Furthermore, there is no agreement on the forms of evidence that may be used to demonstrate state practice. A liberal view of acceptable evidence of practice includes not only the actual actions of states, but also diplomatic correspondence, treaties, public statements by heads of state, domestic laws, and so on.52 Though there is support for this view, one can also find prominent commentators arguing for a much shorter list.53
Customary international law lacks a definitive evidence base.
Guzman 6 (Andrew, Professor of Law and Director of the Advanced Law degree Programs at Berkeley Law School, Michigan Journal of International Law 27(115), February 26th, 2006, http://students.law.umich.edu/mjil/article-pdfs/v27n1-guzman.pdf) NK
Even if one could resolve the above problems about what counts as practice and the degree of consistency required, there remains the practical problem that observing all relevant evidence from all relevant states will normally be impossible. At the most mundane level, few nations document their actions and statements in a way that allows for an investigation of their practices.60 Furthermore, it is fantastical to think that lawyers in a case, much less adjudicators deciding a case or policymakers selecting a course of action, can canvass the virtually infinite universe of potential evidence, let alone come to some understanding of the extent to which a practice has been followed.61 The challenge is even greater when one realizes that a proper investigation of state practice would consider instances in which states refrain from taking an action because it would be in violation of international law. This latter category of evidence would be the most relevant to an investigation of CIL. The fact that it is unobservable, how- ever, makes it virtually impossible to include in the evaluation of CIL.62 Even if one can identify instances in which states claim to be refraining from certain actions based on CIL, it is difficult to know if they are doing so out of a sincere concern for CIL or if expressions of concern are simply a convenient rhetorical justification for their decision. The interpretation of observable evidence of state action is also problematic. The most visible evidence consists of statements made by countries, including votes in international fora such as the UN General Assembly. Unfortunately, this evidence is also the least reliable, as states may have incentives to misrepresent their beliefs about CIL. In practice, such statements are at times used as evidence by international courts, including the ICJ.63
CIL Can’t Solve – No enforcement
Not enforceable – lacks consistency and coherence
Guzman 6 (Andrew, Professor of Law and Director of the Advanced Law degree Programs at Berkeley Law School, Michigan Journal of International Law 27(115), February 26th, 2006, http://students.law.umich.edu/mjil/article-pdfs/v27n1-guzman.pdf) NK
Finally, in addition to these problems of evidence, attempts to determine state practice inevitably face time and resource constraints, preventing a serious canvassing of all relevant information. The result is that judgments are based on cursory reviews of a few states, biased toward the practices of states with readily available statements about their behavior written in a language understood by the relevant judges,64 heavily influenced by the particular background of the judge, and often inconsistent with the behavior of many states.65 These problems, along with others that are omitted from this brief discussion, make it difficult to take traditional theories of CIL seriously if one approaches the subject with even mild skepticism.66 One illustration of this problem appears in an article by Kelly, who concludes that CIL is “a useless, incoherent source of law that is of little guidance in determining norms.” Even on its own terms, CIL is a problematic area. The basic definitions of CIL are at best difficult to understand and apply and certain to lead to inconsistent judgments about the content of the law; at worst they are incoherent and internally inconsistent.67
Can’t solve: CIL will not be enforced.
McGinnis 6 (John, professor of law at Northwestern University's School of Law, Harvard Journal of Law and Public Policy, Fall 2006, http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No1_McGinnisonline.pdf) NK
Third, many treaties and other international declarations are merely empty promises if nations do not actually enforce them. Many nations flout international norms imposed by treaty while others often fail to give them domestic effect. In contrast, Congress expects that the norms it codifies into domestic law will be enforced, providing evidence that those norms are sincerely embraced.
CIL Can’t Solve – No Spillover
No spillover –we’ve incorporated specific provisions before without complete incorporation
Harold Hongju Koh, Yale Law Professor, 1998, Harvard law Review, Vol. 111, No. 7, May, p. 1839-40
Take, for example, the federal doctrine of foreign sovereign immunity, which originated in the customary international law doctrine of absolute foreign sovereign immunity. Over time, the Supreme Court incorporated that decision into United States law and melded it with a federal common law doctrine of judicial deference to federal executive suggestions of immunity. Eventually, executive policy brought US practice into line with the emerging customary international law doctrine of restrictive sovereign immunity, and Congress codified the new doctrine in the Foreign Sovereign Immunities Act (FSIA), whose gaps federal courts have subsequently filled by declaring rules of federal common law. In short, rules that originate in customary international law are regularly determined by United States courts and incorporated into federal common law, then updated by executive policy as customary law evolves, and codified in federal statutes whose interstices are filled through federal common lawmaking.
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