Aff - Open Evidence Project

February 27, 2018 | Author: Anonymous | Category: Social Science, Political Science, Government
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1AC-Courts Plan The federal judiciary should substantially reduce the economic embargo against Cuba by ruling it in violation of international law.

1AC-International Law Advantage The Cuba Embargo is in violation of United States international treaty obligations – the Courts are legally bound to act Manchak 10 (Benjamin Manchak, Staff Writer, Boston College Third World Law Journal, “Comprehensive Economic Sanctions, The Right To Development, And Constitutionally Impermissible Violations Of International Law,” Spring 2010, LexisNexis, 30 B.C. Third World L.J. 417//MRG) Yet the

United States efforts to bring its embargo on Cuba more in line with international human rights and international humanitarian legal norms have missed a critical point: the illegality of the embargo under international law is not predicated exclusively, or even primarily, on its humanitarian impact. n5 This Comment argues that the comprehensive [*419] embargo on Cuba could have no negative "humanitarian" consequences whatsoever, and yet it would violate international law because it undermines a nation's ability to develop. n6 Because the federal laws and regulations codifying the Cuban embargo conflict directly with U.S. treaty obligations and its duties under customary international law, they are unconstitutional. n7 Until Congress [*420] promulgates new laws that explicitly assert this country's intentions to contravene international law, the courts should strike down any provision of the embargo on Cuba, which affects Cuba's right to develop, as unconstitutional. n8 Alternatively, Congress should more seriously approach its duty to uphold the Constitution, rather than simply relying on the judiciary, by admitting the unconstitutionality of its own enactments and duly repealing the various laws comprising the Cuban embargo. n9 President Barack Obama had an opportunity to demonstrate a renewed commitment to complying with the "law of nations" in September 2009, but he instead chose to stay the course of his predecessors, dating back to Jimmy Carter, and extended the executive's power to implement the embargo. n10 For now, with no meaningful action being [*421] taken by the executive and little likelihood of intervention in this contentious political issue by the judiciary, it is up to Congress to "be cognizant of this country's global leadership position and the need for it to set an example with respect to human rights obligations." n11

The US violates international law through maintaining the embargo—two reasons 1. Discrimination Johnson 07 (Brent Johnson, J.D. Candidate, B.S., Chemistry, Brigham Young University, Ph.D., Chemistry, University of California, “NOTE AND COMMENT: EXPORTING MEDICAL PRODUCTS TO CUBA AS AN EXCEPTION TO THE UNITED STATES' EMBARGO,” winter 2007, Whittier Law Review, 29 Whittier L. Rev. 493, LexisNexis//MRG) The United States embargo of Cuba has been the subject of widespread criticism in the international community. n75 A number of theories have been advanced by Cuba, other countries, and legal commentators, as to why the embargo violates international law. n76 On the other side, the United States has its own theories to support its position. n77 The remainder of this paper will focus on how the embargo violates two prohibitions in international trade law: discrimination and extraterritoriality. A. Discrimination Discrimination in an international trade context is favoring the imports of one nation above another, or favoring domestic products or services over imports. n78 Two parts of the embargo by the United States will be analyzed under the theories of discrimination. First, the imposition of the embargo on Cuba in general will be analyzed under the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) national treatment clause, which prohibits discrimination, and the national security exception to the national treatment requirement. Second, the claim by Canada and Mexico that Helms-Burton is discriminatory under the North American Free Trade Agreement (NAFTA) will be analyzed. 1. GATT/WTO The WTO is a free trade organization of nations that originates from, follows, and settles disputes related to the GATT. n79 The parties [*504] who entered into the GATT are called "Contracting Parties." n80 Both Cuba and the United States are members of the WTO and Contracting Parties to the GATT. n81 Non-discrimination is part of the GATT. Article I requires that a Contracting Party provide to all Contracting Parties any privilege with regard to imports and exports provided to any other Contracting Party. n82 The trade relationship between the United States and Cuba is an express exception to Article I. n83 However, Article III of the GATT "obliges Members of the WTO to provide equality of competitive conditions for imported products in relation to domestic products," and does not provide an exception for the United States and Cuba. n84

Thus, by virtue of its membership in the WTO and as a Contracting Party to the GATT , the

United States is obliged to treat Cuban imports the same as its domestic products. Since the United States does not allow any Cuban imports, it clearly violates Article III by the embargo. However, Article XXI of the GATT provides a general exception to GATT requirements for measures that a nation "considers necessary for the protection of its essential security interests." n85 Thus, the United States claims that Cuba poses a risk to its national security and that the embargo is necessary to protect that security. n86 At the height of the cold war, when the embargo was started, the embargo seemed justified under the Article XXI exemption. n87 However, since the cold war has ended, the question now remains whether Cuba still poses a threat to United States' national security. [*505] The CDA made several findings, including: that Castro's government has violated human rights, "decreased the well-being of the Cuban people," trafficked narcotics, and supported the Farabundo Marti National Liberation Front (FMLN) guerillas in El Salvador; and that the United States should "promote a peaceful transition to democracy in Cuba." n88 The Helms-Burton Act reiterated these charges, elaborated on the human rights violations to some extent, and mentioned the "theft of property from United States nationals by the Castro government." n89 Helms-Burton also mentioned that in 1962 Castro "advocated the Soviets' launching of nuclear missiles to the United States ... ." n90 Finally, Helms-Burton contained a condemnation of the 1996 Cuban attack on American civilian aircraft. n91 Although the TSRA and the new House bill do not contain any findings charging the Castro government with wrongdoing, the CDA and Helms-Burton Act findings might suggest that Cuba does pose a threat to national security: the trafficking of narcotics, support for the guerillas in El Salvador, advocating launching a nuclear missile into the United States, and the attack on the American civilian aircraft. However, the various legislation taken as a whole also suggests that the real purpose of the embargo is to force Cuba to reform its government, and that the references related to national security are merely added to the legislation to provide an air of legitimacy. In the eight paragraphs of the "Findings" portion of the CDA, one paragraph mentions the Cuban military, the narcotics trafficking, and the support of the guerillas, but six paragraphs discuss the oppression of the Cuban people, and the need for a Cuban democracy. n92 In the ten paragraphs of the "Statement of Policy" portion of the CDA, two mention the Cuban military and six relate to promoting Cuban democracy and providing rights to the Cuban people. n93 In the twenty-eight paragraphs of the "Findings" section of the Helms-Burton Act, four paragraphs mention narcotics trading, armed subversion and terrorism, the Cuban military, or the national security, but fourteen paragraphs discuss the oppression of the Cuban people and a need for Cuban democracy, and [*506] four paragraphs are devoted to explaining why using the sanctions as a means to promote Cuban democracy is justified under the United Nations policies. n94 The Helms-Burton Act does devote an entire section to condemning the shooting of American civilian aircraft by the Cuban military, but the section does not even mention that this demonstrates that Cuba poses a threat to national security. n95 Thus, the focus of the legislation is clearly on changing the Cuban government, and national security considerations are given incidental consideration. In fact, some claim that the United States has conceded that it does not consider Cuba to be a national security risk. n96 Jerry W. Cain claims that Robert S. Gelbard, who was Principal Deputy Assistant Secretary of State for Inter-American Affairs in 1992, "suggested that the

embargo against Cuba no longer exists because of a perceived security threat, but rather as an effort to foster a political change within Cuba." n97 Gelbard made this statement before the Committee on Foreign Affairs of the House of Representatives in 1992: " "The United States has followed a policy of isolating Cuba diplomatically and economically for [the last] three decades. We continue that policy today in an effort to encourage a change to a democratic government in Cuba.' " n98 Although this suggests that the United States may have other motives in isolating Cuba, it does not necessarily preclude the possibility that the United States views Cuba as a threat to its security.

2. Extraterritoriality Johnson 07 (Brent Johnson, J.D. Candidate, B.S., Chemistry, Brigham Young University, Ph.D., Chemistry, University of California, “NOTE AND COMMENT: EXPORTING MEDICAL PRODUCTS TO CUBA AS AN EXCEPTION TO THE UNITED STATES' EMBARGO,” winter 2007, Whittier Law Review, 29 Whittier L. Rev. 493, LexisNexis//MRG) B. Extraterritoriality Extraterritoriality

is a country's application of its laws to activities that occur outside of its borders. n106 Since the regulating nation attempts to regulate activities in another state, it could be deemed an intrusion upon that state's sovereignty under certain circumstances. n107 In this way, extraterritoriality could be viewed as a violation of international law. However, the effects doctrine is an exception to the general prohibition on extraterritoriality. n108 It is now accepted in the United States and other jurisdictions, including "[Germany], Austria, Canada, Denmark, Finland, France, Greece, Japan, Norway, Portugal, Spain, Sweden, and Switzerland." n109 The effects doctrine says that a state may regulate "conduct outside its territory that has or is intended to have substantial effect within its territory" n110 provided that the regulation is reasonable. n111 Thus, if

the "substantial effect" on the regulating country outweighs the interest of the country whose sovereignty is being violated, the regulation is justified under the effects doctrine. n112 Two parts of the embargo by the United States will be analyzed to determine whether it falls within the effects doctrine exception to extraterritoriality: First, the extension of the embargo to foreign subsidiaries of United States companies and ships entering United States ports; and second, granting United States nationals having a claim to seized property a private cause of action against foreign parties that "traffic" in that seized property. 1. Extension of the Embargo to Foreign Subsidiaries of United States Companies Since the CDA extended the embargo of Cuba to foreign subsidiaries of United States companies, and prohibited ships from entering United States ports within 180 days of doing business in Cuba, it regulated activities outside the United States. A foreign subsidiary [*509] operates in a country other than the United States, and may trade with Cuba without ever entering the United States. Thus, the CDA regulates activities outside of the United States in that respect. Similarly, if a ship is prohibited from entering a United States port for business that occurred in Cuba, which is outside of the United States, the CDA regulates activities outside of the United States. Thus, in order for the CDA to be acceptable under the effects doctrine, the

effect on the United States of the foreign subsidiary's trade with Cuba or the ship's doing business at a Cuban port, must

outweigh the foreign state's interest in regulating its foreign subsidiaries and ships. The United States justifies the embargo on Cuba, and its extension to foreign subsidiaries and ships, as a means of promoting democracy in Cuba and of protecting its national security. Although promoting democracy is a laudable goal, there is no particular reason that the lack of a democratic government makes a country a threat to its neighbors. The United States has alleged that Castro's government has violated human rights and decreased the well-being of the Cuban people. n113 Although

this behavior should be condemned, these activities do not have a substantial effect within the boundaries of the United States. The United States has also alleged that Cuba's government has supported the FMLN guerillas in El Salvador. n114 However, the United States has not explained how Cuba's support of guerillas in El Salvador has a substantial effect within the United States. The fact that guerillas are armed might implicate national security, but the statute makes no such connection. Thus, none of these activities by the Cuban government have a significant enough effect within the United States territory to justify the extraterritorial application of the CDA. The United States has alleged that the Cuban government traffics narcotics. n115 Trafficking narcotics might have a substantial effect upon the United States, but the CDA does not regulate drug trafficking, it regulates legitimate trade. It is difficult to imagine how cutting off legitimate trade between third parties and Cuba will have any effect upon illegal trade between Cuba and American criminals. Thus, it does not appear that the CDA is a reasonable means to effectively stop the Cuban government's alleged drug trafficking. Furthermore, the [*510] invasion of the sovereignty of innocent third party countries is significant. The CDA impedes free trade by these countries. The very existence of NAFTA, the GATT, and the WTO is evidence of the fact that most countries place a great value on free trade. Furthermore, a

country's economy is very important. Controlling corporations within its jurisdiction and controlling international trade and shipping of its citizens are important tools a country uses to protect its economy. Because the CDA regulates important economic tools of a third party country, it is a serious violation of the country's sovereignty. In fact, most countries view the CDA as a serious violation of their sovereignty. For example, "the [United Nations] General Assembly voted to denounce the Cuban Democracy Act of 1992 on three separate occasions ... ." n116 Among the reasons cited for denouncing the act was its violation of the sovereignty of other nations. n117 Furthermore, the United Kingdom and Canada enacted retaliatory legislation that made it "illegal for subsidiaries of U.S. companies ... to comply with the CDA." n118 Therefore, the relatively insignificant effect of the trade regulated by the CDA within the territory of the United States is outweighed by its violation of the sovereignty of other nations. And as a result, the effects principle does not apply. Finally,

the United States has alleged that Cuba is a threat to national security. However, as discussed previously, the United States' claim that Cuba is a national security threat is very weak, and the violation of the sovereignty of other nations is great. Thus, the CDA has an illegal extraterritorial effect and does not fall under the exception of the effects doctrine.

A limited ruling constitutionalizes rejection of the Embargo – key to effective implementation of international legal norms Manchak 10 (Benjamin Manchak, Staff Writer, Boston College Third World Law Journal, “Comprehensive Economic Sanctions, The Right To Development, And Constitutionally Impermissible Violations Of International Law,” Spring 2010, LexisNexis, 30 B.C. Third World L.J. 417//MRG) If the Constitution does not preclude the elevation of customary international law to the level of treaties or domestic enactments in theory, then practice has borne this out--the U.S. legal system has long accorded great respect, and deference, to the "law of nations." n95 As the Supreme Court noted in 1796, [w]hen the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement." n96 The Founders expected [*441] that the customary law of nations would find application in U.S. courts by virtue of the nation's membership in the international community; moreover, they unquestionably intended this outcome. n97 Early jurisprudence reflected this intent. n98 In the time since the nation's founding, the incorporation of international law into both federal and state law has continued unabated, with scholars, commentators, and jurists reiterating the propriety of such developments. n99 Cases

arising under international law or international agreements to which the United States has acquiesced are within the jurisdiction of U.S. courts. n100 These courts "are bound to give effect to international law." n101 Similarly, casesss arising under treaties to which the United States is a party, as well as cases arising under customary international law" are "within the Judicial Power of the United States under Article III, Section 2 of the Constitution." n102 B. The U.S. Embargo Contravenes International Law The overwhelming weight of research and scholarly discourse on the subject of the U.S. embargo of Cuba has exposed a very damning pattern of behavior on the part of the United States. n103 By the standards [*442] of nearly every government in the world except the United States, the comprehensive embargo on Cuba incontrovertibly violates international human rights

law and international humanitarian law due to its devastating humanitarian impact. n104 In reality, the views of the world community and those of the United States may not be as far apart as commentators might suggest. The government does continue to argue publicly that its conduct is wholly consistent with international law. n105 Recent modifications to the embargo undertaken for "humanitarian reasons," however, undercut this position. n106 At least with respect to the embargo's humanitarian consequences, there is evidence the


States appreciates that its embargo may violate certain international legal norms. n107 [*443] Yet, the international community's efforts to impel the United States to lift its embargo for humanitarian reasons, and the United States's efforts to minimize the humanitarian impact of the embargo, have only addressed violations of a discrete set of international legal norms. n108 Even if

the United States were somehow able to mitigate, or eliminate entirely, the ruinous consequences the embargo has on the Cuban people, such a comprehensive embargo would nevertheless be illegal under international law. n109 In other words, the illegality of such measures under international law is not simply predicated on its effect on the Cuban people on a micro-level--it also is established by reference to the nation-state itself and the macro-level concept of development. n110 Because

the embargo of the Cuban nation completely inhibits the country's ability to pass from a third-world service and agricultural economy to more advanced stages of development, it violates international law to which the United States is bound by both treaty and custom. n111 First and foremost among such violations has been the abrogation [*444] of its duties under the Charter of the United Nations. n112 Having signed the International Covenant on Economic, Social and Cultural Rights as well as signed and ratified the International Covenant on Civil and Political Rights, the United States has further breached its international obligations codified in treaties. n113 While the United States has resisted the codification of the right to development in more specific instruments and the evolution of the right into a legitimate norm of international law, its often sole opposition to the right has not prevented it from becoming customary international law binding on the United States. n114 V. CONSTITUTIONALIZING THE EMBARGO: EXECUTIVE, LEGISLATIVE, AND JUDICIAL RESPONSIBILITIES Although international law is a constituent element of U.S. law, the attitudes of the bodies charged with preserving that close relationship have, at various times throughout the nation's history, run the gamut between deferential and derisive, complimentary and contentious. n115 On the one hand, the judiciary, the executive, and the legislative [*445] branches are required to give force to international law. n116 On the other hand, both the

executive and legislative branches of the U.S. government may act in violation of a treaty or customary international law. n117 The Supreme Court has also recognized a distinction between treaties that "automatically have effect as domestic law" and are "equivalent to an act of the legislature," and those that "do not by themselves function as binding federal law" and require an additional congressional enactment to give them force. n118 As a matter of domestic law, it is clear the United States may disavow or ignore its obligations under international law. n119 This principle does not extend to the international arena--failure to give domestic effect to international legal commitments does not absolve the United States of those obligations on the international level. n120 With respect to both treaty obligations and international legal norms that have risen to the level of customary international law, then, the United States is bound to follow international law or risk defaulting on its obligations as a member of the international community. n121 In the

absence of meaningful enforcement mechanisms, this does not seem particularly problematic. n122 [*446] So much more is at stake, though--if the United States wishes to use international legal mechanisms to pursue its interests, it must demonstrate to the world that it takes international law seriously within the constitutional framework. n123 Especially

in the context of the Cuban embargo, where U.S. federal law is in direct conflict with international law, the United States must accord adequate respect for the latter and take steps to resolve the tension. n124 In order to accomplish this, each branch of government--executive, legislative, and judicial--has a role to play. n125 The judiciary possesses the constitutional authority to overturn the Cuban embargo as unconstitutional by virtue of its departure from the law of nations. n126 The embargo presents a very clear question of statutory and constitutional interpretation, specifically, whether the trade blockade imposed on Cuba and codified in U.S. law directly conflicts with the right to development as it is described in international instruments to which the United States is a party, or as it is framed as a norm of customary international law to which the United States is bound. n127

The Supreme Court has refused to rule on the embargo because it defers to the political branches – this will undermine the credibility of all international legal mechanisms Manchak 10 (Benjamin Manchak, Staff Writer, Boston College Third World Law Journal, “Comprehensive Economic Sanctions, The Right To Development, And Constitutionally Impermissible Violations Of International Law,” Spring 2010, LexisNexis, 30 B.C. Third World L.J. 417//MRG) As a matter of domestic law, it is clear the United States may disavow or ignore its obligations under international law. n119 This principle does not extend to the international arena--failure to give domestic effect to international legal commitments does not absolve the United States of those obligations on the international level. n120 With respect to both treaty obligations and international legal norms that have risen to the level of customary international law, then, the United States is bound to follow international law or risk defaulting on its obligations as a member of the international community. n121 In the absence of meaningful enforcement mechanisms, this does not seem particularly problematic. n122 [*446] So much more is at stake, though--if the United States wishes to use international legal mechanisms to pursue its interests, it must demonstrate to the world that it takes international law seriously within the constitutional framework. n123 Especially in the context of the Cuban embargo, where U.S. federal law is in direct conflict with international law, the United States must accord adequate respect for the latter and take steps to resolve the tension. n124 In order to accomplish this, each branch of government--executive, legislative, and judicial--has a role to play. n125 The judiciary possesses the constitutional authority to overturn the Cuban embargo as unconstitutional by virtue of its departure from the law of nations. n126 The embargo presents a very clear question of statutory and constitutional interpretation, specifically, whether the trade blockade imposed on Cuba and codified in U.S. law directly conflicts with the right to development as it is described in international instruments to which the United States is a party, or as it is framed as a norm of customary international law to which the United States is bound. n127 Nevertheless, courts regularly refuse to reach the merits of claims relating to the blockade of Cuba at all, asserting that they present non-justiciable [*447] political questions. n128 Where courts have addressed the constitutional questions posed by the international legal implications of the embargo, they have either 1) ruled purely on domestic legal grounds, or 2) found no direct conflict with international law. n129 To date, no court has ruled on whether Cuba's right to development, protected under customary international law, would render any aspect of the Cuban embargo postdating the development of this norm unconstitutional. n130 If the judiciary is ever asked to rule on the conflict between Cuba's right to development and most, if not all, the provisions of the embargo, it should not shy away from its constitutional duty to invalidate the provisions in question. n131 In light of the powerful currents of judicial restraint that have guided courts' rulings on the subject to date, however, a sweeping judicial invalidation of a halfcentury of foreign policy is unlikely. n132 Consequently, the

task of bringing U.S. foreign policy toward Cuba in accord with international legal norms is, in all practicality, left to the political branches. n133

No alternative causalities – the United States is bound to international law over the international right to develop – it’s a founding principle of international law Manchak 10 (Benjamin Manchak, Staff Writer, Boston College Third World Law Journal, “COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” Spring 2012, 30 B.C. Third World L.J. 417, Lexis//MRG) II. THE RIGHT TO DEVELOPMENT IN INTERNATIONAL LAW The

right to development is an inalienable human right intrinsically linked to a peoples' sovereignty. n19 A state's right to development occupies an exalted position in international law; it is protected in several of international law's foundational documents including the U.N. Charter, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights. n20 In addition to the legitimacy [*425] as a principle of international law, which it derives from its inclusion in the International Bill of Human Rights, the right to development has been further entrenched as an international legal norm by later, more specific treaties and resolutions. n21 By the early 1970s, the right to development [*426] was undergoing a more formal, comprehensive articulation in the specific language of human rights. n22 Over the course of the next fourteen years, the right to development was proclaimed in various texts, including regional multilateral instruments. n23 In 1986, the overwhelming majority of nations, acting through the U.N. General Assembly, built upon the foundation laid in the International Bill of Human Rights and certified the right to development as a human right. n24 Since the passage of the Declaration on the Right to Development, the right has become a fixture in the pantheon of internationally-recognized human rights, regularly appearing in such texts as multilateral treaties, declarations of international conferences and summits, annual resolutions of the General Assembly, reports of the Secretary General, and annual reports of the Human Rights Council. n25 [*427] Because

of its ubiquity and broad-based acceptance by the international community, the right to development has undoubtedly risen to the level of customary international law. n26 The development of norms of customary international law is a fluid, evolutionary process, which is ascertained by reference to the general practice of states rooted in a sense of legal obligation over a period of time. n27 The right to development is clearly traceable in this manner. n28 It has been over sixty years since the foundations of the right were laid in the U.N. Charter and the Universal Declaration of Human Rights, and over forty years since they were strengthened in the International Covenant on Civil and Political Rights [*428] and the International Covenant on Economic and Social Rights. n29 It has been thirty-eight years since the right was proposed using the specific language of human rights, twentyfour years since the international community recognized the right in a formal, broad-based multinational instrument, and seventeen years since a consensus involving all governments was reached on the right to development. n30 The right is consistently invoked by states as a rule of international law. n31 Indeed, the

right is so fundamental, so inviolable, and so broadly accepted, it may even be properly considered a jus cogens norm. n32 States are therefore bound both by treaty and customary international law to respect the fundamental right of other nations to pursue economic and social development in accordance with their own sovereign volition.

n33 [*429] Despite

its near-universal

acceptance as a legitimate norm of international human rights law, however, the United States remains hostile to the right to development. n34 The United States generally votes against any specific resolutions codifying, promoting, or otherwise invoking the right to development. n35 Relevant, too, is the fact that the United States has signed, but not ratified, the International Covenant on Economic, Social, and Cultural Rights. n36 While it both signed and ratified the International Covenant on Civil and Political Rights, it lodged a reservation declaring the agreement to be non-self-executing. n37 In no way, however, does the inimical stance the United States has taken toward the right to development relieve it of its international obligations with respect to that right. n38 First, customary international law dictates that, even in the absence of ratification, a state's signature on a treaty obligates it to refrain from activities that might defeat the object and purpose of that instrument. n39 Additionally, an assertion that a [*430] treaty is not binding, either because a state lodged a declaration of non-self-execution or because the state did not sign and ratify it, is irrelevant when the norm in question is one of customary international law. n40 Regardless of a state's posture vis-a-vis a treaty (for example, as a non-signatory or a party subject to reservations), if that treaty also embodies customary international law, the state is bound. n41 The

United States, therefore, is not exempt from its dual responsibilities under treaty and customary international law regarding the right to development. n42

A renewed commitment to international liberalism is key to a cooperative international environment that prevents great power wars, environmental collapse and disease spread Deudney & Ikenberry 9 (Daniel Deudney, Professor of Political Science at Johns Hopkins University, and John Ikenberry, Professor of Politics and International Affairs at Princeton, "The Myth of Autocratic Revivial: Why Liberal Democracy Will PRevail," January 2009, Foreign Affairs, Vol. 88, Issue 1//MRG) AFTER TWO decades of post—Cold War liberal triumph, U.S. foreign policy is being challenged by the return of an old antilibcral vision. According to this vision, the world is not marching toward universal liberal democracy and “the end of history” Rather, it is polarizing into different camps and entering an era of rivalry between Western liberal states and dangerous autocracies, most notably China and Russia. Unlike the autocracies that Failed so spectacularly in the twentieth century today’s autocracies are said to be not only compatible with capitalist success but also representative of a rival form of capitalism. And their presence

in the international system supposedly foreshadows growing competition and conflict and is dangerously undermining the prospect of global cooperation. Several recent developments seem to support this emerging view. Democratic transitions have stalled and reversed. In China, the Communist Party dictatorship has weathered domestic challenges while presiding over decades of rapid economic growth and capitalist modernization. Rising oil prices have empowered autocratic regimes. In Russia, Vladimir Putin’s government rolled back democratic gains and became increasingly autocratic. At the same time,

relations between Russia and the West have deteriorated from the near amirv of the early post—Cold War era, and China and the Vest remain divided over Taiwan, human rights, and oil access. Meanwhile, much less powerful autocratic states, such as Venezuela and Iran, are destabilizing their regions. There even appear to be signs that these autocratic states arc making common cause against the liberal Western states, with nascent alliances such as the Shanghai Cooperation Organization. The United Nations, and particularly the Security Council, has returned to the paralysis of the Cold Var. In this view, the liberal West faces a bleak future. The new prophets of autocratic revival draw important foreign policy implications from their thesis. One of the most forceful exponents of this new view, Robert

¡Cagan, insists that it is time for the United States and the other liberal democracies to abandon their expectations of global convergence and cooperation. instead, they should strengthen ties among themselves, perhaps even through a formal league of democracies, and gird themselves for increasing rivalry and conflict with the resurgent autocracies. Containment rather than engagement, military rivalry rather than arms control, balance of power rather than concert of power—these should be, according to such theorists, the guideposts for U.S. foreign policy Fortunately, this new conventional wisdom about autocratic revival is as much an exaggeration of a few years of headlines as was the proclamation of the end of history at the end of the Cold War The proposition that autocracies have achieved a new lease on life and are emerging today as a viable alternative within the global capitalist system is wrong. Just

as important, the policies promoted by the autocratic revivalists are unlikely to be successful and, if anything, would be counterproductive— driving autocracies away from the liberal system and thereby creating a selffulfilling prophecy. Although today’s autocracies may be more competent and more adept at accommodating capitalism than their predecessors were, they are nonetheless fundamentally constrained by deep-seated incapacities that promise to limit their viability over the long run. Ultimately, autocracies will move toward liberalism. The success of regimes such as those in China and Russia is not a refutation of the liberal vision; the recent success of autocratic states has depended on their access to the international liberal order, and they remain dependent on its success. Furthermore, the

relentless imperatives of rising global interdependence create powerful and growing incentives for states to engage in international cooperation regardless of regime type.

Unchecked disease spread will cause extinction Yu 09 (Victoria Yu, Dartmouth Journal of Undergraduate Science, “Human Extinction: The Uncertainty of Our Fate,” May 22, 2009, In the past, humans

have indeed fallen victim to viruses. Perhaps the best-known case was the bubonic plague that killed up vaccines have been developed for the plague

to one third of the European population in the mid-14th century (7). While

and some other infectious diseases, new viral strains are constantly emerging — a process that maintains the possibility of a pandemic-facilitated human extinction. Some surveyed students mentioned AIDS as a potential pandemic-causing virus. It is true that scientists have been unable thus far to find a sustainable cure for AIDS, mainly due to HIV’s rapid and constant evolution. Specifically,

two factors account for the virus’s abnormally high mutation rate: 1. HIV’s use of reverse transcriptase, which does not have a proof-reading mechanism, and 2. the lack of an error-correction mechanism in HIV DNA polymerase (8). Luckily, though, there are certain characteristics of HIV that make it a poor candidate for a large-scale global infection: HIV can lie dormant in the human body for years without manifesting itself, and AIDS itself does not kill directly, but rather through the weakening of the immune system. However, for

more easily transmitted viruses such as influenza, the evolution of new strains could prove far more consequential. The simultaneous occurrence of antigenic drift (point mutations that lead to new strains) and antigenic shift (the inter-species transfer of disease) in the influenza virus could produce a new version of influenza for which scientists may not immediately find a cure. Since influenza can spread quickly, this lag time could potentially lead to a “global influenza pandemic,” according to the Centers for Disease Control and Prevention (9). The most recent scare of this variety came in 1918 when bird flu managed to kill over 50 million people around the world in what is sometimes referred to as the Spanish flu pandemic. Perhaps even more frightening is the fact that only 25 mutations were required to convert the original viral strain — which could only infect birds — into a human-viable strain (10).

Extinction Tickell 8 (Oliver Tickell, journalist, author and campaigner on health and environment issues, and author of the Kyoto2 climate initiative, “On a planet 4C hotter, all we can prepare for is extinction There's no 'adaptation' to such steep warming. We must stop pandering to special interests, and try a new, post-Kyoto strategy,” August 11, 2008, The collapse of the polar ice caps would become inevitable, bringing long-term sea level rises of 70-80 metres. All the world's coastal plains would be lost, complete with ports, cities, transport and industrial infrastructure, and much of the world's most productive farmland. The world's geography would be transformed much as it was at the end of the last ice age, when sea levels rose by about 120 metres to create the Channel, the North Sea and Cardigan Bay out of dry land. Weather would become extreme and unpredictable, with more frequent and severe droughts, floods and hurricanes. The Earth's carrying capacity would be hugely reduced. Billions would undoubtedly die.

Democratic transitions are occurring – re-asserting the independence of the Judiciary is key to stabilize CFJ 04 (Center for Justice, "IN THE Supreme Court of the United States FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al., v. UNITED STATES OF AMERICA, et al., SHAFIQ RASUL, et al., v. GEORGE W. BUSH, et al., Petitioners, Respondents. Petitioners, Respondents. On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit BRIEF OF THE CENTER FOR JUSTICE AND ACCOUNTABILITY, THE INTERNATIONAL LEAGUE FOR HUMAN RIGHTS, AND INDIVIDUAL ADVOCATES FOR THE INDEPENDENCE OF THE JUDICIARY IN EMERGING DEMOCRACIES AS AMICI CURIAE IN SUPPORT OF PETITIONERS//MRG)

Many of the newly independent governments that have proliferated over the past five decades have adopted these ideals. They have emerged from a variety of less-than-free contexts, including the end of European colonial rule in the 1950's and 1960's, the end of the Cold War and the breakup of the former Soviet Union in the late 1980's and 1990's, the disintegration of Yugoslavia, and the continuing turmoil in parts of Africa, Latin America and southern Asia.

Some countries have successfully transitioned to stable and democratic forms of government that protect individual freedoms and human rights by means of judicial review by a strong and independent judiciary. Others have suffered the rise of tyrannical and oppressive rulers who consolidated their hold on power in part by diminishing or abolishing the role of the judiciary. And still others hang in the balance, struggling against the onslaught of tyrants to establish stable, democratic governments. In their attempts to shed their tyrannical pasts and to ensure the protection of individual rights, emerging democracies have consistently looked to the United States and its Constitution in fashioning frameworks that safeguard the independence of their judiciaries. See Ran Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions, 25 Law & Soc. Inquiry 91, 92 (2000) (stating that of the “[m]any countries . . . [that] have engaged in fundamental constitutional reform over the past three

Establishing judicial review by a strong and independent judiciary is a critical step in stabilizing and protecting these new democracies. See Christopher M. Larkins, Judicial Independence and Democratization: A Theoretical and Conceptual Analysis, 44 Am. J. Comp. L. 605, 605-06 (1996) (describing the judicial branch as having "a uniquely important role" in transitional countries, not only to "mediate conflicts between political actors but also [to] prevent the arbitrary exercise of government power; see also Daniel C. Prefontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, International Centre for Criminal Law Reform and Criminal Justice Policy (1998) (" There is increasing acknowledgment that an independent judiciary is the key to upholding the rule of law in a free society . . . . Most countries in transition from dictatorships and/or statist economies recognize the need to create a more stable system of governance, based on the rule of law."), available at decades,” nearly all adopted “a bill of rights and establishe[d] some form of active judicial review”). pdf (last visited Jan. 8, 2004). Although the precise form of government differs among countries, “they ultimately constitute variations within, not from, the American model of constitutionalism . . . [a] specific set of fundamental rights and liberties has the status of supreme law, is entrenched against amendment or repeal . . . and is enforced by an independent court . . . .” Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707, 718 (2001). This phenomenon became most notable worldwide after World War II when certain countries, such as Germany, Italy, and Japan, embraced independent judiciaries following their bitter experiences under totalitarian regimes. See id. at 714- 15; see also United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring) (“Since World War II, many countries have adopted forms of judicial review, which — though different from ours in many particulars — unmistakably draw their origin and inspiration from American constitutional theory and practice. See generally

. It bears mention that the United States has consistently affirmed and encouraged the establishment of independent judiciaries in emerging democracies. In September 2000, President Clinton observed that "[w]ithout the rule of law, elections simply offer a choice of dictators. . . . America's experience should be put to use to advance the rule of law, where democracy's roots are looking for room and strength to grow." Remarks at Georgetown Mauro Cappelletti, The Judicial Process in Comparative Perspective (Oxford: Clarendon Press, 1989).”). It is a trend that continues to this day

University Law School, 36 Weekly Comp. Pres. Doc. 2218 (September 26, 2000), available at remarks-by-president-at-georgetown-internationallawcenter.html. The United States acts on these principles in part through the assistance it provides to developing nations. For example, the United States requires that any country seeking assistance through the Millenium Challenge Account, a development assistance program instituted in 2002, must demonstrate, among other criteria, an "adherence to the rule of law." The White House noted that the rule of law is one of the "essential conditions for successful development" of these countries. See (last visited Jan. 8, 2004).12 A few examples illustrate the influence of the United States model. On November 28, 1998, Albania adopted a new constitution, representing the culmination of eight

In addition to protecting fundamental individual rights, the Albanian Constitution provides for an independent judiciaryconsisting of a Constitutional Court with final authority to determine the constitutional rights of individuals. Albanian Constitution, Article 125, Item 1 and Article 128; see years of democratic reform after the communist rule collapsed.

also Darian Pavli, "A Brief 'Constitutional History' of Albania" available at (last visited Janaury 8, 2004); Jean-Marie Henckaerts & Stefaan Van der Jeught, Human Rights Protection Under the New Constitutions of Central Europe, 20 Loy. L.A. Int’l & Comp. L.J. 475 (Mar. 1998). In South Africa, the new constitutional judiciary plays a similarly important role, following generations of an oppressive apartheid regime. South Africa adopted a new constitution in 1996. Constitution of the Republic of South Africa, Explanatory Memorandum. It establishes a Constitutional Court which “makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional.” Id. at Chapter 8, Section 167, Item (5), available at ebookmark=1 (last visited January 8, 2004); see also Justice Tholakele H. Madala, Rule Under Apartheid and the Fledgling Democracy in Post-Apartheid South Africa: The Role of the Judiciary, 26 N.C. J. Int’l L. & Com. Reg. 743 (Summer 2001). Afghanistan is perhaps the most recent example of a country struggling to develop a more democratic form of government. Adoption by the Loya Jirga of Afghanistan's new constitution on January 4, 2004 has been hailed as a

The proposed constitution creates a judiciary that, at least on paper, is "an independent organ of the state," with a Supreme Court empowered to review the constitutionality of laws at the request of the Government and/or the Courts. Afghan Const. Art. 116, milestone. See 6.shtml (Jan 7, 2004).

121 (unofficial English translation), available at (last visited January 8, 2004). See also Ron Synowitz, Afghanistan: Constitutional Commission Chairman Presents Karzai with Long-Delayed Draft Constitution (November 3, 2003), available at p (last visited Jan. 8, 2004). B. Other Nations Have Curtailed Judicial Review During Times Of Crisis, Often Citing the United States' Example, And Individual Freedoms Have Diminished As A Result. While much of the world is moving to adopt the institutions necessary to secure individual rights, many still regularly abuse these rights. One of the hallmarks of tyranny is the lack of a strong and

Many of the rulers that go down that road justify their actions on the basis of national security and the fight against terrorism, and, disturbingly, many claim to be modeling their actions on the United States. Again, a few examples illustrate this trend. In Peru, one of independent judiciary. Not surprisingly, where countries make the sad transition to tyranny, one of the first victims is the judiciary.

former President Alberto Fujimori’s first acts in seizing control was to assume direct executive control of the judiciary, claiming that it was justified by the threat of domestic terrorism. He then imprisoned thousands, refusing the right of the judiciary to intervene. International Commission of Jurists, Attacks on Justice 2000-Peru, August 13, 2001, available at (last visited Jan. 8, 2004). In Zimbabwe, President Mugabe’s rise to dictatorship has been punctuated by threats of violence to and the co-opting of the judiciary. He now enjoys virtually total control over Zimbabweans' individual rights and the entire political system. R.W. Johnson, Mugabe’s Agents in Plot to Kill Opposition Chief, Sunday Times (London), June 10, 2001; International Commission of Jurists, Attacks on Justice 2002— Zimbabwe, August 27, 2002, available at (last visited Jan. 8, 2004). While Peru and Zimbabwe represent an extreme, the independence of the judiciary is under assault in less brazen ways in a variety of countries today. A highly troubling aspect of this trend is the fact that in many of these instances those perpetuating the assaults on the judiciary have pointed to the United States’ model to justify their actions. Indeed, many have specifically referenced the United States’ actions in detaining persons in Guantánamo Bay. For example, Rais Yatim, Malaysia's "de facto law minister" explicitly relied on the detentions at Guantánamo to justify Malaysia's detention of more than 70 suspected Islamic militants for over two years. Rais stated that Malyasia's detentions were "just like the process in Guantánamo," adding, "I put the equation with Guantánamo just to make it graphic to you that this is not simply a Malaysian style of doing things." Sean Yoong, "Malaysia Slams Criticism of Security Law Allowing Detention Without Trial," Associated Press, September 9, 2003 (available from Westlaw at 9/9/03 APWIRES 09:34:00). Similarly, when responding to a United States Government human rights report that listed rights violations in Namibia, Namibia's Information Permanent Secretary Mocks Shivute cited the Guantánamo Bay detentions, claiming that "the US government was the worst human rights violator in the world." BBC Monitoring, March 8, 2002, available at 2002 WL 15938703. Nor is this disturbing trend limited to these specific examples. At a recent conference held at the Carter Center in Atlanta, President Carter, specifically citing the Guantánamo Bay detentions, noted that the erosion of civil liberties in the United States has "given a blank check to nations who are inclined to violate human rights already." Doug Gross, "Carter: U.S. human rights missteps embolden foreign dictators," Associated Press Newswires, November 12, 2003 (available from Westlaw at 11/12/03 APWIRES 00:30:26). At the same conference, Professor Saad Ibrahim of the American University in Cairo (who was jailed for seven years after exposing fraud in the Egyptian election process) said, "Every dictator in the world is using what the United States has done under the Patriot Act . . . to justify their past violations of human rights and to declare a license to continue to violate human rights." Id Likewise, Shehu Sani, president of the Kaduna, Nigeriabased Civil Rights Congress, wrote in the International Herald Tribune on September 15, 2003 that "[t]he insistence by the Bush administration on keeping Taliban and Al Quaeda captives in indefinite detention in Guantánamo Bay, Cuba, instead of in jails in the United States — and the White House's preference for military tribunals over regular courts— helps create a free license for tyranny in Africa. It helps justify Egypt's move to detain human rights campaigners as threats to national security, and does the same for similar measures by the governments of Ivory Coast, Cameroon and Burkina Faso." Available at e=20030121123259. In our uni-polar world, the United

States obviously sets an important example on these issues. As reflected in the foundational

documents of the United Nations and many other such agreements, the international community has consistently affirmed the value of an independent judiciary to the defense of universally recognized human rights. In the crucible of actual practice within nations, many have looked to the United States model when developing independent judiciaries with the ability to check executive power in the defense of individual rights. Yet others have justified abuses by reference to the conduct of the United States. Far more influential than the words of Montesquieu and Madison are the actions of the United States. This case starkly presents the question of which model this Court will set for the world. CONCLUSION Much of the world models itself after this country’s two hundred year old traditions — and still more on its day to day implementation and expression of those traditions. To say that a refusal to exercise jurisdiction in this case will

Resting on this Court’s decision is not only the necessary role this Court has historically played in this country. Also at stake are the freedoms that many in emerging democracies around the globe seek to ensure for their peoples. have global implications is not mere rhetoric.

Absent effective international law – nuclear war is inevitable Damrosch and Mullerson 95 (Lori Fisler Damrosch, Henry L Moses Professor of International Law and Organization Columbia, Rein Müllerson, Professor of International Law, Columbia, 1995, “King’s, Beyond Confrontation, International Law for the Post-Cold War Era,” p. 2-3//MRG) The contemporary world has an ever increasing need for an international legal system that can respond to the demands of our time. Of the many reasons for this fact, we will survey only a few of the most salient. First and foremost is the increasing interdependence of all peoples. Even as the world is riven with many contradictions and conflicts, it is also becoming more integrated with a greater need for orderly, predictable conduct. Events, and especially natural and social disasters, even when they occur within a single country, have more noticeable effects on conditions in the world at large. The Chernobyl accident, the earthquake in Armenia, and even internal political processes underway in the territories of the former Soviet Union and Eastern Europe—these and many other events occurring within separate countries or regions have a global significance affecting the destiny of all peoples. The

intertwining of the economic life of diverse countries today is even greater than was the interdependence of different regions within the same state only half a century ago. Order and predictability of the behavior of actors on the international scene can be achieved first of all with the aid of social norms, among which international law occupies an important place. A second reason for the growth of the role of international law is inextricably connected with the first. The threat of a thermonuclear catastrophe, universal ecological crisis, and acute economic problems in developing countries are of global concern and endanger the very existence of humanity. Resolution of these problems demands coordinated efforts of all states and peoples, which would be impossible to achieve without the aid of international norms, procedures, and institutions. A third reason is the breathtaking political transformations of recent years. The changes that began in 1985 in the former Soviet Union and were unleashed in Eastern Europe have radically transformed the map of the world. Although

it is impossible to give a final evaluation of the character and significance of these changes at the present time, it is possible to conclude that the fundamental global contradiction of the Cold War era—the contradiction between socialism and capitalism, which to a great extent determined not only the general climate in the world but also the role and significance of international law in it—has been overcome. In the Charter of Paris for a New Europe, 32 countries of Europe, together with the United States and Canada, affirmed that “the era of confrontation and division in Europe has ended.” The end has come not only for division in Europe, but also in the world at large. But this fact can hardly lead automatically to a non-contradictory, stable, world order. The acuteness of conflicts that are not connected with the so-called “fundamental contradiction of the epoch” can even intensify, as the unleashing of savage interethnic conflict in the former Yugoslavia and the former Soviet Union amply demonstrates. Nonetheless, it

is precisely the cooperation between former ideological and political adversaries that can serve as the prerequisite and condition for the resolution of many of problems and conflicts. A vivid example may be found in the reaction of world society to the aggression of Iraq against Kuwait and the reining in of the aggressor with the aid of U.N. mechanisms in accordance with the U.N. Charter and other norms of international law.

ILAW is inevitable but US engagement is critical to its effectiveness Deller 02 (Nicole Deller, J.D., has a law degree from New York University School of Law.

She is program advisor for the World Federalist Movement and chairs the Committee on International Security Affairs for the Association of the Bar of the City of New York. She

is editor of ‘Rule of Power or Rule of Law?’ research associate and consultant for the Lawyers’ Committee on Nuclear, “Rule of Power or Rule of Law?” 2002, The evolution of international law since World War II is largely a response to the demands of states and individuals living within a global society with a deeply integrated world economy. In this global society, the repercussions of the actions of states, non-state actors, and individuals are not confined within borders, whether we look to greenhouse gas accumulations, nuclear testing, the danger of accidental nuclear war, or the vast massacres of civilians that have taken place over the course of the last hundred years and still continue. Multilateral agreements increasingly have been a primary instrument employed by states to meet extremely serious challenges of this kind, for several reasons. They clearly and publicly embody a set of universally applicable expectations, including prohibited and required practices and policies. In other words, they articulate global norms, such as the protection of human rights and the prohibitions of genocide and use of weapons of mass destruction. They establish predictability and accountability in addressing a given issue. States are able to accumulate expertise and confidence by participating in the structured system established by a treaty. However, influential U.S. policymakers are resistant to the idea of a Treaty based international legal system because they fear infringement on U.S. sovereignty and they claim to lack confidence in compliance and enforcement mechanisms. This approach has dangerous practical implications for international cooperation and compliance with norms. U.S. treaty partners do not enter into treaties expecting that they are only political commitments that can be overridden based on U.S. interests. When a powerful and influential state like the United States is seen to treat its legal obligations as a matter of convenience or of national interest alone, other states will see this as a justification to relax or withdraw from their own commitments. When the United States wants to require another state to live up to its treaty obligations, it may find that the state has followed the U.S. example and opted out of compliance.

Specifically, incorporation by the Court is key to Solve Environmental Destruction Charney 93 (Jonathan Charney, on the board of editors at the American Journal of Intl Law, “UNIVERSAL INTERNATIONAL LAW,” October 1993, 87 A.J.I.L. 529, LexisNexis//MRG) The international community of the late twentieth century faces an expanding need to develop universal norms to address global concerns. Perhaps one of the most salient of these concerns is to protect the earth's environment. While many environmentally harmful activities result only in local damage, others have an impact far beyond the boundaries of the states in which they take place and may cause damage to the earth's environment as a whole. For example, the discharge of some substances into the atmosphere may adversely affect the global climate or the ozone layer. n1 Discharges that pollute the common spaces of the oceans may also have a global impact and thus raise similar concerns. n2 Current

threats to the environment highlight the importance of establishing norms to control activities that endanger all nations and peoples, regardless of where the activities take place. Acts of international terrorism, the commission of international crimes (such as genocide and war crimes), and the use of nuclear weapons pose similar global problems and have been on the international agenda for some time. To resolve such problems, it may be necessary to establish new rules that are binding on all subjects of international law regardless of the attitude of any particular state. For unless all states are bound, an exempted recalcitrant state could act as a spoiler for the entire international community. Thus, states that are not bound by international laws designed to combat universal environmental threats [*530] could become havens for the harmful activities concerned. Such states might have an economic advantage over states that are bound because they would not have to bear the costs of the requisite environmental protection. They would be free riders on the system and would benefit from the environmentally protective measures introduced by others at some cost. Furthermore, the example of such free riders might undermine the system by encouraging other states not to participate, and could thus derail the entire effort. Similarly, in

the case of international terrorism, one state that serves as a safe haven for terrorists can threaten all. War crimes, apartheid or genocide committed in one state might threaten international peace and security worldwide. Consequently, for certain circumstances it may be incumbent on the international community to establish international law that is binding on all states regardless of any one state's disposition. Unfortunately, the traditions of the international legal system appear to work against the ability to legislate universal norms. States are said to be sovereign, thus able to determine for themselves what they must or may do. n3 State autonomy continues to serve the international system well in traditional spheres of international relations. The freedom of states to control their own destinies and policies has substantial value: it permits diversity and the choice by each state of its own social priorities. n4 Few, if any, states favor a world government that would dictate uniform behavior for all. Consequently, many writers use the language of autonomy when they declare that international law requires the consent of the states that are governed by it. Many take the position that a state that does not wish to be bound by a new rule of international law may object to it and be exempted from its application. n5 If sovereignty and autonomy prevailed in all areas of international law, however, one could hardly hope to develop rules to bind all states. In a community of nearly two hundred diverse states, it is virtually impossible to obtain the acceptance of all to any norm, particularly one that requires significant expenses or changes in behavior. Complete autonomy may have been acceptable in the past when no state could take actions that would threaten the international community as a whole. Today,

the enormous destructive potential of some activities and the precarious condition of some objects of international concern make full autonomy undesirable, if not potentially catastrophic. [*531] In this article I explore the limits of state autonomy to determine whether some or all of international law may be made universally binding regardless of the position of one or a small number of unwilling states. To accomplish this objective, I begin by analyzing the secondary rules of recognition (the doctrine of sources) used to establish primary rules of international law. While treaties may require the consent of individual states to be binding on them, such consent is not required for customary norms. Finally, I explore in greater depth the actual processes by which many customary law norms have come into being in the last half of the twentieth century. The

contemporary process that is often used is significantly different from that described in the classic treatises on the formation of customary law. Contemporary procedural developments place the international legal system closer to the more formal notions of positive law, facilitating the development of universal international law. These procedural developments strengthen the argument that the system may establish general international law binding on all states, regardless of the objection of a small number of states.

The impact is extinction Brown 96 (Donald A. Brown, a Program Manager for United Nations Organizations with the United States Environmental Protection Agency (EPA), Office of International Environmental Activities, served with the Pennsylvania Department of Environmental Resources as Director, Bureau of Hazardous Sites and Superfund Enforcement, Chief of the Central Office of the Bureau of Litigation, and Assistant Attorney General, served with the New Jersey Department of Environmental Resources, a B.S. from Drexel Institute of Technology, an M.A. in Liberal Studies in philosophy and art from the New School for Social Research, and a J.D. from Seton Hall University School of Law, “Thinking Globally and Acting Locally: The Emergence of Global Environmental Problems and the Critical Need to Develop Sustainable Development Programs at State and Local Levels in the United States,” Summer 1996, 5 Dick. J. Env. L. Pol. 175, LexisNexis//MRG) Globalization of markets and communications is making us aware that we are becoming residents in a global village. No small part of this awareness is an increasing consciousness that what we do or do not do in our own neighborhood can have ripple effects over the entire planet. Yet, despite

a growing recognition of environmental interdependence of all peoples, the United States (U.S.) has thus far failed to develop an environmental law regime that responds to the growing global environmental problems. This part of the Article examines the explosion of environmental law in the United States, the growth of global environmental concern, and the U.S. response to these concerns. A. Domestic Environmental Law Explosion Like the universe according to the big-bang theory, United States domestic environmental law has been steadily expanding in all directions since its original explosion in 1970. In 1971, the Environmental Law Institute published a summary of environmental law that required thirty-three pages. n1 In 1993, the text of the statutes alone took up more than 600 pages. n2 By 1993, the

Environmental Law Reporter had published over 5,000 federal court decisions on environmental law. n3 This rapid expansion of U.S. environmental law was triggered largely by growing concern about domestic environmental problems experienced in the

U.S. since or shortly before the first Earth Day on April 22, 1970. For instance, laws regulating toxic substances in the United States arose in reaction to concerns about polybrominated biphenyls (PBBs) in Michigan and polychlorinated biphenyls (PCBs) in the Hudson River, kepone in Virginia, the Valley of the Drums near Louisville, Kentucky, and Love Canal in Erie County, New York. n4 Thus, although U.S. environmental law has continued to expand at a rapid rate in the last 25 years, this vast body of U.S. environmental law has been drafted largely to correct or prevent domestic environmental problems. [*178] B. Growing International Environmental Concern Since the early 1980s, international concern has been growing about several global environmental problems different from the domestic environmental problems that triggered the initial expansion in U.S. environmental law. According to a report entitled Our Common Future, prepared for the United Nations in 1987, by the World Commission On Environment and Development, rapid deterioration of the global environment is threatening life on earth. n5 This report concluded that decisive political action is needed to ensure human survival, which is threatened by growing global environmental threats. n6 Our Common Future identified "several environmental trends that threaten to radically alter the planet, [and] threaten the lives of many species upon it, including the human species." n7 These global environmental problems include: (1) climate change caused by emission of greenhouse gases, (2) loss of stratospheric ozone caused by the releases of ozone depleting chemicals, (3) world-wide loss of biodiversity, (4) world-wide spread of persistent toxic chemicals, (5) world-wide loss of forests, (6) depletion of important resources such as fish stocks, and (6) the world-wide transformation of arable lands into desert. n8 Concern about these global environmental problems has led to a significant increase in the number of international environmental treaties in the last several decades. n9

ILAW solves your disads- makes global cooperation on every issue possible Koh & Smith 03 (Harold Hongju Koh, Professor of International Law, and Bernice Latrobe Smith, Yale Law School; Assistant Secretary of State for Democracy, Human Rights and Labor, “FOREWORD: On American Exceptionalism,” May 2003, 55 Stan. L. Rev. 1479, LexisNexis//MRG) Similarly, the

oxymoronic concept of "imposed democracy" authorizes top-down regime change in the name of democracy. Yet the United States has always argued that genuine democracy must flow from the will of the people, not from military occupation. 67 Finally, a policy of strategic unilateralism seems unsustainable in an interdependent world. For over the past two centuries, the United States has become party not just to a few treaties, but to a global network of closely interconnected treaties enmeshed in multiple frameworks of international institutions. Unilateral administration decisions to break or bend one treaty commitment thus rarely end the matter, but more usually trigger vicious cycles of treaty violation. In an interdependent world, [*1501] the United States simply cannot afford to ignore its treaty obligations while at the same time expecting its treaty partners to help it solve the myriad global problems that extend far beyond any one nation's control: the global AIDS and SARS crises, climate change, international debt, drug smuggling, trade imbalances, currency coordination, and trafficking in human beings, to name just a few. Repeated incidents of American treaty-breaking create the damaging impression of a United States contemptuous of both its treaty obligations and treaty partners. That impression undermines American soft power at the exact moment that the United States is trying to use that soft power to mobilize those same partners to help it solve problems it simply cannot solve alone: most obviously, the war against global terrorism, but also the postwar construction of Iraq, the Middle East crisis, or the renewed nuclear militarization of North Korea.

Increased global cooperation solves all nuclear wars Seita 97 (Alex Y. Seita, B.S., California Institute of Technology; M.B.A., Stanford; J.D., Stanford. Professor of Law, Albany Law School of Union University, “Globalization and the Convergence of Values,” 1997, LexisNexis//MRG) The perspective that the human race matters more than its component divisions would accelerate cooperative efforts among nations to attack global problems that adversely affect human rights and the quality of human life.[112] Obviously, there is no shortage of such problems. Great suffering still occurs in so many parts of the world, not just from internal armed conflicts,[113] but also from conditions of poverty.[114] There are severe health problems in much of the world which can be mitigated with relatively little cost.[115] There are the lives lost to the AIDS epidemic, and [page 464] the deaths and disabilities caused by land mines.[116] Russia, a nuclear superpower that could end life on this planet, has severe social, economic, and political problems.[117] Making the human race important would not just promote liberal democratic values but would also reduce human suffering and perhaps eliminate completely the risk of nuclear war.


Bioweapons CIL stops the use of biological weapons Koplow 9 (David A. Koplow, Michigan Journal of International Law, “ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons,” Summer 2009, ub//MRG) A. Discrimination The first fundamental precept is that a military force must target only military persons, materiel, and locations; civilians and other nonbelligerents cannot lawfully be made the direct and intentional focus of an attack, and neutral States" and their property'85 are similarly offlimits. LOAC does not prohibit all "collateral damage" harm to civilians-that would probably be an impossible goal in any realistic military engagement-but it is axiomatic that force may lawfully be directed only at military objectives. A weapon system that is inherently incapable of that degree of finesse (or one that is sufficiently directional, but is in fact wielded in an indiscriminate fashion) is illegal. 86 This principle underpins much of the law's hostility to chemical and biological weapons, among others. Typically, those armaments would be employed in a scattershot fashion, unleashed as a cloud that may drift uncontrollably with the wind, rather than being precisely confined to an enemy's military apparatus. 1 87 If

the user cannot control-or even reliably predict-where the effects of the weapon may be felt, it fails the LOAC standard. An ASAT weapon might appear, in contrast, to be quite discriminating-it is aimed with exquisite precision at a specific enemy satellite, and even a whole fleet of ASATs would be steered by the most sophisticated guidance systems to pick off particular hostile spacecraft one by one.

Bioweapons use causes extinction Steinbrenner 97 (John D. Steinbrenner, Brookings Senior Fellow, “Biological Weapons: A Plague upon all Houses, winter 1997, InfoTrac//MRG) Although human pathogens are often lumped with nuclear explosives and lethal chemicals as potential weapons of mass destruction, there is an obvious, fundamentally important difference: Pathogens are alive, weapons are not. Nuclear and chemical weapons do not reproduce themselves and do not independently engage in adaptive behavior; pathogens do both of these things. That deceptively simple observation has immense implications. The use of a manufactured weapon is a singular event. Most of the damage occurs immediately. The aftereffects, whatever they may be, decay rapidly over time and distance in a reasonably predictable manner. Even before a nuclear warhead is detonated, for instance, it is possible to estimate the extent of the subsequent damage and the likely level of radioactive fallout. Such predictability is an essential component for tactical military planning. The use of a pathogen, by contrast, is an extended process whose scope and timing cannot be precisely controlled. For most potential biological agents, the predominant drawback is that they would not act swiftly or decisively enough to be an effective weapon. But for a few pathogens - ones most likely to have a decisive effect and therefore the ones most likely to be contemplated for deliberately hostile use - the risk runs in the other direction. A lethal pathogen that could efficiently spread from one victim to another would be capable of initiating an intensifying cascade of disease that might ultimately threaten the entire world population. The 1918 influenza epidemic demonstrated the potential for a global contagion of this sort but not necessarily its outer limit. Nobody really knows how serious a possibility this might be, since there is no way to measure it reliably.

Democracy International law incorporation key to democracy Benvenisti 08 (Eyal Benvenisti, Professor of Law, Tel Aviv University, “Reclaiming Democracy: The Strategic Uses Of Foreign And International Law By National Courts, 2008, 102 A.J.I.L. 241, LexisNexis//MRG) Not so long ago the

overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. Their policy was to avoid any application of foreign sources of law that would clash with the position of their domestic governments. Many jurists find recourse to foreign and international law inappropriate. n1 But even the supporters of reference to external sources of law hold this unexplored assumption that reliance on foreign and international law inevitably comes into tension with the value of national sovereignty. Hence, the scholarly debate is framed along the lines of the wellknown broader debate on "the countermajoritarian difficulty." n2 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-a-vis the political branches, cannot afford to ignore foreign and international law.

Death Penalty Plan results in death penalty repeal—it violates ilaw Amnesty International 2008 (Cites measures from 2008), “Death Penalty in International Law”; [] The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in December 1948, recognizes each person’s right to life. It categorically states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). In Amnesty International’s view, the death penalty violates these rights.¶ The community of states has adopted four international treaties specifically providing for the abolition of the death penalty. Through the years, several UN bodies discussed and adopted measures to support the call for the worldwide abolition of the death penalty.¶ In December 2007 and 2008 the United Nations General Assembly (UNGA) adopted resolutions 62/149 and 63/168, calling for a moratorium on the use of the death penalty. Since then, other regional bodies or civil society coalitions adopted resolutions and declarations advocating for a moratorium on executions as a step towards global abolition of the death penalty.¶ These resolutions are not legally binding on governments, but represent important milestones for the abolitionist movement and constitute a continued progress towards the total exclusion of capital punishment from International Law.

The US death penalty harms international law and ruins relations with allies---also harms its credibility for human rights policies Simon P Smith 2008 (cites articles from 2008) James Madison University, “THE DEATH PENALTY AND INTERNATIONAL LAW: A CASE OF CONFLICT TRANSFORMATION THROUGH KNOWLEDGE” Conflicts over extradition began are a symptom of the United States violation of evolved international legal norms. Extradition, in comparison to previous issues discussed is largely technical and symbolic in nature. Rather than being an actual issue it is a symptom of a larger issue of the United State’s failure to abide by international norms. Since our allies, and the world at large, are currently incapable of directly challenging the United States on the issue, they object in a manner symptomatic of the larger problem. The death penalty has become a constant obstacle in our ability to seek extraditions of criminals wanted in the United States to the United States to be prosecuted. The conflict over extraditions started in in 1989 with Soering v. United Kingdom in which the European Court on Human Rights ruled that the UK could not extradite the defendant to the United States unless it received sufficient assurances that the death penalty would not be sought . Henceforth, member nations of the European Union have refused to extradite defendants who could face the death penalty without assurances that they will not as the court finds it a violation of the Protocol 6. Extraditions have become an increasingly important part of enforcing the law as borders have become more fluid with the increased integration of countries, making it easier for fugitives to cross borders. The United States has violated its obligations under the Vienna Convention on Consular Relations on many occasions. In Beard v. Green the United States not only denied the defendant of his right to consular notification and advice but also ignored a stay of execution issued by the International Court of Justice. The United State’s compliance with the Vienna Convention on the local level is also suspect leading to further complications. Consequently, in 1999 the European parliament sharply rebuked the United States for its lack of compliance with the Vienna Convention on Consular Relations. Recently Mexico has refused to extradite not only those facing the death penalty but those facing life sentences as well.

A particularly potent illustration of European resolve on extradition is their refusal to extradite even terrorists, including those involved in 9/11, without assurances that they would not face the death penalty. Continuing conflicts over extradition will only build further friction in an already heated environment. Conclusion The current conflict over extradition is an extraordinary example of the way governments conflict publicly on a limited issue rather than the more systematic issue at hand. The United States, one of their first champions of human rights, must reform its death penalty policy towards more of an abolitionist directed policy in order to resolve the conflict with its allies. If the US is to retain, or perhaps even reclaim, its place as a champion of human rights and standard-bearer of such, it must begin to comply with the human rights law and norms it helped establish. The US, by continuing to execute criminals, isolates itself from its closest allies, complicates extradition internationally, and loses credibility to condemn other nations for human rights abuses. The US can ill afford to make enemies out of friends. The European Union, comprised of some of our closest allies traditionally, will prove to be a force to be reckoned with, both politically and militarily, if we continue to isolate ourselves on human rights issues by claiming the death penalty to be an exception. With the US already defending multiple fronts internationally, it cannot risk isolating itself from some of its closest traditional allies. It is high time for the US to reverse its hypocritical policy in regards to human rights and become a part of the systems it helped create. It is time for the United States to comply with international norms by both signing onto existing human rights conventions and drafting abolitionist legislation domestically. By abolishing the death penalty the United States could both improve its place in the international system and ward off future conflict. In short, the United States should abolish the death penalty in order to retain and improve its place in the international system. In conclusion, while at first hand the conflicts over extradition appear to be only a conflict of Consular relations, knowledge transforms this conflict, allowing us to see it for what it truly is: A systematic conflict over respect for the international system. Knowledge, or understanding a conflict, is the crucial step necessary to transform it.

The death penalty is a block in EU—US Relations Simon P Smith 2008 (cites articles from 2008) James Madison University, “THE DEATH PENALTY AND INTERNATIONAL LAW: A CASE OF CONFLICT TRANSFORMATION THROUGH KNOWLEDGE” As discussed earlier, the European community, including both the Council of Europe and the European Union oppose the death penalty. Trail notes “Walter Schwimmer identified the United States over an third world nation as the Council of Europe’s ‘greatest concern’ for human rights violations. ” Likewise, the European Union began its drive to abolish the death penalty worldwide in 1999 and aimed its sights squarely at the United States. The European Union will only continue to grow in both economic and political strength. The possibility that the European Union could level sanctions against those who fail to abide by international human rights norms is certainly conceivable as their economic power grows. The European Union, unlike any single nation which values human rights, is hypothetically capable of standing up to the United States if the United States fails to comply with a ruling of the International Court of Justice. It is important to recognize why the presence of the EU is important. The European Union is by no means the first entity, nation state or regional system, to oppose the United State’s stance on the death penalty, rather it may well be the first to become strong enough to force some kind of change from the United States. In order for the United States to retain its position as the worlds superpower, it would be more beneficial to at least seem to make the decision on our own to comply with the international norms rather than waiting to be forced and in doing so lose face.

-Relations Good-Terrorism US-EU relations solves terrorism Garcia 3/26/4,“Bradtke Discusses U.S.-European Relationship, War On Terror,” [] March 26, 2004 - Noting that U.S.-European relations have come through a difficult period, Deputy Assistant Secretary for European and Eurasian Affairs Robert A. Bradtke said the

relationship between the United States and its European partners is "absolutely vital" in effectively addressing the global threat of terrorism. Bradtke visited Texas A&M University Friday for a conference focusing on the future of European Union and U.S. relations at which a number of scholars from around the world examined issues of European identity, genetically modified organisms, international criminal court and global security. It was sponsored by the Texas A&M University European Union Center, the South Texas College of Law, the George Bush Presidential Library Foundation and the George Bush School of Government and Public Service. "If

you look at what happened on September 11, you had an attack that was initially conceived of in Afghanistan, then it was further developed by cells of al-Qaeda in Spain and in Germany, then it was carried out in the United States," Bradtke said. "No one country by itself can deal with this kind of problem. We have to work together to combat terrorism, and we have to have strong cooperation between our law enforcement agencies and between our intelligence agencies. We have to work together to crack down on financing that goes to terrorist organizations, and at times we will also have to be prepared to take military action. The countries that are most capable of working with us are our European partners."

Terrorism causes extinction Richard Rhodes 12/14/9, affiliate of the Center for International Security and Cooperation at Stanford University, Former visiting scholar at Harvard and MIT, and author of “The Making of the Atomic Bomb” which won the Pulitzer Prize in Nonfiction, National Book Award, and National Book Critics Circle Award. “Reducing the nuclear threat: The argument for public safety” [] The response was very different among nuclear and national security experts when Indiana Republican Sen. Richard Lugar surveyed PDF them in 2005. This group of 85 experts judged that the possibility of a WMD attack against a city or other target somewhere in the world is real and increasing over time. The median estimate of the risk of a nuclear attack somewhere in the world by 2010 was 10 percent. The risk of an attack by 2015 doubled to 20 percent median. There was strong, though not universal, agreement that a nuclear attack is more likely to be carried out by a terrorist organization than by a government. The group was split 45 to 55 percent on whether terrorists

were more likely to obtain an intact working nuclear weapon or manufacture one after obtaining weapon-grade nuclear material. “The proliferation of weapons of mass destruction is not just a security problem,” Lugar wrote in the report’s introduction. “It is the economic dilemma and the moral challenge of the current age. On September 11, 2001, the world witnessed the destructive potential of international terrorism. But the September 11 attacks do not come close to approximating the destruction that would be unleashed by a nuclear weapon. Weapons

of mass destruction have made it possible for a small nation, or even a sub-national group, to kill as many innocent people in a day as national armies killed in months of fighting during World War II. “The bottom line is this,” Lugar concluded: “For the foreseeable future, the United States and other nations will face an existential threat from the intersection of terrorism and weapons of mass destruction.” It’s paradoxical that a diminished threat of a superpower nuclear exchange should somehow have resulted in a world where the danger of at least a single nuclear explosion in a major city has increased (and that city is as likely, or likelier, to be Moscow as it is to be Washington or New York). We tend to think that a terrorist nuclear attack would lead us to drive for the elimination of nuclear weapons. I think the opposite case is at least equally likely: A

terrorist nuclear attack would almost certainly be followed by a retaliatory nuclear strike on whatever country we believed to be sheltering the perpetrators. That response would surely initiate a new round of nuclear armament and rearmament in the name of deterrence, however illogical. Think of how much 9/11 frightened us; think of how desperate our leaders were to prevent any further such

attacks; think of the fact that we invaded and occupied a country, Iraq, that had nothing to do with those attacks in the name of sending a message.

-Relations Good---Disease US EU relations solve disease outbreak James B. Steinberg Summer 3, Vice President and Director, Foreign Policy Studies, Brookings Institution, (SURVIVAL, p. 155.) But skeptics have it half wrong, too. Both

the United States and Europe face new global threats and opportunities that. In almost every case, can be dealt with far more successfully if we act together. Transnational threats, from terrorism and international crime to environmental damage and disease pose an increasing danger to our wellbeing/ Porous borders and the extraordinary global flows of goods, money, people and ideas facilitate the spread of economic opportunity – but also foster the proliferation of technology for weapons of mass destruction/ Weak states threaten our security as much as powerful ones. Ocean and land barriers offer little protection. Non-state actors – from businesses and NGOs to terrorists and money launderers – play an increasingly influential role. In

the place of geopolitics, a new ‘global politics’ is required to address the threats and opportunities that affect us all. If we can work together, we are likely to be far more successful at meeting the new global threats, and preserving our freedom and prosperity, than if we try to achieve these goals alone.

Disease spread causes extinction Victoria Yu 5/22/9, Dartmouth Undergraduate Journal of Science Writer, “Human Extinction: The Uncertainty of Our Fate,” [] A pandemic will kill off all humans. In the past, humans have indeed fallen victim to viruses. Perhaps the best-known case was the bubonic plague that killed up to one third of the European

new viral strains are constantly emerging — a process that maintains the possibility of a pandemic-facilitated human extinction. Some population in the mid-14th century (7). While vaccines have been developed for the plague and some other infectious diseases,

surveyed students mentioned AIDS as a potential pandemic-causing virus. It is true that scientists have been unable thus far to find a sustainable cure for AIDS, mainly due to HIV’s rapid and constant evolution. Specifically, two factors account for the virus’s abnormally high mutation rate: 1. HIV’s use of reverse transcriptase, which does not have a proof-reading mechanism, and 2. the lack of an error-correction mechanism in HIV DNA polymerase (8). Luckily, though, there are certain characteristics of HIV that make it a poor candidate for a large-scale global infection: HIV can lie dormant in the human body for years without manifesting itself, and AIDS itself does not kill directly, but rather through the weakening of the immune system. However, for more

evolution of new strains could prove far more consequential. The simultaneous occurrence of antigenic drift (point mutations that lead to new strains) and antigenic shift (the inter-species transfer of disease) in the influenza virus could produce a new version of influenza for which scientists may not immediately find a cure. Since influenza can spread quickly, this lag time could potentially lead to a “global influenza pandemic,” according to the Centers for Disease Control and Prevention (9). The easily transmitted viruses such as influenza, the

most recent scare of this variety came in 1918 when bird flu managed to kill over 50 million people around the world in what is sometimes referred to as the Spanish flu pandemic. Perhaps even more frightening is the fact that only 25 mutations were required to convert the original viral strain — which could only infect birds — into a human-viable strain (10).

Nuclear War Upholding international law is vital to preventing nuclear conflict NAPF 99 (The Nuclear Age Peace Foundation, “A Renunciation of Nuclear Weapons One Citizen at a Time Six Arguments for Abolishing Nuclear Weapons,” 1999 Reason Two: The

threat or use of nuclear weapons has been declared generally illegal by the World Court. The July 8, 1996 decision of the International Court of Justice stated that it is generally illegal to use or to threaten to use nuclear weapons. From a legal point of view, it would be virtually impossible to use nuclear weapons without violating the laws of armed conflict. The International Security and Arms Control Committee of the U.S. National Academy of Sciences concluded that "the inherent destructiveness of nuclear weapons, combined with the unavoidable risk that even the most restricted use of such weapons would escalate to broader attacks, makes it extremely unlikely that any contemplated threat or use of nuclear weapons would meet these [the Court's] criteria." If nuclear armed nations are serious about upholding international law, they ought to immediately commence negotiations for eliminating and prohibiting all nuclear weapons Reason Three: Nuclear weapons are morally reprehensible. The rightness of many issues is debatable, but nuclear weapons are morally insupportable. Even possessing something so deadly is wrong. These radiation-laden bombs can destroy most life on Earth and would be better described as national and global suicide devices rather than weapons. What could be more evil? As Joseph Rotblat, the 1995 Nobel Peace Laureate, urged when speaking against nuclear weapons, "Remember your humanity!"

Heg/AT: Ilaw Kills heg U.S. credibility in international law is key to leadership – it stabilized US power, reduces backlash against unilateralism and increases overall credibility Krisch 03 (Nico Krisch, Senior Fellow at the Center for International Studies at New York University Law, “Unilaterlaism and US Foreign Policy,” 2003, Pp. 62-63//MRG) However, when international

instruments reflect U.S. policy preferences vis-à-vis other states – as they often do analysis is needed on whether unilateral action can render similar results or whatever even the short-term interests of the United States demand adherence to the treaty. Even the United States itself recognizes the value of legal regulation of international relations, (eg., in the area of arms control) – careful

as the description of its attempts to create and enforce law by unilateral means has shown. It is not ready to renounce law as an instrument, because law stabilizes expectations and reduces the costs of later negotiation and of the enforcement of certain policies. Thus,

the question is whether it is in the U.S. interest to accept the more egalitarian process of international law instead of using unilateral, hierarchal legal instruments. Although it is impossible to enter into a comprehensive discussion of the general value of international law in this chapter, I shall outline at least some arguments in favor of such an acceptance. First,

a stronger use of international law could help stabilize the current predominant positions of the United States. If the United States now concludes that treaties with other states that reflect its superior negotiating power (even if not to the degree the United States would wish), U.S. preferences can shape international relations in a longer perspective, as change in international law is slower and more difficult than political change. It is worthwhile noting that past great powers similarly influenced the international legal order to such a degree that it is possible to divide the history of international law into epochs dominated by these powers – epochs that have left many traces in contemporary law. Second, even

if the U.S. power continues to increase and this argument therefore appears to be less appealing, the United States can gain from stronger reliance on international law because the law can help legitimize its current exercise of power. Unilateralism in international politics is always regarded suspiciously by other states, and it is quite probable that perceptions of “imperialism” or “bully hegemony” will lead to stronger reactions by other states in the long run. Already now, some states show greater unity. Although it remains to be seen whether in the Case of Russia and China this greater unity is only symbolic, other instances, such as the strong stance of the like-minded states in the ICC, indicate a more substantive regrouping in the face of U.S. predominance. Similarly, the accelerated integration of the EU can be regarded as caused in part by the desire to counterbalance the United States. IF

the United States were able to channel its power into the more egalitarian process of international law, it could gain much more legitimacy for its exercise of power and significantly reduce the short and long term costs of its policies. This has been recognized in the aftermath of the terrorist attacks against the United States in September 2001, and the U.S. president not only sought to build an international ad hoc coalition but also taken steps to bolster the international legal regime against terrorism, in particular by transmitting conventions against terrorism to the Senate in order to proceed with ratification. Multilateralism

is certainly valued more highly by U.S. administration since the attacks, but reluctance still prevails in many areas, as enduring U.S. opposition to the ICC and to the additional protocol to the BWC shows. Third, it is highly questionable whether the United States will in fact be able to pursue its strategy of subjecting international law in the future. In the past, it might have been possible to exert significant influence on the content of international agreements and then not subscribe to them. Repeating this in the future is likely to be more difficult – as the United States discovered in the case of the ICC statute after a certain point. As one observer to the ICC negotiations notes: Increasingly, the other delegations felt that it would be better to stop giving in to the Untied States; they believed that the United States would never be satisfied with the concessions it got and ultimately would never sign the treaty for completely unrelated domestic political reasons. Similarly,

the use of reservations in order to secure a privileged position has become increasingly difficult as other states become wary of this strategy and seek to foreclose the possibility of reservations to new treaties entirely, as in the ICC statute and the Ottawa Convention. And discontent with U.S. behavior might backfire in unexpected circumstances – as with the loss of the seat in the Commission for Human Rights, or the suit brought and vigorously defended by Germany in the LaGrand case. In general, these effects are likely to undermine the U.S. capacity for leadership which to a large degree is based on reputation, credibility, and persuasiveness – not only on brute power. Moreover, as the

United States discovered in its failure to achieve desired goals in the climate change and the landmine negotiations, leadership can be barred by too great a difference in opinion between the leader and those to be led. Compromise may thus be necessary to maintain the momentum to lead. The United States may be forced to choose between engagement, leadership, and control, on the one hand, and free-riding, isolation, and a loss of influence on the other.

AT: Nuclear Deterrence Deterrence doesn’t take into account irrational decision-making, global alliances, and hazardous situations – history proves that war is still likely. Martin Hellman 10/21/8, Professor Emeritus of Electrical Engineering at Stanford University, “Soaring, Cryptography and Nuclear Weapons,”, A similar situation exists with nuclear weapons. Many people point to the absence of global war since the dawn of the nuclear era as proof that these weapons ensure peace. The MX missile was even christened the Peacekeeper. Just as the laws of physics are used to ensure that a pilot executing a low pass will gain enough altitude to make a safe landing, a law of nuclear deterrence is invoked to quiet any concern over possibly killing billions of innocent people: Since World War III would mean the end of civilization, no one would dare start it. Each side is deterred from attacking the other by the prospect of certain destruction. That's why our current strategy is called nuclear deterrence or mutually assured destruction (MAD). But again, it's important to read the fine print. It

is true that no one in his right mind would start a nuclear war, but when people are highly stressed they often behave irrationally and even seemingly rational decisions can lead to places that no one wants to visit. Neither Kennedy nor Khrushchev wanted to teeter on the edge of the nuclear abyss during the 1962 Cuban Missile Crisis, but that is exactly what they did. Less well known nuclear near misses occurred during the Berlin crisis of 1961, the Yom Kippur War of 1973 and NATO's Able Archer exercise of 1983. In each of those episodes, the law of unintended consequences combined with the danger of irrational decision making under stress created an extremely hazardous situation. Because the last date for a nuclear near miss listed above was 1983, it might be hoped that the end of the Cold War removed the nuclear sword hanging over humanity's head. Aside from the fact that other potential crises

the Cold War, rather than ending, merely went into hibernation. In the West, the reawakening of this specter is usually attributed to resurgent Russian nationalism, but as in most such as Taiwan were unaffected, a closer look shows that

disagreements the other side sees things very differently. The Russian perspective sees the United States behaving irresponsibly in recognizing Kosovo, in putting missiles (albeit defensive ones) in Eastern Europe, and in expanding NATO right up to the Russian border. For our current purposes, the last of these concerns is the most relevant because it involves reading the fine print – in this case, Article 5 of the NATO charter which states that an attack on any NATO member shall be regarded as an attack on them all. It is partly for that reason that a number of former Soviet republics and client states have been brought into NATO and that President Bush is pressing for Georgia and the Ukraine to be admitted. Once these nations are in NATO, the thinking goes, Russia would not dare try to subjugate them again since that would invite nuclear devastation by the United States, which would be treaty bound to come to the victim's aid. But, just as the laws of physics depended on a model that was not always applicable during a glider's low pass, the

law of deterrence which seems to guarantee peace and stability is model-dependent. In the simplified model, an attack by Russia would be unprovoked. But what if Russia should feel provoked into an attack and a different perspective caused the West to see the attack as unprovoked? Just such a situation sparked the First World War. The assassination of Austria's Archduke Ferdinand by a Serbian nationalist led Austria to demand that it be allowed to enter Serbian territory to deal with terrorist organizations. This demand was not unreasonable since interrogation of the captured assassins had shown complicity by the Serbian military and it was later determined that the head of Serbian military intelligence was a leader of the secret Black Hand terrorist society. Serbia saw things differently and rejected the demand. War between Austria and Serbia resulted, and alliance obligations similar to NATO's Article 5 then produced a global conflict.

Deterrence theories rely on false assumptions of state rationality—Organizations are constrained by conflicting interests and calculation uncertainties Mark Clark 97, director of the national security studies program at California State University, ¶ “Deterrence in the Second Nuclear Age-book reviews: Neorealism versus Organizational Theory,” Perhaps even more important is Sagan's critique of Waltz's assumptions about rational deterrence logic. By using organizational theory, Sagan demonstrates problems with all three of the assumptions necessary for

rational deterrence theory to work: There must not be a preventive war during the transition period when both states do not have nuclear weapons. Both states must develop an assured destruction potential (however defined) and a secure retaliatory capability. Nuclear arsenals must not be prone to

accidental or unauthorized use (p. 51). In each case, the neorealist assumption is shown to be in error.Pure rationality is not possible, argues Sagan, for at least a couple of reasons: "First, large organizations function within a severely 'bounded,' or limited, form of rationality: they have inherent limits on calculation and coordination and use simplifying mechanisms to understand and respond to uncertainty in the outside world." Because of that, organizations develop rules and procedures to assist in making decisions. Rather than search for the most "rational" decision, then, organizations more often take the first option that is minimally satisfying. "Second, complex organizations commonly have multiple, conflicting goals, and the process by which objectives are chosen and pursued is intensely political" (pp. 52-53). As a result, rather than being completely subordinated to higher authorities, many organizations compete for preeminence in the policy process, often defying authority for long periods of time.


Congress cp

Explanation The net benefit is reverse politics (CIR will pass, cp drains capital, CIR is bad), the court doesn’t link to politics and when the court and congress act at the same time the court shields the link, which means only the cp can derail immigration reform, which you say is a good thing. Assemble---get a will pass uniqueness card, a link card, and pick a reason CIR is bad from the impact turn file.

1NC---Congress The legislative branch of the United States federal government should remove the economic embargo on Cuba. The counterplan is legitimate, tests the agent of the 1AC. Congress solves the Aff better Benjamin Manchak Spring 10 Staff Writer, Boston College Third World Law Journal, “Comprehensive Economic Sanctions, The Right To Development, And Constitutionally Impermissible Violations Of International Law,” 30 B.C. Third World L.J. 417

Congress’s capacity to bring the embargo on Cuba back onto ¶ sound constitutional footing, by ensuring its conformity with international law, far exceeds that of the other branches.139 While the regulations promulgated by the executive certainly play a significant role in ¶ stifling economic development in Cuba, the president’s authority to ¶ carry out the embargo is derived entirely from legislative enactments.140 Likewise, the judiciary is limited in its ability to alter fundamentally the nature of U.S. policy toward Cuba both by its own prudential concerns about non-justiciable political questions and the ¶ constitutional constraints on jurisdiction.141 For both constitutional and ¶ practical reasons, then, the prospective constitutionality of the embargo ¶ rests in the hands of Congress.142 Especially in situations where, as here, congress is the only branch ¶ of government practically capable of upholding the Constitution, it ¶ cannot shirk this solemn responsibility.143 If the ultimate goal is to “constitutionalize” what is otherwise a constitutionally impermissible breach ¶ of international law, Congress has two options, both of which require a ¶ genuine appreciation for the role of international law in the constitutional framework.144¶ Congress’s first option

involves duly recognizing the right to development as a legitimate norm of international law, conceding that the ¶ right conflicts directly with federal law, and resolving the conflict by ¶ passing new legislation unequivocally rejecting the norm under the ¶ Charming Betsy canon.145 Where, as here, the development of an international legal norm postdates a federal legislative enactment, that rule requires a clear statement from Congress that it specifically intends to contravene an international legal norm.

Ext---Congress Solves Congress solves best—comparative Benjamin Manchak Spring 10 Staff Writer, Boston College Third World Law Journal, “Comprehensive Economic Sanctions, The Right To Development, And Constitutionally Impermissible Violations Of International Law,” 30 B.C. Third World L.J. 417

Although both the executive and the judiciary can play a role in ¶ constitutionalizing the blockade, it is the U.S. Congress that possesses ¶ the greatest power to square federal enactments with international law. ¶ The legislature can accomplish this either by passing new legislation ¶ stating the United States’s intentions to flout international legal norms, ¶ or repealing altogether the legislative enactments giving force to the ¶ embargo. If the United States values its reputation as an advocate of ¶ human rights and the rule of law in the international sphere, the ¶ choice between these two options is obvious.

I-Law bad

Heg International law checks US power—most effective way Rivkin 2k—Partner @ Baker & Hostetler LLP [David, “The Rocky Shoals of International Law”, [] The impetus for extending the reach of international law stems from both our allies and our adversaries, who have chosen to use it as a means to check, or at least harness, American power. While each group has different strategic goals, from the perspective of both, the great "problem" of international affairs in the post-Cold War world is the unchallenged military, diplomatic, economic and even cultural predominance of the United States. Our global antagonists, particularly China, would like to see the United States disengage from world affairs. For our allies, who continue to depend far too much on U.S. military might to wish for a new American isolationism, the great danger has become American "unilateralism"—an all-purpose term for U.S. action not sanctioned by the "international community." They do not want to prevent U.S. global engagement; they want to influence and control it.¶ Both our allies and our adversaries understand the value of international law in achieving their ends. Law and its rhetoric have always played a far more important role in the United States than in almost any other country. We are a nation bound together not by ties of blood or religion, but by paper and ink. The Declaration of Independence itself was, at its heart, an appeal to law—the laws of nature and of nature’s God—to justify an act of rebellion against the British Crown. As Alexis de Tocqueville wrote in the early days of the American republic: "[t]he influence of legal habits [in the United States] extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings." Tocqueville was clearly prescient. Today almost every key policy issue in the United States is framed as a legal question. Law is our genius and our Achilles’ Heel. If the trends of international law in the 1990s are allowed to mature into binding rules, international law may prove to be one of the most potent weapons ever deployed against the United States.

Ext---heg New international law undermines US hegemony Rivkin 2k—Partner @ Baker & Hostetler LLP [David, “The Rocky Shoals of International Law”, [] Second, as a practical matter, the new international law has the potential to undermine American leadership in the post-Cold War global system. Even more fundamentally, international law may well make the world safe for aggression, by imposing undue constraints on those countries that are willing to use force to deter and punish it. Although, as noted above, the new international law has a number of manifestations, those elements dealing with the use of military force, and the potential consequences for individual American officials who order or implement its use, are the most advanced and pernicious. As the world’s pre-eminent military power, with global interests and responsibilities, the United States should be very concerned about any effort to create international judicial institutions capable of prosecuting individual soldiers, officers and elected officials in the chain of command.

More ev—undermines hegemony Rivkin 2k—Partner @ Baker & Hostetler LLP [David, “The Rocky Shoals of International Law”, [] This is, in fact, a crime that can be tailored to fit almost any circumstances, as was all but openly acknowledged by the prosecutor’s office of the Yugoslav tribunal during its investigation of alleged NATO war crimes. This investigation was undertaken after a number of NGOs complained that nato’s 1999 air campaign against Serbia resulted in too many civilian deaths. As candidly noted in the report to the prosecutor, "[t]he answers to these questions [regarding allegedly excessive civilian casualties] are not simple. It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision-maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases." The key underlying problem here is that injuries to noncombatants and their property—so-called "collateral damage"—are an endemic consequence of combat. As a result, the traditional law of war, jus in bello, although proscribing certain hostile actions toward civilians, eschewed overly rigid rules on collateral damage. Unfortunately, instead of continuing to rely on the broad, traditional jus in bello principles of proportionality and discrimination, the new norms have come to resemble American domestic regulatory law. These rules are overly prescriptive and proscriptive, to such an extent that ensuring full compliance has become almost impossible. This is particularly the case because the new international law seems to suggest that zero civilian casualties and no collateral damage are not only attainable outcomes in modern combat, but that these should be the norm. The combination of the unrealistic norms and unaccountable judicial bodies that would apply them is particularly problematic. The American military is particularly vulnerable here. This is because U.S. military doctrine has always been attrition-oriented, emphasizing the intensive application of firepower and the use of "decisive force." It is inevitable that damage to civilian sites, and civilian casualties, will result. This is all the more likely given the growing American aversion to combat casualties, which forces our military commanders to rely more and more on air strikes and missile attacks. This raises the real possibility that American soldiers and officials will be considered subject

to prosecution, even in situations where the intervention has been "humanitarian" in character, as with the air campaign against Serbia. . . . US hegemony cannot exist under international law State Theory 9/2/12, aiming at discovering and dissemination of the true nature of the State as of social phenomenon - what the State is, what it can and cannot do and what interests are underlying its each and every action [] International law as well as any other law is based solely on the balance of power and if it is not reflecting or not following the power balance it is becoming non-operational right away. There are no any laws without their foundation on the balance of power. Law, which does not reflect the balance of power is merely a proclamation of principle or rather a fantasy, simply because nobody is there to punish the lawbreaker for incompliance. There is an even stronger issue, which is undermining modern international law. Modern international law is based upon a sovereignty of the States; i.e. subjects of the law are States. State generally has no any intrinsic value, while particular individuals have it all. It is mainly a low level of social and human development enhanced by egocentric financial interests of the top level state bureaucracies what generates worship of the State and patriotism generally for that matter. There is a great deal of inconsistency in the very basis of international law, especially with the majority of countries in the world being based on the governance system of dictatorship. While international law and international organizations normally are not only going blind on this matter, but are actually supporting dictatorial regimes of low social value both politically and through the means of international aid. Military combat of every dictatorship is probably not a solution. However, it is obvious that international order based upon the sovereignty of nations is defected in its foundations.In the late history international law and international organizations are presented to the people as a kind of opposition to international hegemony of one separately taken superpower and recently particularly to the world hegemony of United States (even though European Union is already more colossal in all the dimensions). Such a thesis is understandable when expressed by the state leaders living up to a variety of material and non-material benefits coming from the State power, but it is quite strange to hear from common people.

Death Penalty Plan results in death penalty repeal—it violates ilaw Amnesty International 2008 (Cites measures from 2008), “Death Penalty in International Law”; [] The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in December 1948, recognizes each person’s right to life. It categorically states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). In Amnesty International’s view, the death penalty violates these rights.¶ The community of states has adopted four international treaties specifically providing for the abolition of the death penalty. Through the years, several UN bodies discussed and adopted measures to support the call for the worldwide abolition of the death penalty.¶ In December 2007 and 2008 the United Nations General Assembly (UNGA) adopted resolutions 62/149 and 63/168, calling for a moratorium on the use of the death penalty. Since then, other regional bodies or civil society coalitions adopted resolutions and declarations advocating for a moratorium on executions as a step towards global abolition of the death penalty.¶ These resolutions are not legally binding on governments, but represent important milestones for the abolitionist movement and constitute a continued progress towards the total exclusion of capital punishment from International Law.

The death penalty is key to nuclear deterrence Tung Yin 3, Associate Professor, University of Iowa College of Law; J.D., 1995, University of California, Berkeley (Boalt Hall); M.J., 1992, University of California, Berkeley; B.S., 1988, California Institute of Technology. Disposable Deontology: The Death Penalty and Nuclear Deterrence. Alabama Law Review. A more internally consistent position that the French and British might take is that their threat to retaliate against any massive strike is just a "bluff" and that if it came down to it, they would not launch their nuclear weapons in acts of sheer retribution. Therefore, they might argue that they are morally superior to the United States because for the United States, capital punishment is not a "bluff." n163¶ Of course, they could never justify the seeming inconsistency between nuclear deterrence and the deontological position on the death penalty by admitting publicly that they would never launch in retaliation. The last thing that a nuclear power engaged in the game of nuclear deterrence wants to do is to give its nuclear adversary a reason to doubt its credibility. One commentator, in opining that MAD violates international law due to the targeting of civilians, admitted that a nuclear power openly agreeing with such a view might negatively impact its own nuclear credibility. ¶ Still, the French and British might rationalize the inconsistency to themselves by resting on the "bluff" theory. This seems like a very slender reed upon which to support a weighty point. One commentator rejects the "bluff" theory of nuclear deterrence on the ground that it would not be possible to maintain such a bluff in an open society, and once a nuclear adversary [*137] learned that the nuclear deterrent threat was just a bluff, the threat would cease to be credible. Thus, he concludes that "this approach will not salvage our deterrence practices." ¶ Other scholars who have devoted considerable attention to studying nuclear deterrence have also rejected the "bluff" theory. Although acknowledging that there is no way to confirm or refute the "bluff" theory, John Finnis argues that it is "highly implausible," as it would require far too many people over different administrations to conspire indefinitely to keep the secret. Given human nature, he finds it incredible that the strategy would have succeeded. Moreover, if the bluff were confined to some inner circle of highly placed government officials, then the persons lower in the chain of command would themselves have to have the conditional intent to launch the nuclear n164




weapons if ordered. Finnis argues that "those who deliberately bring others to will what is evil make themselves guilty, not only of the evil the others will, but also of leading them to become persons of evil will." ¶ A final problem with the "bluff" theory is that it assumes an absolute, unified chain of command, such that the decision of whether to retaliate always rests entirely with one leader or the inner circle. This is not an accurate description of reality. In the United States, for example, the SIOP allows military commanders to launch nuclear weapons on their own initiative if they conclude that the chain of command has been decapitated by a crippling strike; thus, "destruction or silencing of the [National Command Authority] blows away the safety-catch" and could override the hypothesized bluff. Without such a similar provision--allowing military commanders to launch without the authorization of a political leader in certain circumstances--the French or British bluff would not be credible. Thus, even if the French or British leaders were bluffing, the very fact of establishing a credible threat requires the establishing of a process where the decision of whether to launch/retaliate could be taken away from the leaders [*138] and reposed in the hands of military commanders who presumably are not let in on the bluff. ¶ As an aside, notice that the United States' bloodlust for the death penalty may have the curious side effect of bolstering the credibility of the threat of American nuclear deterrence. Given that the death penalty has not been demonstrated to have a deterrent effect, it obviously has no meaningful rehabilitative potential, and it costs more to implement than life imprisonment, what emerges is that Americans are willing to pay a premium to exact retribution. If that is so, then any nuclear adversary of the United States must take into account the retributive character of Americans in deciding whether American nuclear deterrence is just a "bluff." n170





Credible nuclear deterrence solves extinction Mark Schneider 8, Senior Analyst with the National Institute for Public Policy, Ph.D in history at the University of Southern California and JD from George Washington University, former senior officer in the DoD in positions relating to arms control and nuclear weapons policy. “The Future of the U.S. Nuclear Deterrent,” Comparative Strategy 27.4, Today, the United States, the world's only superpower with global responsibilities, is the only nuclear weapons state that is seriously debating (admittedly largely inside the beltway) about whether the United States should retain a nuclear deterrent. By contrast, the British Labour Government has decided to retain and modernize its nuclear deterrent. In every other nuclear weapons state—Russia, China, France, India, Pakistan, and allegedly Israel—there is general acceptance of the need for a nuclear deterrent and its modernization. Amazingly, the United States is the only nuclear-armed nation that is not modernizing its nuclear deterrent. Distinguished former leaders such a George P. Shultz, William J. Perry, Henry A. Kissinger, and Sam Nunn, despite the manifest failure of arms control to constrain the weapons of mass destruction (WMD) threat, call for “A world free of Nuclear Weapons” because “… the United States can address almost all of its military objectives by non-nuclear means.”1 This view ignores the monumental verification problems involved and the military implication of different types of WMD—chemical and biological (CBW) attack, including the advanced agents now available to potential enemies of the United States and our allies. A U.S. nuclear deterrent is necessary to address existing threats to the very survival of the U.S., its allies, and its armed forces if they are subject to an attack using WMD. As former Secretary of Defense Harold Brown and former Deputy Secretary of Defense John Deutch wrote in The Wall Street Journal, “However, the goal, even the aspirational goal, of eliminating all nuclear weapons is counterproductive. It will not advance substantive progress on nonproliferation; and it risks compromising the value that nuclear weapons continue to contribute, through deterrence, to U.S. security and international stability.”2 Why can't the United States deter WMD (nuclear, chemical, biological) attack with

conventional weapons can't deter a WMD attack because of their minuscule destructiveness compared with WMD, which are thousands to millions of times as lethal as conventional weapons. Existing WMD can kill millions to hundreds of millions of people in an hour, and there are national leaders who would use them against us if all they had to fear was a conventional response. The threat of nuclear electromagnetic pulse (EMP) attack, as conventional weapons? The short answer is that

assessed by a Congressional Commission in 2004, is so severe that one or at most a handful of EMP attacks could demolish industrial civilization in the United States.3 The view that

conventional weapons can replace nuclear weapons in deterrence or warfighting against a state using WMD is not technically supportable. Precision-guided conventional weapons are fine substitutes for non-precision weapons, but they do not remotely possess the lethality of WMD warheads. Moreover, their effectiveness in some cases can be seriously degraded by countermeasures and they clearly are not effective against most hard and deeply buried facilities that are associated with WMD threats and national leadership protection. If deterrence of WMD

Are there actual existing threats to the survival of the United States? The answer is unquestionably “yes.” Both Russia and China have the nuclear potential to destroy the United States (and our allies) and are modernizing their forces with attack fails, conventional weapons are unlikely to terminate adversary WMD attacks upon us and our allies or to deter escalation.

the objective of targeting the United States.4 China is also increasing the number of its nuclear weapons.5 Russia is moving away from democracy, and China remains a Communist

hostile dictatorships—North Korea, Iran, and possibly Syria—have or are developing longer-range missiles, as well as chemical, biological, and nuclear weapons .6 They already have the ability to launch dictatorship. A number of

devastating WMD attacks against our allies and our forward deployed forces, and in time may acquire capabilities against the United States. Iran will probably have nuclear weapons within approximately 2 to 5 years.7 The United States already faces a chemical and biological weapons threat despite arms control prohibitions. Due to arms control, we do not have an in-kind deterrent. Both Iranian and Syria acquisition of nuclear weapons could be affected by sales from North Korea, which have been reported in the press.8 International law contains a large number of obligations relevant

Case Defense

Courts Not Key To International Law Courts don’t matter in developing ILAW—no signal Walt 12 (Steven D. Walt, University of Virginia School of Law, “Why Jurisprudence Doesn't Matter for Customary International Law-- Virginia Public Law and Legal Theory Research Paper--No. 2012-36,” June 9, 2012, It is often thought that the judicial recognition of customary international law depends on jurisprudential assumptions about the nature of legal norms, law, and legal validity. This is a mistake. The limits on a judicial reliance on customary international law are constitutional or evidentiary, not jurisprudential. Although Erie Railroad Co. v. Tompkins fairly can be read to require domestic authorization for customary international law to have domestic legal effect, the case and its reasoning do not rely on commitments to a theory of law. Acceptance of the claims of legal positivism is neither necessary nor sufficient for Erie’s result, nor for its application to customary international law. In fact, reliance on positivism has an unwelcome consequence for the legally binding character of customary international law even on states. Finally, the same conception of law or legal validity can ground different views about the relation between international and domestic law. Positions on the priority of customary international law are determined by views about that relation, not by views on the source of its authority.

Taken together, these considerations suggest that jurisprudence isn’t needed to answer the questions that courts and

legal authorities ask about customary international law's content, the legal obligations it creates, and its domestic legal effect.

ILAW doesn’t spill over to other global problems—no influence Navin 08 (Mark Navin, University of Pennsylvania, “Why international economic inequality doesn't matter,” January 1, 2008, Abstract I

do not believe that international inequalities of wealth and income, as such, are a concern of liberal

justice. Everyone in the world has a right to live in a just society. Every society in the world has a right to relate to other societies on terms of equal respect. However, worldwide domestic justice and international relations of equal respect do not require an ongoing regulation of international inequalities of wealth and income. ^ I argue that prominent justifications for concern about international inequalities of wealth and income are not well grounded. First, contra the expectations of many philosophers, it is not possible to appropriate the work of John Rawls in defense of the thesis that international economic inequalities are unjust. Second, it is not possible to ground international economic egalitarianism in the idea, now prominent in political philosophy, that it is unjust for persons to experience disadvantages due to circumstances outside of their control. ^ Importantly, my rejection of international economic egalitarianism does not denote my acceptance of the status quo. I argue that a robust duty of international assistance is a necessary component of any theory of global economic justice. I argue that we can turn to contractarian political theory to explain why international assistance demands that relatively wealthy nations contribute more assistance than they currently do. I defend this claim by showing that the parties to Rawls's international original position would choose a demanding principle of international assistance.

Disease Defense Disease can’t spread enough to cause extinction Peters & Chrystal 03 (Dr. Clarence Peters, director of biodefense and Emerging Infectious Diseases, and Dr. Ronald Chrystal, chairman of Genetics Medicine at Cornell, FDCH Political Transcripts, “U.S. REPRESENTATIVE CHRISTOPHER COX (R-CA) HOLDS HEARING ON COUNTERING THE BIOTERRORISM THREAT,” March 15, 2003, Lexis Nexis//MRG) PETERS: I think we have one

example from the movement of the Conquistadors to the New World. They brought

measles, smallpox and a variety of other diseases with them. They didn't wipe out the Indians, but they destroyed their civilization and were instrumental in the Spaniards being able to conquer the New World with relatively few people. I think we have something going on right now with SARS that we don't know exactly what the end of it's going to be, but we already know that Asian economies are suffering tremendously. My prediction is that they will not be able to control it in China. If that's true, then we will be dealing with repeated introductions in this country for the indefinite future so that we may see a change in our way of life where we are taking temperatures in airports, in addition to taking your shoes off and putting them through the X-ray machine. And we may see emergency rooms rebuilt so that if you have a cough you go in one entrance and go into a negative pressure cubicle until your SARS test comes back. So I think that while wiping

out human life is extremely unlikely, we have unengineered examples of bugs that have made great impacts on civilizations. COX: Dr. Crystal? CRYSTAL: The natural examples of what you suggested were, as hundreds of years ago, with smallpox and also with the plague. The plague wiped out one-third of the civilization. We now have treatments for ordinances (ph) like the plague because they were engineered to be resistant. And if they infected a number of people and had the capability of being spread rapidly from individual to individual, it would cause enormous havoc. I agree with the panel --I don't think it would wipe out civilization, but the consequences to our society would be enormous.

No impact to disease – they either burn out or don’t spread Posner 05 (Richard A Posner, judge on the U.S. Court of Appeals, Seventh Circuit, and senior lecturer at the University of Chicago Law School, “Catastrophe: the dozen most significant catastrophic risks and what we can do about them,” winter 2005, ct+that+Homo+sapiens+has+managed+to+survive+every+disease+to+assail+it+in+the+2 00,000+years+or+so+of+its+existence+is+a+source+of+genuine+comfort&source=bl&ot s=3C2aKcGikI&sig=E8z5i2W4TeFiIMEf24BlfH2H2UA&hl=en&sa=X&ei=55L8Ub2ZGMqFyQ H2qICIBw&ved=0CC8Q6AEwAA#v=onepage&q=Yet%20the%20fact%20that%20Homo%2 0sapiens%20has%20managed%20to%20survive%20every%20disease%20to%20assail%2 0it%20in%20the%20200%2C000%20years%20or%20so%20of%20its%20existence%20is %20a%20source%20of%20genuine%20comfort&f=false//MRG) Yet the

fact that Homo sapiens has managed to survive every disease to assail it in the 200,000 years or so of its existence is a source of genuine comfort, at least if the focus is on extinction events. There have been enormously destructive plagues, such as the Black Death, smallpox, and now AIDS, but none has come close to destroying the entire human race. There is a biological reason. Natural selection favors germs of limited lethality; they are fitter in an evolutionary sense because their genes are more likely to be spread if the germs do not kill their hosts too quickly. The AIDS virus is an example of a lethal virus, wholly natural, that by lying dormant yet infectious in its host for years maximizes its spread. Yet there is no danger that AIDS will destroy the entire human race. The likelihood of a natural pandemic that would cause the extinction of the human race is probably even less today than in the past (except in prehistoric times, when people lived in small, scattered bands, which would have limited the spread of disease), despite wider human contacts that make it more difficult to localize an infectious disease. The reason is

improvements in medical science. But the comfort is a small one. Pandemics can still impose enormous losses and resist prevention and cure: the lesson of the AIDS pandemic. And there is always a lust time.

Diseases will not spread to mass amounts of people Davidson 01 (Keay Davidson, The Chronicle science journalist, "Compassionate parasite Microscopic creatures could kill host quickly, but that might threaten their own survival," April 23, 2001, Classic problem' of evolution. For decades, evolutionary biologists speculated that

if a species of

pathogen is to survive, it should wreak only so much infectious havoc, and no more. It is "a classic problem" of

evolution, said famed evolutionary biologist Stephen Jay Gould of Harvard University. "You wonder, `Why would anything limit its own capacity to do what it's doing?'" Gould said. "And the obvious Darwinian answer is: If it kills its host, it

(ultimately) kills itself - and that's not to its advantage." Although this theory of pathogenic self-control is supported by observations of the spread of infectious organisms, direct evidence has remained elusive. And no one knew exactly how a microbe might short-circuit its own proliferation - until now.

Extinction unlikely, the disease will burn out before any major impacts UE 07 (Understanding Evolution, UC Berkeley, "Evolution from a virus's view," December 2007, Since transmission is a matter of life or death for pathogen lineages, some evolutionary biologists have focused on this as the key to understanding why some have evolved into killers and others cause no worse than the sniffles. The idea is that there may be an evolutionary trade-off between virulence and transmission. Consider a virus that exploits its human host more than most and so produces more offspring than most. This virus does a lot of damage to the host— in other words, is highly virulent. From the virus's perspective, this would, at first, seem like a good thing; extra resources mean extra offspring, which generally means high evolutionary fitness. However, if the viral reproduction completely incapacitates the host, the whole strategy could backfire: the illness might prevent the host from going out and coming into contact with new hosts that the virus could jump to. A victim of its own success, the viral lineage could go extinct and become an evolutionary dead end. This level of virulence is clearly not a good thing from the virus's perspective.

Environment Defense The risk of environmental collapse has decreased over the past decade—no risk of the impact Lomborg 13 (Bjørn Lomborg, author of The Skeptical Environmentalist and Cool It, subject of the film Cool It, director of the Copenhagen Consensus Center, and adjunct professor at Copenhagen Business School, “Obsessing over doom-and-gloom scenarios distracts us from real global threats,” June 26, 2013, ogical_collapse_is_not_upon_us_and_we_haven_t_run_out.html//MRG) We often hear how the world as we know it will end, usually through ecological collapse. Indeed, more than 40 years after the Club of Rome released the mother of all apocalyptic forecasts, The Limits to Growth, its basic ideas are still with us. But time has not been kind. The

Limits to Growth warned humanity in 1972 that devastating collapse was just around the corner. But, while we have seen financial panics since then, there have been no real shortages or productive breakdowns. Instead, the resources generated by human ingenuity remain far ahead of human consumption. But the report’s fundamental legacy remains: We have inherited a tendency to obsess over misguided remedies for largely trivial problems, while often ignoring big problems and sensible remedies. In the early 1970s, the flush of technological optimism was over, the Vietnam War was a disaster, societies were in turmoil, and economies were stagnating. Rachel Carson’s 1962 book Silent Spring had raised fears about pollution and launched the modern environmental movement; Paul Ehrlich’s 1968 title The Population Bomb said it all. The first Earth Day, in 1970, was deeply pessimistic. The genius of The Limits to Growth was to fuse these worries with fears of running out of stuff. We were doomed, because too many people would consume too much. Even if our ingenuity bought us some time, we would end up killing the planet and ourselves with pollution. The only hope was to stop economic growth itself, cut consumption, recycle, and force people to have fewer children, stabilizing society at a significantly poorer level. That

message still resonates today, though it was spectacularly wrong. For example, the authors of The Limits to Growth predicted that before 2013, the world would have run out of aluminum, copper, gold, lead, mercury, molybdenum, natural gas, oil, silver, tin, tungsten, and zinc. Instead, despite recent increases, commodity prices have generally fallen to about a third of their level 150 years ago. Technological innovations have replaced mercury in batteries, dental fillings, and thermometers: Mercury consumption is down 98 percent and, by 2000, the price was down 90 percent. More broadly, since 1946, supplies of copper, aluminum, iron, and zinc have outstripped consumption, owing to the discovery of additional reserves and new technologies to extract them economically. Similarly,

oil and natural gas were to run out in 1990 and 1992, respectively; today, reserves of both are larger than they were in 1970, although we consume dramatically more. Within the past six years, shale gas alone has doubled potential gas resources in the United States and halved the price. As for economic collapse, the Intergovernmental Panel on Climate Change estimates that global GDP per capita will increase 14-fold over this century and 24-fold in the developing world. The

Limits of Growth got it so wrong because its authors overlooked the greatest resource of all: our own resourcefulness. Population growth has been slowing since the late 1960s. Food supply has not collapsed (1.5 billion hectares of arable land are being used, but another 2.7 billion hectares are in reserve). Malnourishment has dropped by more than half, from 35 percent of the world’s population to under 16 percent. Nor are we choking on pollution. Whereas the Club of Rome imagined an idyllic past with no particulate air pollution and happy farmers, and a future strangled by belching smokestacks, reality is entirely the reverse. In 1900, when the global human population was 1.5 billion, almost 3 million people – roughly one in 500—died each year from air pollution, mostly from wretched indoor air. Today, the risk has receded to one death per 2,000 people. While pollution still kills more people than malaria does, the mortality rate is falling, not rising. Nonetheless, the mindset nurtured by The Limits to Growth continues to shape popular and elite thinking. Consider recycling, which is often just a feel-good gesture with little environmental benefit and significant cost. Paper, for example, typically comes from sustainable forests, not rainforests. The processing and government subsidies associated with recycling yield lower-quality paper to save a resource that is not threatened. Likewise, fears of overpopulation framed self-destructive policies, such as China’s one-child policy and forced sterilization in India. And, while pesticides and other pollutants were seen to kill off perhaps half of humanity, well-regulated pesticides cause about 20 deaths each year in the U.S., whereas they have significant upsides in creating cheaper and more plentiful food. Indeed, reliance solely on organic farming—a movement inspired by the pesticide fear—would cost more than $100 billion annually in the U.S. At 16 percent lower efficiency, current output would require another 65 million acres of farmland—an area more than half the size of California. Higher prices would reduce consumption of fruits and vegetables, causing myriad adverse health effects (including tens of thousands of additional cancer deaths per year). Obsession


doom-and-gloom scenarios distracts us from the real global threats. Poverty is one of the greatest killers of all, while easily curable diseases still claim 15 million lives every year–25 percent of all deaths. The solution is economic growth. When lifted out of poverty, most people can afford to avoid infectious diseases. China has pulled more than 680 million people out of poverty in the last three decades, leading a worldwide poverty decline of almost 1 billion people. This has created massive improvements in health, longevity, and quality of life.

No impact to warming—their authors are politically motivated CC 11 (Creation Concepts, “Environmental collapse is not happening Refuting false environmental Claims,” November 18, 2011, This may seem very strange considering the steady diet of environmental gloom-and-doom which has issued from the media and the mouths of politicians since about 1970. However, when there

is such a discrepancy between public pronouncements and scientific reality, one ought to begin questioning the real motives behind the distortion. Indeed, there are a number of motivations for deceptive scaremongering about the environment, all of which have been publicly acknowledged by various environmental activists. Some of this documentation is presented at the end of this article. These include (1) the fact that bad news "sells" better than good news; (2) a belief that the randomness of evolution means the future is unpredictable and that we must try to control it; (3) the rise in contributions to environmental activist groups when the public is scared that the environment is collapsing; (4) the rise in corporate profits when an old, lowprofit-margin product is phased out "to protect the environment," only to be replaced by a substitute (often legally mandated) with a much higher profit margin; (5) the increased poverty and resulting higher mortality rates brought to third world countries as part of the UN environmental and population control agenda; (6) the rationale provided by "environmental crises" for higher taxes and more government agencies to deal with the "crises," thus accelerating the drive toward "Big Brother" government; (7) a rationale for reestablishing pagan earth worship, now heavily promoted by the UN. In short, the

environmental movement furthers the agendas of virtually every segment of the power elite, including the media moguls, the evolutionary community, environmental activist groups, megacorporations, the UN and other population control activists, big government promoters, and the neo=pagans. All of these circles of power are much larger and much more entrenched than is generally realized. It is no wonder therefore that global environmental collapse is continuously predicted regardless of the massive amounts of data demonstrating that God is really taking care of His earth after all! I. There

Is No Manmade Global Warming. The linchpin of the environmental movement is the false claim that there is a global temperature rise that will eventually cause the entire environment to collapse. To prevent this catastrophe, we are told, we must reduce our standard of living and allow the governments of the world to extract huge amounts of tax monies to fight the crisis. However - THERE IS NO MANMADE GLOBAL WARMING

"The Northern Hemisphere ... shows no net warming in the past 55 years."1 This is significant, because the Northern Hemisphere is where virtually all human population and industrial activity is located. Indeed - "One of the arguments commonly heard ... is that `all scientists agree the greenhouse effect is real' followed by the observation that `the six warmest years in the record are all in the past decade.' An interesting response can usually be elicited by asking, `How warm were those years in the 1980s?' The commo fact, most apocalyptics are incredulous when they learn that there has been so little warming and that the Greenland ice sheet - the largest glacier in the Northern Hemisphere - is growing. . . . Given that minuscule warming, we must ask ... "[Is there] a deliberate attempt to mislead?"2

Bioweapons Defense Biological weapons not deadly HSC 03 (The Henry L. Stimson Center, Biological and Chemical Weapons, “Frequently Asked Question: Likelihood of Terrorists Acquiring and Using Chemical or Biological Weapons,” September 18, 2003, Have terrorists been actively seeking chemical and biological weapons capabilities? If so, what have they been doing with them? There

have been reports in the media that a handful of terrorist organizations have been exploring chemical and biological weapons. However, for the reasons discussed above, the technical hurdles to actually developing an effective large-scale chemical or biological weapons program---as opposed to investigating or experimenting with them---may well turn out to be so sizeable that terrorists would choose to remain reliant on more conventional means. The Japanese cult Aum Shinrikyo was brimming with highly educated scientists, yet the cult's biological weapons program turned out to be a lemon. While its poison gas program certainly made more headway, it was rife with life-threatening production and dissemination accidents. After all of Aum's extensive financial and intellectual investment, the Tokyo subway attack killed a dozen people, seriously injured just over fifty more, and mildly injured just under 1,000. In 96 percent of the cases worldwide where chemical or biological substances have been used since 1975, three or fewer people were injured or killed.

Courts Link to Politics

Courts Don’t Link To Politics---2AC Court action provides political cover for Obama to deflect controversy Pacelle, Prof-Political Science-Georgia Southern, 2002 (Richard L., Prof of Poli Sci @ Georgia Southern University, The Role of the Supreme Court in American Politics: The Least Dangerous Branch? 2002 p 175-6) The limitations on the Court are not as significant as they once seemed. They constrain the Court, but the boundaries of those constraints are very broad. Justiciability is self-imposed and seems to be a function of the composition of the Court, rather than a philosophical position. Checks and balances are seldom successfully invoked against the judiciary, in part because the

Court has positive institutional resources to justify its decisions. The Supreme Court has a relatively high level of diffuse support that comes, in part, from a general lack of knowledge by the public and that contributes to its legitimacy.[6] The cloak of the Constitution and the symbolism attendant to the marble palace and the law contribute as well. As a result, presidents and Congress should pause before striking at the Court or refusing to follow its directives. Indeed, presidents and members of Congress can often use unpopular Court decisions as political cover. They cite the need to enforce or support such decisions even though they disagree with them. In the end, the institutional limitations do not mandate judicial restraint, but turn the focus to judicial capacity, the subject of the next chapter.

Ext---Courts Don’t Link---1AR Obama doesn’t get the blame for Court actions---healthcare proves Sanger-Katz 12 (Margot, healthcare correspondent for the National Journal, Poll: No Blame if Court Nixes Health Care Law, June 5, Even though President Obama

fought for passage of the landmark 2010 health care law, very small minorities say their attitudes about him would change one way or the other should the Supreme Court strike down the law that is so often referred to as “Obamacare.” Two-thirds of those surveyed in a new public-opinion poll said that their respect for Obama would be unchanged if the Supreme Court struck down his signature legislative achievement. Fourteen percent said they would respect Obama more under such a scenario, while 15 percent said they would respect him less. That trend was consistent across the political spectrum—similar proportions of Republicans, Democrats, and independents said they would be unmoved, despite the pundits’ speculation that a Court decision declaring the A ffordable C are A ct unconstitutional in part or in its entirety might alter public opinion toward the president. The nonplussed attitude also held across nearly all age, income, regional, and racial categories, with at least 60 percent of each surveyed group saying that the ruling would have no impact on their view of the president.

Court decisions shield presidents’ political capital Altmann 2007 (Jennifer Greenstein, assistant editor at the Princeton Weekly Bulletin, News At Princeton, In his new book, "Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court and Constitutional Leadership in U.S. History," Whittington

argues that in recent years the court has become the key player in an important political tussle: Who has the final say in constitutional matters? Whittington asserts that the court has become the final arbiter, but that status did not result from a power grab by the court. Its power, remarkably, has come from politicians, who have pushed onto the court the responsibility for making final rulings on constitutional matters because, paradoxically, it benefits the politicians. "Presidents are mostly deferential to the court," said Whittington. "They have pushed constitutional issues into the courts for resolution and encouraged others to do the same. That has led to an acceptance of the court's role in these issues." It seems counterintuitive that politicians would want to defer to the court on some of the most high-stakes decisions in government, but

Whittington has found that they do so because the court often rules in the ways that presidents want — and provides politicians with the political cover they need. In 1995, the Clinton administration faced a proposal from the Senate to regulate pornography on the Internet. The president thought the bill was unconstitutional, but he didn't want to risk appearing lenient on such a hot-button issue right before he was up for re-election, Whittington said. Clinton signed the legislation with the hope that the Supreme Court would strike it down as unconstitutional, which it later did.

Courts Don’t Shield The court will save capital by deferring to congress Frost 07 (Amanda, Assistant Professor of Law, American University Washington College of Law, The Article closes by discussing the problem of congressional inaction. If a court certified a question to Congress that Congress chose not to answer—a situation that might occur frequently—I contend that Congress’s ¶ silence would serve as an implicit delegation of legislative power to the ¶ courts. Judges could then engage in more freewheeling and creative reading of legislation than would be justified had Congress not first turned ¶ down the opportunity to amend ambiguous statutory language. Moreover, ¶ simply by

referring questions to Congress, judges will have bought themselves some political cover against charges of judicial activism for filling ¶ gaps and reconciling inconsistencies in ambiguous statutes. For that reason, ¶ the value of certification is two-fold: In some cases, Congress will step in ¶ to provide a legislative solution; in all the rest, Congress’s silence will empower courts to openly legislate rather than do so in the guise of “statutory ¶ construction,” as occurs now.

Courts Link to Politics SUPREME COURT DECISIONS CAUSE HUGE CONTROVERSY IN CONGRESS SUNSTEIN Prof Paw and Political Science – Chicago 10-2-2005 Confirmation hearings for the Supreme Court have long focused on a nominee's view of individual rights, above all the right to privacy. But we are suddenly in the midst of a major shift. The real importance of the Roberts hearings, and a harbinger of things to come, is that the senators focused less on individual rights than on the court's attitude toward Congress and its prerogatives. This was a dramatic change from the emphasis in the senators' questioning of the last six nominees, going all the way back to Robert Bork in 1987. Indeed, for the first time since the 1930s, prominent legislators are concerned about the suddenly tense relationship between the federal judiciary and Congress. Increasingly, lawmakers from both parties worry that the Supreme Court is restricting their authority -- that "strict construction" of the Constitution might make it more difficult for Congress to protect civil rights, safeguard the environment and prevent crime. At the same time, however, some legislators actually want the court to place further limits on the power of elected officials. These lawmakers want the court to protect property rights, to insist on states' rights, and to invalidate affirmative action programs and gun control legislation. Within the Republican Party itself, an intense debate is brewing on how to evaluate a more conservative court that seems more than willing to limit Congress's powers -- and on whether this assertiveness constitutes the kind of judicial activism that the party has long derided. The new tensions are best understood in historical terms. In the early years of Franklin Delano Roosevelt's presidency, the Supreme Court took a strong stand against congressional acts, producing a national debate about the government's power to respond to the Great Depression. In the late 1930s, the court capitulated, and it maintained a posture of extreme deference for decades. In the 1960s, under Chief Justice Earl Warren, the court was entirely willing to strike down legislation, but its most controversial decisions were aimed at state governments rather than Congress. In banning prayer in public schools, forbidding racial segregation, protecting privacy and requiring a rule of one person-one vote, the court was rarely invalidating decisions by the national legislature. The court remained highly deferential to Congress under Warren's successor, Chief Justice Warren Burger. It allowed Congress to impose affirmative action programs. It offered broad interpretations of national power to regulate interstate commerce and to enforce the constitutional amendments enacted after the Civil War, particularly the equal protection clause of the 14th Amendment. In the last two decades, under Chief Justice William Rehnquist, all this changed. The Rehnquist court struck down parts of more than three dozen acts of Congress, including provisions of the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Violence Against Women Act and the Religious Freedom Restoration Act. All had passed with strong bipartisan support from Congress. Moreover, the question of constitutional authority received serious attention in the legislature itself, which sometimes explored the legal issues in detail before passage. The independence of the three branches, a cornerstone of the Constitution, forbids Congress from quizzing the justices about their rulings. But judicial independence doesn't prohibit both Republican and Democratic lawmakers from developing a growing resentment about the court's many decisions invalidating their work. It has been 11 years since the last confirmation hearing for a Supreme Court nominee. So when Judge John Roberts appeared before the Senate Judiciary Committee as part of the process that led to his confirmation last week as the country's next chief justice, numerous senators seized the opportunity to express their displeasure. Emphasizing the court's decision to invalidate part of the Violence Against Women Act, Republican Arlen Specter of Pennsylvania referred to the "overwhelming factual record" that supported the conclusion that sex-related violence affected interstate commerce. Specter, the committee's chairman, complained that the court was treating Congress like "schoolchildren" and added that he and his colleagues "take umbrage at what the court has said." In an unnoticed, technical, but revealing exchange, Republican Charles E. Grassley of Iowa pressed Roberts to support the constitutionality of the qui tam statutes, which give ordinary citizens the right to go to federal court to recover funds on the government's behalf. Grassley emphasized the historical support for qui tam statutes and expressed concern that the Supreme Court might strike them down.

Many of the panel's Democrats spoke in identical terms. New York's Charles E. Schumer emphasized the need for judges to "respect" Congress. He asked Roberts to agree "that Congress deserves a great deal of deference when it decides something is commercial." Massachusetts's Edward Kennedy pressed Judge Roberts on voting rights -- not to support past judicial decisions protecting such rights, but to confirm that Congress has the authority to protect them. Vermont's Patrick Leahy, the panel's ranking Democrat, explored the need for courts to permit Congress to give ordinary citizens the right of access to federal courts.

EVERY SUPREME COURT RULING WILL CAUSE HUGE CONTROVERSY IN CONGRESS SUNSTEIN Prof Paw and Political Science – Chicago 10-2-2005 For example, Alabama's Jeff Sessions, a Republican, strenuously defended the court's efforts to limit Congress's power. He emphasized the risk of "federalizing too many crimes" and explicitly praised the "healthy trends in reestablishing that there's some limit to the reach of the commerce clause." And silence itself can be revealing. The Endangered Species Act has strong bipartisan support, but Republican senators pointedly declined to question Roberts about his controversial suggestion that the act might be unconstitutional as applied to wholly intrastate activity. For the last decade, the Rehnquist court resisted the effort to strengthen the protection given to private property against government "takings." Elected officials might be expected to approve of this form of judicial restraint, simply because it gives government more room to maneuver. But senators from both parties expressed concern, with Republican Sam Brownback of Kansas and Democrat Herb Kohl of Wisconsin arguing that the court should give greater protection to property rights. In particular, both senators objected to the court's recent ruling in Kelo v. City of New London, where the majority endorsed the local government's position that an urban redevelopment plan counts as a "public use" under the Fifth Amendment's "takings clause." Because a public use was involved, the locality was permitted to take private property (although it also had to pay full compensation to property owners for their loss of ownership). Kohl said that he was "quite disturbed by this ruling, which appears to place much private property at risk." His view was echoed by Brownback, who commented dryly that "it's much easier now for one man's home to become another man's castle." In an important exchange with Russell Feingold, another Wisconsin Democrat, Roberts indicated that the Second Amendment might contain an individual right to own guns -- a controversial suggestion that the Supreme Court has never embraced and that would impose new limits on the power of Congress. But many members of Congress are on record as accepting an individual right to own guns. They would welcome a Supreme Court ruling endorsing their position, even if it restricted the power of the national legislature in this area. The larger lesson is that in the last decade, the debate over the Supreme Court has been radically transformed. For the first time in 70 years, confirmation hearings are focusing on the question of whether the nominee is prepared to defer to the national legislature. And for the first time in the nation's history, the majority party in the U.S. Senate is sharply divided on the right answer to that question.

Liberal Decisions-GOP BL LIBERAL COURT DECISIONS CAUSE GOP BACKLASH NEWSWEEK 10-6-2005 In other words, Bush’s message to conservatives is “Trust me.” Yet, with the Miers nomination, Bush faces the same troubles he has on post-Katrina funding. Bush’s word, alone, no longer seems to be enough for some conservatives, who feel that the administration has burned them on fiscal issues, the war and by seemingly putting less effort into the fight on social issues like a ban on same-sex marriage. With some on the right already concerned about Chief Justice John Roberts’s conservative credentials, some predict a major backlash against Republicans in future elections if Bush’s court nominees turn out to be more liberal on the bench than predicted. “The only thing that has held the Bush coalition together has been judges,” says Paul Weyrich, head of the conservative Free Congress Foundation. “People would have left on account of the spending, immigration, the war, you name it. But they’ve held on because of judges, and if [Miers and Chief Justice Roberts] end up being something other than what the president has promised, we’ve got big, big problems.” While the president isn’t seeking re-election, he cannot afford to write off the party’s grass roots. With Congress stalled on much of his second-term policy agenda and his political capital in Washington lessening by the day, Bush likely will have to use the party’s grass roots to exert pressure on lawmakers to act on the proposals he hopes to push through before leaving the White House. Most notably, that list includes Social Security, the president’s top domestic agenda item, which has stalled in Congress. (On Tuesday, Bush dejectedly admitted that “there seems to be a diminished appetite” to reform the federal retirement plan.) More importantly, Bush needs Republicans in Congress to stick with him, both on Miers and on his overall agenda. It's a task made more difficult by the looming midterm elections and a presidential race in 2008.

DEVIATING FROM PRECEDENT CAUSES CONSERVATIVE BACKLASH AGAINST THE PRESIDENT AUSTRALIAN 10-29-2005 Conservative groups are now rallying around Bush, but they are warning the fight will be on again if Bush does not select a judicial candidate for the Supreme Court to their liking. "The President did the right thing in withdrawing her and saving her from further embarrassment. I now hope he'll deliver on his campaign commitment to pick a judge in the mould of [conservative judges Clarence] Thomas and [Antonin] Scalia," says Phyllis Schlafly, founder of the Eagle Forum, a conservative pro-family and anti-abortion group. Democrats claim Bush is being held hostage. Says Senate Democratic leader Harry Reid of Nevada: "The radical right wing of the Republican Party killed the Harriet Miers nomination."

LIBERAL DECISIONS CRACK THE BASE OF THE GOP****** DES MOINES REGISTER 10-6-2005 Much of the political fallout will depend on how Roberts and Miers rule in the coming year, movement leaders say. If the two turn out to be good social conservatives, these elements in the GOP will be energized. They'll see how their work in politics has paid dividends and will be inspired to do more. At the same time, those same rulings would also mobilize the left as these activists turn apoplectic over the loss of things like the right to an abortion. But what if Roberts or Miers turns out to be moderate and votes to uphold previous rulings affirming abortion or gay rights? Liberals would say "whew," but many social conservatives will walk away from the Republican Party, cracking the base of the GOP, say leaders. "If she turns out to be another Sandra Day O'Connor and votes for sodomy, for partial-birth abortion and to uphold Roe vs. Wade, you'll take the drain plug out of the conservative movement," said Chuck Hurley, a former Republican state legislator who heads the Iowa Family Policy Center.

"The horse would die. The Republican Party would be a minority party for 10 or 20 years. It would be that long before Christian conservatives picked up the flag again."

COURTS KEY TO GOP UNITY Lightman 10-28-2005 David-, Washington Bureau Chief, Hartford Courant, “For Bush, a Term for the Worse; A Troubled Presidency In Bush's case, conservatives see themselves as his most ardent supporters, providing a political base in the first term and turning out en masse to give him a second. Now they expect payoffs -- and so far in 2005 they are not satisfied. Exhibit A, conservatives say, is that they've pushed for sharp spending cuts and a lower deficit for some time, but spending keeps rising at record levels and deficits are at historic highs. Conservatives want Bush to use his political capital, said Michael Franc, vice president for government relations at Washington's Heritage Foundation. ``They feel he never has really used his clout to control spending,'' and now the Republican-dominated Congress is struggling to pass a budget package. Nothing matters to conservatives, though, like judgeships. Budget fights occur every year, but judges serve a lifetime. Some conservatives said Thursday they had successfully used their political firepower to block a flawed nominee. Earlier in the week, for example, Americans for Better Justice began an ad campaign urging Bush to pull the Miers nomination.

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