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Cuban Embargo Courts AFF Index
Cuban Embargo Courts AFF Index................................................................................................................. 1
Cuban Embargo Courts 1ac ........................................................................................................................... 4
2ac Blocks .................................................................................................................................................... 18
T Blocks—2ac .............................................................................................................................................. 19
AFF Answers—EE is not Quid Pro Quo................................................................................................ 20
1ar: Lifting the Embargo is Topical ..................................................................................................... 22
AT: Substantially Front-Line ................................................................................................................ 24
Theory Answers—2ac ................................................................................................................................. 25
AT: Test Case FIAT (Have to have a test case).................................................................................... 26
AT: Effects T—Court Mandates Then Congress Does ........................................................................ 27
AT: Over-spec ..................................................................................................................................... 29
AT: Ground Specification is Extra-Topical .......................................................................................... 30
Case Extensions—2ac ................................................................................................................................. 31
International Law Advantage Extensions ................................................................................................ 32
Explanation of Customary International Law...................................................................................... 33
AT: Court Uses International Law Now .............................................................................................. 35
Embargo Violates International Law—2ac Extensions ....................................................................... 38
International Law Solvency ................................................................................................................. 44
International Law is Modeled ............................................................................................................. 45
International Law Solves the Environment ......................................................................................... 46
International Law Solves Laundry List................................................................................................. 48
International Law Good: Solves War.................................................................................................. 50
International Law: Moral Obligation .................................................................................................. 52
International Law Counter-hegemonic ............................................................................................... 53
International Law Good: Human Rights ............................................................................................. 54
Right to Develop Advantage Extensions ................................................................................................. 55
Right to Development: 2ac Extensions .............................................................................................. 56
OAS Advantage Extensions...................................................................................................................... 60
Cuban Embargo violates OAS Charter................................................................................................. 61
OAS Impacts: Democracy ....................................................................................................................... 63
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OAS Impacts: Sexism .......................................................................................................................... 64
OAS Impacts: Narco-Trafficking ......................................................................................................... 65
OAS Solves Cross-Border Issues .......................................................................................................... 66
Harms 2ac Blocks..................................................................................................................................... 67
AT: Air Pollution Defense ................................................................................................................... 68
AT: Water Shortages Defense ............................................................................................................ 69
Water Shortages Impact Extensions ................................................................................................... 71
AT: Ozone Depletion Defense ............................................................................................................ 72
Terrorism Advantage Extension .......................................................................................................... 73
Solvency 2ac Blocks ................................................................................................................................. 74
AT: Rollback/Won’t Be Enforced ........................................................................................................ 75
Solvency: Lower Courts will follow .................................................................................................... 77
Solvency: Law Not Indeterminate ...................................................................................................... 78
Solvency: The Plan will Snowball ....................................................................................................... 79
Solvency: Supreme Court Decisions are Modeled ............................................................................. 80
Solvency: Court Creates Social Change .............................................................................................. 81
Solvency: Cuban Growth .................................................................................................................... 83
Solvency: Supreme Court can incorporate CIL ................................................................................... 84
Solvency: Courts are competent to apply CIL .................................................................................... 85
Solvency: Court has jurisdiction over embargo ................................................................................. 86
AT: Embargo Will Collapse Castro ...................................................................................................... 87
Bilateral Investment Treaty Solvency ................................................................................................. 88
Helms-Burton Plan .............................................................................................................................. 89
Add-Ons ................................................................................................................................................... 91
Human Rights Add-On......................................................................................................................... 92
Counterplan Answers.................................................................................................................................. 93
CONGRESS COUNTERPLAN AFF ANSWERS .............................................................................................. 94
1ar: PERMUTATION SOLVES BEST ...................................................................................................... 99
Humanitarian Counterplan Answers ..................................................................................................... 100
International Law Counterplans (Other than Embargo) ....................................................................... 102
Lower Courts CP Answers—2ac ............................................................................................................ 105
Lower Courts: Links to Legitimacy DA .............................................................................................. 109
1AR Lower Courts CP—Solvency Extensions .................................................................................... 110
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1ar: Solvency Extensions—No Trickle-Up ........................................................................................ 111
1ar—Lower Courts Won’t Incorporate I Law .................................................................................... 112
1ar Extensions: Roll Back.................................................................................................................. 113
1ar: Ext. Rule of Law DA ................................................................................................................... 114
State Courts CP Answers ....................................................................................................................... 115
CP Competing Off Plan Certainty 2ac .................................................................................................... 117
AT: Counterplans that don’t use the right to development ................................................................. 118
Disads 2ac Blocks ...................................................................................................................................... 120
Politics DA Answers ............................................................................................................................... 121
1ar: Politics: Decisions Announced in May ..................................................................................... 124
1ar: Blame Deflection....................................................................................................................... 125
1ar: Individual Decisions Don’t Matter ............................................................................................ 127
Activism/Judicial Minimalism Answers ................................................................................................. 128
Court Politics Answers—2ac.................................................................................................................. 131
Court Politics—Schuette Decision Answers ...................................................................................... 135
Court Politics Answers—AT: Readiness Impact ............................................................................... 136
1ar: Court Politics Answers—Conservatives Angry Now ................................................................. 137
1ar: Courts Politics Answers—No Spillover...................................................................................... 138
Court Stripping Answers ........................................................................................................................ 139
Hollow Hope DA Answers...................................................................................................................... 140
1ar: DOMA non-uniques the link ..................................................................................................... 143
1ar: Brown v. Board Proves—Court Creates Social Change............................................................. 144
1ar: Court Creates Social Change ..................................................................................................... 146
Legitimacy DA Answers ......................................................................................................................... 147
Legitimacy Impact Defense vs. Pres Powers Impact ......................................................................... 151
Legitimacy DA Answers—Extensions: Non-Unique ......................................................................... 152
Legitimacy DA Answers—Extensions: Controversial Decisions Help the Court ............................... 155
Legitimacy DA Answers—Individual Decisions Don’t Matter ........................................................... 156
Separation of Powers Answers.............................................................................................................. 158
SOP DA Answers—Political Question Doctrine Link Answers ........................................................... 162
Political Question Doctrine in the Supreme Court............................................................................ 163
DA’s are Non-Unique ............................................................................................................................. 165
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Cuban Embargo Courts 1ac
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Plan: The federal judiciary should strike down the Cuban embargo on the grounds
that it violates customary international law because it undermines Cuba’s right to
development.
Observation 1 is SOLVENCY:
(--) The Supreme Court should strike down all provisions of the Cuban embargo which
undermine Cuba’s right to develop:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
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 Supreme Court has the constitutional authority to strike down the Cuban
embargo:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
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
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(--) Other democracies will model the Supreme Court decision:
LUÍS ROBERTO BARROSO, 2012 (Professor of Constitutional Law, Rio de Janeiro State
University, Spring, 2012, Boston College International and Comparative Law Review, 35 B.C. Int'l
& Comp. L. Rev. 331, L/N, “HERE, THERE, AND EVERYWHERE: HUMAN DIGNITY IN
CONTEMPORARY LAW AND IN THE TRANSNATIONAL DISCOURSE,” rwg)
In recent years, constitutional and supreme courts all over the world have begun engaging in a
growing constitutional dialogue n88 involving mutual citation
and academic interchange n89 in public forums like the
Venice Commission. n90 Two factors contribute to the deepening of this dialogue. First, countries that are newcomers to the rule of law often
draw upon the experience of more seasoned democracies. In
the past several decades, waves of democratization have
spread across the world, including Europe in the 1970s (Greece, Portugal, and Spain), Latin America in the 1980s (Brazil, Chile, and
Argentina), and Eastern and Central Europe in the 1990s. n91
The U.S. Supreme Court , the German Constitutional Court, and
other similar national courts serve as significant role models for these new democracies. n92 Even though
the flow of ideas is primarily one directional, it is, as with any other exchange, a two-way street.
Advantage 1 is International Law
(--) The Cuban embargo violates international law because it undermines Cuba’s right
to development:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
Abstract: This
Comment examines the legality of the comprehensive unilateral embargo imposed by
the United States on Cuba within the frame-work of international law. It argues that, independent of its
humanitarian impact or the dubious legality of its extra-jurisdictional components, the comprehensive embargo violates
international law because it undermines Cuba's right to development. International law is, and has always
been, a component part of U.S. law-it is enforceable in U.S. courts, it informs judicial interpretation of U.S. statutes, and it guides
legislative and executive action in matters of both foreign and domestic policy. In addition to its supplementary interpretive function in our
legal system, international
law is, through the Supremacy Clause, binding on the United States as a constitutional
matter. Because of the role international law plays in the United States, a direct conflict between federal and international law is
constitutional anathema. This Comment argues that the tension must be resolved by reference to the substance and timing of the federal
enactments that violate international law. Thus, of the coordinate branches, the legislative branch is in the best position to correct the
constitutional imbalance. The Comment concludes that Congress must either pass new legislation explicitly renouncing the right to
development as an international legal norm, or, in light of the role of international law in our constitutional system, execute faithfully its duty to
interpret and uphold the Constitution by repealing the legislation that has created the decades-old embargo.
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(--) Even the most restrictive interpretation of international law would deem the
Cuban embargo illegal:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
Such an understanding of the contours of the right to development is more expansive, and perhaps more nuanced, than that to which the
United States adheres. n80 Nevertheless,
if it is U.S. domestic law that is in conflict with the international
legal right to development , it is necessary to view the embargo in light of the United States's limited
conception. n81 [*438] The fact that the United States has recognized the importance of banking,
communications and technology, human capital, and infrastructure to the meaningful growth and
development of a state--areas of the Cuban nation that are thoroughly eroded by the embargo-demonstrates the illegality of the blockade even under the most restrictive understandings of
development.
n82
(--) Judicial incorporation of customary international law will be perceived and
modeled—this leads to the bolstering of international law:
Douglas
Sylvester, 1994 professor of law at the Sandra Day O'Connor College of Law at Arizona State University, Spring, 1994, 42 Buffalo L. Rev. 555, Lexis
3. Countervailing Arguments. The preceding sections have shown that historical and theoretical objections to a modern application of customary
the judiciary is not precluded from applying customary international law by
the Constitution, history, or political theory, the only remaining question to be answered is whether the judiciary should
begin applying it. The answer is clearly yes, for a number of reasons. First, there is the fact that much of international
law since the Second World War has been created and fostered under the auspices, and to the benefit, of the United States.
Judicial applications of international law have the possibility of continuing to solidify and evolve that process. Second, the decisions of
domestic tribunals, as evidence of state practice, can have a significant impact on the further development of
international law are not dispositive. Since
international law .
n301
Increased participation of the domestic judiciary in international law cases will aid in
the development of international law in accordance with the interests of the United States.
[*620]
Third,
United States attempts to foster the rule of law in other nations have been seriously hampered by
this country's refusal to be bound by the very proscriptions it espouses. This country's return to
international legitimacy , even if through judicial imposition, would go far to strengthening the rule
of law in international relations -- a development that can only support American interests. Finally, the disproportionate effect
that this country's actions have upon the development of international law is another factor compelling the judiciary to enforce legitimacy. The
incorporation of this law into United States constitutional discourse could have important ramifications. Such
an incorporation could
simultaneously strengthen the body of customary international law and make it easier for other
nations to identify and enforce this law. Once these laws are made explicit it will become more
difficult for violations to occur.
n302
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(--) The Cuban embargo is key: resolving the tension of international law with the
embargo is crucial to demonstrate to the world the US commitment to take
international law seriously:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
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
(--) Effective international law solves warming and multiple scenarios for nuclear war:
Institute for Energy and Environmental Research 2
and the Lawyers Committee on Nuclear Policy, Rule of Power or Rule of Law? An Assessment of U.S. Policies and Actions Regarding Security-Related Treaties, May,
http://www.ieer.org/reports/treaties/execsumm.pdf
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
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(--) Warming causes human extinction
Tickell, 2008 (8-11-2008, Oliver, Climate Researcher, The Gaurdian, “On a planet 4C hotter, all we can
prepare for is extinction”, http://www.guardian.co.uk/commentisfree/2008/aug/11/climatechange)
We need to get prepared for four degrees of global warming, Bob Watson told the Guardian last week. At first sight this looks like wise
counsel from the climate science adviser to Defra. But the
idea that we could adapt to a 4C rise is absurd and
dangerous. Global warming on this scale would be a catastrophe that would mean, in the immortal words that Chief
Seattle probably never spoke, "the end of living and the beginning of survival" for humankind. Or perhaps the beginning of our
extinction. 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. Watson's call was supported by the government's former chief scientific adviser, Sir David King, who warned that "if we get to a four-degree rise it is quite possible that we would
begin to see a runaway increase". This is a remarkable understatement. The climate system is already experiencing significant
feedbacks, notably the summer melting of the Arctic sea ice. The more the ice melts, the more sunshine is absorbed by the sea, and the more the Arctic warms. And as the Arctic
warms, the release of billions of tonnes of methane – a greenhouse gas 70 times stronger than carbon dioxide over 20 years – captured under melting permafrost is already under way.
To see how far this process could go, look 55.5m years to the Palaeocene-Eocene Thermal Maximum, when a global temperature increase of 6C coincided with the release of about 5,000
gigatonnes of carbon into the atmosphere, both as CO2 and as methane from bogs and seabed sediments. Lush subtropical forests grew in polar regions, and sea levels rose to 100m
higher than today. It appears that an initial warming pulse triggered other warming processes. Many scientists warn that this historical event may be analogous to the present: the
warming caused by human emissions could propel us towards a similar hothouse Earth.
(--) Air pollution is rampant worldwide—we’re specifically losing the battle against
acid rain:
Joseph Masilamany, 2/15/2013 (staff writer, “Air-pocalypse in the making,”
http://www.freemalaysiatoday.com/category/business/2013/02/15/air-pocalypse-in-themaking/, Accessed 2/18/2013, rwg)
PETALING JAYA: The
world is losing the battle for clean air . In spite of several decades of efforts to combat
it, air pollution is taking an increasing toll on human health, the environment and the economy .¶ A recent
study by the Washington-based Worldwatch Institute says more than a billion people – or one-fifth of all humanity – live in regions that do not meet World Health
Organisation’s air quality standards.¶ According to the institute, air pollution in the US causes as many as 50,000 deaths per year and costs as much as US$40 billion
(RM123.62 billion) annually in healthcare and lost productivity. ¶ Around the world, Milan, Shenyang, Tehran, Seoul and Rio de Janeiro reported the worst levels of
sulphur dioxide – a pollutant directly harmful to humans. Paris and Madrid also made the top 10 in the list. ¶ Though
concern for human health
led to the world’s first control laws, air pollution poses an equally grave threat to the environment.
Many water systems around the world are turning toxically rabid because of acid rain , 35% of
Europe’s forests are showing signs of air pollution damage and crop losses in the US caused by harmful emissions are estimated
to be 5%-10% of total production – more than US$5 billion a year.
(--) Effective international law solves acid rain:
Mark L. Glode & Beverly Nelson Glode, 1993 (Master's in Civil Engineering, University of
Wisconsin-Milwaukee & J.D., University of Bridgeport School of Law, Boston College
Environmental Affairs Law Review, “TRANSBOUNDARY POLLUTION: ACID RAIN AND UNITED
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STATES-CANADIAN RELATIONS,” Fall 1993, 20 B.C. Envtl. Aff. L. Rev. 1, Lexis, accessed
7/23/2013, rwg)
The Montreal Protocol affirmed the role of traditional international law in bringing about solutions to
transboundary pollution problems. n104 Analogously, the North American acid rain problem can be
resolved through application of international environmental law . The Montreal protocol provides a
model of the type of agreement the United States and Canada must reach to abate the acid rain
problem confronting the two nations. While this task is difficult it is not insuperable. The United States and Canada have entered
agreements to resolve pollution problems in the past. Most notable are the 1972 and 1978 Great Lakes Water Quality Agreements. n105 On
the other hand, many of the issues presented by the acid rain debate [*13] have sparked strong emotional reaction, in the United States and
Canada, which has delayed and complicated resolution of transboundary air pollution between the two countries.
(--) Acid rain threatens extinction:
John E. Carroll, 1989 (Environmental Conservation Program at the University of New
Hampshire, October 1989, “The Acid Challenge to Security,” Bulletin of the Atomic Scientists,
accessed via google books, February 18, 2013, rwg)
The question is how long this will take, and how much damage will be done in the interim. Technology
and conventional economic and political decisions may cover over problems temporarily or shift their
burdens to other people or ecosystems but will not resolve them. With acid rain and its analogs, there
is no national or personal security. Balance will be restored , and whether the restoration is dictated
by nature or whether it is guided by humankind and thus provides for human survival is still a matter
of human choice. But we cannot stop acid rain or other forms of air pollution while continuing to
make the lifestyle and consumption and investment decisions that we make daily. If we do not
achieve greater harmony with the natural environment, the future of national security, the nationstate, and the ecosystem as a home for Homo sapiens hangs in the balance.
(--) The ozone layer is depleting fast—the shifting of the Southern Hemisphere jet
stream proves this is true:
Science Daily, 1/31/2013 (“Ozone Depletion Trumps Greenhouse Gas Increase in JetStream Shift,” http://www.sciencedaily.com/releases/2013/01/130131144339.htm, Accessed
2/18/2013, rwg)
Jan. 31, 2013 —
Depletion of Antarctic ozone is a more important factor than increasing greenhouse gases
in shifting the Southern Hemisphere jet stream in a southward direction, according to researchers at
Penn State.¶ "Previous research suggests that this southward shift in the jet stream has contributed to
changes in ocean circulation patterns and precipitation patterns in the Southern Hemisphere, both of
which can have important impacts on people's livelihoods," said Sukyoung Lee, professor of meteorology.¶ According to Lee, based on
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modeling studies , both ozone depletion and greenhouse gas increase are thought to have
contributed to the southward shift of the Southern Hemisphere jet stream, with the former having a
greater impact.
B, but until now, no one has been able to determine the extent to which each of these two forcings has contributed to
the shift using observational data.
(--) International law key to solve ozone depletion:
Sumudu Atapattu, 2004 (Visiting Scholar, Institute for Legal Studies, University of WisconsinMadison Law School, American Journal of Law & Medicine, 30 Am. J. L. and Med. 283, “The
Public Health Impact of Global Environmental Problems and the Role of International Law,”
Lexis, Accessed 7/23/2013, rwg)
IV. THE ROLE OF INTERNATIONAL LAW¶ Given
that both ozone depletion and global warming are global
problems, in that every member in the international community is responsible for these two
phenomena, it is only through international law that a response to these problems can be found.
Although the contribution to these two problems varies from state to state, every member in the international community is a perpetrator as
well as a potential victim, to different degrees. Thus,
international law plays an important role and the
international instruments adopted in this regard display varying degrees of success.
(--) Ozone depletion threatens human survival:
Marc A. Levy, 1992 (doctoral candidate @ Harvard, “Institutions for the Earth,”
http://www.ciesin.org/docs/003-001/003-001.html, Accessed 2/18/2013, rwg)
National political agendas should focus on environmental harm rather than on particular pollutants. For instance, the fact that the Vienna
convention did not mention CFCs by name was considered a failure by some activists; in fact, the opposite is true. Agendas
that focus
on harm rather than on pollutants encourage increasing knowledge, rather than limiting it, and make
possible a broadening regulatory scope, which, as the case of the diminishing ozone layer indicates ,
can be a matter of human survival.
Although the acid rain regime was prompted by concern over acidified lakes and damaged
forests, it followed an agenda that encouraged consideration of any environmental harm from a pollutant that crossed national borders. The
furor over acid rain has fostered considerable knowledge about a variety of pollutants, some of which have no role in acidification of lakes and
forests. By contrast, the International Convention on the Prevention of Pollution from Ships (MARPOL) set very limited agendas, and most
progress in building knowledge about marine pollution has occurred in spite of, rather than because of, the institution.
(--) New satellite date confirms the Earth is facing severe water shortages:
Daily Mail, 2/13/2013 (“Warnings of severe water shortages in the Middle East after
satellites show freshwater reserves the size of the Dead Sea have dried up,”
http://www.dailymail.co.uk/sciencetech/article-2278040/Nasa-warn-freshwater-shortagesMiddle-East-study-shows-diminished-reserves.html, Accessed 2/18/2013, rwg)
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Vast freshwater reserves nearly equivalent in size to the Dead Sea have been lost in the Middle East
in the last decade , according to a new Nasa study .¶ Scientists warn there could be severe water
shortages in decades to come if water resources are not managed better in the region.¶ They say the
precious water stocks have gone because of poor water management, increased demands for
groundwater, and a major drought in 2007.
(--) International law is key to solve water shortages
Christopher L. Kukk & David A. Deese, 1996 (Ph.D. candidate in political science at Boston
College & Director of International Studies at Boston College, UCLA Journal of International Law
and Foreign Affairs, “AT THE WATER'S EDGE: REGIONAL CONFLICT AND COOPERATION OVER
FRESH WATER,” 1 UCLA J. Int'l L. & For. Aff. 21, Lexis, accessed 7/23/2013, rwg)
Although the "difficulties" of severe water shortages may be alleviated by new technologies , better water
management, and conservation, the water scarcity-conflict link must still be addressed urgently. Until regional
organizations are developed and international law is respected and adopted , water scarcity will
continue to be a cause of tension and conflict in the Middle East. Similarly, water scarcity will
continue to be a threat to regional and international stability as long as countries define their security in
misleading, dangerously narrow terms; refuse to share hydrological information and surpluses of water; and fail to establish regional treaties or
agreements concerning the use of international water resources. Still, the solutions discussed herein are meant to show that conflict
over
water scarcity is not inevitable and that the water scarcity-conflict link can be broken.
(--) Impending water shortages threaten human survival:
Miriam C. Nagel, 2013 (“Water Shortages,” http://www.highbeam.com/topics/watershortages-t25820, Accessed 2/18/2013, rwg)
There is no shortage of water on Earth. However, there is a shortage of potable water—water suitable
for humans to consume—and also of clean water for washing and crop irrigation in areas where some people
live.
Fresh, clean water is essential for human survival , but this natural resource is seriously
threatened by human activities , such as overuse and mismanagement.¶ Other human activities, such as the
burning of fossil fuels, are contributing to climate change, and global supplies of freshwater also are
negatively impacted by these changes. Weather patterns are shifting, and unusually strong storms are altering the hydrologic
cycle. In addition, the growing human population is placing an ever-increasing burden on the world's water supplies. This growing
population presents the challenges of maintaining adequate freshwater resources where they are
needed and of handling wastewater, particularly in densely populated regions.
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(--) International law is key to solving disease:
David P. Fidler, 2003 (“Emerging Trends in International Law Concerning Global Infectious
Disease Control,” http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2958540/, accessed
7/23/2013, rwg)
International cooperation has become critical in controlling infectious diseases . In this article, I examine
emerging trends in international law concerning global infectious disease control. The
role of international law in horizontal
and vertical governance responses to infectious disease control is conceptualized; the historical development
of international law regarding infectious diseases is described; and important shifts in how states, international institutions, and nonstate
organizations use international law in the context of infectious disease control today are analyzed. The
growing importance of
international trade law and the development of global governance mechanisms, most prominently in
connection with increasing access to drugs and other medicines in unindustrialized countries, are
emphasized. Traditional international legal approaches to infectious disease control—embodied in the International Health Regulations—
may be moribund.
(--) Diseases risk extinction:
The Scotsman, 9/11/1995 (“The mega death,” Lexis)
plagues, viruses and killer microbes are the arsenal of the
future. Together with the sarin gas which it released on the Tokyo underground in April, the Japanese Ohm cult had stockpiled a lethal
bacterium which it chose not to unleash. Crippling continents by using killer infectious diseases is no far- fetched
idea of sci-fi novels. But the scientists' inability to distinguish between naturally emerging and synthetic disease outbreaks means whole areas
Bullets and bombs may be the weapons of the present, but
could be laid waste before anyone realised what was happening, warns Laurie Garrett, author of a ground-breaking book on the burgeoning of
infectious disease. All this on top of the fact that new
diseases are emerging naturally at an alarming rate -
representing a real threat to the survival of the human species - says The Coming Plague. Meticulously
researched over the past decade, Garrett's book charts the history of our age-old battle against the microbes, and
concludes that we are beginning to cede the advantage to the disease-carriers. The optimism born out of
defeating smallpox in the Sixties was dangerously premature. Everything from overuse of antibiotics to increased promiscuity have helped
smooth the path for the microbes ever since.
"The survival of the human species is not a pre- ordained
evolutionary programme," warns Nobel Laureate Joshua Lederberg in The Coming Plague.
(--) Judicial incorporation of customary international law is key to democracy
Jordan J. Paust, 1999 (Law Foundation Professor, University of Houston Law Center, Michigan
Journal of International Law, Winter 1999, 20 Mich. J. Int'l L. 301, Lexis, Accessed 7/22/2013,
rwg)
Finally, Professors Bradley and Goldsmith complain that customary international law, highly valued by our Founders n87 and the most
democratic form of international law, n88 is somehow anti-democratic. n89 With respect to democratic values, it is worth emphasizing that no
single institutional arrangement necessarily represents authority or guarantees a democratic functioning or outcome. n90 At any given time,
legislative bodies may merely represent special interests. The same pertains with respect to administrative bodies. n91 Moreover, the Founders
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had worried about the dangers of oppression and denial of rights by a government that is a mere instrument of the majority. Judicial power is
an integral [*321] part of the constitutional design for the separation of powers n92 and reflects, in part, "the profound conviction of the
Framers that the powers conferred on Congress were the powers to be most carefully circumscribed." n93 Additionally, our
democratic
process has provided constitutional and statutory bases for judicial incorporation of customary
international law . n94¶ As noted, human rights, the preferred consequences of democracy, are especially relevant to such a
constitutional design and were of significant concern to the Founders. It
would be preposterous to claim that judicial
enforcement of customary human rights "is inconsistent with fundamental constitutional values." n95
More generally in human history, democracies have fostered , and dictatorships have feared ,
customary international law , n96 especially the guaranteeing of human rights for each human being.
One can conceive of a democracy in complete isolation, although with an increasing global
interdependence such a conception is ethereal. Nonetheless, to paraphrase the European Court of Human Rights, one can
scarcely conceive of a democracy without fundamental human rights, n97 especially the right of
access to courts.
(--) Democracy promotion key to preventing inevitable extinction
Diamond, 1995 senior research fellow at Hoover Institution, 95
(Larry, Promoting Democracy in the 1990s: Actors and Instruments, Issues and Imperatives, A Report to
the Carnegie Commission on Preventing Deadly Conflict, December 1995, p. 6)
This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In
the former Yugoslavia
nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies
through increasingly powerful international crime syndicates that have made common cause with authoritarian regimes and have utterly
corrupted the institutions of tenuous, democratic ones. Nuclear,
chemical, and biological weapons continue to
proliferate. The very source of life on Earth, the global ecosystem, appears increasingly endangered.
Most of these new and unconventional threats to security are associated with or aggravated by the
weakness or absence of democracy, with its provisions for legality, accountability, popular
sovereignty, and openness.
Advantage 2 is the Right To Development
(--) Codifying the right to development is necessary to solve genocide:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
n32 See Mohammed Bedjaoui, The Right to Development, in INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS 1176, 1193 (Mohammed
Bedjaoui ed., 1991) (affirming that the
right to development "should be regarded as belonging to jus cogens"). A
jus cogens norm is a norm of international law considered so essential that no derogation from it is
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permitted. Id. at 1185. Although there is no precise, authoritative enumeration of these norms, the generally accepted list includes the
prohibitions on genocide, slavery, torture, forced disappearance, and prolonged arbitrary detention. See RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE U.S. § 702 (1987); see also Bedjaoui, supra, at 1183 (arguing that "[i]f
the right to development does
not ... belong to jus cogens, it would have to be concluded ... that genocide ... is permitted by
international law") . It is beyond the scope of this Comment to argue that the right to development has indeed passed into the realm
of jus cogens; the fact that this conception of the right has been persuasively argued is only offered as additional support for the proposition
that the
right to development is, at the very least, a norm of customary international law. See Bedjaoui,
supra, at 1183, 1193.
(--) Genocide causes nuclear war
Jared Diamond, ’92 (The Third Chimpanzee; 277)
While our first association to the world “genocide” is likely to be the killings in Nazi
concentration camps, those were not even the largest-scale genocide of this century. The
Tasmanians and hundreds of other peoples were modern targets of successful smaller
extermination campaigns. Numerous peoples scattered throughout the world are potential
targets in the near future. Yet genocide is such a painful subject that either we’d rather not
think about it at all, or else we’d like to believe thatnice people don’t commit genocide only
Nazis do. But our refusal to think about it has consequences we’ve done little to halt the
numerous episodes of genocide since World War II, and we’re not alert to where it may
happen next. Together with our destruction of our own environmental resources, our genocidal
tendencies coupled to nuclear weapons now constitute the two most likely means by which
the human species may reverse all its progress virtually overnight.
Advantage 3 is the OAS:
(--) Embargo violates US international obligations under the OAS:
Shari-Ellen Bourque, 1995 (Boston University International Law Journal, Spring 1995, 13 B.U. Int'l L.J.
191, Lexis, Accessed 7/21/2013, rwg)
Article 18 clearly limits any OAS member's ability to extend its sovereign rule extraterritorially in
order to influence and control the internal affairs of another nation-state. With the cessation of the
Cold War, the embargo uses both economic and political measures in an attempt to coerce and
control the Cuban government's exercise of its sovereign rights, as well as the rights of third party
states. n176 Therefore, as a member of the OAS, the continued imposition of the embargo puts the
United States in violation of its international obligations.
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(--) The Cuba issue is key to OAS credibility:
Adam Isacson, 5/22/2012 (senior associate for regional security at the Washington Office on
Latin America, “Conflict Resolution in the Americas: The Decline of the OAS,”
http://www.worldpoliticsreview.com/articles/11979/conflict-resolution-in-the-americas-thedecline-of-the-oas, Accessed 7/23/2013, rwg)
Crises, conflicts and disputes throughout the region continue to escape the reach of international
mediation today. Colombia's 48-year-old conflict with the FARC and ELN guerrilla insurgencies rages on. Nicaragua's 2008 municipal and
2010 presidential elections were met with widespread allegations of fraud. Venezuela and Ecuador have taken steps to limit press freedom and
the activity of nongovernmental organizations, drawing expressions of concern from Insulza that have only inspired harsh public criticisms of
the OAS from these countries' leaders. Violence, fueled by proceeds from the drug trade, has spun out of control in Mexico and Central
America. Cuba,
meanwhile, continues to restrict basic freedoms and jail political prisoners, while the
United States persists in its unilateral, fruitless 50-year-old effort to effect change there through
diplomatic isolation and a trade embargo. Leaders who see little use for the OAS frequently cite its
decades-long inability to move the lines on the Cuba issue.
(--) Ceding sovereignty to the OAS is critical to reverse the perception of US
dominance which undermines OAS effectiveness:
Adam Isacson, 5/22/2012 (staff writer, “Conflict Resolution in the Americas: The Decline of
the OAS,” http://www.worldpoliticsreview.com/articles/11979/conflict-resolution-in-theamericas-the-decline-of-the-oas, Accessed 7/23/2013, rwg)
The OAS is also hampered by a perception , reinforced during the Cold War, that the Washingtonbased body is dominated by the United States . This is perhaps inevitable given the asymmetry of wealth and power
between the United States and its regional neighbors. Still, the
perception of an uneven playing field has damaged the
organization's "honest broker" status and made Latin American states reluctant to take decisions
that might require them to cede sovereignty to the OAS, even for the benefit of a greater good.
(--) The OAS solves warming, poverty, crime, and terrorism:
Dr. Riyad Insanally, 9/20/2010 (OAS Representative in Trinidad and Tobago, “The OAS is
indispensable,” http://bizjournalonline.com/?p=876, Accessed 7/23/2013, rwg)
The OAS, founded in 1948, is the premier forum for political dialogue in the hemisphere, bringing together
the countries of North, Central and South America and the Caribbean, spanning huge differences in size, population, economic power,
language and culture, to
act collectively on common challenges. Currently, most of these – the global
financial crisis ; climate change and natural disasters; extreme poverty; organised crime;
terrorism – are trans-national in scope and, ideally, require a multilateral, inclusive approach to
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address individual and collective vulnerabilities.¶ As Secretary General Insulza stated at the opening of the 40th General
Assembly in Lima, Peru, in June this year, “The way to make headway in these matters is to develop cooperation,
in the conviction that we share a common future, based on solidarity.” Indeed, the principle that
inter-American multilateralism, solidarity and cooperation are indispensable for achieving the long
term peace, security and development of the hemisphere – the main objective of the OAS – was a central feature of the
dialogue of the 34 leaders of OAS member states attending the 5th Summit of the Americas, in Port of Spain, Trinidad and Tobago, on April 1719, 2009.
(--) Poverty is the equivalent to a thermonuclear war between Russia and the US
James Gilligan, 2000 Department of Psychiatry at Harvard Medical School, 2000 edition, Violence:
Reflections on Our Deadliest Epidemic, p. 195-196
The 14 to 18 million deaths a year caused by structural violence compare with about 100,000 deaths
per year from armed conflict. Comparing this frequency of deaths from structural violence to the
frequency of those caused by major military and political violence, such as World War II (an estimated
49 million military and civilian deaths, including those caused by genocide--or about eight million per year, 1935-1945), the Indonesian
massacre of 1965-1966 (perhaps 575,000 deaths), the Vietnam war (possibly two million, 1954-1973), and
even a hypothetical
nuclear exchange between the U.S. and the U.S.S.R (232 million), it was clear that even war cannot
begin to compare with structural violence, which continues year after year. In other word, every fifteen
years, on the average, as many people die because of relative poverty as would be killed in a nuclear war
that caused 232 million deaths; and every single year, two to three times as many people die from poverty
throughout the world as were killed by the Nazi genocide of the Jews over a six-year period. This is, in effect, the
equivalent of an ongoing, unending, in fact accelerating, thermonuclear war, or genocide,
perpetrated on the weak and poor every year of every decade, throughout the world.
(--) Terrorists will use nuclear weapons triggering global nuclear war and extinction
Mohamed Sid-Ahmed, 2004 (http://weekly.ahram.org.eg/2004/705/op5.htm, 26 August - 1
September 2004)
What would be the consequences of a nuclear attack by terrorists? Even if it fails , it would further
exacerbate the negative features of the new and frightening world in which we are now living.
Societies would close in on themselves, police measures would be stepped up at the expense of
human rights, tensions between civilisations and religions would rise and ethnic conflicts would
proliferate. It would also speed up the arms race and develop the awareness that a different type of
world order is imperative if humankind is to survive . But the still more critical scenario is if the
attack succeeds. This could lead to a third world war , from which no one will emerge victorious.
Unlike a conventional war which ends when one side triumphs over another, this war will be without
winners and losers. When nuclear pollution infects the whole planet, we will all be losers.
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2ac Blocks
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T Blocks—2ac
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AFF Answers—EE is not Quid Pro Quo
1) Counter-interpretation—economic incentives are the removal of penalties like
embargoes.
Richard Haass, (President, Council on Foreign Relations & Former Dir., Foreign Policy Studies,
Brookings Institution), HONEY AND VINEGAR: INCENTIVES, SANCTIONS, AND
FOREIGN POLICY, 2000, 5.
Architects of engagement strategies have a wide variety of incentives from which to choose.
Economic engagement might offer
tangible incentives such as export credits, investment insurance or promotion, access to technology, loans, and economic aid. Other
equally useful economic incentives involve the removal of penalties, whether they be trade
embargoes,
investment bans, or high tariffs that have impeded economic relations between the United States and the target country. In
addition, facilitated entry into the global economic arena and the institutions that govern it rank among the most potent incentives in today’s
global market.
2) They limit out core AFF’s on the topic—we lift the Cuban embargo—they should
have plenty of ground.
3) Economic engagement does not always require concessions in return.
Miroslav Nincik, (Prof., Political Science University of California, Davis), THE LOGIC OF POSITIVE
ENGAGEMENT, 2011, g 112-113.
The military-economic nexus provides a reason for thinking that interests directly connected to the regime and to dynamic segments of
Cuban economy might benefit from economic engagement with the United States.
the
Not at the price of
immediately abandoning the political system of which they are the product, but as being willing to make the required economic adjustments,
along with the initially limited political changes, whose cumulative long-term implications are very desirable. This
is not likely to result
from explicit quid pro quos but from what the Senate Committee on Foreign Relations has termed
"sequenced engagement." The idea is to make each U.S. step contingent on opportunities for
catalysis, rather than on explicit counterconcessions.
4) Destroys AFF ground—allows for the counterplan to do the plan without the
condition every debate.
5) Engagement can be conditional or unconditional.
Richard Haas, (Dir., Foreign Policy Studies, Brookings Institution), SURVIVAL, SUMMER
2000, 114.
Many different types of engagement strategies exist, depending on who is engaged, the kind of incentives employed, and
the sorts of objectives pursued. Engagement may be conditional when it entails a negotiated series of exchanges, such as where the
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U.S. extends positive inducements for changes undertaken by the target country.
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Or engagement may be unconditional if it
offers modifications in U.S. policy towards a country without the explicit expectation that a
reciprocal act will follow. Generally, conditional engagement is geared towards a government; unconditional engagement works with a
country’s civil society or private actor in the hope of promoting forces that will eventually facilitate cooperation.
6) Reasonability: Good is Good Enough on Topicality.
7) No in-round abuse—they need to prove in round abuse to win on T.
8) Engagement does not require an explicit quid pro quo
Miles Kahler & Scott Kastner, (Prof., International Relations, U. California at San Diego/Prof.,
Government, U. Maryland), JOURNAL OF PEACE RESEARCH, Sept. 2006, 525.
Unconditional engagement strategies are more passive than conditional variants in that they do
not include a specific quid pro quo. Rather, countries deploy economic links with an adversary in
the hopes that economic interdependence itself will, over time, change the target’s foreign policy
behavior and yield a reduced threat of military conflict.
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1ar: Lifting the Embargo is Topical
(--) Lifting the embargo engages Cuba.
David Bernell, (Prof., Political Science, Oregon State U.), CONSTRUCTING U.S.
FOREIGN POLICY: THE CURIOUS CASE OF CUBA, 2011, 147.
My own expectation is the president will at some point make a move to end the embargo and
possibly normalize relations with Cuba, but he will argue that US goals have not changed. He will argue that the US seeks
democratization, freedom, and market capitalism, but that the best way to achieve these objectives in Cuba is
through active engagement with Cuba , via government contacts, commerce and tourism. Not only has the
president acknowledged US policy toward Cuba to be a failure, but with each passing year, it becomes increasingly clear that the Cuban
revolution will be able to outlast not only the rule of Fidel and Raul Castro, but also the fifty-plus years of American efforts to fatally undermine
it.
(--) Lifting the embargo is engagement.
Lana Wylie, (Ph.D. Dissertation, Political Science, U. Massachusetts), PERCEPTIONS
OF CUBA: CANADIAN AND AMERICAN POLICIES IN COMPARATIVE
PERSPECTIVE, 2010, 103.
In the last decade there has also been a movement in Washington to lift the embargo . The Cuba
Policy Foundation, founded in 2001 by some key powerbrokers, made a concerted attempt in the first few years of
the twenty-first century to press for engagement.
Similarly, both the House of Representatives and the Senate formed
Cuba working groups for the explicit purpose of critically examining American policy towards Cuba. The Senate group, formed in March 2003,
announced in its first public statement that it would look at the right of Americans to travel to Cuba and the capacity of the island nation to serve
as a market for American products.
(--) Ending the embargo economically engages Cuba.
Miroslav Nincic, 2011 (Prof., Political Science, U. California at Davis), THE LOGIC
OF POSITIVE ENGAGEMENT, 2011, 110.
Ultimately, the impact of positive incentives will depend on the evolution of Cuban politics. The
biggest incentive the United States can offer is to dismantle its economic embargo . If legal obstacles
to economic engagement were removed , meaningful commercial and investment links could be
expected to follow the natural course of material interests. A number of state-to-state agreements,
in areas such as migration and counter-narcotics, could be expected.
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(--) Removing sanctions is engaging Cuba.
Craig Foreese, 2002 (Attorney, Hughes, Hubbard & Reed, Washington, D.C.), YALE
HUMAN RIGHTS AND DEVELOPMENT LAW JOURNAL, 2002, 6-7.
The vision of "constructive engagement" as a form of subversion through economic development has
been enunciated most succinctly by the U.S. anti-sanctions lobby
group USA*Engage. In its paper, Economic
Engagement Promotes Freedom, the organization urged that "market-oriented economic development causes social changes that impede
authoritarian rule." The key proxies of social change are said to include "widespread education, the opening of society to the outside world, and
the development of an independent middle class." An emerging middle class, fueled by economic growth, "does not depend on the state for
economic advancement, and thus is far more free to challenge political control. A government faced with this change must seek the support of the
middle class and must respond to middle class demands for greater political freedom, the rule of law, and the elimination of corruption." Contact
with the outside world, meanwhile, is said to expand "the flow of information. The internet, television, books, newspapers, copying machines,
foreign magazines, all the various forms of popular entertainment and intellectual thought begin to flow, spreading ideas like democracy, human
rights, and the rule of law." USA*Engage further asserts that "American businesses and agricultural concerns transplant American values and
culture to the host country."
(--) Ending the embargo would increase economic engagement with Cuba:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
The legislation and regulations codifying the U.S. embargo of Cuba are paradigmatic of the type of comprehensive unilateral sanctions decried
by the international community. n12 Originally imposed through the [*422] powers granted to the president by the Trading with the Enemy
Act (TWEA), the embargo has become increasingly more complex in nature and panoptic in breadth with each successive law and regulation.
In its current form, the blockade generally prohibits the export and import of goods and
services with Cuba or Cuban entities around the world. n14 The embargo also covers an exceedingly
broad range of economic transactions between the United States and Cuba, including transfers of credit,
payments, foreign exchange transactions, securities [*424] transactions, and property transfers. n15
n13 [*423]
Indeed, the types of economic transactions prohibited by the embargo encapsulate virtually every
form of economic exchange in modern commerce. n16 As though its unilateral embargo were insufficiently
comprehensive, the United States has applied direct sanctions and coercive economic pressure on other state and business entities in order to
discourage other trade relationships with Cuba. n17 Thus, by exercising what many commentators would consider illegal extraterritorial
jurisdiction, the United States has effectively transformed its blockade of Cuba into a de facto multilateral endeavor. n18
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AT: Substantially Front-Line
1) Counter-interpretation: substantially means without qualification
Don Blewett, 1976 (Chairperson California Unemployment Insurance Appeals Board, Young v. Laura Scudder’s Pet,
Inc. January 29, 1976. www.cuiab.ca.gov/precedent/pb181.doc.)
"Substantially: Essentially; without material qualification ; in the main; in substance; materially; in a
substantial manner. Kirkpatrick v. Journal Pub. Co., 210 Ala. 10, 97 So. 58, 59; Gibson v. Glos, 271 I11. 368, I11 N.E. 123,
124; McEwen v. New York Life Ins. Co., 23 Cal. App. 694, 139 P. 242, 243. About, actually, competently, and essentially.
Gilmore v. Red Top Cab Co. of Washington, 171 Wash. 346, 17 P. 2d 886, 887."
2) We meet the counter-interpretation: We eliminate the entire embargo on
Cuba.
3) Prefer the counter-interpretation:
A) Provides a non-arbitrary meaning to substantially—creates a clear bright line.
B) Provides them ground to debate on the clear meaning of substantially.
C) We massively boost economic engagement with Cuba—plenty for them to
argue against.
4) Reasonability: good is good enough on topicality.
5) No in-round abuse—they have disads, counterplans, etc.
6) Predictability—they should be prepared to debate the Cuban embargo.
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Theory Answers—2ac
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AT: Test Case FIAT (Have to have a test case)
1) We Meet: The Supreme Court can always find an excuse to decide a case:
Tracy Bach, 3/11/2009 (CLI BACKGROUND PAPER NO. 6, “The Recognition of Intergenerational
Ecological Rights and Duties in U.S. Law,” http://www.vermontlaw.edu/Documents/CLI%20Policy
%20Paper/BP_06%20-%20%28Bach%29.pdf)
While Article III does not explicitly set out any specific standing requirements, the Supreme Court has
formulated the doctrine over time and established requirements that a plaintiff must show in order to
bring a case. Some commentators have described this evolution as always in flux, even asserting that
courts "can always find an excuse for giving standing” if they want to get to the merits of the case.8
Many argue that the Court has restricted standing—particularly in environmental cases—to too narrow a set of individuals.9
2) Counter-interpretation: FIAT allows us to assume a test case exists.
3) Prefer the counter-interpretation: Their interpretation would require Congress
AFF’s to prove a bill exists in a committee before it could be FIAT’ed.
4) They risk locking out Supreme Court AFF’s—denying education about a third of
the federal government and how it operates.
5) Solvency advocate checks abuse: our Manchak evidence specifically advocates
that the courts strike down the embargo.
6) Good is good enough: Reasonability should be your standard on theory.
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AT: Effects T—Court Mandates Then Congress Does
1) We meet: we take one action—the Court eliminates the embargo by striking it
down.
2) No different than Congress: Court decisions have the power and permanency
of law:
This Nation.com, 2008 (“Supreme Court Decision Making,”
http://www.thisnation.com/textbook/judiciary-decision.html, Accessed 7/25/2012, rwg)
Interpretation as law A prominent attorney who had argued hundreds of cases before the Supreme
Court once remarked that the Supreme Court is not final because it's right, it is right because it is final.
The Court's position as the court of last appeal and as the highest court in the land means that its
decisions are binding and largely unchangeable. Once the Court has ruled, its decisions have all the
effect and permanency of law.
3) Plan is a mandate—Executive and Legislative have to bow to the judiciary:
Steve Kellmeyer, 2005 The Illinois Leader, 2005 [The coming paradigm shift from the judiciary to
the corporation, July 7, http://www.illinoisleader.com/opinion/opinionview.asp?c=27040, rwg]
The executive and legislative branches bow to the authority of the judicial branch. They do not
exercise authority on their own, except as the judicial branch gives them leave. Since the federal judiciary is a
creation of the legislative branch, we now have a Frankenstein government, a government in which the creator has lost control of his creation.
Since the judiciary is the only real source of power in America , the indirect election of judges through a
republican system should be a source of comfort to all concerned.
True, the term is for life, not four or six years, the
government is by nine people, not thousands, and there remains not even a semblance of the idea that the judges represent the interests of
any of the electorate but the forms are observed. We have maintained the idea of the republic - sort of.
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4) They limit out all AFF’s: all AFF’s require multiple steps—they create a bill, put it
through a committee, Congress passes it, and then Obama signs it.
5) Their interp limits out all Courts AFF’s
A) Bad for education: we learn more about the Courts and their unique role in
foreign policy.
B) Not real world: the Court decides all kinds of issues related to international
law.
C) Undermines needed AFF flex: Few AFF’s have a good answer to international
cp’s
6) We spike out of zero topic specific da’s: we claim to massively increase economic
engagement with Cuba.
7) Good is good enough: Reasonability should be the standard on T.
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AT: Over-spec
1) Counter-interpretation: AFF gets any agent of the USFG: The federal
government refers to any entity of the federal government—
The Chicago Manual of Style 2010 16th edition text ©
(http://www.chicagomanualofstyle.org/CMS_FAQ/CapitalizationTitles/CapitalizationTitles32.html)
Q. When I refer to the government of the United States in text, should it be US Federal Government or US federal government?
A. The
government of the United States is not a single official entity . Nor is it when it is referred to as the
federal government or the US government or the US federal government. It’s just a government,
which, like those in all countries, has some official bodies that act and operate in the name of
governmen t: the Congress , the Senate, the Department of State, etc.
2) Prefer the counter-interpretation:
A) Real world: No real world plan wouldn’t specify their agent.
B) Makes the AFF a fixed target: prevents shadiness on politics links and
counterplan competition
C) Preserves topic specific education: we learn about foreign policy in the context
of real world actors
3) No abuse: we act through an agent of the USFG.
4) They have plenty of ground: we claim to massively expand economic
engagement with Cuba.
5) Not a violation: We violate no words in the resolution by specifying the
judiciary.
6) Reasonability: good is good enough.
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AT: Ground Specification is Extra-Topical
1) Counter-interpretation: The AFF is required to specify the grounds for their
decision.
2) Most real world: No Supreme Court decision would ever not explain the
rationale for their decision:
Wiki Answers, 2012 (Accessed 7/25/2012, “Written Opinions,”
http://wiki.answers.com/Q/What_types_of_written_opinions_may_the_US_Supreme_Court_issue,
rwg)
The Court's Opinion (usually also the majority opinion) is synonymous with the Court's decision. The "Opinion of
the Court" gives the verdict and explains the reasoning behind the decision reached. The privilege of writing
the official opinion falls to the most senior justice in the majority group, or to the Chief Justice if he voted with the majority; this person may
choose to write the opinion, or may assign the task to another member of the majority. If the justices who voted against the majority wish to
issue a unified opinion, they simply decide amongst themselves who will write it.
3) We have a solvency advocate: Our Manchak evidence specifies the right to
develop rationale for the plan.
4) Disads and counterplans check abuse: they can run disads off the reason for
decision or counterplan out of grounds to solve advantages.
5) Reject argument not team—if you find it illegitimate for us to specify our
grounds, then we can just defend the strike down of the embargo.
6) Reasonability: good is good enough on T and theory.
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Explanation of Customary International Law
(--) General and consistent practices of states forms the basis for customary
international law:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
Statute of the International Court of Justice, art. 38; see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. § 102(2), (3), rep.
n.2 (1987) (noting that general
acceptance of states and the "general and consistent practice of states,"
which takes many forms including "resolutions, declarations, and other statements of principles" by the
U.N. General Assembly, form the basis for customary international law ); Marks, supra note 20, at 138-42, 167 (discussing the
recognition of the right to development by a majority of governments in the world, but conceding some of the practical difficulties associated
with the right).
(--) Customary international law means the customs of nations have created certain
laws:
Shari-Ellen Bourque, 1995 (Boston University International Law Journal, Spring 1995, 13 B.U. Int'l L.J.
191, Lexis, Accessed 7/21/2013, rwg)
The concept of extraterritoriality addresses the application of U.S. law as it applies to or affects the
conduct of foreign territories or the impact of a state's laws on foreign nationals. n150 The United Nations
Charter sets forth various general international standards addressing the issue of extraterritoriality. n151 In addition to these
standards, customary international law norms exist which derive from state practice and state
acquiescence to such practice. The principle of custom as a source of international law was first
recognized by the Supreme Court in The Paquete Habana: n152¶ ¶ International law is part of our law,
and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often
as questions of right depending upon it are duly presented for their determination. For this purpose,
where there is no treaty, and no controlling executive or legislative act or judicial decision, resort
must be had to the customs and usages of civilized nations... n153
(--) Charming Betsy rule says that Congress sought to adopt legislation consistent with
international law:
T. Alexander Aleinikoff, 2004 (Associate Dean for research @ Georgetown University Law Center,
Jan, 98 A.J.I.L. 91, Lexis, Accessed, 7/23/2013, rwg)
Now these are not the sorts of cases in which advocates today generally seek to make international law claims. They are more likely to raise
claims that executive branch action and federal statutes violate international human rights norms. n55 But here, too, federal courts may well
have jurisdiction to adjudicate the claim even if CIL does not constitute "federal law" within the meaning of Article III. When executive branch
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conduct is challenged, the plaintiff's claim is typically that such action went beyond statutory or constitutional authority; thus, the case would
arise under the laws of the United States in Article III terms. Once the federal court has jurisdiction of the case, it can consider all other relevant
sources of law. It might be more difficult for a federal court to entertain a claim that a federal statute is inconsistent [*99] with CIL. n56 But
many such cases can probably be heard because of The Charming Betsy n57 rule that courts, in
interpreting statutes, should assume that Congress sought to adopt legislation consistent with
international law. That is, a person asserting that a federal statute violates CIL could raise the claim as a matter of statutory
interpretation--"if the statute means 'X,' it would violate international law; therefore, it should be read to mean 'Y.'" A court, following The
Charming Betsy, would not be able to strike down the federal legislation, but an interpretation of the statute rendering it consistent with CIL
might accomplish much the same result.
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AT: Court Uses International Law Now
(--) Our Sylvester evidence draws a distinction—we have not SUBORDINATED
ourselves to international law—striking down the Cuban embargo on the grounds of
international law directly subordinates the US to international law—bolstering
international law.
(--) Federal courts are not currently applying and enforcing customary international
law:
T. Alexander Aleinikoff, 2004 (Associate Dean for research @ Georgetown University Law Center,
Jan, 98 A.J.I.L. 91, Lexis, Accessed, 7/23/2013, rwg)
Despite the plausibility of the proposed approach, its prospects for judicial adoption appear slim. As the
contributions to this Agora demonstrate, federal
and state courts are beginning to consult international norms
on a more regular basis; but they are doing so largely for comparative purposes, not because such norms are
deemed binding. Foreign law, in this view, is a part of a broader liberal arts education for lawyers and judges, one that introduces them to
alternatives to the status quo. It
is a very different matter for federal courts to begin to apply and enforce
CIL .
CIL is used but isn’t binding now
Duke Law Guide ‘6 (The Use of International and Foreign Law in Interpreting the
U.S. Constitution http://www.acslaw.org/files/sintl%20law%20study%20guide%201-1806.pdf?PHPSESSID=be927e9735474d1d7fd1a8d91eb487f4, )
In none of the cases discussed above, or indeed in any U.S. constitutional law case, has the Court relied
upon international or ^foreign law as binding authority . This limitation on how international and
foreign law is used undercuts criticisms that the citation of such law is undemocratic and undermines
American sovereignty. 19 Legal reasoning in the United States is often based on analogies, and as
several judges have noted, additional information provides judges and lawyers with means to examine
conflicting approaches and sort out what is most relevant and persuasive. In fact, state courts will
frequently look to the opinion of other states for guidance without encroaching on state sovereignty or
impinging on the democratic rights of its citizens. Federal courts’ voluntary, non-binding consideration
of international or foreign law is akin to that practice.
(--) Unclear precedent on when courts may enforce customary international law now:
Jordan J. Paust, 1999 (Law Foundation Professor, University of Houston Law Center, Michigan
Journal of International Law, Winter 1999, 20 Mich. J. Int'l L. 301, Lexis, Accessed 7/22/2013,
rwg)
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n83. Compare Bradley & Goldsmith, supra note 26, at 842-43 & n.177, 845 n.199 & 849, Bradley & Goldsmith II, supra note 26, at 324 & n.27,
335 ("did not bind the Executive"), id. at 352 & n.185, 353 n.191, and Bradley, Charming Betsy, supra note 27, at 498 n.98 (but see id. at 504
n.126 (recognizing one of the recent cases applying customary international law directly to bind the Executive)), with Paust, supra note 1, at 9295, 146, 148-50, 161-64, and Jordan J. Paust, Paquete and the President: Rediscovering the Brief for the United States, 34 Va. J. Int'l L. 981
(1994). Also, contrary
to Bradley and Goldsmith, see Bradley & Goldsmith II, supra note 26, at 352 & n.185, the Court did
not state that customary international law "is judicially enforceable" where there is no treaty, etc.,
but stated that courts must enforce customary international law where there is no treaty, etc., leaving
unaddressed when courts may also enforce customary international law . See Paust, supra note 1, at 136-38
nn.93-95, 148-50 & 162-63 n.63.
(--) Court has never ruled that customary international law is elevated over regular
federal enactments—the plan does:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
n7 See Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L. REV. 853,
877 (1987). Just
as contradictions between co-equal federal enactments must be resolved under the
Constitution, so too must discrepancies between customary international law and federal legislation.
See id. Although
the Supreme Court has never ruled on the point, there is nothing in the text of the
Constitution that would preclude the United States from elevating customary international law over
regular federal enactments and giving effect to international customary legal norms even in the face
of a later congressional enactment. See id. Even under a more conservative understanding, a direct conflict between customary
international law and a federal enactment is not simply an issue of domestic law versus international commitments--it is a constitutional
question. See id. at 877-78. As Professor Henkin explains,¶ Like treaties, customary law has now been declared to be United States law within
the meaning of both article III and the supremacy clause. If an act of Congress can modify customary law for domestic purposes, it is not
because customary law is like federal common law but rather because, like treaties, customary law is equal in status to legislation, and the
more recent of the two governs.
(--) US remains hostile to the right to development:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
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,
[*429]
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
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(--) US has international obligations to protect the right to development:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
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-selfexecution or because the state did not sign and ratify it,
international law.
n40 Regardless of
is irrelevant when the norm in question is one of customary
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
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Embargo Violates International Law—2ac Extensions
(--) Extend our Manchak evidence—the Cuban embargo violates Cuba’s right to
develop because it deprives them of basic economic necessities from the US. Our next
Manchak card says even the most limited view of international law would have the
Cuban embargo violating international law.
(--) Embargo violates international law because the purpose is to change the form of
government of Cuba:
Shari-Ellen Bourque, 1995 (Boston University International Law Journal, Spring 1995, 13 B.U. Int'l L.J.
191, Lexis, Accessed 7/21/2013, rwg)
The U.S. embargo is a clear violation of international norms and policies relating to the
extraterritoriality principle and to the respect of state autonomy as originally expressed in The Lotus Case. n171 The
embargo imposes severe consequences, having implications in Cuba and beyond. As stated in Part III, the purpose of the embargo
is not to control and prevent injury to U.S. national security. Instead, the foreign policy aim of the
embargo is to indirectly encourage an expedient change in the Cuban form of government toward
democratic rule. n172 The indirect effect of this American foreign policy imposes American ideals and
beliefs onto the Cuban people as well as other nations and their nationals, regardless of the fact that
Cuba poses no threat to U.S. national security or interests.
(--) The Cuban embargo is a constitutionally impermissible violation of international
law:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
When the Obama administration took office, it entered the debate on Cuba and the nearly half-century old embargo that has crippled the tiny
island nation with a self-avowed respect for the law of nations. Despite easing some restrictions on the ability of Cuban-Americans with family
in Cuba to travel and send remittances, the
President's promises on Cuba have gone largely unfulfilled. The Cuban
embargo, in its current form, remains a constitutionally impermissible violation of international law ,
specifically, the international legal norm prohibiting interference with a nation's right to develop.
(--) Cuban embargo is a flagrant violation of international law:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
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CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
n12 See, e.g., U.N. GAOR, 64th Sess., 27th plen. mtg., supra note 3, at 20 ("[The
unilateral Cuban embargo] is a flagrant
violation of the provisions of the United Nations Charter, the principles of international law and
resolutions adopted year after year by this Assembly . . . ."); The Secretary-General, Report of the Secretary-General on
Unilateral Economic Measures as a Means of Political and Economic Coercion Against Developing Countries, at 6, Delivered to the General
Assembly, U.N. Doc. A/64/179 (July 27, 2009) (stating that unilateral
sanctions used as instruments of political and
economic coercion against developing countries "are contrary to the principles of international law , the
sovereign equality of States, non-interference in the internal affairs of States and peaceful coexistence among States"); U.N. GAOR, 63rd Sess.,
33rd plen. mtg., supra note 3, at 7 ("The
United States' unilateral economic, commercial and financial embargo
against Cuba represents a violation of international law, including international laws relating to the
freedom of trade and navigation and non-interference in the internal affairs of States.").
(--) Cuban Embargo violates UN Charter and International laws
Krinsky 2001. (“CHAPTER NINE,INTERNATIONAL LAW & THE EMBARGO,”
http://www.medicc.org/resources/documents/embargo/Chapter%20Nine.pdf, ADL)
In I992 the CDA restored the third-country constraint provisions which had been specifically denounced by the U.S. government in 1975 as unacceptable to other
The
current U.S.-imposed embargo which punishes those who trade with Cuba patently violates the OAS
resolution and runs counter to the OAS Charter, which upholds nonintervention as one of the
fundamental principles upon which the organization is founded. In addition to the individual protests of foreign trading
partners prompted by the CDA’s passage, the law has also brought about formal denouncements from the United
Nations. In four consecutive sessions of the United Nations General Assembly, that body has passed resolutions
condemning the U.S. embargo against Cuba and calling on the United States to rescind those aspects
of its law which are violative of international law principles as well as of the U.N. Charter. In its most recent
nations and incompatible with the I975 OAS resolution affirming the right of each member state to freely determine its own polices toward Cuba.
resolution (passed on November 15, I995) entitled ‘Necessity of ending the economic, commercial and financial embargo imposed by the United States of America
against Cuba,” the U.N. General Assembly held, inter alia: Beaffrrming, among other principles, the sovereign equality of States, non-intervention and noninterference in their internal affairs and freedom of international trade and navigation, which are also enshrined in many international legal instruments . . .
Concerned about the continued promulgation end application by Member States of laws and regulations whose extraterritorial effects affect the sovereignty of
other States and the legitimate interests of entities or persons under their jurisdiction, as well as the freedom of trade and navigation... Concerned that, since the
adoption of its resolutións 47/19. 48/16 and 49/95 further measures of that nature aimed at strengthening and extending the economic, commercial and financial
embargo against Cubs continue to be promulgated and applied, and concerned also about the adverse effects of such measures on the Cuban people and on Cuban
nationals living in other countries... [The U.N. General Assembly] reiterates its call to all States to refrain from promulgating and applying laws and measures of the
kind referred to in the preamble to the present resolution in conformity with their obligations under the Charter of the United Nations and international law which,
inter alia. reaffirm the freedom of trade and navigation...*
Notwithstanding repeated U.N. resolutions calling for the
rescinding of practices against Cuba and against nations that trade with Cuba which violate
international law, the U.S. has steadfastly maintained and even reinforced its policies.
(--) Embargo violates international law:
Shari-Ellen Bourque, 1995 (Boston University International Law Journal, Spring 1995, 13 B.U. Int'l L.J.
191, Lexis, Accessed 7/21/2013, rwg)
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This Note will juxtapose the United States' archaic embargo against the new world order. The illegality of the embargo itself, combined with the
predicted near departure of Fidel Castro, as well as recent changes in the Cuban economy and legislature, provide strong support for the
adoption of a more lenient interactive U.S.-Cuba policy. The
embargo promulgates a system of trade and investment
sanctions created in response to Cold War political tension and ideology. This system, however, does
not serve to advance the stated U.S. goal of effectuating change in Cuban domestic affairs. Instead, it
violates both international and U.S. domestic laws
while isolating Cuba from U.S. capital markets.
(--) Embargo violates international law:
Shari-Ellen Bourque, 1995 (Boston University International Law Journal, Spring 1995, 13 B.U. Int'l L.J.
191, Lexis, Accessed 7/21/2013, rwg)
The current U.S. policy towards Cuba, as embodied in the embargo, violates both international and
domestic law. It infringes on third-country state sovereignty by imposing sanctions on foreign states
and foreign subsidiaries. The embargo also imposes hardships on the Cuban people. Despite the recent developments in international
diplomacy, this foreign policy remains unchanged, archaic and no longer justifiable. ¶ A more realistic and
modern approach to U.S.-Cuban foreign policy would encourage abandonment of the embargo. There
appears to be a general consensus among the international community, including foreign states and
organizations, as well as the American public that this policy is indeed outdated and in need of
change. A mutually negotiated agreement, such as a bilateral investment treaty, would further U.S. policies within the Cuban community,
while simultaneously promoting and protecting U.S. investment on the island.
(--) Embargo violates international law—banking sector and commercial sector
components violate international law:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
The comprehensive unilateral trade sanctions regime imposed by the United States on Cuba
specifically targets those aspects of the Cuban nation-state critical for national development. n56 While
the contours of the right to development are still being defined in international discourse, there is a consensus on at least a few
"pillars of development," including banking, telecommunications and technology, human resources,
and infrastructure. n57 This list is certainly not all-inclusive, but it [*434] provides a basic framework,
to which the United States government itself subscribes, for conceptualizing the form and process of development. n58
Because the U.S. embargo systematically undermines the integrity of Cuba's banking system and
isolates it from the modern commercial world, impedes technological advancement, frustrates its ability to cultivate human
capital, and
obstructs the proper functioning of its infrastructure, it directly violates Cuba's right to
development . n59
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(--) No exceptions to international law apply to the Cuban embargo:
Shari-Ellen Bourque, 1995 (Boston University International Law Journal, Spring 1995, 13 B.U. Int'l L.J.
191, Lexis, Accessed 7/21/2013, rwg)
None of these exceptions to the general rule of international law prohibiting extraterritorial
application of domestic laws applies to the Cuban embargo. The embargo is not directed toward a
foreign entity present in United States territory; the embargo does not target only conduct overseas
that has an adverse effect within the United States; and finally the embargo was not instituted to
regulate the conduct of U.S. citizens located abroad.
(--) Embargo violates international humanitarian laws
Amnesty International 09 (07/25/09, Amnesty International, “THE US ¶ EMBARGO ¶
AGAINST CUBA: ¶ ITS IMPACT ON ECONOMIC ¶ AND SOCIAL RIGHTS,”
http://www.amnesty.org/en/library/asset/AMR25/007/2009/en/51469f8b-73f8-47a2-a5bdf839adf50488/amr250072009eng.pdf, ADL)
For the past 14 years, the
UN Secretary-General has documented the negative impact of the ¶ US embargo
on Cuba. In her last report to the Human Rights Council, the Personal ¶ Representative of the United Nations High Commissioner for Human
Rights on the situation ¶ of human rights in Cuba described the effects of the embargo on the economic, social and ¶ cultural rights of the
Cuban people as “disastrous”.¶ “The adverse consequences of economic sanctions on the enjoyment of human rights”, a ¶ study prepared by
Marc Bossuyt for the Sub-Commission on the Promotion and Protection of ¶ Human Rights, concluded
that the US embargo
violates human rights law in two distinct ¶ ways. Firstly, “the fact that the United States is the major regional
economic power and the ¶ main source of new medicines and technologies means that Cuba is subject
to deprivations ¶ that impinge on its citizens’ human rights.” Secondly, by passing legislation that “tries to
¶ force third-party countries into embargoing Cuba as well ” – the 1992 Torricelli Act – the US ¶ government
attempted to turn “a unilateral embargo into a multilateral embargo through ¶ coercive measures, the
only effect of which will be to deepen further the suffering of the ¶ Cuban people and increase the
violation of their human rights”.
(--) Technology components of the embargo undermine Cuba’s ability to higher-order
economic activities:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
By barring access to technology, the embargo inhibits Cuba's ability to engage in the type of higherorder economic activities so critical to growth and development in the information-based global
economy. n64 For example, the Cuban government and Cuban national companies are prohibited from
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purchasing products, components, technical equipment, or technical inputs that are under United States
patents. n65 Cuba's inability to import various technologies has harmed sectors of its economy ranging
from the poultry and agricultural industries to the research science and biotechnology industries. n66
The communications sector has likewise been damaged, highlighting the challenges posed to economic and social development when
communications technologies are restricted. n67
(--) Embargo undermines ability of Cuban students to gain access to scholarly
discourse:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
By restraining the ability of Cuban students to access information and engage in scholarly discourse,
Cuba's ability to foster and fully utilize its human capital in the pursuit of economic growth is severely
curtailed. n68 For example, Cuba's students, ranging from primary school to the university level, cannot
access a variety of internet databases, web [*436] pages, or scientific and technical journals and publications
essential to the scholarly enterprise. n69 Nor do academics "have access to up-to-date works from United States writers or research and
education centres." n70 Moreover,
without high-bandwidth internet lines and open access to internet
resources, Cuba's library system cannot effectively deliver information to the Cuban people, and
information exchanges with scientific and academic networks in different countries is impeded. n71 Despite its heavy investment
in education, Cuba is at risk of experiencing a shortage of well-educated, well-trained workers--a
deficiency that can undermine and distort patterns of growth. n72
(--) Embargo undermines Cuban government’s ability to build infrastructure:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
By constraining its ability to import materials and technical knowledge, the embargo subverts the
Cuban government's efforts to create new infrastructure--a prerequisite to economic and industrial
development. n73 A "stable supply of construction materials, tools and [technological] equipment" is
necessary for infrastructural development; without such a supply, Cuba encounters great difficulties
constructing and maintaining even the most basic projects such as human settlements . n74 The
generally poor state of the Cuban infrastructure also severely limits the country's capacity to trade,
process food, distribute water, and produce agricultural goods. n75 A working infrastructure is "a key factor in a
country's economic development because it facilitates the movement of goods, services and people . . . [and] induce[s] economic activity." n76
The [*437] damage wrought on Cuba's infrastructure by the U.S. blockade makes it exceedingly more
difficult, and in some instances impossible, to create the infrastructure essential for normal rates and
patterns of growth, let alone the normal functioning of a society. n77
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(--) Helms-Burton creates extraterritorial legislation to deter investment & trade with
Cuba:
Bret A. Sumner, 1997 (Catholic University Law Review, “DUE PROCESS AND TRUE CONFLICTS:
THE CONSTITUTIONAL LIMITS ON EXTRATERRITORIAL FEDERAL LEGISLATION AND THE CUBAN
LIBERTY AND DEMOCRATIC SOLIDARITY (LIBERTAD) ACT OF 1996,” 46 Cath. U.L. Rev. 907, Lexis,
Accessed 2/25/2013, rwg)
The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, n12 also referred to as the HelmsBurton Act, is one of the most recent [*911] examples of extraterritorial legislation. n13 In an effort to
promote the downfall of Fidel Castro's communist regime and facilitate Cuba's transition to
democracy, this legislation attempts to deter foreign investment in, and foreign trade with Cuba. n14
Title III of the Helms-Burton Act provides the means of deterrence, n15 by broadly imposing civil
liability for engaging in commercial activity related to property located in Cuba that
regime n16 confiscated from United States citizens
n17 and
[*912]
the Castro
then expropriated and nationalized after it
came to power in 1959. n18
(--) Helms-Burton violates international law:
Bret A. Sumner, 1997 (Catholic University Law Review, “DUE PROCESS AND TRUE CONFLICTS:
THE CONSTITUTIONAL LIMITS ON EXTRATERRITORIAL FEDERAL LEGISLATION AND THE CUBAN
LIBERTY AND DEMOCRATIC SOLIDARITY (LIBERTAD) ACT OF 1996,” 46 Cath. U.L. Rev. 907, Lexis,
Accessed 2/25/2013, rwg)
Upon its enactment, the Helms-Burton Act immediately provoked unparalleled hostile reactions from
the international community, especially the major trading partners of the United States, including
Canada, Mexico, and the European Union. n19 Opponents of this controversial legislation [*913] contend
that it violates numerous precepts of international law . n20 Arguing that Helms-Burton violates international law,
however, would be a needless expenditure of energy for a foreign defendant in a United States court n21 because the congressional intent for
the expansive extraterritorial [*914] reach of Helms-Burton could not have been more explicit. n22 Nevertheless, the
extraterritorial
application of Helms-Burton must comply with constitutional due process requirements for United
States courts to exercise personal jurisdiction n23 over foreign defendants. n24
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International Law Solvency
(--) Repealing the legislative enactments of the embargo is the best way to bolster
international law:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
This Comment will examine the unilateral trade embargo imposed on Cuba by the United States in
light of the role of international law in our constitutional system. Part I provides a brief overview of the embargo
itself, as it exists in U.S. domestic law. Part II traces the evolution of the right to development as an international legal norm, highlighting its
codification in treaty and crystallization as a norm of customary international law. Part III chronicles some of the devastating effects wrought by
the all-encompassing nature of the embargo. Specifically, it focuses on the two areas in which international law and international legal norms
are implicated: humanitarian consequences and development effects. After situating international law properly within the discussion of U.S.
constitutionalism, Part IV demonstrates why the U.S. blockade of Cuba, which conflicts directly with Cuba's right to development, is
unconstitutional in its present form. Finally, Part
V provides several options for "reconstitutionalizing" the blockade. It advocates for
outright repeal of the legislative enactments codifying the embargo. Though not the only option, this
is both the most expedient solution to the constitutional questions posed by the Cuban embargo and
the only practical way to promote future compliance with international law.
Flaunting international law undermines the development of international law:
Fairey 97 (April 1997, W. Fletcher Fairey is a Member, The American University Law Review, Vol. 46;
J.D. Candidate, May 1998, Washington College of Law, American University; M.A., 1991, University of
Colorado at Boulder; B.A., 1987, Davidson College. The author wishes to acknowledge the Office of
General Counsel for Export Administration, Department of Commerce, and, in particular, its Deputy
Chief Counsel, Cecil Hunt, for their valuable guidance during the selection of this topic and the early
drafts of this Comment. The American University Law Review. ”COMMENT: THE HELMS-BURTON ACT:
THE EFFECT OF INTERNATIONAL LAW ON DOMESTIC IMPLEMENTATION” Lexis Nexis) NS
Congress also can use its legislative authority to express its clear intent to enforce a statute even though
the statute may violate international law. In applying domestic law, courts consistently have recognized
Congress' power to violate international norms. n273 By expressly stating an intent to violate
international law, Congress will prevent domestic courts from construing legislation narrowly.Statutes
that expressly flout international law, however, may set a dangerous international precedent. In
general, countries do not wish to be perceived as outside the international legal system. Furthermore,
the United States would not want to undermine a system from which it benefits.
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International Law is Modeled
Incorporation of International Law ensures global harmonization and modeling
Benvenisti 8
Eyal, Professor of Law, Tel Aviv University, RECLAIMING DEMOCRACY: THE STRATEGIC USES OF FOREIGN AND INTERNATIONAL LAW BY NATIONAL COURTS, 102
A.J.I.L. 241
Courts that wish to signal readiness to cooperate will tend to use the language that other courts understand:
comparative law (primarily comparative constitutional law) and international law. 37 The use of comparative analysis indicates that courts are willing to learn from one another, or
are seeking support from other jurisdictions for their judgments, or both. More significantly, they learn from each other's legal systems how to balance the competing common interests and how
to manage the conflicting common risks to their societies. They can compare [*252] statutory constructs, such as conditions for detaining suspected terrorists, seeking the arrangement that
minimally impinges on constitutional rights. 38 Even more accessible than specific statutes are the constitutional texts, whose provisions on such issues as the right to life, due process, equality,
courts seeking cooperation do engage in comparative analysis in their
judgments. As will be shown in part II below, comparative constitutional analysis has taken center stage in the emerging jurisprudence on counterterrorism and in court decisions in
developing countries concerning the right to a healthy environment. But even more significantly, international law, the source of collective standards,
has become an invaluable coordination tool for national courts. The ability of these courts to rely on the same
or similar legal norms (international treaties like the 1951 Geneva Convention Relating to the Status of Refugees, 39 or human
rights treaties) facilitates harmonization among them. 40 By referring to each other's interpretation of a shared text,
they not only signal readiness to cooperate, but also to a certain extent impede the future retreat of one of them
from the shared interpretation: as courts carefully watch each other, the one that backs away has to offer an
explanation to its peers.
and fundamental political rights are often similar. And indeed,
International Law incorporation is the only way to receive in-kind responses from
sender countries
Benvenisti 8
Eyal, Professor of Law, Tel Aviv University, RECLAIMING DEMOCRACY: THE STRATEGIC USES OF FOREIGN AND INTERNATIONAL LAW BY NATIONAL COURTS, 102
A.J.I.L. 241
Waves of asylum seekers from regions wasted by strife and poverty, especially since the early 1990s, have prompted developed countries to
modify their migration policies by considerably restricting the access of refugees and limiting their rights. 100 Such
restrictions have increased the importance of the minimal obligations states owe to refugees under international
law. The courts in destination countries have played an important role in shaping the policies regarding the
various asylum seekers subject to refoulement or deportation. The migration policy adopted by one state had
immediate effects in other states and many considered it essential to coordinate migration policies. The ways
that national courts in destination countries have interpreted and applied international law on migration are
therefore a key test of the thesis presented in this article. As opposed to the two areas of judicial creativity discussed earlier in this part, the formulation of
national migration policies has been high on the political agenda of many destination countries. The political branches expected the courts to
respect domestic political processes and uphold both the results of sustained deliberation and public opinion. Defying the popular will by abiding by the demands of international law might incur
A court that "cooperated" with the strict requirements of international law would channel
refugees to its country's shores if other courts "defected" by interpreting the international law concerning
refugees less generously. [*263] By and large, courts could not immediately reflect the transformation of national policies. The jurisprudence related to refoulement and
expulsion to countries where torture could be committed against the expellee was too clear to be waived. Direct contact with individual refugees and their painful life
stories, together with the judges' confidence in their ability to distinguish genuine from bogus claims, probably also moved courts to adopt a critical stance
toward new executive and legislative policies. Decisions of courts in the majority of destination jurisdictions
reflect this sentiment.
more than heavy criticism.
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International Law Solves the Environment
(--) Critics are wrong: international law is effective at solving environmental concerns:
Mark L. Glode, 1993 (Master's in Civil Engineering, University of Wisconsin-Milwaukee, Boston
College Environmental Affairs Law Review, Fall 1993, 20 B.C. Envtl. Aff. L. Rev. 1, Lexis, accessed
7/23/2013, rwg)
Can the international legal system, which is consensual by nature, resolve the issues raised by
transboundary pollution? Many scholars do not believe that the international legal system has developed to the point where
independent states will give prospective attention to global environmental concerns. n41 Critics claim that the slow process by which usage
evolves into customary international law is too time consuming, and further, that the obligations imposed on the parties in the process are not
always clear. n42 Indeed, one writer has commented that the vague obligations of customary law may promote the use of "legal fictions" by
encouraging parties in dispute to distort the facts so that an otherwise irrelevant custom will apply to their case. n43 Despite the
doubt
expressed by some commentators, traditional international law has demonstrated a respectable
degree of success in addressing environmental problems. n44 As a result, a coherent body of international
environmental law is emerging. n45 In fact, the progressive course of international environmental law
initiatives directed towards abatement of air pollution clearly indicates that a solution to
transboundary pollution is very close at hand.
(--) International law Is key to the environment
Petsonk 90- Carol Annette Petsonk is a lawyer that practices in the fields of international and
environmental law. "The Role of the United Nations Environment Programme (UNEP) in the
Development of International Environmental Law." American University International Law
Review 5, no. 2 (1990)
International legal instruments, including binding conventions, protocols, and nonbinding guidelines,
constitute increasingly important mechanisms for achieving bilateral and multilateral cooperation in
the field of the environment.2 Because there is no global entity with power to enforce such instruments, their effectiveness
depends on voluntary compliance. One factor favoring compliance is the current resurgence in environmental
awareness at both national and international levels. The interplay between environmental and
economic considerations also affects compliance. Short-term economic imperatives may undermine
compliance, resulting in long-term environmental damage. Environmental protection measures may inadvertently
foster black markets3 or operate as unfair trade barriers,4 further hampering compliance. Observed changes in environmental
quality can provide a yardstick for measuring the effectiveness of international environmental
instruments.5 Since its inception in 1972, the United Nations Environment Programme (UNEP) has played a
significant role in the development of international environmental law
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(--) International law is strong in environmental purposes
Zovko- PhD (2005), Faculty of Law University of Sydney, Australia. The author was one of the
participants of the 2005 University of Joensuu – UNEP Course on International Environmental
Law-making and Diplomacy (No Date) http://www.peacepalacelibrary.nl/ebooks/files/C080030-Zovko-International.pdf
International legislative activity began to flourish in the field of environmental law in the aftermath of
the 1972 Stockholm Declaration7 which brought the world’s attention to the environmental question.
Modern MEAs have evolved beyond a compendium of rules and regulations into international
environmental regimes (IERs), viewed by Young and Levy as the ‘social institutions consisting of agreed upon principles, norms, rules, procedures,
and programs that govern the interacions of actors in specific issue areas.’ 8 Legal discourse concerning effectiveness of MEAs and
IERs spans across two decades, drawing from the rich scholarship that has evolved around
international relations regime theory.9 Effectiveness of international regimes as a concept may assume many different meanings as
numerous methods exist for assessing regime effectiveness.10 Commonly, the following are the two key evaluating factors of effectiveness: the impact of an
international regime on the problems that it sets out to addresses; and employing the authority of a regime as a measurement of effectiveness – successful
enforcement and compliance. Similar evaluating criteria are employed when analysing the effectiveness of individual MEAs. Chambers, for instance, accentuates as
the principal measurement of MEA-effectiveness evaluation of the forecasted changes in the targeted behaviour and ultimately in the environment, while also
nominating the following critical points of effectiveness:11 i) the level of compliance without enforceability through a system of sanctions and penalties; ii) the
presence and successfulness of supplementary non-legal instruments that enhance enforcement (capacity-building); iii) treaty linkages, in particular conflicts with
other international instruments that may impede upon effectiveness. All of the above criteria are also valid assessment criteria for IER effectiveness. Furthermore,
the diffculty in evaluating the criteria to measure the level of impact lies in the challenge of distinguishing the many external influences that may have accounted for
change in the regime’s target group or activity from the actual consequences of the regime’s rules and policies
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International Law Solves Laundry List
(--) Bolstering of international law is crucial to solve a multitude of existential threats:
T. Alexander Aleinikoff, 2004 (Associate Dean for research @ Georgetown University Law Center,
Jan, 98 A.J.I.L. 91, Lexis, Accessed, 7/23/2013, rwg)
Perhaps these considerations are strong enough to carry the day. But I want to suggest a different kind of reason--one that confronts deeper issues of constitutional
structure and theory. The claim is this. The
United States will increasingly find itself seeking international and
supranational regulation of cross-border issues, such as terrorism and human and drug trafficking,
environmental degradation , high seas whaling and fishing, telecommunications, antitrust, international banking and money laundering,
international migration, disease control , and aviation. The list here is merely suggestive. Few issues today have impacts only
within the territorial borders of a single state--and even those that appear to affect only nation-state members (such as human rights violations) are nonetheless
often seen as of concern to the world community of states. The recent instances of unilateralism and isolationism in U.S. foreign policy--the "unsigning" of the Rome
Statute of the International Criminal Court, n79 [*104] the failure to ratify the Kyoto Protocol on climate change n80 and the land mines treaty, n81 and, most
significantly, the failure to obtain Security Council authorization for the war in Iraq--are far outbalanced by the literally thousands of international agreements to
which the United States is a party and to which it conforms its conduct on a daily basis, as well as its approval of major multilateral conventions, such as the World
Trade Organization Agreement, and novel new agreements, such as the Framework Convention on Tobacco Control. As
the world pursues
multinational regulatory efforts in new fields, the United States will seek to join and influence many
or most of them--not, primarily, from a sense of universalism or world moralism, but from flinty evaluations of national interest. It is important,
therefore, to foster opportunities for talking the talk of internationalism in domestic contexts. The
Incompatibility Statute, I will argue, can be one such effort. ¶ The problem is that new efforts at multilateral governance fit somewhat awkwardly into our
constitutional story of a self-governing people. The current narrative puts sovereignty in a nation-state box. To permit commands from outside the box to intrude
would be to that extent to cede sovereignty. In the American case, the damage is not just to national sovereignty; it also undercuts the fundamental legitimating
constitutional narrative: that the state has the authority to operate within the box because those who exercise power within the box do so under terms set by We
the People and are accountable to We the People for the faithful execution of their duties. The idea of popular sovereignty, then, has a dual legitimating function. It
provides a positive description of the construction of the sovereignty box (We the People adopted the Constitution) and also its normative basis (the forms of
government established under the Constitution are legitimate because we established it and because we choose those who exercise our delegated power). Law
from outside the box, therefore, cuts deeply. It both creates leakage--that is, sovereignty does not
remain fully within the box--and subjects our agents to orders not of our making.¶ Internationalists do not often
come to grips with these concerns, content to recite that "international law is part of our law." But if the domestic reception of international law is to develop,
constitutional theory and practice must open up the sovereignty box. n82 One possibility is to seek an amendment to the Constitution that expressly acknowledges
the legitimacy of law made outside the United States and beyond the control of U.S. policymakers--just as some European states found it necessary to amend their
constitutions in order to embrace the institutions and powers of the European Union. n83 But for a host of obvious reasons, the amendment route is difficult to
navigate. Moreover, it is unnecessary. We
have before us the opportunity to "grow" our constitutional narrative ,
either to work within a reconfigured sovereignty box to make space for international law or to move
slowly and carefully beyond the dominant narrative. n84
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(--) International law good-important for the functioning world in a variety of areas
Stratton 09-(Jane, Hot Topic: Legal Issues in Plain Language, “International Law”,
http://www.legalanswers.sl.nsw.gov.au/hot_topics/pdf/international_69.pdf, AMJ)
Although international law is mostly made between States or in relation to States, its effects are broader and can also affect other entities.
Sometimes these are called ‘non-State actors’ and include individuals, corporations, armed militant groups, groups that wish to secede or break
away from a State, and other collective groups of people, such as minorities (ethnic, religious, linguistic) and Indigenous peoples. The modern
system of international law developed in Europe from the 17th century onwards and is now accepted by all countries around the world. The
rules and principles of international law are increasingly important to the functioning of our
interdependent world and include areas such as: telecommunications, postal services and
transportation (such as carriage of goods and passengers); international economic law (including trade, intellectual property
and foreign investment); international crimes and extradition; human rights and refugee protection; the use
of armed force by States and non-State actors; counter-terrorism regulation (see Hot Topics 58: Terrorism); nuclear
technology, protection of the environment; and use of the sea, outer space and Antarctica.
(--) International law good-provides economic and security benefits and produces
mutually beneficial outcomes
Petallides 12-International Politics at Georgetown University (Constantine J., Student Pulse,
“International Law Reconsidered,” http://www.studentpulse.com/articles/715/internationallaw-reconsidered-is-international-law-actually-law, AMJ)
This distinction is more easily accepted with a clearer understanding of what motivates compliance with international law.
The reason
“almost all nations observe almost all principles of international law and almost all of their obligations almost all of
the time” is not because states feel obliged to under the law, but because the systems and benefits created by the laws
are favorable. States reap immeasurable economic and security benefits from the relatively peaceful
borders, global trade, and open air and sea navigation that the international legal regime provides;
and they will continue to follow its tenets so long as they cannot find a greater opportunity outside the system .
International law was
born from the practice of “states pursuing their interests to achieve mutually beneficial outcomes” and
it survives only “to the degree to which it continues to serve those interests.” Through this lens, international law can be examined from the
perspective of the domestic interests of states and how these dictate international law rather than vice-versa. The WTO stands as an example
“of an institution that is best understood as resolving bilateral disputes between states ”and the UN helps to coordinate cooperation between
the states.
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International Law Good: Solves War
(--) International law good-promotes world peace and enhances human welfare
Choudhury 2012-Assitant Professor at Queen Mary University of London (Barnali,
International Investment Law as a Public Good, http://law.lclark.edu/live/files/14087lcb172art5choudhurypdf, AMJ)
In 1944, the close of the Second World War brought together world leaders in Bretton Woods in an
effort to create a new world order. Conscious of the contribution that economic instability had made to
the commencement of the war, the architects of the new system set about to create an international
economic order that would avoid the perils of the interwar period and promote world peace. This
vision perceived the international economic order as one in which the utilitarian, wealth- producing
benefits of economic relations would be re-embedded into their social and political context. In short,
the new international economic order viewed prosperity primarily as a means to an end and not as an
end in and of itself. The ultimate aim of the new order, thus, would be to enhance human welfare.
(--) International law good-preserves international peace, promotes development, and
upholds human rights
Zyberi 09-Norwegian Center for Human Rights, Amsterdam Center for International Law
(Gentian, International Law Observer, “Debate on International Law: Its Importance and Place in
Curricula, http://www.internationallawobserver.eu/2009/09/24/debate-on-international-lawimportance-and-teaching/, AMJ)
International law is a mean to an end; and that end is to facilitate international intercourse in a way,
which preserves international peace and security, promotes sustainable development and upholds
fundamental human rights. In today’s interdependent and interconnected world, this ‘global village’, knowing at least some basics
about international law is helpful for any student of law. So, yes, a number of international law courses should have their place in the curricula
of the universities. Among others higher education is about widening one’s horizon beyond one’s own national borders. It is not helpful through
to put international law courses in the first year. As it is difficult to start building a house from the roof, it is difficult to study international law
or teach it to a student that has not yet had a course on constitutional law, criminal law or civil law. Engaging in a in-depth discussion on a
international criminal law issue with someone that has not yet had the opportunity to study domestic criminal law would be difficult, right?
(--) International law good-resolves international disputes and prevents violence
Stratton 09-(Jane, Hot Topic: Legal Issues in Plain Language, “International Law”,
http://www.legalanswers.sl.nsw.gov.au/hot_topics/pdf/international_69.pdf, AMJ)
An important aspect of international law is resolving international disputes, but it is only one part. Like any legal
system, international law is designed to regulate and shape behavior, to prevent violations, and to
provide remedies for violations when they occur.
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International Law: Moral Obligation
International community has the right to step and the responsibility to protect
Feinsten and Slaughter 04- *Acting Director of the Washington Program of the
Council on Foreign Relations AND**Dean of the Woodrow Wilson School of Public and
International Affairs at Princeton University and President of the American Society of
International Law( Lee, Anne-Marie, “Foreign Relations,” Vol. 83, No. 1, Section: “A Duty to
Prevent,” p. 136-137, Acessed: JSTOR, 7/25/13, NP)
In the name of protecting state sovereignty, international law traditionally prohibited states from
intervening in one another's affairs, with military force or otherwise. But members of the human
rights and humanitarian protection communities came to realize that, in light of the humanitarian
catastrophes of the 199os, from famine to genocide to ethnic cleansing, those principles will not do.
The world could no longer sit and wait, reacting only when a crisis caused massive human suffering or
spilled across borders, posing more conventional threats to international peace and security. As a result,
in late 2001, an international commission of legal practitioners and scholars, responding to a challenge
from the UN secretary-general, proposed a new doctrine, which they called "The Responsibility to
Protect." This far-reaching principle holds that today UN member states have a responsibility to
protect the lives, liberty, and basic human rights of their citizens, and that if they fail or are unable to
carry it out, the international community has a responsibility to step in.
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International Law Counter-hegemonic
(--) International law can serve counter-hegemonic purposes:
Aksan and Bailes 12-(Cihan and Jon, Counter Punch, “The Future of International Law and
Rights, http://www.counterpunch.org/2012/12/14/the-future-of-international-law-and-humanrights/, AMJ)
Throughout its history, from its modern origins in the seventeenth century, international law has
served the interests of the powerful and wealthy, but also contained the potential to protect the weak
and vulnerable. It is truly both a sword and a shield, and this double reality has persisted up until the
present era. Historically, international law lent a measure of legality to the colonial system, and allowed
the West to set the rules for participation as a sovereign state on a global level. It also protected the
interests of foreign investment in countries of the global South even when these were exploitative, and
deprived countries of the benefits of resources situated within their territories. At the same time,
international law was also appropriated by counter-hegemonic forces to contend that existing
international arrangements were immoral and needed to be supplanted by new legal rules and
procedures. The struggle against the international slave trade resulted in an international treaty that
made slave trading unlawful and eventually led to the international condemnation of slavery as an
institution.
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International Law Good: Human Rights
(--) International law good-helps governments be held accountable for human rights
Schoiswohl 12-Legal Officer at the Department of Legal Affairs (Michael, Inter Pares, “Why is
International Law Important?” http://interparespaper.ca/2012/08/why-is-international-lawimportant/, AMJ)
However,
international law has witnessed a tremendous evolution in both substantive and institutional terms. There is
virtually no area of international interest, which is not, in one way or another, governed by international law. Institutions have been established
international
law was initially conceived of as governing the relations among States, it has now developed into a dense web of rules
and institutions that address and govern non-State actors, such as international organizations and
even the individual. Most significantly, in many areas international law has pierced the shield of sovereignty to
reach far into the domestic affairs of States. Today, governments can be held accountable for human
rights violations and individuals can be tried for violations of international criminal law, to name but a few
that provide for important mechanisms to facilitate international cooperation and compliance with international law. While
examples.
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Right to Development: 2ac Extensions
(--) Extend our Manchak evidence—the Cuban embargo violates the right to
development—the failure to include the right to development in international law
justifies genocide—our Diamond evidence indicates genocide causes a nuclear war.
(--) The fact that international law does not explicitly mention a right to development
does not mean it doesn’t exist:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
See, e.g., Donnelly, supra, at 482-89 ("If
a right to development were enshrined in these documents, as is often
claimed, it would indeed be firmly established as a human right in international law. In fact, however,
it is not."). Such views, however, tend to obfuscate substance of international human rights law and
over-simplify the process by which international human rights norms develop. See Marks, supra, at 138.
Granted, the International Bill of Human Rights does not explicitly define a human right to
development as such, but it provides both the conceptual framework for envisioning a fundamental
right to development and the substantive underpinnings of the right . See U.N. Charter arts. 55-56; Universal
Declaration of Human Rights, supra note 6, art. 28; International Covenant on Civil and Political Rights, supra note 6, art. 1; International
Covenant on Economic, Social and Cultural Rights, supra note 6, art. 1; see also The Secretary-General, Report of the Secretary-General on the
International Dimensions of the Right to Development as a Human Right in Relation with Other Human Rights Based on International
Cooperation, Including the Right to Peace, Taking into Account the Requirements of the New International Economic Order and the
Fundamental Human Needs, PP 57-63, Delivered to the General Assembly, U.N. Doc. E/CN.4/1334 (Jan. 2, 1979) (enumerating the relevant
provisions in the various foundational instruments implying and indeed defining the right to development, concluding that "the
legal
norms relevant to the right to development are to be found primarily in the Charter of the United
Nations and the International Bill of Human Rights").
(--) Declaration on the right to development is good; prevents humanitarian suffering
UN 11 – United Nations (2011, United Nations, “25th Anniversary of the Declaration on the
Right to Development¶ ,” http://www.un.org/en/events/righttodevelopment/, ADL)
Development is a human right.¶ The United Nations Declaration on the Right to Development unequivocally
establishes development as a right and puts people at the centre of the development process. ¶ The groundbreaking document, adopted by the United Nations General Assembly on 4
December 1986, first proclaimed this inalienable right, declaring that everyone is ”entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental
The Declaration clearly states that development is a comprehensive process aiming to
improve “the well-being of the entire population and of all individuals on the basis of their active, free and
meaningful participation in development and in the fair distribution” of the resulting benefits. Like all human
rights, the right to development belongs to all individuals and peoples, everywhere, without discrimination and with their participation. The Declaration recognizes the right to
freedoms can be fully realized.”¶ It belongs to everyone¶ The pursuit of economic growth is not an end in itself.
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self-determination and to full sovereignty over natural wealth and resources.¶ 25th anniversary¶ This year marks the Declaration’s
25th anniversary. Yet many children, women and men – the very subjects of development – still live in dire need of the fulfillment of their entitlement to a life of dignity, freedom and equal opportunity. This directly affects the
realization of a wide range of civil, political, economic, social and cultural rights.
High Commissioner for Human Rights Navi Pillay has called on
governments and all concerned to seize the opportunity of this anniversary to move beyond political debate and focus on practical steps to implement the Declaration.¶ "I am duty-bound to raise this anniversary
call. We must end discrimination in the distribution of the benefits of development. We must stop the 500,000
preventable deaths of women in childbirth every year. We must free the millions of children from hunger in a world of plenty. And we must
ensure that people can benefit from their country’s natural resources and participate meaningfully in
decision-making. These are the kind of issues addressed by the Declaration, which calls for equal opportunity
and a just social order. … It’s not an act of nature that leaves more than one billion people around the world locked in the jaws of poverty. It’s a result of the denial of their fundamental human right to
development."
(--) Humanitarian laws are good; protect rights and people
ICRC 10 – International Committee of the Red Cross (10/29/10, “War and international
humanitarian law,” http://www.icrc.org/eng/war-and-law/overview-war-and-law.htm, ADL)
Armed conflict is as old as humankind itself. There have always been customary practices in war, but only in the last 150 years have States
made international rules to limit the
effects of armed conflict for humanitarian reasons. The Geneva Conventions and
the Hague Conventions are the main examples. Usually called international humanitarian law (IHL), it is also known as the law of
war or the law of armed conflict.¶ International humanitarian law is part of the body of international law that governs relations
between States. IHL aims to limit the effects of armed conflicts for humanitarian reasons. It aims to protect persons who are
not or are no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define
the rights and obligations of the parties to a conflict in the conduct of hostilities.¶
The right to development is a human right.
Sengupta 1 (Arjun Sengjupta, Economic and Political Weekly , Vol. 36, No. 27 (Jul. 7-13, 2001), pp.
2527-2536, http://www.jstor.org/stable/4410829 AKY)
The first article of the text of the Declaration on the Right to Development succinctly puts forward the
concept of the right development. It states, "The right to development is an inalienable human right by
virtue of which every human person and all peoples are entitled to participate in and contribute to and
enjoy economic, social, cultural, and political development in which all human rights and fundamental
freedoms can be fully realised". First, there is a human right that is called the right to development, and
this right is 'inalienable', meaning it cannot be bargained away. Then, there is a process of "economic,
social, cultural, and political development", which is recognised as a process in which "all human rights
and fundamental freedoms can be fully realised". The right to development is a human right, by virtue
of which, " every human person and all peoples are entitled to "participate in, contribute to and enjoy"
that processes of development.
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The Universal Declaration is key to rights
Sengupta 1 (Arjun Sengjupta, Economic and Political Weekly , Vol. 36, No. 27 (Jul. 7-13, 2001), pp.
2527-2536, http://www.jstor.org/stable/4410829 AKY)
The consensus over the unity of civil and political rights and economic, social, and cultural rights was
broken in the 1950s, with the spread of the cold war. Two separate covenants, one covering the civil and
political rights and another covering economic, social and cultural rights, were promulgated to give
them the status of international treaties in the late 1960s, and both came into force in the late 1970s. It
took many years of international deliberations and negotiation for the world community to get back to
the original conception of integrated and indivisible human rights. The Declaration on the Right to
development was the result. However, the single dissenting vote by the US set back the process by
several years during which the international community could have tried to translate such a right to
development into a reality. Issues were raised about the foundational basis of this right, its legitimacy,
justiciability, and coherence. The world was still divided between those who denied that economic,
social, and cultural rights could be regarded as human rights, and those who considered that economic,
social and cultural rights as not only fully justifiable human rights, but as essential human rights. Claims
and counter claims continued to be made by both the groups in different forums.
The Right to Development is implemented in international law.
Bunn 00 (Isabella Bunn, "The Right to Development: Implications for International Economic Law."
American University International Law Review 15, no. 6 (2000): 1425-1467,
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1291&context=auilr, AKY)
A comprehensive evaluation of the legal standing of the UNDRD would require legal analysis of the
normative resolutions of the UN General Assembly, of state practice and customary international law,
of the doctrine of jus cogens, and even of obligations erga omnes. Nonetheless, the prevailing view is
that the right to development is, at the very least, on the threshold of acceptance as a principle of
positive international law.
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Right to development can be implemented efficiently
Alston 4 (Philip Alston, Special Adviser to the United Nations High Commissioner for Human Rights on
the Millennium Development Goals, A HUMAN RIGHTS PERSPECTIVE ON THE MILLENNIUM
DEVELOPMENT GOALS, AKY)
The nature of any obligation which could reasonably be argued to have emerged from the various
commitments to cooperate internationally is, at best, a generic one which attaches to the
undifferentiated international community. One illustration of this approach is the proposal emanating
from the UN Commission on Human Rights’ former Independent Expert on the Right to Development,
Arjun Sengupta, in which he proposes that ‘development compacts’ would be drawn up between
developing countries and an unspecified and presumably largely self-identified group of donors. As long
as the former fulfilled their rights-based commitments to the best of their ability and capacities, the
latter group would undertake to mobilize the necessary resources. According to the proposal a given
country would propose a program outlining both what needs to be done overall and what the country
itself can achieve while a ‘support group’ would ‘examine the obligations specified and decide on
burden-sharing among the members of the international community’ to provide the needed assistance.
certain ‘callable commitments’ which would have been made in advance and made dependent upon the
required progress by the government concerned.
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Cuban Embargo violates OAS Charter:
Krinsky 2001. (“CHAPTER NINE,INTERNATIONAL LAW & THE EMBARGO,”
http://www.medicc.org/resources/documents/embargo/Chapter%20Nine.pdf, ADL)
In examining the
specific dictates of the American Declaration which are of relevance in¶ determining the
compatibility of the CDA with U.S. human rights obligations, the following should¶ be noted:¶ Art. I provides: -Every human
being has the right to life, liberty and the security of his person.”¶ Art. VII provides: “All women, during pregnancy
and the nursing period, and all children¶ have the right to special protection, care and aid.”¶ Most notably, Art. XI
provides: ‘Every person has the right to the preservation of his health¶ though sanitary and social measure
relating to food, clothing, housing and medical care, to the¶ extent permitted by public and community resources.”¶ These
articles impose an affirmative duty on the government of each state to ensure these¶ protections to its citizens and residents. Likewise, the
Declaration and OAS Charter require that¶ each state must refrain from taking actions which would
hinder or prevent other states from¶ carrying out these obligations. As is discussed elsewhere in this report, the
U.S. restrictions on the¶ sates of medicines to Cuba .directly impact the ability of the Cuban
population to preserve its health¶ through adequate and proper medical care.”
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OAS Impacts: Democracy
(--) OAS is key to democracy:
Dr. Riyad Insanally, 9/20/2010 (OAS Representative in Trinidad and Tobago, “The OAS is
indispensable,” http://bizjournalonline.com/?p=876, Accessed 7/23/2013, rwg)
In this context, the OAS bases its work on four mutually reinforcing pillars: democracy, human rights,
multidimensional security and integral development. To put it simply: promoting democracy and
strengthening security are essential for overall stability, which in turn helps to lay the groundwork for
economic development and thereby contributes to raising the standard of living of all citizens and
taking people out of poverty. It is a virtuous circle which the OAS is working to close, through a
dynamic agenda of cooperation, capacity-building and institutional strengthening, in response to the
needs of its member states.
(--) OAS is key to safeguarding and consolidating democracy:
Dr. Riyad Insanally, 9/20/2010 (OAS Representative in Trinidad and Tobago, “The OAS is
indispensable,” http://bizjournalonline.com/?p=876, Accessed 7/23/2013, rwg)
Over the past two decades, Latin America has been undergoing a transcendental period of political
transformation, as dictatorship has given way to democracy and the rule of law, and the OAS has been
playing a vital role in helping to safeguard and consolidate democracy.
This process was bolstered in 2001 with
the unanimous adoption of the Inter-American Democratic Charter, which, inter alia, recognizes that “democracy is essential for the social,
political, and economic development of the peoples of the Americas”.
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OAS Impacts: Sexism
A) OAS solves for discrimination against women:
Dr. Riyad Insanally, 9/20/2010 (OAS Representative in Trinidad and Tobago, “The OAS is
indispensable,” http://bizjournalonline.com/?p=876, Accessed 7/23/2013, rwg)
The Democratic Charter also inherently recognizes that democracy does not depend on the holding of elections alone and the OAS has
developed its work programme accordingly. In the area of human rights, the OAS supports the autonomous work of the Inter-American Human
Rights Commission and the Inter-American Court of Human Rights, which are the organs that the OAS Charter and the Inter-American
Convention of Human Rights have authorized to pronounce on cases and situations in member states. In addition, the
OAS is working
to end all forms of discrimination and to protect the rights of the marginalized in society and those of indigenous peoples. The
OAS also places a high premium on youth affairs and women’s issues. Through the Inter-American
Commission of Women, for example, there is a strong focus on ending violence against women and
promoting equal employment opportunities and women’s rights in health and education.
B) PATRIARCHY RISKS NUCLEAR WAR
Betty Reardon, 1993 Director, Peace Education Program, Columbia, WOMEN AND PEACE, 1993, pp.
30-1.
A clearly visible element in the escalating tensions among militarized nations is the macho posturing
and the patriarchal ideal of dominance, not parity, which motivates defense ministers and
government leaders to “strut their stuff” as we watch with increasing horror. Most men in our
patriarchal culture are still acting out old patterns that are radically inappropriate for the nuclear age.
To prove dominance and control, to distance one’s character from that of women, to survive the toughest violent initiation, to shed the sacred
blood of the hero, to collaborate with death in order to hold it at bay all of these patriarchal pressures on men have traditionally reached
resolution in ritual fashion on the battlefield. But there is no longer any battlefield. Does anyone seriously believe that if a nuclear power were
losing a crucial, large-scale conventional war it would refrain from using its multiple-warhead nuclear missiles because of some diplomatic
agreement? The
military theater of a nuclear exchange today would extend, instantly or eventually, to all
living things, all the air, all the soil, all the water. If we believe that war is a “necessary evil,” that
patriarchal assumptions are simply “human nature,” then we are locked into a lie, paralyzed. The
ultimate result of unchecked terminal patriarchy will be nuclear holocaust.
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OAS Impacts: Narco-Trafficking
(--) OAS solves narco-trafficking:
Dr. Riyad Insanally, 9/20/2010 (OAS Representative in Trinidad and Tobago, “The OAS is
indispensable,” http://bizjournalonline.com/?p=876, Accessed 7/23/2013, rwg)
The OAS takes a holistic approach to security, through its Secretariat for Multidimensional Security, which coordinates the
work of the Inter-American Drug Abuse Control Commission, the Inter-American Committee against Terrorism and the Department of Public
Security. The
focus is on training programmes, exchanges of experience, judicial reform and the
strengthening of crime databases, to address trans-national security threats such as narco-trafficking,
money laundering, terrorism and trafficking in persons and arms.
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OAS Solves Cross-Border Issues
(--) OAS is critical to facilitate action to solve cross-border challenges:
Dr. Riyad Insanally, 9/20/2010 (OAS Representative in Trinidad and Tobago, “The OAS is
indispensable,” http://bizjournalonline.com/?p=876, Accessed 7/23/2013, rwg)
As Assistant Secretary General Albert Ramdin, said to the OAS Permanent Council earlier this year, “I
believe that the OAS is indispensable… it remains the only hemispheric political entity in the Americas
with a broad mandate to strengthen the peace and security of the continent and to facilitate common
action to address the many cross-border challenges our countries face.”
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Harms 2ac Blocks
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AT: Air Pollution Defense
(--) Air pollution does threaten extinction—extend our Masilamany evidence from
2/13—the world is losing the battle against air pollution—water systems are turning
toxically rabid because of acid rain—35% of Europe’s forests are suffering from air
pollution damage—our evidence is newer & better than their terminal impact
defense, our Carroll evidence says this undermines human survival and the Earth’s
ecosystem as a home for Homo sapiens hangs in the balance.
(--) Coal burning increasingly responsible for acid rain:
Joseph Masilamany, 2/14/2013 (staff writer, “Greening the coal-blooded,”
http://www.power-eng.com/news/2013/02/14/greening-the-coal-blooded.html, Accessed
2/19/2013, rwg)
According to TNB, 26%
of the country's total CO2 emissions in 2006 were jettisoned into the atmosphere by
the electricity and energy industry sector - and this is largely through the use of fossil fuels such as coal, gas and other other
distillates.¶ The Massachuset ts-based Union of Concerned Scientists (UCS) says burning coal generates smog, soot, acid
rain and other toxic emissions known as green house gases. It also causes "waste heat" that contributes to global warming.
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AT: Water Shortages Defense
(--) There are severe water shortages—extend our Daily Mail evidence—vast
freshwater reserves equivalent in size to the Dead Sea have been lost in the Middle
East in the last decade—you should prefer our evidence, it cites a NASA study that
also says there will be shortages for decades to come. Our Nagel evidence says this
threatens human survival.
(--) Water shortages coming now—by 2030 demand for water will exceed supply by
40%:
Jessica Avitabile, 2/14/2013 (staff writer, “Barlow talks global water shortages,”
http://thedartmouth.com/2013/02/14/news/water, Accessed 2/19/2013, rwg)
As floral stores gear up for the Valentine’s Day rush, Lake Naivasha in Kenya is drying up due to a growing global demand for flowers. By
2030, the demand for water will exceed available supply by 40 percent, Canadian water rights activist and
bestselling author Maude Barlow said in a lecture Wednesday afternoon.¶ Barlow, who has been called “the Al Gore of water,” outlined
major concerns and conflicts surrounding the global water supply and argued for the public’s right to
access the resource. Some areas of the world are already in short supply.
(--) Current water use is unsustainable:
Jessica Avitabile, 2/14/2013 (staff writer, “Barlow talks global water shortages,”
http://thedartmouth.com/2013/02/14/news/water, Accessed 2/19/2013, rwg)
Barlow emphasized that water shortages not only pose a threat to the Global South, but also to the United States and the developed world as
well. Water
shortages threaten 36 U.S. states, with the Southwest most at risk. The agriculture industry
is the largest consumer of water, and current farming techniques are likely to become unsustainable
in the near future due to the decreasing supply and growing cost of water, she said.
(--) Massive water loss in the Middle East now:
Daily Mail, 2/13/2013 (“Warnings of severe water shortages in the Middle East after
satellites show freshwater reserves the size of the Dead Sea have dried up,”
http://www.dailymail.co.uk/sciencetech/article-2278040/Nasa-warn-freshwater-shortagesMiddle-East-study-shows-diminished-reserves.html, Accessed 2/18/2013, rwg)
About 60 per cent of the water went as a result of pumping underground reservoirs for ground water, including 1,000 wells in Iraq, and another
20 per cent was due to impacts of the drought including declining snow packs and soil drying up.¶ The
NASA satellites have shown
for the first time exactly how bad the loss of freshwater reserves in the Middle East has been¶ Nasa
satellites have shown for the first time how bad the loss of freshwater reserves in the Middle East is¶ Loss of surface water from
lakes and reservoirs accounted for about another fifth of the decline, the study found.¶ 'This rate of
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water loss is among the largest liquid freshwater losses on the continents,' the authors wrote in the
study, noting the declines were most obvious after a drought.
(--) Water shortages are expanding now:
Miriam C. Nagel, 2013 (“Water Shortages,” http://www.highbeam.com/topics/watershortages-t25820, Accessed 2/18/2013, rwg)
According to information published by the United Nations during the International Year of Freshwater
2003, at that time there were more than one billion people who did not have access to a consistent
supply of clean freshwater. More than one-third of the world's population did not have access to proper sanitation. Among the
human cost implied by these statistics are the thousands of children who die each year from water-borne diseases, particularly in less
developed regions of the world.
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Water Shortages Impact Extensions
-Water shortages and Nitrogen pollution lead to extinction
Brown 99 (Paul Brown, Environment CorrespondentThursday September 16, 1999 The
Guardian HYPERLINK "http://www.guardian.co.uk/print/0,3858,3902455-107165,00.html"
http://www.guardian.co.uk/print/0,3858,3902455-107165,00.html, accessed 9/15/03)
In a devastating assessment on the future for the human race in the early part of the next century Klaus
Töpfer, the executive director of the UN environment programme, said yesterday that the main threats
to human survival were posed by water shortages , global warming, and a new danger - worldwide
nitrogen pollution. "A series of looming crises and ultimate catastrophe can only be averted by a
massive increase in political will. We have the technology but we are not applying it," he said.
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AT: Ozone Depletion Defense
(--) The ozone layer is depleting fast—extend our Science Daily evidence from
1/31/2013, a new Penn State study says that a southward shift in the jet stream is
proof of depletion of Antarctic ozone, our Levy evidence indicates this is a matter of
human survival.
(--) Continued useage of fossil fuels threatening ozone depletion:
Powergrid International, 2013 (“BIOGAS - An emerging alternative technology,”
http://www.elp.com/news/2013/02/11/biogas-an-emerging-alternative-technology.html,
Accessed 2/19/2013, rwg)
Energy plays an important role in the development of any society. It is the primary and universal necessity for all kinds of work ever done by
human beings and nature. The
rapid industrialization has led to increased use of fossil fuel such as coal, oil
and gas to meet the power requirement, which results in depletion of natural resources. Due to increased demand and cost of energy, these
resources are not sufficient and becoming more and more expensive. Presently, the country is facing major energy crisis that has seriously
affected economic growth and development process. Prolonged load shedding is a routine matter and the reason is continuous decline in oil
and gas reserves and vertical increase in prices. Deforestation
and emission of hydrocarbon is a continuous threat
on environment, considered responsible for ozone depletion.
sources are not sufficient as being used rapidly.
With the increasing fuel demand, available energy
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Terrorism Advantage Extension
(--) Extend our terrorism advantage—our Sid Ahmed evidence says this risks a nuclear
response and extinction.
(--) Poorly secured stockpiles increase the risk of nuclear terrorism:
Statement of Gene Aloise, 3/14/2012 (Director, Natural Resources and Environment,
“NUCLEAR¶ NONPROLIFERATION¶ Further Actions Needed by¶ U.S. Agencies to Secure¶
Vulnerable Nuclear and¶ Radiological Materials,”
http://www.gwu.edu/~nsarchiv/nukevault/ebb388/docs/EBB034.pdf
One of the most serious threats facing the United States and other¶ countries is the possibility that
other nations or terrorist organizations¶ could steal a nuclear warhead or nuclear weapon¶ usable
materials from¶ poorly secured stockpiles around the world,¶ Weapon¶ usable nuclear materials are highly enriched
uranium, uranium¶ 233, and any¶ plutonium containing less than 80 percent of the isotope plutonium¶ 238.¶ Such materials¶ are also often
referred to as fissile materials or strategic special nuclear materials.¶ or that nations could divert¶ nuclear material intended for peaceful
purposes to the development of¶ nuclear weapons.¶ Terrorists or countries seeking nuclear weapons could¶ use as little as 25 kilograms (Kg) of
weapon¶ -¶ grade highly enriched¶ uranium (HEU) or 8 Kg of plutonium to construct a nuclear weapon.¶ Of¶ great concern is that terrorists
could fashion a crude nuclear bomb made¶ from either HEU or plutonium into an improvised nuclear device (IND). An¶ IND would create an
explosion producing extreme heat, powerful¶ shockwaves and intense radiation that would be immediately lethal to¶ individuals within miles of
the explosion, as well as radioactive fallout over¶ thousa¶ nds of square miles.¶ Nonproliferation experts estimate that a¶ successful IND could
produce the same force as the equivalent yield of¶ the bomb that destroyed Nagasaki, Japan, in 1945; it could devastate the¶ Page 2¶ GAO¶ 12-512T¶ heart of a medium¶ -¶ sized U.S. city.¶ The
explosion could cause hundreds of¶ thousands of deaths and
injuries, as well as pose long¶ -¶ term cancer risks¶ to those exposed to the radioactive fallout.
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Solvency 2ac Blocks
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AT: Rollback/Won’t Be Enforced
(--) We solve: extend our Sylvester evidence—even if the plan isn’t enforced
domestically, we still incorporate international law into Supreme Court jurisprudence,
solving our international law and right to development advantages.
(--) No rollback: three reasons:
Schacter, 1995 (Assistant Professor of Law, University of Wisconsin Law School, “ARTICLE:
METADEMOCRACY: THE CHANGING STRUCTURE OF LEGITIMACY IN STATUTORY
INTERPRETATION” Harvard Law Review, JANUARY, lexis, Accessed 2/18/2013, rwg)
Even if some of the strongest cynicism about legislative behavior and motivation is overstated, several aspects of the pluralist process
nevertheless suggest that statutory
override cannot cure all that ails the essentialist model. First, legislatures
are frequently too busy, overextended, or inert to respond to an objectionable judicial
interpretation. n54 Indeed, there is little reason to believe that legislators systematically monitor judicial
interpretations of statutes. n55 Second,
[*606]
statutory override is an imperfect substitute , and
controversial as a normative matter, because the current legislature may have different preferences
from the enacting legislature. n56 Third, even when legislators do respond to a particular judicial
interpretation, the process does not necessarily end . The new statute might require interpretation,
and the process may simply continue. n57
(--) Strike down efforts in Congress fail—can’t get enough Congressional support to
strike down Court decisions:
Lawrence Baum, 2003 Department of Political Science, Ohio State University,
[“The Supreme Court in American Politics,” http://arjournals.annualreviews.org/doi
/full/10.1146/annurev.polisci.6.121901.085526;jsessionid=n1HzQqZJALRe]
It is also worth asking why the Court fares so well in Congress. As noted above, few of the Court's
most controversial interventions in the past half century have been directly reversed . Nor has
Congress enacted any of the numerous bills to remove the Court's jurisdiction over areas in which
the Court has aroused congressional anger. A large part of the explanation lies in the difficulty of
enacting legislation in a process with so many veto points. That difficulty is especially great in an era like the current one,
which lacks a strong or stable law-making majority. In such an era, interventions are likely to have significant support in government regardless
of their ideological direction, and
even decisions that strike down federal laws may enjoy majority support. The
line of decisions since 1995 that has limited the regulatory power of the federal government (e.g., Alden v. Maine 1999, United States v.
Morrison 2000) constitutes the most significant judicial attack on federal policy since the 1930s. But since 1995, Congress has had Republican
majorities except for the bare Democratic Senate majority in 20012002. In that
the Court's policies has been exceedingly unlikely .
situation, any significant action to counter
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(--) Other branches will comply—fear of public backlash guarantees:
McFarland, 2008 New York University Annual Survey of American Law editor (Michael, New
York University Annual Survey of American Law, "Derivative Citizenship: Its History,
Constitutional Foundation, And Constitutional Limitations," 63 N.Y.U. Ann. Surv. Am. L. 467, l/n,
accessed 2/18/2013, rwg]
The idea that courts should decline review because they do not want their decisions to be ignored by the political branches is misguided.
Congress would rarely risk the public backlash that would come with ignoring a Supreme Court
directive. n240 President Nixon, for example, would have found it all but impossible to refuse to provide
Congress with his Oval Office tapes. n241 Redish even argues that courts gain from challenging the political branches. n242
Courts, and especially the Supreme Court, are viewed as the final arbiters of the Constitution, and public support will frequently be on their side
if they choose to challenge Congress or the executive. n243 Thus, the institutional reasons for granting deference to Congress provide little
support for the plenary power doctrine.
(--) Politicians will enforce the counterplan—they’ll act if the statute is gone away for
all time:
Treanor & Sperling 93 William - Prof Law at Fordham. Gene - Deputy Assistant to President for
Economic Policy. “PROSPECTIVE OVERRULING AND THE REVIVAL OF "UNCONSTITUTIONAL" STATUTES,”
Columbia Law Review, Dec 93, lexis
First, full examination of the revival issue demonstrates the interactive nature of the relationship between judicial invalidation of statutes and majoritarian decision-making. Judicial review is
the very act of judicial invalidation powerfully shapes subsequent legislative
deliberations. Belief in the finality of judicial judgments is so pervasive that, when a statute is struck
down or when a judicial decision establishes a rule of law under which a statute is unconstitutional, its
not purely external to the legislative process:
opponents frequently act as if the statute were gone for all time . At the very least, even if political actors realize
the potential for reversal, the finding of unconstitutionality alters the way in which they spend their
political capital. As a result, rather than seek to repeal a statute that appears to be, for all practical purposes, a nullity, they devote their political
resources
to other - more clearly
consequential - matters. Revival in such circumstances can produce a result contrary to what the political process would have produced in the absence of the initial judicial decision.
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Solvency: Lower Courts will follow
(---) Doesn’t matter if lower courts don’t follow:
A) The plan sends a signal of international law—our Sylvester evidence says we
successfully incorporate international law into Supreme Court jurisprudence.
B) Still solves modeling—our Barasso evidence indicates that other democracies
will model the plan because of the Supreme Court action.
(--) Judges almost always follow the courts lead—multiple reasons:
Lawrence Baum, 2003 Department of Political Science, Ohio State University, June [“The
Supreme Court in American Politics,” http://arjournals.annualreviews.org/
doi/full/10.1146/annurev.polisci.6.121901.085526;jsessionid=n1HzQqZJALRe]
Once we know more about the implementation of the Court's decisions in absolute and relative terms, the most important question might well
be why implementation is as successful as it is.
The Court's limited concrete powers would seem to aggravate the
difficulties faced by all organizational leaders, so why do judges and administrators follow the Court's
lead so frequently? Within the judiciary, part of the answer undoubtedly lies in selection and
socialization processes that enhance agreement about legal policy and acceptance of hierarchical
authority . Even the Court's limited powers may be sufficient to rein in administrators, especially in the era of
broad legal mobilization that Epp has described: Groups that undertake litigation campaigns to achieve favorable precedents can also litigate
against organizations that refuse to accept those precedents.
Both judges and administrators may reduce their decision
costs by using the Court's legal rules as a guide. In any event, the relationship between the Court and policy makers who
implement its policies may be an especially good subject for studies to probe the forces that reduce centrifugal tendencies in hierarchies.
(--) Parties almost always adhere to Court rulings:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
(b) Authoritative Legitimacy and Its Limits. - Today, nearly all Supreme Court rulings possess a high
degree of authoritative legitimacy, whether in the strong or the weak sense, at least with respect to
[*1831] the parties before the Court. n195 In plainer terms, the parties almost always obey the
Court's rulings . No logical necessity undergirds this state of affairs. In the past, General Andrew Jackson famously defied a judicial ruling.
n196 So did President Abraham Lincoln. n197
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Solvency: Law Not Indeterminate
(--) Even if the law is indeterminate, we still solve
A) We incorporate international law into the judiciary—our Sylvester evidence says
this bolsters the development of international law.
B) We still solve our modeling advantage—our Barasso evidence indicates other
countries will model the plan.
C) You should prefer issue specific evidence on these questions—our evidence
indicates how the Court will interpret the plan.
(--) Courts will follow precedent—they feel an overwhelming obligation to do so:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
Throughout constitutional history, Supreme Court Justices have assumed with near unanimity that
they are legally authorized and sometimes bound to follow precedents , sometimes even when prior
cases were themselves erroneous at the time of their decision. n149 Indeed, I know of no Justice in the
history of the Supreme Court who has persistently questioned [*1822] precedent-based
decisionmaking. n150 Even leading constitutional originalists - those who maintain that courts otherwise ought to
decide cases in accordance with the original understanding n151 -
have accepted the authority of judicial precedent ,
including past decisions that could not themselves be justified under originalist principles. n152
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Solvency: The Plan will Snowball
(--) The plan is the constitutional moment that will lead American constitutionalism to
embrace international law:
T. Alexander Aleinikoff, 2004 (Associate Dean for research @ Georgetown University Law Center,
Jan, 98 A.J.I.L. 91, Lexis, Accessed, 7/23/2013, rwg)
Constitutional theory lacks an agreed-upon story of constitutional development. n99 Bruce Ackerman
has proposed a
comprehensive account of "constitutional moments"; and the coeditor in chief of this Journal has noted that we await the
"constitutional moment" that
organizations . n100
will lead American constitutionalism to embrace lawmaking by international
[*108]
It is conceivable that some cataclysmic event, rupturing domestic and world public order,
will produce such a moment. But there is another route: a slow-moving revolution that, with
conscious and careful steps, evolves constitutional law in a direction that our politics will soon
demand. What is needed, then, are processes and institutions that can help the next generation of
lawyers, policymakers, political leaders, and the public come to see international law as less foreign
and more homegrown, as an accepted and acceptable element of the American legal system . The
Incompatibility Statute would be one building block of the new narrative.
(--) LEGAL PRECEDENTS SNOWBALL:
Tsai, 2005 Assistant Prof. of Law @ University of Oregon School of Law, 2005 (Robert, Iowa
Law Review, March 2005; 90 Iowa L. Rev. 1095; Lexis)
It is always risky to attempt predictions based on a reading of signs. The
history of law, like human history generally, is a
set of contingencies. Unforeseen events can cause a disruption; a series of small interpretive choices
and popular reactions can add up to a quiet legal revolution. More important, law's appearance can be deceiving. Still,
legal symbols do reveal [*1160] gestalts - the particular interaction between law's manifestations and the beliefs they express.
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Solvency: Supreme Court Decisions are Modeled
(--) Extend our Barasso evidence—other democracies model the Supreme Court
decisions.
(--) Domestic litigation in the US is modeled by other nations:
Van Schaack, 2004 Assistant Prof. of Law @ Santa Clara University School of Law, Vanderbilt
Law Review, November, (Beth, 57 Vand. L. Rev. 2305; Lexis)
Nonetheless, domestic civil litigation in the U.S. plays a part where criminal prosecutions are not feasible
or forthcoming and where perpetrators are subject to personal jurisdiction here. By exposing the whereabouts of
abusers, civil suits can spur or shame the U.S. government into invoking administrative n133 and/or criminal remedies against identified
perpetrators. n134 For example, information gathered in connection with civil lawsuits has assisted the Bureau of Immigration and Customs
Enforcement (formerly the Immigration and Naturalization Service) in pursuing actions against abusers for visa fraud. n135
Likewise, the
commencement of civil litigation in the U.S. can trigger similar judicial responses in the home
countries of defendants. n136
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Solvency: Court Creates Social Change
(--) Plessy and other race based decisions prove: the stamp of approval from the
Supreme Court has powerful societal consequences:
Lassiter, 2005 Assistant Professor of History, University of Michigan, Michigan Law Review,
May, 2005, 103 Mich. L. Rev. 1401
Klarman largely substantiates his claim that the Plessy Court's civil rights decisions represented "plausible interpretations of conventional legal
sources" and accurate reflections of white public opinion, and therefore the corollary that "these rulings were not blatant nullifications of postCivil War constitutional amendments designed to secure racial equality" (p. 9). But this does not necessarily confirm his broader thesis about
Klarman's belief in judicial minimalism downplays the
import of having the institution of the Supreme Court - and not just southern vigilantes or political
demagogues or even Progressive-era reformers - extend the federal government's stamp of
constitutional approval to a formal legal system that operated on the basis of the systematic racial
subordination of African Americans. [*1411] "Jim Crow legislation was generally more symbolic than functional," according to
the minimal effect of the Plessy-era decisions on the path of history.
Klarman, because "white supremacy depended less on law than on entrenched social mores, backed by economic power and the threat and
reality of violence" (p. 82). But surely it is not simply a coincidence that a relatively stable racial order marked the four decades between the
turn of the twentieth century and the beginning of World War II, the same era during which the Plessy Court's validation of legal segregation
and black disfranchisement remained operative. Nor is it incidental that substantial black activism and corresponding white violence marked
the fluid and unsettled racial climate that existed during the decades before the Supreme Court's endorsement of segregation and
disfranchisement in the late 1890s, and also during the period after the federal judiciary began to chip away at both policies beginning in the
The Supreme Court's overt willingness to tolerate state-action subterfuges that enforced antiblack discrimination through race-neutral facades also helped to shape the legal underpinnings of racial
inequality and provided a segregationist road map for southern (and northern) policymakers
throughout the twentieth century. Between 1910 and 1920, the Court issued a series of rulings that invalidated forced peonage
1940s. n35
laws, grandfather clauses, separate-and-unequal luxury accommodations in railroad cars, and city ordinances mandating residential
segregation. n36 These cases, which Klarman aptly characterizes as "concerned more with form than substance," were therefore "easy to
circumvent" as long as legislatures continued to pay lip service to constitutional principles (p. 62). For example, beginning in the 1920s the
NAACP mounted an aggressive assault on residential segregation, which emerged as a decidedly national phenomenon as a result of
urbanization in the South and the First Great Migration of blacks to the North. But the federal courts upheld restrictive racial covenants under
the doctrine of private property rights until the late 1940s, and they have never seriously challenged "racially motivated but facially neutral
zoning" (p. 92) and other public policies that offer ample evidence of state action. n37 In the area of criminal law, the [*1412] Supreme Court
expanded the scope of due process during the interwar period to rescue black victims of grossly unjust trials, but these individual (rather than
class-action) cases did almost nothing to remedy the structural racism that pervaded the southern legal system (pp. 117-35, 152-58). During the
New Deal era, the justices did signal a greater willingness to consider the state action dilemma in cases involving the all-white primary in Texas
and the failure of Missouri to provide a substantively equal law school for a black applicant in the Gaines litigation brought by the NAACP. n38
The civil rights group ensured that voting discrimination and substantive equality in public education would remain on the judicial agenda
during and after World War II, the turning point in Klarman's story.
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(--) Court decisions produce massive societal ripple effects: Brown v. Board of
education proves:
Yeazell, 2004 professor of law @ UCLA, 2004 (Stephen, Vanderbilt Law Review, November,
2004, 57 Vand. L. Rev. 1975; Lexis)
One doubts that Robert Carter, Thurgood Marshall, Spottswood Robinson, Jack Greenberg and the rest of the legal team that argued Brown
v. Board of
Education n1 spent much time thinking about mass torts. Nonetheless, it is entirely appropriate that a commemoration of their achievements include not only
that topic but also international human rights and health care, as well as the more expected ones of education and social welfare. Brown was part of a
revolution, and revolutions often have collateral effects as important as their immediate consequences.
The civil rights movement followed the same pattern. [*1976] As an immediate consequence, that
movement brought us school desegregation. Follow-on effects included desegregation of public
facilities. These were important milestones in U.S. society. They achieved specific changes, but they also
made possible the second civil rights revolution - the legislative actions that have, in the last four
decades, transformed U.S. society. Beyond race and civil rights, Brown created several ripples, two of which
provide the focus for this Essay. First, Brown and the civil rights litigation movement helped create a renewed
belief, not just in the law, but more specifically in litigation as a noble calling and as an avenue for
social change. That belief lies open to challenge, and it can leave students and lawyers frustrated at the distance between the aspirations that brought them
to law school and the world of practice as they perceive it. But whether or not it is well-founded, this belief, with roots traceable to Brown and civil rights litigation,
has endured for several generations. Thus, Brown
reshaped the aspirations of lawyers in ways that are still important.
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Solvency: Cuban Growth
(--) Lifting the embargo bolsters Cuban economic growth.
Shari-Ellen Bourque, 1995 (Boston University International Law Journal, Spring 1995, 13 B.U. Int'l L.J.
191, Lexis, Accessed 7/21/2013, rwg)
Cuba would also benefit immensely in terms of increased trade and economic growth. n262 U.S. tourists
would flock to Cuba and bring money with them. Additionally, U.S. companies would export large
numbers of goods to Cuba thus increasing the standard of living. This would, in turn, benefit the United States by
decreasing the number of refugees and might even encourage the re-patriation of Cuban-Americans.
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Solvency: Supreme Court can incorporate CIL
(--) Supreme Court has the authority to incorporate customary international law:
Jordan J. Paust, 1999 (Law Foundation Professor, University of Houston Law Center, Michigan
Journal of International Law, Winter 1999, 20 Mich. J. Int'l L. 301, Lexis, Accessed 7/22/2013,
rwg)
For these reasons also, customary
international law has been directly incorporable, at least for civil sanction
and jurisdictional purposes, without the need for some other statutory base... Since international law is law of
the United States in several senses noted above, the judiciary also has the power to take judicial notice of and, thus,
to identify and clarify customary international law . More importantly, such attributes of international law and judicial
power compel recognition [as evidenced in numerous cases throughout our history] that the
judiciary is bound to identify,
clarify and apply customary international law in cases or controversies properly before the courts . n25
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Solvency: Courts are competent to apply CIL
(--) Courts are competent and have the duty to apply customary international law:
Jordan J. Paust, 1999 (Law Foundation Professor, University of Houston Law Center, Michigan
Journal of International Law, Winter 1999, 20 Mich. J. Int'l L. 301, Lexis, Accessed 7/22/2013,
rwg)
In view of Professor Bradley's theory, it is quite significant that Chief Justice Marshall was among those early in our history who unanimously
affirmed that the President and other officials are bound by international law. n149 Marshall
also made statements
supportive of the primacy of customary international law over acts of Congress, n150 and recognized
the competence and duty of our courts to apply customary international law. n151
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Solvency: Court has jurisdiction over embargo
The Supreme court has jurisdiction over the embargo
Maliska 10 (May 12, 2010. Nicholas Maliska is a research intern with the New America
Foundation/U.S.-Cuba Policy Initiative. The Havana Note. “The Supreme Court and the Travel Ban to
Cuba” http://washingtonnote.com/guest_post_by_n_3/ Lexis Nexis) NS
With President Obama’s nomination of Elena Kagan to replace Justice John Paul Stevens, the U.S.
Supreme Court is changing (although this change should not significantly alter the ideological balance of
the Court). While the Judiciary is usually considered the least pertinent of our government’s three
branches to foreign policy issues, the Supreme Court does get to weigh in on international issues
from time . Cuba is no exception, and over the nearly fifty years that the U.S. embargo on Cuba has
existed, the Supreme Court has heard several cases that challenged the Constitutionality of the travel
ban on Cuba.
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AT: Embargo Will Collapse Castro
(--) Embargo won’t cause the collapse of Castro:
Shari-Ellen Bourque, 1995 (Boston University International Law Journal, Spring 1995, 13 B.U.
Int'l L.J. 191, Lexis, Accessed 7/21/2013, rwg)
Despite this recent "Castro Capitalism" evolution, the United States continues to maintain and encourage a strict embargo against Cuba. n5 This
embargo serves to stifle the island of Cuba from any further development, and prevents American nationals from engaging in trade and
business relations with Cuban nationals. The embargo is a nonsensical and illegal remnant of the Cold War. The embargo is nonsensical because
although conservative
politicians cling to the belief that continued enforcement of the embargo will
hasten Castro's demise, they are mistaken. When American politicians make the assumption that poor
economic conditions will turn the Cuban people against Castro, they ignore an important element of
Cuban culture. Cuban nationals are unbendingly loyal to Castro given the social welfare programs he
instituted in Cuba. n6 In addition, the embargo is illegal because it results in the extraterritorial application of U.S. laws when it prevents
third states from trading with Cuba. n7 This extension and imposition of domestic political beliefs (called American foreign policy) onto other
foreign sovereigns violates international law as well as U.S. domestic law.
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Bilateral Investment Treaty Solvency
(--) US should replace the embargo with a Bilateral Investment Treaty:
Shari-Ellen Bourque, 1995 (Boston University International Law Journal, Spring 1995, 13 B.U. Int'l L.J.
191, Lexis, Accessed 7/21/2013, rwg)
V. An
Alternative Solution to Present U.S.-Cuban Foreign Policy: A Bilateral Investment Treaty¶ One
alternative foreign policy available to the United States is a bilateral investment treaty. ¶ ¶ Bilateral
treaties for the promotion and protection of foreign investment are a prominent feature of current
inter-State cooperation on foreign direct investment. Such treaties - which are legally binding on the parties - have
been concluded in large numbers mainly between Western countries on the one hand, and developing and Central
and Eastern European countries, on the other. Increasingly, however, these treaties are also being concluded between newly industrializing
countries and others; developing and Central and Eastern European countries; and between developing countries. n232
(--) Bilateral Investment Treaties allow states to develop mutually beneficial trade
relations:
Shari-Ellen Bourque, 1995 (Boston University International Law Journal, Spring 1995, 13 B.U. Int'l L.J.
191, Lexis, Accessed 7/21/2013, rwg)
A. What are Bilateral Investment Treaties?¶ A
BIT provides for cooperation through the application of guidelines
that delineate practices and procedures which apply mutually to each party. The main objective of
such treaties is to "obtain legal protection for foreign investment under international law and thus
reduce as much as possible the non-commercial risks facing foreign investors in host countries." n233
Bilateral investment treaties provide a means by which states are able to develop mutually beneficial
trade relations. BIT's began as instruments by which states resolved legal issues related to the unique relations of foreign investment.
n234 In the 1970's, BIT programs gained momentum in response to the expropriation activities of certain countries. n235 These treaties
provided additional protection for the assets and property owned by a foreign sovereign's nationals investing abroad. n236 Such protection
provides strong incentives for individuals and corporations to invest and expand business opportunities in foreign territories.
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Helms-Burton Plan
(--) History of Helms-Burton:
Bret A. Sumner, 1997 (Catholic University Law Review, “DUE PROCESS AND TRUE CONFLICTS:
THE CONSTITUTIONAL LIMITS ON EXTRATERRITORIAL FEDERAL LEGISLATION AND THE CUBAN
LIBERTY AND DEMOCRATIC SOLIDARITY (LIBERTAD) ACT OF 1996,” 46 Cath. U.L. Rev. 907, Lexis,
Accessed 2/25/2013, rwg)
The Helms-Burton Act codifies the existing embargo of the United States against Cuba, n28 permits the
revocation of visas of the executives of [*916] companies engaged in commercial activities that violate
the Act, n29 and creates a process for the United States to provide economic aid to Cuba once the
Castro regime no longer governs and the country begins its transition into a democracy. n30 In enacting the
Helms-Burton Act, Congress sought to encourage the downfall of the Castro regime and to facilitate Cuba's transition to democracy. n31 A
controversial endeavor, Helms-Burton languished in Congress for over a year and a half, n32 until
Cuban military [*917] aircraft shot down two United States civilian aircraft on February 23, 1996. n33
President Clinton shortly thereafter signed the Helms-Burton Act into law on March 12, 1996. n34
(--) Court should narrowly limit the application of Helms-Burton Act:
Bret A. Sumner, 1997 (Catholic University Law Review, “DUE PROCESS AND TRUE CONFLICTS:
THE CONSTITUTIONAL LIMITS ON EXTRATERRITORIAL FEDERAL LEGISLATION AND THE CUBAN
LIBERTY AND DEMOCRATIC SOLIDARITY (LIBERTAD) ACT OF 1996,” 46 Cath. U.L. Rev. 907, Lexis,
Accessed 2/25/2013, rwg)
This Comment suggests that courts may use international comity considerations when defining the
boundaries of intended extraterritorial jurisdiction. As a threshold determination, United States
courts should weigh international comity concerns within the framework of a new effects analysis to
determine whether the exercise of extraterritorial subject matter jurisdiction is valid, even when
congressional intent for extraterritorial application is clear. Alternatively, international comity considerations should be addressed within a
court's personal jurisdiction analysis. This Comment
concludes that if Title III of Helms-Burton, or similar overly
broad extraterritorial legislation, is enforced, the United States Supreme Court may have the
opportunity to develop a coherent analytical framework to determine jurisdictional and due process
limitations on extraterritorial legislation.
(--) Helms-Burton must be constrained to due process analysis:
Bret A. Sumner, 1997 (Catholic University Law Review, “DUE PROCESS AND TRUE CONFLICTS:
THE CONSTITUTIONAL LIMITS ON EXTRATERRITORIAL FEDERAL LEGISLATION AND THE CUBAN
LIBERTY AND DEMOCRATIC SOLIDARITY (LIBERTAD) ACT OF 1996,” 46 Cath. U.L. Rev. 907, Lexis,
Accessed 2/25/2013, rwg)
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Although a clear showing of congressional intent to apply United States laws extraterritorially will
defeat international law arguments advanced in United States courts, n104 Congress and the courts
may not disregard constitutional due process protections afforded foreign defendants haled into
United States courts. n105 The Due Process Clause protects defendants [*935] from unfair and
unreasonable jurisdictional assertions. n106 A foreign defendant haled into the United States court
system is entitled to the same due process protections afforded United States citizens. n107 Thus, [*936]
when examining legislation clearly intended to have an extraterritorial effect, the requirements of subject matter jurisdiction and personal
jurisdiction must be distinguished. n108 Congress's
power to link personal jurisdiction to subject matter
jurisdiction is constrained by the Due Process Clause in order to protect foreign defendants from
arbitrary and unfair litigation. n109
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Add-Ons
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Human Rights Add-On
A) US adherence to customary international law is critical to the international human
rights movement.
T. Alexander Aleinikoff, 2004 (Associate Dean for research @ Georgetown University Law Center,
Jan, 98 A.J.I.L. 91, Lexis, Accessed, 7/23/2013, rwg)
The revisionists' proposals vary. Bradley
and Goldsmith argue that CIL should be understood as common law in an Erie sense-available to states if they choose to adopt it, but not constituting a part of federal law and not binding on the states
under the Supremacy Clause. n18 Kelly urges that CIL be flatly abandoned as a source of international law. n19 Phillip Trimble has
argued that CIL should be applied by the courts "only when its application can be satisfactorily justified on the basis of an independent
domestic source of authority." n20 Adopting
any of these proposals would represent not only a dramatic shift in
traditional thinking about customary international law but also a blow to the international human
rights movement, which has sought to rely on CIL to impose norms through U.S. courts that the
United States has not accepted in conventions.
B) Human rights prevent global slavery and war.
William W. Burke-White, 2004 Lecturer in Public and International Affairs and Senior Special
Assistant to the Dean, Woodrow Wilson School of Public and International Affairs, Princeton
University The Harvard Environmental Law Review Spring, 2004 LN
The second effect of institutionalized protections of human rights is to set a minimum floor of treatment for all citizens within the domestic
polity. Even in a non-democracy, minimum human rights protections ensure that [*266] rights are accorded to individuals not directly
represented by the government. By
ensuring a minimum treatment of the unrepresented, human rights
protections prevent the government from externalizing the costs of aggressive behavior on the
unrepresented. In human rights respecting states, for example, unrepresented individuals cannot be
forced at gunpoint to fight or be bound into slavery to generate low-cost economic resources for war,
and thus restrain the state from engaging in aggressive action. On the other hand, in a state where
power is narrowly concentrated in the hands of a political elite that systematically represses its own
people, the state will be more able to bear the domestic costs of war. By violating the human rights of
its own citizens, a state can force individuals to fight or support the military apparatus in its warmaking activities. Similarly, by denying basic human rights, a state may be better able to bear the
political costs of war. Even if such a state had fair elections, denial of freedom of thought and expression
might well insulate the government from the electoral costs of an aggressive foreign policy.
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Counterplan Answers
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CONGRESS COUNTERPLAN AFF ANSWERS
(--) Counterplan doesn’t solve the AFF: Sylvester cites three reasons:
A) The judiciary must apply international law to have a significant impact on the
development of international law—they solve none of the spill-over.
B) The judiciary is needed in international law cases to aid in the development of
international law.
C) Incorporation by the judiciary is necessary to make violations of international law
more difficult to occur.
(--) Wouldn’t be modeled—that’s our BARROSO evidence.
(--) Court enforcement of customary international law key to human rights
credibility—they solve none of the AFF:
Jordan J. Paust, 1999 (Law Foundation Professor, University of Houston Law Center, Michigan
Journal of International Law, Winter 1999, 20 Mich. J. Int'l L. 301, Lexis, Accessed 7/22/2013,
rwg)
The Founders, the text and structure of the Constitution, and the
overwhelming patterns of legal expectation since the
dawn of the United States support trends in judicial decision using customary international law as
law of the United States. Human rights , of fundamental importance to the Founders and the preferred consequences of
democracy, are
reflected in long-term and widespread patterns of judicial use that, in comparison to new and
radical theories scantily dressed in supposed historic veils, are
thunderous in their affirmation of the competence and
responsibility of the judiciary to identify, clarify, and apply customary
[*336]
international law. As our
first Chief Justice rightly affirmed, the customary law of nations is part of the law of the United States, even with respect to private duties. n178
Later, Chief Justice Marshall assured that our courts "are established .. to decide on human rights." n179
(--) Human rights prevent global slavery and war.
William W. Burke-White, 2004 Lecturer in Public and International Affairs and Senior Special
Assistant to the Dean, Woodrow Wilson School of Public and International Affairs, Princeton
University The Harvard Environmental Law Review Spring, 2004 LN
The second effect of institutionalized protections of human rights is to set a minimum floor of treatment for all citizens within the domestic
polity. Even in a non-democracy, minimum human rights protections ensure that [*266] rights are accorded to individuals not directly
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represented by the government. By
ensuring a minimum treatment of the unrepresented, human rights
protections prevent the government from externalizing the costs of aggressive behavior on the
unrepresented. In human rights respecting states, for example, unrepresented individuals cannot be
forced at gunpoint to fight or be bound into slavery to generate low-cost economic resources for war,
and thus restrain the state from engaging in aggressive action. On the other hand, in a state where
power is narrowly concentrated in the hands of a political elite that systematically represses its own
people, the state will be more able to bear the domestic costs of war. By violating the human rights of
its own citizens, a state can force individuals to fight or support the military apparatus in its warmaking activities. Similarly, by denying basic human rights, a state may be better able to bear the
political costs of war. Even if such a state had fair elections, denial of freedom of thought and expression
might well insulate the government from the electoral costs of an aggressive foreign policy.
(---) PERMUTE: DO BOTH—CONGRESSIONAL AND COURT LED SOCIAL CHANGE IS THE
BEST OPTION:
Araiza, 2005 Professor of Law @ Loyola Law School, 2005 (William, Tulane Law Review, February
2005, 79 Tul. L. Rev. 519; Lexis)
Still, it is worth considering Brown's at best partial success and wondering whether integration would
have been more successful if Congress had more aggressively assisted the Court. n110 Indeed, the
steps Congress did take - most notably the conditioning of federal education funds on desegregation helped quicken the pace of change . n111 This is not to say that integration would have occurred
immediately, peacefully, and comprehensively had the effort been led by Congress . The anti-Brown
rhetoric of segregationists, criticizing Brown as a judicial usurpation, n112 was largely opportunistic that is, much, if not most, of that opposition was based on the rejection of integration itself, not the fact
that integration was being "illegitimately" imposed by courts.
Doesn’t solve soft power:
A) Application of customary international law in the courts enhances US soft power
with the world community:
T. Alexander Aleinikoff, 2004 (Associate Dean for research @ Georgetown University Law Center,
Jan, 98 A.J.I.L. 91, Lexis, Accessed, 7/23/2013, rwg)
For internationalists, justification for the Incompatibility Statute would run along familiar grounds. First, the statute would make clear only what
has been law from the start: that international law is part of the "law of the land." n76 Second, application
of CIL in federal
courts would enhance the U.S. position in the world community by demonstrating that the United
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States is serious about following international norms . Third, as a matter of substantive law, the United States would
benefit from the rich and textured international discussion of human rights; applying CIL would add a progressive push to the development of
rights in the U.S. legal system. One could add to these the claim pressed by the Blair government in urging adoption of the HRA: that permitting
European Convention claims to be heard in UK courts would allow British judges to play a role in the explication of Convention rights. n77
Similarly, a full debate over the content and scope of CIL in U.S. federal courts would undoubtedly
influence discussions of CIL in other jurisdictions.
B) US leadership is essential to prevent global nuclear exchange.
Zalmay Khalilzad, RAND, The Washington Quarterly, Spring 1995
Under the third option, the United States would seek to retain global leadership and to preclude
the rise of a global rival or a return to multipolarity for the indefinite future. On balance, this is
the best long-term guiding principle and vision. Such a vision is desirable not as an end in itself,
but because a world in which the United States exercises leadership would have tremendous
advantages. First, the global environment would be more open and more receptive to American
values -- democracy, free markets, and the rule of law. Second, such a world would have a better
chance of dealing cooperatively with the world's major problems, such as nuclear proliferation,
threats of regional hegemony by renegade states, and low-level conflicts. Finally, U.S. leadership
would help preclude the rise of another hostile global rival, enabling the United States and the
world to avoid another global cold or hot war and all the attendant dangers, including a global
nuclear exchange. U.S. leadership would therefore be more conducive to global stability than a
bipolar or a multipolar balance of power system.
(--) Agent counterplans are illegitimate
A) They steal the entirety of the 1ac—8 minutes of offense goes away in a 15 second
cp text.
B) They divert the debate to trivial issues like who should do the plan as opposed to
whether the embargo should be lifted.
C) Voting issue: Fairness & Education.
(--) Counterplan is irrelevant—domestic legislation doesn’t obviate the Court’s
responsibility to uphold international law:
Jordan J. Paust, 1999 (Law Foundation Professor, University of Houston Law Center, Michigan
Journal of International Law, Winter 1999, 20 Mich. J. Int'l L. 301, Lexis, Accessed 7/22/2013,
rwg)
Professor Bradley notes that the interpretive role of customary law recognized in The Charming Betsy had been
recognized three years [*333] earlier in Talbot v. Seeman. n152 The Talbot court stated: "The laws of the United States ought not, if it be
avoidable, so to be construed as to infract the common principles and usages of nations." n153 The Court continued: "By this construction the
act of Congress will never violate those principles which we believe, and which it is our duty to believe, the legislature of the United States will
always hold sacred." n154 In Talbot, there was no notion expressed of a power of Congress to override international law. Indeed, as Professor
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Court recognized that Congress cannot
override international law and that courts, at least, must not permit such a result . n155 That the opinion of
the Court was written by Chief Justice Marshall is also informing. Later in a circuit court decision it was declared that a court "cannot give to ..
orders a construction that will lead to ... the executive abrogating" a right vested by the modern law of war. n156 Professor Bradley also
recognizes that even earlier in Rutgers v. Waddington, n157 while construing a state statute so as to avoid a conflict with the Treaty of Paris,
the Rutgers court stated "the repeal of the law of nations, or any interference with it, could not have been in contemplation .. when the
Legislature passed this statute; and we think ourselves bound to exempt that law from its operation...." n158 Such
language also
supports the predominant view at the time that domestic legislation cannot obviate the domestic
effect of customary international law, and that the courts have a responsibility to assure that
customary law prevails .
(---) Court will check the Congress—blocks solvency:
Araiza, 2005 Professor of Law @ Loyola Law School, 2005 (William, Tulane Law Review, February
2005, 79 Tul. L. Rev. 519; Lexis)
Yet congressional action is impeded by the very text that it could potentially rejuvenate. The fact that
Congress's power is limited to "enforcing" the Equal Protection Clause means that that power is
necessarily tied to the meaning of that provision. By itself this requirement is unremarkable: all it means is that when
Congress seeks [*524] to enforce the Equal Protection Clause, its action must have some link to the meaning of equal protection. But
because the Fourteenth Amendment also includes a judicially enforceable component , questions
about the acceptable range of congressional action inevitably require consideration of how the courts
have understood that guarantee. In turn, if the meaning of the Amendment is thought to depend solely and completely on what
the Court says the Clause means - in other words, if we adopt a juricentric model - then lack of clarity in the Court's equal
protection jurisprudence necessarily infects, and thus impedes, congressional attempts to breathe new
life into it.
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1ar: No Solvency
Extend our Sylvester evidence—the counterplan doesn’t solve at all…
(--) All their solvency evidence just says the Congress can strike down the law on
international law grounds—but it doesn’t set a PRECEDENT for the Court—our
Sylvester evidence says a judicial precedent is necessary to have a spill-over effect.
(--) Our Sylvester evidence also says the Court better ENFORCES international law…it
says judicial action is necessary to make it less likely that violations of international
law will occur.
(--) Extend our Barraso evidence—Congress isn’t modeled—it means it doesn’t get
other nations on board to solve international law—without other nations
international law is worthless—it would only be the US acting without others…solves
ZERO of the impacts.
(--) And they don’t solve LOWER COURTS…without Supreme Court precedent lower
courts won’t enforce the plan
Roger P.
Alford, 2008 Professor of Law @ the Pepperdine University School of Law, November 2008, Fordham Law Review, 77 Fordham L. Rev. 647
The Ninth Circuit in Allen appeared to be voicing this concern when it stated that intermediate courts should decline the invitation to rely on
foreign authority. n80 I recently had a conversation with one Ninth Circuit judge who expressed great caution about
relying on any persuasive authority, much less authority from outside the United States. Most constitutional [*661] cases can
be resolved through the existing interpretive canons of text, structure, history, precedent, and national
experience. For those cases that cannot, persuasive authority from other U.S. jurisdictions will often be
available. Thus, those instances in which it will be useful to rely on comparative experiences to fill a void will be
extraordinarily rare. The Supreme Court, of course, shares this commitment to judicial precedent but has greater
freedom to depart from precedent. It is worth noting that the three most significant instances of constitutional comparativism in recent
years - Atkins v. Virginia, Lawrence, and Roper - were all examples of the Supreme Court reversing its own precedent. Even assuming
lower courts were sympathetic to this methodological approach and the outcome that flowed therefrom, it is
doubtful that lower courts perceive themselves as having the same institutional freedom to depart
from precedent. Unlike the Supreme Court, lower courts will almost never rely on foreign or international
law to depart from binding Supreme Court precedent .
n81
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1ar: PERMUTATION SOLVES BEST
(--) Permutation is the best option: best preserves constitutionalism and rights:
Robert C. Post and Reva B. Siegal, June 8, 2003 [The Yale Law Journal, “Legislative
Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical
Leave Act,” p. 112]
As this history demonstrates, Congress’s
political responsiveness makes it the object of social movement
mobilization and a unique register of the nation’s evolving constitutional understandings. The policentric
model of Section 5 power holds that Congress and the Court may each consider and incorporate the
other’s views, while retaining autonomy in judgment, so that the Court remains free to strike down any law that it
believes threatens individual liberties or impairs structural values such as separation of powers or federalism. The
policentric model
thus preserves both the nation’s rich legacy of legislative constitutionalism and the judicially enforced
rights on which we have come to depend.
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Humanitarian Counterplan Answers
(--) Doesn’t subordinate the US to international law—our Sylvester evidence says the
US has to subordinate itself to international law to solve.
(--) Doesn’t get rid of the embargo—our Manchak evidence says lifting the embargo is
key—no proof solving the humanitarian damage is enough to comply with
international law.
(--) Even mitigating the humanitarian damage of the Cuban embargo doesn’t make it
consistent with international law:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
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 United 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
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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
(--) Doesn’t solve the OAS advantage—doesn’t get rid of the embargo, so it solves
none of the OAS advantage.
(--) Even if the embargo has no humanitarian consequences, it still violates Cuba’s
right to development:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
Since the 1990s and the experience with the 661 regime in Iraq, a profusion of scholarship and political discourse has decried the use of
comprehensive unilateral and multilateral trade sanctions because of the crippling effects such measures have on a target country's population.
n1 [*418] Consequently, these all-encompassing,
blanket sanctions have been almost universally rejected as
the economic weapon of choice in international affairs. n2 Both as a member of the U.N. Security
Council and in its sovereign capacity, the United States has tacitly recognized the potential violations
of international law occasioned by blanket measures. n3 Even with respect to Cuba, a country on which it has
maintained a comprehensive embargo despite widespread international opposition, the United States has made
"humanitarian" exceptions to its embargo. n4¶ Yet the United States's 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
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International Law Counterplans (Other than
Embargo)
(--) Extend our Manchak evidence the Cuban embargo is crucial to demonstrate to the
world the US commitment to take international law seriously—the counterplan
doesn’t demonstrate to the world that we take international seriously.
(--) Cuban embargo angers the international community more than anything else:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
n150 See generally The Secretary-General, 2009, supra note 14 (documenting the
ire of the international community with
respect to the Cuban embargo). No other modern act of state has provoked such widespread,
unanimous condemnation by the international community. See CHOMSKY, supra note 88, at 83 (noting that the
United States is "100 percent isolated" in its stance toward Cuba, and further that Israel-the only country that purportedly supports the U.S.
position-regularly violates the embargo).
(--) Near universal international opposition to the Cuban embargo:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
The obstinacy of the United States in maintaining the Cuban blockade in the face of mounting, and
ultimately near absolute international opposition, is one of the most egregious examples of such
realpolitik in the history of the United Nations. n83 Beginning in 1992, at the request of Cuba, the U.N. General Assembly
began voting annually on a resolution calling for the end of the U.S. embargo on Cuba. n84 The first vote, recorded in November 1992, was
fifty-nine in favor, three opposed, with seventy-one abstentions. n85 Over
the course of the next seventeen years, the
vote shifted dramatically in favor of ending the embargo as the abstaining countries lined up to
condemn the United States's policy toward Cuba. n86 In 2009, 187 countries voted to end the
[*439]
embargo, with two countries abstaining. n87 The only two countries in the world to vote with the United States were Israel
and Palau, and Israel openly violates the embargo contrary to its vote. n88
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(--) Near unanimous consensus among other nations that the embargo violates
international law:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
[The] long-standing economic, commercial and financial embargo [of Cuba] has been consistently
rejected by a growing number of Member States to the point at which the opposition has become
almost unanimous . Thus, the need to respect international law in the conduct of international
relations has been recognized by most members of this body, as has been evidenced by the growing
support for the draft resolution [condemning the embargo] . . . . I believe that the presence of such a large number of
Member States in this Hall today and their participation in these deliberations are indications of their opposition to unilateral extraterritorial
measures. They express their firm opposition to unilateral measures as a means of exerting pressure on developing countries, as such measures
are contrary to international law, international humanitarian law, the United Nations Charter and the norms and principles governing peaceful
relations among States.
(--) Embargo receives a great deal of global criticism:
Shari-Ellen Bourque, 1995 (Boston University International Law Journal, Spring 1995, 13 B.U. Int'l L.J.
191, Lexis, Accessed 7/21/2013, rwg)
F. Third Party States' Criticism of the Embargo and its Violation of International Law¶ The
substance and illegality of the
embargo receive much global criticism. One critic declared:¶ ¶ By making the blockade even tighter and more oppressive than
ever, the United States hopes to create such severe conditions of misery and hunger... We could ask ourselves on what ethical
and moral bases can [the blockade] be carried out? What laws back them up? ... How can they talk
about human rights when they are trying to starve a whole people? n201¶ ¶ In addition, the Cuban
Representative to the U.N. points out in a letter addressed to the Secretary General of the United Nations that:¶ ¶ the
embargo has caused Cuba substantial material losses and has obliged it to make extraordinary efforts to change its economic relations... [It]
constitutes a flagrant violation of the principles of sovereign equality of states and non-intervention in
their internal affairs, and is a constant source of tension that impairs the normal development of
international relations. n202¶ ¶ This letter clearly refers to state autonomy and the crippling effect on the Cuban economy resulting
from the indirect intervention enforced through the embargo. The harm to Cuba's economy generated by the embargo
demonstrates the great harm that may result when one country applies policies that violate
fundamental international law principles.¶ 1. Third Party Reactions to the Torricelli Bill and Recent Legislation¶ The Cuban
Democracy Act proved so extreme that it attracted a good deal of attention from the United Nations General Assembly. In response to this U.S.
action, the Assembly approved a resolution which called for an end to the embargo. n203 The final resolution condemns " "the promulgation
and application by member states of laws and regulations whose extrajudicial effects affect the sovereignty of other states.' " n204 It also
demands that U.N. members "refrain from applying such measures "in conformity with their obligations under the U.N. Charter'... ." n205 This
resolution asked all member states to repeal any laws or policies which extended extrajudicial effects onto foreign sovereigns. n206¶ In the
aftermath of the passage of the Torricelli Bill, the international community responded to the measure with disdain. The
U.N. General
Assembly passed a resolution condemning the embargo by an 88-44 vote. n207 Although the U.N. resolution is
not legally binding, n208 it does carry a strong message encouraging the international community to defy
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U.S. sanctions. Reactions from Cuban exiles residing in the United States have been mixed. On one hand, they support the measure
because it threatens the survival of the Castro regime; n209 on the other hand they do not support the use of an illegal measure as a means of
fighting the Cuban government. n210¶ The European Community also protested the Cuban Democracy Act by stating:¶ ¶ the European
Community and its Member States cannot accept the extraterritorial extension of U.S. jurisdiction as a matter of law and policy... The Bill ...
would also prohibit any vessel from engaging in trade with the United States if the vessel has entered a port in Cuba during the preceding 180
days. Such a measure would be inconflict with long-standing rules on comity and international law... n211¶ ¶ Arguably, the criticism directed
against the United States is well-deserved. The Torricelli Bill's imposition of sanctions onto third countries violates international law and
encourages the economic isolation of Cuba. In addition, this policy clearly imposes U.S. domestic law onto sovereign states by making foreign
investors and businessmen suffer should they choose to engage in business relations with Cuba. The Bill, there- fore, removes the element of
free choice from business decisions of companies outside of U.S. territory.
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Lower Courts CP Answers—2ac
(--) Doesn’t capture our Supreme Court solvency
A) Doesn’t incorporate international law into the federal judiciary—our
Sylvester evidence indicates this is key for the bolstering of international
law.
B) Doesn’t solve our modeling advantage—our Barasso evidence says we get
other nations on board.
(--) Supreme Court is more visible and outweighs
Rosenberg 91 (Gerald N., Associate Professor in Political Science @ U of Chicago, The Hollow Hope:
Can Courts Bring About Social Change?)
Like the Congress and the presidency,
the supreme court, while not the only institution of its kind in the American Political system, is the
most visible and important one . It sits atop a hierachal structure, and decisions of lower courts
involving significant social reform seldom escape its scrutiny. Also, because it is the most authoritative US
court, it is the most concerned with public policy. Hypotheses that concern the courts and social reform
must first deal with the Supreme court and then turn to the ramifications of its decisions elsewhere
in the judiciary
In order to proceed, while not ignoring state and lower federal courts, I will concentrate on the US Supreme Court/
(--) FIAT Abuse: all the district courts wouldn’t take the same action at the same time
A) Utopian: all 13 district courts wouldn’t take the same action at the same
time
B) Distorts the literature base: makes it impossible to generate offense vs.
the CP
C) Voting issue: Fairness & Education—debate has been fundamentally
altered by introduction of the illegitimate Counterplan.
(--) Without Supreme Court action, lower court action won’t solve for Incorporation of
Ilaw
Roger P.
Alford, 2008 Professor of Law @ the Pepperdine University School of Law, November 2008, Fordham Law Review, 77 Fordham L. Rev. 647
The Ninth Circuit in Allen appeared to be voicing this concern when it stated that intermediate courts should decline the invitation to rely on
foreign authority. n80 I recently had a conversation with one Ninth Circuit judge who expressed great caution about
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relying on any persuasive authority, much less authority from outside the United States. Most constitutional [*661] cases can
be resolved through the existing interpretive canons of text, structure, history, precedent, and national
experience. For those cases that cannot, persuasive authority from other U.S. jurisdictions will often be
available. Thus, those instances in which it will be useful to rely on comparative experiences to fill a void will be
extraordinarily rare. The Supreme Court, of course, shares this commitment to judicial precedent but has greater
freedom to depart from precedent. It is worth noting that the three most significant instances of constitutional comparativism in recent
years - Atkins v. Virginia, Lawrence, and Roper - were all examples of the Supreme Court reversing its own precedent. Even assuming
lower courts were sympathetic to this methodological approach and the outcome that flowed therefrom, it is
doubtful that lower courts perceive themselves as having the same institutional freedom to depart
from precedent. Unlike the Supreme Court, lower courts will almost never rely on foreign or international
law to depart from binding Supreme Court precedent .
n81
(--) Lack of federal court uniformity dooms non-judicial enforcement
Caminker 94
Evan H., Professor of Law @ UCLA, April, 46 Stan. L. Rev. 817
The executive branch enforces public law. If the judiciary does not interpret and implement
federal laws uniformly , the executive branch may have a difficult time determining its enforcement options
and obligations. As a result, administrators of federal law confront the problems of unpredictability discussed above. And even if administrators could
foresee each particular rule applicable in each divergent case, the disuniformity would still hamper the
executive branch's ability to plan and implement effective enforcement strategies in many contexts. 144 Thus
rational and efficient administration of public law often requires federal courts to interpret federal law
Administration of public law.
uniformly .
(--) Permute: Have the Supreme Court do the plan and all the lower courts follow—
guarantees double-solvency, shields the link to the DA.
(--) Turn: Rule of Law
A) Lower court underruling devastates rule of law
Bhagwat 2000
Ashutosh, Professor of Law @ University of California, Hastings College of Law; J.D. from UChicago; 80 B.U.L. Rev. 967
a lower court might engage in purely predictive reasoning and refuse to follow a precedent that the court
believes the Supreme Court would not follow today based on the court's assessment of the views of individual
justices, even if the decision has not been undermined by what Michael Dorf describes as "impersonal sources of law" - i.e., subsequent opinions. 28 Such an approach is defensible, and
indeed has been ably advocated by Evan Caminker; n29but Michael Dorf has presented a convincing, if not definitive argumet for why such purely predictive reasoning
undermines values associated with the rule of law . 30 It is therefore also not surprising or problematic that the
Supreme Court should reject such purely predictive "underruling."
Second,
B) Commitment to the rule of law is vital in preventing global nuclear conflict
Rhyne 58
(Charles, fmr president @ American Bar Association, "Law Day Speech for Voice of America," 5/1/1958, http://www.abanet.org/publiced/lawday/rhyne58.html)
The tremendous yearning of all peoples for peace can only be answered by the use of law to replace weapons
in resolving international disputes . We in our country sincerely believe that mankind's best hope for preventing the
tragic consequences of nuclear-satellite-missile warfare is to persuade the nations of the entire world to submit
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all disputes to tribunals of justice for all adjudication under the rule of law. We lawyers of America would like to join lawyers from every
nation in the world in fashioning an international code of law so appealing that sentiment will compel its general acceptance.
Man's relation to man is the most neglected field of study, exploration and development in the world community. It is also the most critical. The
most important basic fact of our generation is that the rapid advance of knowledge in science and technology has forced increased international
relationships in a shrunken and indivisible world. Men must either live together in peace or in modern war we will surely die together. History
teaches that the rule of law has enabled mankind to live together peacefully within nations and it is clear that
this same rule of law offers our best hope as a mechanism to achieve and maintain peace between nations.
(--) Perm do the counterplan – Plan Text says federal Judiciary
Our interpretation is that the CP must be both textually and functionally competitive----A. Best for debate – allows the aff to defend the affirmative while the neg gets
everything else.
----B. Allows the aff to generate offense- only textually or functionally competitive CPs
limits this out means the aff could never win
----C. It eliminates vague plan writing- to force the neg to be both means the aff no
longer will be forced to write vague plan texts
----D. either one alone encourages severance perms because it makes them a moving
target, which is impossible to generate offense against
(--) The Supreme Court will overrule the counterplan
Bhagwat 2000
Ashutosh, Professor of Law @ University of California, Hastings College of Law; J.D. from UChicago; 80 B.U.L. Rev. 967
In cases like Rodriguez de Quijas, Agostini, and State Oil v. Kahn, the
Court indicates an unwillingness to share its power to
make new law, which is an aspect of the judicial power, with other courts within the federal judiciary. Instead,
the Court is seeking to concentrate the authority to make and change the law into its own hands. 59 This is not
surprising; it is after all a basic assumption of our Constitution, as noted by Madison in Federalist No. 51, that [*978] government officials will
seek to expand their own power. 60 The accumulation of power in the hands of the Court, at the expense of the lower federal judiciary, is also not
a new phenomenon. Edward Purcell recently explained that, as early as 1928, Felix Frankfurter predicted, described, and extolled this
development, in part because of Frankfurter's explicit hostility (common among progressives at that time) to the lower federal judiciary. 61 In
recent years, however, this process appears to have escalated and changed in nature. Instead of viewing the exercise
of the judicial power as a cooperative venture in reasoned decision-making and precedent-building, where
there is value to be gained from participation by all levels of the judiciary, the Court increasingly seems to see
it as an exercise of raw power , so that any sharing of that power is necessarily at the expense of the Court's
own authority.
(--) Turn: Court Clog
A) Breaking the judicial chain of command floods the courts
Shapiro 2003
Martin
James W. and Isobel Coffroth Professor of Law University of California, Berkeley 03
https://web.princeton.edu/sites/jmadison/events/archives/ShapiroTalk.pdf.
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Stare decisis or precedential reasoning and
explanation is central to the economies of all judiciaries organized hier-archically and even most of those
that are not. If lower courts did not follow the previous decisions of higher courts, the certainty of law,
which is one reason we choose to live by rules in the first place, would be undermined. Even more importantly the failure
of lower courts to practice vertical stare decisis would result in far more cases being pushed on to
the highest court than any highest court could handle. Thus even in legal systems in which the highest court is vested
What judges do do is arrive at incremental, highly reiterative policy guesses .
with the sole jurisdiction over certain legal issues, as with the preliminary ruling system of the European Court of Justice and the Kelsenian
jurisdictional arrangements of continental constitutional courts, decision
making under the constraints of vertical stare
decisis tends to migrate downward to lower courts. For otherwise the highest court would have to
take case after case after case after case deciding exactly the same thing in exactly the same way
rather than issuing commanding precedents. Whatever its virtues or vices vertical stare decisis is a
necessity of judicial economy.
B) Court clog undermines the ability to fight terrorism
Goldman 8 Russell, What's Clogging the Courts? Ask America's Busiest Judge, http://abcnews.go.com/print?id=5429227
The number of immigration trials have spiked since 2005, a result of a federal program called Operation Streamline that puts illegal immigrants
on a fast track to prosecution, detention and deportation. In the first seven months of 2008, the government reported 38,443 new immigration
prosecutions. The Transactional Records Access Clearinghouse, a data research organization at Syracuse University, estimates there will be
65,902 immigration cases this year, a 65 percent increase over last year and a 216 percent increase over 2003. For the Department of Homeland
Security, Operation Streamline is an indispensable tool needed to secure the border. In the past year, the government says, the deterrent of prison
time has dramatically decreased the number of the people trying to cross the border from Mexico. Critics, however, contend that the
increased number of cases strain an already burdened judicial system, depriving lawyers and
judges of ample time to hear cases and denying defendants the right to a fair trial. They also
contend that resources have been diverted from pursuing offenders more dangerous than the typical
migrant worker and that prosecutors cannot use their own discretion in choosing which violators to go after.
"I'm all for national security and border security," said Brack, who was appointed to the bench in 2003 by President Bush.
"The people I generally see are humble people who have no criminal offenses other than coming
back and forth to pick chili. We're spending a lot of time catching these folks when we could
concentrate on those penetrating our border to do us harm."
C) Terrorism Causes Extinction
Sid-Ahmed, 2004 political analyst 04 (Mohamed, Managing Editor for Al-Ahali, “Extinction!” August 26-September 1, Issue no. 705,
http://weekly.ahram.org.eg/2004/705/op5.htm)
What would be the consequences of a nuclear attack by terrorists? Even if it fails, it would further exacerbate
the negative features of the new and frightening world in which we are now living. Societies would close in on themselves,
police measures would be stepped up at the expense of human rights, tensions between civilisations and religions would rise
and ethnic conflicts would proliferate. It would also speed up the arms race and develop the awareness that a different
type of world order is imperative if humankind is to survive. But the still more critical scenario is if the attack succeeds. This could
lead to a third world war, from which no one will emerge victorious. Unlike a conventional war which ends when one side
triumphs over another, this war will be without winners and losers. When nuclear pollution infects the whole planet, we will all
be losers.
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Lower Courts: Links to Legitimacy DA
(--) Lower court diversion undermines legitimacy
Caminker 94
Evan H., Professor of Law @ UCLA, April, 46 Stan. L. Rev. 817
Uniformity of federal law interpretation across the nation ought to be considered equally important
in preserving courts' perceived legitimacy. If federal law means one thing to one court but
something else to another, the public might think either or both courts unprincipled or
incompetent, or that the process of interpretation necessarily is indeterminate. Each of these alternatives
subverts the courts' efforts to make their legal rulings appear objective and principled. 152 Of course, perceived legitimacy is not measurable and
is likely affected by a number of variables besides divergent interpretations by autonomous courts. 153 But at the margin, respect
for
judicial authority would likely suffer if persistent interpretive conflicts among the federal courts led
the public [*854] to believe that interpretation is inherently arbitrary and unprincipled. Put
succinctly, internal consistency strengthens external credibility.
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1AR Lower Courts CP—Solvency Extensions
(_) We’ll win a solvency deficit here
1. The Supreme Court will overrule the CP—that’s Bhagwat
2. Lack of federal court uniformity dooms non-judicial enforcement—even if they FIAT
uniformity—it won’t be perceived as uniform—dooming the solvency of the
counterplan.
3. They can’t solve any of case—Lower courts can’t strike down the embargo—the
executive will ignore the lower courts.
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1ar: Solvency Extensions—No Trickle-Up
(--) Lower Courts wont cause a Supreme Court Decision
Bhagwat 2000
Ashutosh, Professor of Law @ University of California, Hastings College of Law; J.D. from UChicago; 80 B.U.L. Rev. 967
Rehnquist has questioned the value of percolation, n68ad a number of
academic commentators have agreed, suggesting implicitly (or explicitly) that the lower courts have little to
contribute to the Supreme Court's decision-making. 69 Furthermore, Evan Caminker has made the argument, with which I agree, that Supreme
Court Justices rarely even read lower court opinions anymore (if they ever did), thereby reducing the
value of any percolation. 70 [*980] And even after the Court has resolved a problem, and adopted a doctrinal rule, the Justices also seem to
completely lack the institutional capacity to observe the actual operation of various doctrinal
formulations in the lower courts, and so to make practical assessments of their "workability and desirability." 71 There are many complex reasons for these
developments, including growing caseloads in the lower courts, which limit the Court's ability to keep track of lower
court decisions, and the explosion in the filing of amicus briefs that makes lower court opinions a less
important source of data and legal arguments. 72 The results are nevertheless clear - a growing isolation of
the Supreme Court from the rest of the judiciary.
In recent years, however, no less a figure than Chief Justice
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1ar—Lower Courts Won’t Incorporate I Law
(--) Extend our Alford evidence—lower courts view themselves as being bound by
Supreme Court precedent which means they won’t break out and incorporate
international law without a Supreme Court precedent—guts the solvency of the
case—extend our Sylvester evidence that robust incorporation is key to the building of
effective international law.
(--) Lower court judges almost always follow the Supreme Court’s lead—multiple
reasons:
Lawrence Baum, 2003 Department of Political Science, Ohio State University, June [“The
Supreme Court in American Politics,” http://arjournals.annualreviews.org/
doi/full/10.1146/annurev.polisci.6.121901.085526;jsessionid=n1HzQqZJALRe]
Once we know more about the implementation of the Court's decisions in absolute and relative terms, the most important question might well
be why implementation is as successful as it is.
The Court's limited concrete powers would seem to aggravate the
difficulties faced by all organizational leaders, so why do judges and administrators follow the Court's
lead so frequently? Within the judiciary, part of the answer undoubtedly lies in selection and
socialization processes that enhance agreement about legal policy and acceptance of hierarchical
authority . Even the Court's limited powers may be sufficient to rein in administrators, especially in the era of
broad legal mobilization that Epp has described: Groups that undertake litigation campaigns to achieve favorable precedents can also litigate
against organizations that refuse to accept those precedents.
Both judges and administrators may reduce their decision
costs by using the Court's legal rules as a guide. In any event, the relationship between the Court and policy makers who
implement its policies may be an especially good subject for studies to probe the forces that reduce centrifugal tendencies in hierarchies.
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1ar Extensions: Roll Back
(--) Empirically, when lower courts overstep Supreme Court precedent there is a sharp
rebuke
Alford 6
Roger, Professor of Law @ Pepperdine, Lower Courts and Reliance on Foreign Authority, http://lawofnations.blogspot.com/2006/01/lower-courts-and-reliance-on-foreign.html
One of the issues rarely addressed in the debate on reliance on foreign authority to interpret constitutional
guarantees is what attitude lower courts should take with respect to the question. As most scholars know, the Missouri
Supreme Court in Roper v. Simmons relied on foreign authority in flagrantly departing from Supreme Court precedent in
Stanford to hold that the juvenile death penalty was cruel and unusual punishment. That approach led to a "no comment" from the
Supreme Court in Roper, but a sharp rebuke from Justice Scalia. In dissent Justice Scalia noted: "To add insult to injury, the Court affirms
the Missouri Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have
always held that 'it is this Court's prerogative alone to overrule one of its precedents.'... Today, however,
the Court silently approves a state-court decision that blatantly rejected controlling precedent." Last week the Ninth Circuit in Allen v. Ornoski
was faced with a death penalty claim by Clarence Ray Allen, an inmate in his seventies who has been on death row for over twenty years. He
argued, among other things, "that execution of an elderly person does not comport with 'evolving standards of decency,' in that the execution
'offends humanity,' provides no deterrence value, does not serve any retributive purpose, and violates the norms of domestic and international
law." The Ninth Circuit, per Clinton-appointee Judge Wardlaw, rejected the international argument out of hand: "While
international norms may also be instructive in this analysis, in light of the nonexistence of domestic authority supporting Allen's claim, and the
lack of definitive international authority provided by Allen, we, as an intermediate court, decline to consider the asserted practices of foreign
lower courts should be more cautious than the Supreme Court in relying on
foreign authority, particularly where that authority is not clear and definitive. I am not aware of any
jurisdictions." Allen suggests that
empirical studies analyzing how lower courts have handled the question of reliance on foreign authority in constitutional adjudication. It would
be worth the time to make such inquiries. Nor am I aware of other lower courts that have expressed the need for greater caution on this question.
But I can appreciate the concern because obviously adherence to and departure from precedent is of greater moment for lower courts than the
Supreme Court.
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1ar: Ext. Rule of Law DA
(--) Extend our Bhagwat evidence—lower court refusal to follow Supreme Court
precedent undermines the rule of law.
(--) Unique link. Lower courts shouldn’t overturn higher courts. Any deviation
immediately destroys judicial legitimacy and the rule of law.
Mortimer
America)
Sellers, Fall 2006 (Student note, 54 Am. J. Comp. L. 67, LEGAL HISTORY AND LEGAL THEORY: The Doctrine of Precedent in the United States of
The use of precedent by courts in the United States of America should be viewed as a tradition or a practice, rather than a legal doctrine in the strictest sense of the
word, because it is so deeply embedded in the culture of the legal profession and the judiciary that it takes place without much reflection by judges. In its simplest and
the doctrine of stare decisis requires all tribunals of inferior jurisdiction to follow the
precedents of courts of superior jurisdiction, to accept the law as declared by superior courts, and
not to attempt to overrule their decisions. American lawyers have come to believe that "the slightest deviation from
most important sense,
n159
this rigid rule would destroy the sanctity of the judicial practice. There would be no finality or
stability in the law and the court system would be chaotic in its operation and unstable and
inconsistent in its decisions." This strict rule of stare decisis, which governs lower courts in all common-law, statutory and constitutional cases,
n160
does not clarify the circumstances in which courts may overrule their own previous decisions, or deviate from their own precedents. Americans have never wandered
very far down the Benthamite road of extreme stare decisis, which once bound English common-law courts to respect their own erroneous or unreasonable precedents.
n161
Perhaps this distinction between English and American practice arose in part from amorphousness [*87] of the English Constitution, which leaves Parliament free
to correct any perceived errors of the judiciary, n162 but the more fundamental difference follows from the American view of law as intimately connected to reason, not
a command, but truth as revealed by experience. "It is more important that the Court should be right upon later and more elaborate consideration of the cases than
consistent with previous declarations. Those doctrines only will eventually stand which bear the strictest examination and the test of experience." n163
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State Courts CP Answers
(--) Doesn’t capture our Supreme Court solvency
A) Doesn’t incorporate international law into the federal judiciary—our Sylvester
evidence indicates this is key for the bolstering of international law.
B) Doesn’t solve our modeling advantage—our Barasso evidence says we get other
nations on board.
(--) State courts can’t solve the AFF—judicial and political hostility at the local level:
Michelle Wilde Anderson, 2010 (Assistant Professor of Law @ UC Berkeley Law School,
“MAPPED OUT OF LOCAL DEMOCRACY,” Stanford Law Review, April 2010, Lexis/Nexis, rwg)
What to do with today's lost neighborhoods? It is the late dawn of the twenty-first century, when
integration is stronger and civil rights laws are weaker, when local government budgets are dwarfed
by demands. Suing local governments or lobbying them, two of the most important strategies of
twentieth-century advocacy for social justice, have been weakened by judicial and political hostility to
redistributive claims. Yet state and local government law retains malleability and promise. Laws governing the allocation of power
among local agencies exert significant influence over unincorporated urban areas in particular and spatial polarization by race and class more
generally.
(--) FIAT Abuse: all 50 state courts wouldn’t take the same action at the same time
A) Utopian: all 50 state courts wouldn’t take the same action at the same time
B) Distorts the literature base: makes it impossible to generate offense vs. the CP
C) Voting issue: debate has already been irreparably altered.
(--) Supreme Court is necessary to solve for the states—states will interpret their
constitutions the way the Supreme Court does:
Bill Swinford, 1994 (Assistant Professor of Political Science, University of Richmond, Temple
Law Review, “SHEDDING THE DOCTRINAL SECURITY BLANKET: HOW STATE SUPREME COURTS
INTERPRET THEIR STATE CONSTITUTIONS IN THE SHADOW OF RODRIGUEZ,” 67 Temp. L. Rev.
981; Lexis, rwg)
State courts often interpret language in state constitutions in order to grant protection to rights and
privileges that is broader than that afforded by the Supreme Court under the United States Constitution.
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n1 However, state courts tend to be guided (if not controlled) by United States Supreme Court
interpretations of analogous language in the United States Constitution. n2 In other words, state
courts have traditionally used Supreme Court precedents as "doctrinal security blankets," looking to
Court precedent for legal support for decisions on state constitutional questions, even when there is
no legal necessity for doing so.
(--) States won’t depart from federal standards—the counterplan can’t solve on its
own:
Bill Swinford, 1994 (Assistant Professor of Political Science, University of Richmond, Temple
Law Review, “SHEDDING THE DOCTRINAL SECURITY BLANKET: HOW STATE SUPREME COURTS
INTERPRET THEIR STATE CONSTITUTIONS IN THE SHADOW OF RODRIGUEZ,” 67 Temp. L. Rev.
981; Lexis, rwg)
The adjudication of claims under state constitutions involving equal protection of the law provides a
prominent example of the growing pains faced by state courts. n7 As in other areas, state courts in the
1970s and 1980s began hearing more equal protection claims on the basis of state constitutional
language alone. But the lack of independent state-level doctrine in this area, combined with the legal
tradition of deference to the United States Supreme Court, made it difficult, for those state courts
who desired to do so, to depart from federal standards for equal protection. n8
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CP Competing Off Plan Certainty 2ac
(--) Perm- do the CP--“Should” means “ought to”
Sudison, 7/18/2006 (http://sudison.blogspot.com/2006_07_01_archive.html)
Shall 'shall' describes something that is mandatory. If a requirement uses 'shall', then that
requirement _will_ be satisfied without fail. Noncompliance is not allowed. Failure to comply with one single 'shall'
is sufficient reason to reject the entire product. Indeed, it must be rejected under these circumstances. Examples: # "Requirements shall make
use of the word 'shall' only where compliance is mandatory." This is a good example. # "C++ code shall have comments every 5th line." This is
a bad example. Using 'shall' here is too strong. Should
'should' is weaker. It describes something that might not
be satisfied in the final product, but that is desirable enough that any noncompliance shall be explicitly
justified. Any use of 'should' should be examined carefully, as it probably means that something is not being stated clearly. If a 'should' can
be replaced by a 'shall', or can be discarded entirely, so much the better.
(--) None of their evidence assumes the court—no reason to believe the court
conditions rulings or consults on issues before it rules.
(--) Any condition means it’s try or die for the AFF: any risk of not solving means we
win the international law advantage, our right to develop advantage, and our OAS
advantage—multiple scenarios for extinction.
(--) CP that compete on the certainty of the plan are badA) Infinite possible conditions- kills predictability and competitive equity
B) Kills aff ground- no literature for the aff in the context of the CP- kills
competitive equity
C. Hurts plan focus- trades off with specifics about the policy- kills topic education
which can only happen this year
D. Literature doesn’t check- we can’t be prepared to find nonexistent literature on
all their conditions
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AT: Counterplans that don’t use the right to
development
(--) Right to development has an exalted place in international law:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
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
(--) Right to development has risen to the level of customary international law:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
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
[*427]
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, twenty-four years since the international community recognized the right in a formal, broad-based
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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
(--) Other nations denounce the embargo on the grounds that it violates international
law because of the right to development:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
n5 See U.N. GAOR, 63rd Sess., 33rd plen. mtg., supra note 3, at 2, 3, 7, 9-11, 13, 15, 18, 20, 23, 25. In
denouncing the U.S. embargo
of Cuba, a majority of the nations presenting at the General Assembly, including Egypt, Guyana (speaking on behalf
of the fourteen member states of the Caribbean Community), Vietnam, China, Algeria, India, Angola, Nicaragua, Tanzania, Cuba, France, Laos,
Indonesia, Myanmar, and Belarus, referred
to the U.S. embargo's effects on Cuba's right to development as a
reason for its illegitimacy under international law. See id. Yet, the delegation from the United States completely ignored the
issue of development and focused only on humanitarian questions raised by the other countries. See id. at 14-15.
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Disads 2ac Blocks
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Politics DA Answers
(--) Normal means is announcing the plan in May or June—after their politics scenario:
Wikipedia, 7/24/2012
(http://en.wikipedia.org/wiki/Procedures_of_the_Supreme_Court_of_the_
United_States#Announcement_of_opinions, Accessed 7/25/2012, rwg)
Throughout the term, but mostly
during the last months of the term—May, June, and, if necessary, July—the
Court announces its opinions.
The decision of the Court is subsequently published, first as a slip opinion, and subsequently in the
United States Reports. In recent years, opinions have been available on the Supreme Court's website and other legal websites on the morning
they are announced.
(--) ZERO LINK AT ALL: The Supreme Court does the plan—Obama doesn’t use any
capital to push the plan.
(--) Courts preserve president’s political capital
Tushnet, 2008 (law professor at Harvard, Mark, “THE OBAMA PRESIDENCY AND THE ROBERTS
COURT: SOME HINTS FROM POLITICAL SCIENCE: POLITICAL FOUNDATIONS OF JUDICIAL
SUPREM-ACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN
U.S. HISTORY”, Summer, 25 Const. Commentary 343, lexis, Accessed 2/18/2013, rwg)
What can the courts do for a resilient regime? Presidents and Congress have limited time and political
energy. They will spend them on what they regard as central issues. But at any time there will be "outliers" - geographic regions as yet
uncommitted to the regime's constitutional understandings, or substantive areas that plainly require change if those understandings are to
become deeply implanted in society, yet politically too touchy [*347] or relatively unimportant to Congress. "For the affiliated leader,
enhancing judicial authority to define and enforce constitutional meaning provides an efficient mechanism for supervising and correcting those
who might fail to adhere to the politically preferred constitutional vision" (pp. 105-06). The courts can serve as a convenient but essentially
administrative mechanism for bringing these outliers into the constitutional order. n16¶ In addition, the courts may have rhetorical resources
unavailable to presidents. Their obligation to explain their decisions, and the fact that they make decision after decision, means that they have
an opportunity to develop a reasonably general account of the resilient regime's constitutional understandings. In Whittington's words, "It is
the classic task of judges within the Anglo-American tradition ... to render new decisions and lay down new rules that can be explicated as a
mere working out of previously established legal principles" (p. 84). Presidents, in contrast, only sporadically make speeches illuminating those
understandings.¶ More boldly, affiliated presidents may try to use the courts to "overcomee gridlock" (p. 124) caused by the strategic positions
recalcitrant opponents of the new constitutional regime may occupy. And, if not "use the courts," at
least rely on the courts to
take the initiative, because "the Court can sometimes move forward on the constitutional agenda
where other political officials cannot" (p. 125). "Coalition leaders might be constrained by the needs of coalition maintenance,"
but "judges have a relatively free hand" (p. 125). This "use" of the courts, though, poses risks. The courts may push the regime's constitutional
principles further and faster than is politically wise, and the regime's political leaders may find themselves on the defensive. Indeed, in this way
the courts can contribute to making a resilient regime vulnerable, which may be part of the story about the Warren Court and the demise of the
New Deal/Great Society regime. n17¶ [*348] Preemptive presidents face a special strategic problem. Sometimes they take office because they
manage to persuade the public that they remain committed to a resilient regime's constitutional vision even if in their hearts they want to
transform the regime. n18 At other times they take office as a regime becomes vulnerable, but do not themselves have the program, vision, or
charisma to be reconstructive presidents themselves. n19 They are likely to face opposition in Congress and to some degree in the courts. But
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they can turn divided government to their advantage by seeking judicial confirmation of executive prerogative. The judges in place might be
sympathetic to such claims for doctrinal and political reasons. They will have "inherited from affiliated administrations" (p. 169) doctrines
supporting executive authority. And, though Whittington doesn't make this point explicitly, they may see the preemptive president as an
accident, soon to be replaced by an affiliated one whose exercises of presidential power they will want to endorse. Finally, preemptive
presidents need to get their authority from somewhere when they face congressional opposition, as they will. They don't have much of their
own, but they can try "to borrow from the authority of the courts in order to hold off their political adversaries" (p. 195). ¶ One final point
before I move to some speculations about the future of judicial supremacy. Whittington emphasizes the growth of judicial supremacy during
the twentieth century, both in terms of the judges' self-understanding and, perhaps more importantly, in terms of the degree of political
commitment to judicial supremacy (p. 25). He suggests that politicians have
had increasingly strong reasons to support
the Supreme Court. The reconstructive presidency of Ronald Reagan was less ambitious than that of Franklin Roosevelt (p. 232),
assuring the American people that Reagan's policies would strengthen rather than destroy the social safety nets that Roosevelt and Lyndon
Johnson's regimes had created. Even a reconstructive president could hope that the Supreme Court would assist in articulating regime
principles in the way the Court ordinarily does for affiliated presidents. Further, drawing again on Skowronek's account of the [*349] ways in
which regimes leave a residue even after they have been displaced, Whittington describes the doctrinal thickening that occurred during the
twentieth century with respect to essentially every possible ideological and political commitment a President could have (p. 283). Doctrinal
thickening means that every member of a ruling coalition will have some basis in constitutional law for its assertions that the Constitution
requires satisfaction of its policy preferences, and that the Court cannot possibly satisfy all the demands on it. n20 So, for the future, we might
expect Presidents to have increasingly ambivalent views about the Supreme Court. In
the twenty-first century, the Supreme
Court will be useful and annoying to every President - useful because the Court can do some policy work
that Presidents would rather not expend time and political capital on,
and annoying because the Court's failure to
satisfy all the demands emanating from a President's political supporters will put pressure on the President to do something about the Court.
(--) Turn: the plan bolsters political capital by allowing politicians to blame the court:
Keith E. Whittington, 2007 politics at Princeton University, (Political Foundations of
Judicial Supremacy, p. 137-39)
Independent and active judicial review generates position-taking opportunities by reducing the
policy responsibility of the elected officials. They may vote in favor of a bill that they personally
dislike secure in the knowledge that it will never be implemented. State statutes regulating abortion after the Roe
decision, for example, were often pure symbolism, though they could also play a more productive role in pressing the Court to refine its
doctrine or in filling in the lacuna left by judicial decisions. More subtly, the
judicial backstop allows legislators to focus
on some dimensions of the proposed policy (the most optimistic and politically popular) while
downplaying others (the constitutionally subversive and treacherous). Legislators even gain a
political windfall when the courts actually act to strike down the popular law. The visibility of the
exercise of judicial review creates another opportunity for legislators to publicize their position on
the issue, this time by bewailing the Court’s actions.
(--) Court action doesn’t link to politics- individual rulings don’t draw attention
Gregory Caldeira, 1986 Professor of Political Science, Ohio State University, [The American
Political Science Review, Vol. 80, No. 4 (Dec., pp. 1209-1226; “Neither the Purse Nor the Sword:
Dynamics of Public Confidence in the Supreme Court”; Jstor]
In previous work on support for institutions and leaders, scholars have demonstrated the
crucial effects of discrete political events and circumstances on the rise and decline of public
confidence. For example, Mueller (1973) persuasively argues that crises in foreign affairs result in "rallying-around-the-flag" and a
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subsequent increase in the popularity of the incumbent chief executive (cf. Parker, 1977). Unfortunately for the purposes of analysis,
events normally associated with the Court seldom cause a splash of the dimensions of the Mayaguez
incident or the Cuban missile crisis, Particular decisions sometimes do gain a fair amount of attention in
the elite media of communications, but few single cases -with the exception of a bombshell such as Dred Scotthave sufficient weight to shift public attitudes one way or the other . Even if we could isolate
a number of crises or landmark decisions, the polling organizations have not gathered data
on support for the Court often enough to permit a precise reading on the influence of salient
events.
123
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1ar: Politics: Decisions Announced in May
(--) The plan wouldn’t be announced until May at the earliest—after their politics
scenario—this isn’t FIAT gimmickry—this is normal means for the courts.
(--) You should prefer normal means to immediacy:
A) Most real world: teaches real world decision making skills
B) Rewards topic specific education specific to the branch of government
C) Least distortion of the lit base—both sides can debate it.
(--) Supreme Court announces decisions in May & June
Supreme Court of the United States, 7/25/2012 (“The Court and Its Procedures,”
http://www.supremecourt.gov/about/procedures.aspx, Accessed 7/25/2012, rwg)
The Court maintains this schedule each Term until all cases ready for submission have been heard and
decided. In May and June the Court sits only to announce orders and opinions. The Court recesses at the end of
June, but the work of the Justices is unceasing. During the summer they continue to analyze new petitions for review, consider motions and
applications, and must make preparations for cases scheduled for fall argument.
(--) Decisions never leak before they are announced:
Sam Baker, 7/4/2012 (staff writer, “Supreme Court healthcare ruling leaks have DC buzzing:
Who is the culprit?” http://thehill.com/blogs/healthwatch/legal-challenges/236197-supremecourt-talk-has-dc-buzzing-who-is-the-leaker, rwg)
The justices themselves were implicated in the speculation because clerks would have more to lose by
talking to the press. A decision has never leaked before the court announced it publicly ; the
explanation for that fact is that justices have nothing to gain and clerks would be throwing away
promising careers by leaking.
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1ar: Blame Deflection
(--) They don’t have a link and we only have a risk of a turn—extend our Tushnet
evidence—politicians can use the court to prevent themselves from expending
political capital, extend our Wittington evidence, politicians can look good by
posturing in opposition to the court.
(--) Blame deflection: Democrats will blame Bush’s Court
Katherine Perine, 2008 staff at CQ Politics, 6/12/2008, Congress Unlikely to Try to Counter Supreme Court
Detainee Ruling, CQ Politics, p. http://www.cqpolitics.com/wmspage.cfm?docID=news-000002896528&cpage=2)
Thursday’s decision, from a Supreme Court dominated by Republican appointees, gives Democrats further
cover against GOP sniping. “This is something that the court has decided, and very often the court gives
political cover to Congress ,” said Ross K. Baker, a Rutgers University political science professor. “You can
simply point to a Supreme Court decision and say, ‘The devil made me do it.’
(--) Courts provide political cover to politicians:
Dallas Morning News 8/19/05
http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/legislature/schoolfinance/
stories/082005dntexsession.8bd31b4a.html
That could foreshadow the court's response to a chief argument by state attorneys – that the court should butt out and leave school
A court finding against the state would put the ball back in the hands of
lawmakers, who have tended to put off dealing with problems in schools, prisons and mental health facilities
until state or federal judges forced them to act. "It's the classic political response to problems
they don't want to deal with," said Maurice Dyson, a school finance expert and assistant law professor at
Southern Methodist University. "There is no better political cover than to have a court rule that
finance to the Legislature.
something must be done, which allows politicians to say their hands are tied."
(--) Politicians will use the counterplan to deflect blame
Alison M. Martens, 2007 political science at University of Louisville, 2007 (Perspectives
on Politics 5.3)
The outline of this revised research agenda, begins by looking at a 1993 article written by Mark
Graber challenging the countermajoritarian difficulty paradigm. Graber's observations point to the
importance of studying systemic transformations, such as the evolution of judicial supremacy. Using
historical case studies on abortion, the Dred Scott controversy, and anti-trust issues to study
perceived incidents of judicial independence, he contends that scholars who seek to justify
independent judicial policymaking, even in the face of believed democratic deficiencies,
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misunderstand and inaccurately represent the relationships between justices and elected officials. By
looking at the dialogues between these parties it becomes apparent that judicial independence,
when it actually occurs, is often exercised at the invitation of elected officials, and in the absence of
any expressed majoritarian choice, in order to resolve political controversies that elected officials
cannot or do not want to resolve themselves. Hence the counter-majoritarian difficulty can be more
appropriately characterized as the “non-majoritarian difficulty.” 33
According to Graber, where crosscutting issues divide a lawmaking majority an invitation is often
tacitly but consciously issued to the Court by political elites to resolve the political controversy that
they themselves are unwilling or unable to address, thereby “foisting disruptive political debates off
on the Supreme Court.” 34 Graber writes that “elected officials encourage or tacitly support judicial
policymaking both as a means of avoiding political responsibility for making tough decisions and as
a means of pursuing controversial policy goals that they cannot publicly advance through open
legislative and electoral politics.” 35 Furthermore, political and electoral advantages can accrue by
ducking these tough questions and sending them on to be settled by the Court. Graber explains that
elites (including the executive) can benefit from passing the political buck to the Court in multiple
ways. Party activists can be redirected to focus on legal action in the courts, thereby reducing
pressure on mainstream politicians who wish to maintain a more politically viable moderate stance.
Voters can be redirected to focus any ire they might have over policy outcomes on the Court.
Politicians can take responsive positions on judicial decisions that may make for a good sound bite
but really require no politically accountable action on their part. Finally, political compromise
between the legislature and the executive might be had under the table of Court policymaking. 36
This is an impressive set of political benefits that can stem from a practice of judicial supremacy that
creates a Court equipped with the interpretive authority and legitimacy to make controversial public
policies. Graber's article, then, highlights the perversion of political accountability that can possibly
occur where everyone in the system, the public included, accepts and expects interpretive authority
to reside with the courts.
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1ar: Individual Decisions Don’t Matter
(--) Extend our Caldeira evidence: individual decisions rarely make a splash—there’s
no way a decision about the embargo will turn everyone away from the courts if
decisions like abortion and gun control haven’t…
(--) Popular respect for the Court shields it from partisan politics on individual issues:
Gregory Caldeira, 1998 Prof of Political Science at The Ohio State University, [Co-written by
Vanessa A. Baird, James L. Gibson; “On the Legitimacy of National High Courts” The American
Political Science Review, Vol. 92, No. 2 (Jun., ), pp. 343-358; Jstor]
The purpose of this research is to examine theories of diffuse support and institutional legitimacy
by testing hypotheses about the interrelationships among the salience of courts, satisfaction with
court outputs, and diffuse support for national high courts. Like our predecessors, we are
constrained by essentially cross-sectional data; unlike them, we analyze mass attitudes toward high
courts in eighteen countries. Because our sample includes many countries with newly formed high
courts, our cross-sectional data support several longitudinal inferences, using the age of the judicial
institution as an independent variable. We discover that the U.S. Supreme Court is not unique in
the esteem in which it is held and, like other courts, it profits from a tendency of people to credit
it for pleasing decisions but not to penalize it for displeasing ones. Generally, older courts
more successfully link specific and diffuse support, most likely due to satisfying successive,
nonoverlapping constituencies.
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Activism/Judicial Minimalism Answers
(--) Use of customary international law doesn’t lead to judicial activism:
T. Alexander Aleinikoff, 2004 (Associate Dean for research @ Georgetown University Law Center,
Jan, 98 A.J.I.L. 91, Lexis, Accessed, 7/23/2013, rwg)
Internationalists also have powerful answers to the "judicial activism" charge of CIL lawmaking. They
properly note that the process for the crystallization of CIL norms is an arduous one, which can justify
only a fairly small number of CIL norms and even a smaller number of judicial opinions that apply
them as binding law. n31 Furthermore, the sources to which decision makers may look is fairly well-set:
state practice, precedents, international court cases, international legal materials, the views of experts. These do not
always yield determinative results, any more than the "sources" of constitutional law mechanically produce answers. Judgment must be
applied. But
this fact has tended to argue for judicial modesty more than hubris. In any event, as internationalists
point out, a democratic check on CIL lawmaking exists in Congress's power to reject or modify CIL rules by normal legislation.
(--) Incorporation of international law in US courts is consistent with the Founders
interpretation of the constitution:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
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
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(--) Applying CIL won’t produce runaway judges:
T. Alexander Aleinikoff, 2004 (Associate Dean for research @ Georgetown University Law Center,
Jan, 98 A.J.I.L. 91, Lexis, Accessed, 7/23/2013, rwg)
Last, it can be pointed out--by way of anticipating objections to an Incompatibility Statute--that the
legislation would not open
the floodgates to litigation nor produce runaway judges imposing foreign-based rights willy-nilly. In
contrast to the detailed rights established by the European Convention (and which British courts must now interpret and enforce), CIL-
based rights are likely to play but a small role in U.S. civil rights litigation . This is so because of the
wide-ranging constitutional and statutory rights already protecting Americans, and also because of
the rather rigorous rules for identifying CIL that would control a conscientious federal judge. n78 And in
any event, my proposal would equip Congress with a fast-track process for reversing the decisions of federal courts, if it seeks to adopt
legislation in violation of CIL or disagrees with the judiciary's interpretation of CIL norms.
(--) Customary international law is consistent with the Framers vision of the
constitution:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
n97 See Jordan J. Paust, Customary International Law and Human Rights Treaties Are Law of the United
States, 20 MICH. J. INT'L L. 301, 301 (1999) ("The Founders clearly expected that the customary law of
nations was binding, was supreme law, created (among others) private rights and duties, and would
be applicable in United States federal courts.").
(--) Clearly within the court’s authority to rule on questions of international law:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
n126 See The Paquete Habana, 175 U.S. 677, 700 (1900). If international
law is U.S. law by virtue of the Supremacy
Clause, and it is the "duty of the judicial department to say what the law is," then it is clearly within
the Court's authority to rule on questions of international law . See id.; Marbury v. Madison, 5 U.S. 137, 177 (1803).
See also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. § 111(2), (3) (1987) (noting that cases arising under international law
or international agreements to which the United States has acquiesced are within the jurisdiction of U.S. courts).
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Court Politics Answers—2ac
(--) Non-unique: The series of unpopular decisions last term should trigger the link:
Harold Maass, 7/22/2013 (staff writer, “How the Supreme Court got on the bad side of
everybody,” http://theweek.com/article/index/247206/how-the-supreme-court-got-on-thebad-side-of-everybody, Accessed 7/25/2013, rwg)
Why is the court's popularity suddenly in free fall? Andrew Dugan at Gallup says a key reason might be that its
divisive, blockbuster decisions have disappointed conservatives and liberals alike. The justices
angered the right when, in a 5-4 vote, they reaffirmed a lower court's overturning of the Defense of
Marriage Act; they made the left just as mad when, in another 5-4 vote, they upheld state voter ID
laws that Democrats say discourage left-leaning immigrant and minority blocs from casting ballots.¶ Unlike Congress or the presidency, one
might expect the Supreme Court, as a nominally nonpartisan institution, to be sheltered from the public disaffection that has chipped away at
the ratings of the other two branches. In reality, though, the court has often been a source of political polarization since 2000 and is hardly
immune to the same political forces plaguing the other two branches. [Gallup]
(--) Turn: Winners win for the Courts—controversial decisions enhance the court’s
legitimacy:
David Law, 2009 (Professor of Law and Professor of Political Science, Washington University in
St. Louis, Georgetown Law Journal, March 2009, 97 Geo. L.J. 723; “A Theory of Judicial Power
and Judicial Review,” Lexis, rwg)
Part IV of this Article discusses a counterintuitive implication of a coordination-based account of judicial power. Conventional
wisdom
suggests that courts secure compliance with their decisions by drawing upon their store of legitimacy,
which is undermined by decisions that are unpopular, controversial, or lack intellectual integrity. n25
Part IV argues that precisely the opposite is true : an unpopular or unpersuasive decision can, in fact,
enhance a court's power in future cases , as long as it is obeyed. Widespread compliance with a
decision that is controversial, unpopular, or unpersuasive serves only to strengthen the widely held
expectation that others comply with judicial decisions. This expectation, in turn, is self-fulfilling: those
who expect others to comply with a court's decisions will find it strategically prudent to comply themselves, and the aggregate result will, in
fact, be widespread compliance. Part IV illustrates these strategic insights--and the Supreme Court's apparent grasp of them--by contrasting
[*734] Bush v. Gore n26 with Brown v. Board of Education n27 and Cooper v. Aaron. n28
(--) Non-unique: conservatives enraged about the DOMA decision:
Michael Luciano, 6/25/2013 (staff writer, “After Gay Marriage Rulings, Christian
Conservatives Unconvincingly Portray Themselves As the Victims,”
http://www.policymic.com/articles/51897/marriage-equality-christian-conservatives-absurdlyclaim-they-re-the-real-victims, Accessed 7/25/2013, rwg)
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After the Supreme Court struck dealt a blow to the Defense of Marriage Act and California’s Proposition 8 on
Wednesday, reactions from the religious right were fervid and crazed , suggesting Christian
conservatives feel their very livelihoods are imperiled. Indeed, one conservative tells us the dubious direction this is all
heading:¶ The Supreme Court virtually declared an open season on those with whom the 5-4 majority disagree.¶ We are no longer relevant.
What we think no longer counts. We are, after all, bigots who only want to demean homosexuals.¶ So when does the persecution begin?¶
When are we stripped of our citizen status, the right to vote, the right to bear arms and other constitutionally guaranteed liberties? Isn’t that
next?
(--) No internal link: Capital doesn’t tradeoff between issues-Redish and Cisar, 1991 prof law @ Northwestern and Law clerk to US Court of Appeals, 19 91
(MARTIN H. REDISH, prof law and public policy @ Northwestern; ELIZABETH J. CISAR, Law Clerk
to
Chief Judge William Bauer, United States Court of Appeals, Seventh Circuit, Dec 1991,
“CONSTITUTIONAL PERSPECTIVES: ARTICLE: "IF ANGELS WERE TO GOVERN" *: THE NEED
FOR PRAGMATIC FORMALISM IN SEPARATION OF POWERS THEORY.” 41 Duke L.J. 449)
Choper's assumption that the judiciary's institutional capital is transferable from structural cases
to individual rights cases is no more credible. Common sense should tell us that the public's
reaction to con- troversial individual rights cases-for example, cases concerning abor- tion,240
school prayer,241 busing,242 or criminal defendants' rights243- will be based largely, if not
exclusively, on the basis of its feelings con- cerning those particular issues. It is unreasonable to
assume that the public's acceptance or rejection of these individual rights rulings would
somehow be affected by anything the Court says about wholly unrelated structural issues .
(--) Theory of institutional capital is wrong—votes are based on ideology and not
institutional capital:
Cross and Nelson, 2001 Biz Law @ UT and PoliSci @ Penn State,
(Frank B. Cross, Biz Law @ UT, Blake J. Nelson, Assis prof PoliSci @ Penn State, 2001, “STRATEGIC
INSTITUTIONAL EFFECTS ON SUPREME COURT DECISIONMAKING” 95 Nw. U.L. Rev. 1437)
judges make decisions so as to
advance their political or ideological [*1444] policy ends, without regard to either the demands of the
normative legal model or the concerns of other institutions. n39 It is normative in that it assumes that judges are
unconstrained and have single-peaked utility functions. In this model, judges decide so as to advance their
ideological policy ends, without regard for the formal requirements of law (e.g., constraining precedents and text) and without
concern for the reaction of external entities. The political model may find support in legal sources beyond the
legal realists and the contemporary critical legal theorists . n40 Supreme Court Justices are
commonly characterized as "liberal" or "conservative" - political terms describing the ideological
import of their decisions. Significantly, this model of decisionmaking does not necessitate an extremely
cynical view of judges, as the political model may reflect subconscious psychology and cognitive
dissonance. n41 With the growth of clerk populations, it is easy for "the appellate judge to determine a result based on personal
notions of fairness and right, and then to leave to the staff attorney the task of constructing reasons to support that result." n42 The
political model can be descriptively accurate, even absent conscious judicial policymaking . In
The normative political model, sometimes called the attitudinal model, contends that
contrast to the normative legal model, considerable empirical data supports the claims of the political model of judicial decisionmaking.
Many studies have already been described in the legal literature . n43 Some prominent judges have taken issue
with these studies and raised some methodological challenges, n44 though the challenges are readily answered. n45
Perhaps [*1445] the most persuasive evidence can be found in a meta-analysis of studies on judicial decisionmaking conducted by Dan
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Pinello. n46 He identified 140 research papers that empirically analyzed judicial decisionmaking by party affiliation. A majority of these
every study
showed a positive association between judicial voting and judicial ideology . n47 The studies
together contained over 222,000 judicial votes, and the judges' political party explained thirty-eight percent of the
papers reported data in a manner that could be incorporated in his meta-analysis, and he found that virtually
variance in their voting.
(--) No link: no one pays attention to the court:
Noah Feldman, 6/17/2012 ( professor of constitutional and international law at Harvard,
“Supreme Court’s Super Mondays Don’t Serve Justice,”
http://www.bloomberg.com/news/2012-06-17/supreme-court-s-super-mondays-don-t-servejustice.html, Accessed 7/28/2012, rwg)
The club of Supreme Court devotees (OK, junkies) likes to think of the first Monday in October as opening day, and the last Monday in June as
game seven of the World Series. But many years, the series is a dud. Most of the cases are technical and unexciting, they enter the casebooks
with little fanfare , and the public barely notices.
This year will be the exception that proves the rule.
(--) Individual decisions don’t affect capital.
Gibson et al., 2003 PoliSci @ Wash U in St. Louis and Ohio State, 2003
James L. Gibson, PoliSci @ Wash U in St. Louis, Gregory A. Caldeira, PoliSci @ Ohio State, Lester
Kenyatta Spence, Poli Sci @ Wash U in St. Louis, Apr. 2003, “Measuring Attitudes toward the
United States Supreme Court” American Journal of Political Science, Vol. 47, No. 2 (Apr., 2003),
pp. 354-367
Perhaps more important is the rather limited rela- tionship between performance evaluations and
loyalty to the Supreme Court. These two types of attitudes are of course not entirely unrelated, but commitments to
the Supreme Court are not largely a function of whether one is pleased with how it is doing its
job. Even less influential are perceptions of decisions in individual cases. When people have developed a
"running tally" about an institution-a sort of historical summary of the good and bad things an institution has done-it is difficult for
any given decision to have much incremental influence on that tally. Insti- tutional loyalty is
valuable to the Court precisely because it is so weakly related to actions the Court takes at the
moment.
(--) Judicial capital is resilient – one controversial decision won’t destroy it.
Grosskopf and Mondak, 1998
(Anke Grosskopf, Assistant Prof of Political Science @ Long
Island University, & Jeffrey Mondak, Professor of Political Science @ U of Illinois, 1998, “Do attitudes
toward specific supreme court decisions matter? The impact of Webster and Texas v Johnson on Public
Confidence in the Supreme Court” Political Research Quarterly, vol. 51 no 3 633-54 September1998)
Opinion about the Supreme Court may influence opinion about the Court's decisions, but is the opposite true? Viewed from the
it would be preferable if public reaction to rulings did not shape
subsequent levels of support for the Court. If opinion about the Court were fully determined by early political
perspective of the Court's justices,
socialization and deeply rooted attachments to democratic values, then justices would be free to intervene in controversial policy
a long tradition of
scholarship argues that the Supreme Court is esteemed partly because it commands a bedrock
of public support, or a reservoir of goodwill, which helps it to remain legitimate despite occasional
critical reaction to unpopular rulings (Murphy and Tanenhaus 1968; Easton 1965, 1975; Caldeira 1986; Caldeira and
questions without risk that doing so would expend political capital. Consistent with this perspective,
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Gibson 1992). The sources
of this diffuse support are usually seen as rather stable and immune from shortterm influences, implying that evaluations of specific decisions are of little or no broad
importance. For instance, Caldeira and Gibson (1992) find that basic democratic values, not reactions to decisions, act as the
strongest determinants of institutional support.
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Court Politics—Schuette Decision Answers
(--) At a minimum, Schuette will significantly curtail affirmative action:
Matthew Gaertner, 7/8/2013 (staff writer, “Class and Race,”
http://www.insidehighered.com/views/2013/07/08/essay-calls-consideration-class-affirmativeaction, Accessed 7/28/2013, rwg)
In fact, the issue seems far from settled. Fisher will be reconsidered by the U.S. Circuit Court of Appeals for the Fifth Circuit, and the Supreme
Court agreed to hear an additional case this fall – Schuette v. Coalition to Defend Affirmative Action – related to affirmative action in Michigan.
At issue in Schuette is the constitutionality of statewide bans (usually enacted via popular referendum) on using race in admissions or
employment. Because
popular support for traditional, race-based preferences has dwindled over the past
decade, and Fisher and Schuette are still in play, many Court observers suspect race-based affirmative
action will be curtailed significantly if not struck down entirely . If that happens, it seems reasonable
to think diversity at our nation's selective institutions of higher education will be radically diminished.
(--) Fisher ruling already substantially curtails AFF action:
Horace Cooper, 6/24/2013 (former law professor at the George Mason University School of
Law, Christian Science Monitor, Lexis, Accessed 7/28/2013, rwg)
In its decision in Fisher v. University of Texas at Austin, justices voted 7-1 that the University of Texas's race-based admissions policy
must be reviewed at the highest level judicial review - "strict scrutiny."¶ It sent the case back to the lower federal court to apply that standard
to UT Austin - which apparently thought the days of "race conscious" policies had an open road based on a 2003 Supreme Court ruling, which in
fact was quite a narrow decision.¶ Ms. Fisher, who is white and who applied to UT-Austin in 2008, sought redress because she said she was
passed over in favor of a lesser-qualified minority candidate. Since she already enrolled at another school and graduated, she now wants the
$100 she spent on what she feels was a discriminatory process.¶ Today's
ruling is quite significant. A 7-1 ruling requiring
lower courts to apply "strict scrutiny" to university admissions policies even when done in the name of "diversity"
will place significant limits on affirmative action . The strict scrutiny standard is a high burden for any
state or federal policy to meet and
invariably results in the policies being struck down by federal courts.
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Court Politics Answers—AT: Readiness Impact
(--) Non-unique: Sequestration undermines readiness now:
Amanda Terkel, 7/22/2013 (staff writer, “Sequestration Damaging To Military Readiness,
Chuck Hagel Says,” http://www.huffingtonpost.com/2013/07/22/sequestration-militaryreadiness_n_3635686.html?utm_hp_ref=politics, Accessed 7/25/2013, rwg)
WASHINGTON -- Sequestration will
quietly chip away at the military's readiness capabilities , Defense Secretary
Chuck Hagel argued on Monday, urging members of Congress to work together to come up with a solution.¶ "To implement the steep
and abrupt reductions that have been required under sequestration, we've had to make very difficult
decisions to reduce, stop and defer many activities and programs that keep our military prepared to fight -including training, maintenance, and modernization investments," Hagel said.¶ "Readiness cuts aren't always visible,
but these
cuts are having and will continue to have very damaging effects,"
he added.
(--) Sequestration is underming military readiness:
Amanda Terkel, 7/22/2013 (staff writer, “Sequestration Damaging To Military Readiness,
Chuck Hagel Says,” http://www.huffingtonpost.com/2013/07/22/sequestration-militaryreadiness_n_3635686.html?utm_hp_ref=politics, Accessed 7/25/2013, rwg)
"Each
of the services have curtailed activities -- flying hours have been reduced, ships are not sailing,
and Army training has been halted," said Hagel on Monday. "These kinds of gaps and shortages could lead to a force
that is inadequately trained, ill-equipped, and unable to fulfill required missions.
(--) Sequestration undermines readiness:
Amanda Terkel, 7/22/2013 (staff writer, “Sequestration Damaging To Military Readiness,
Chuck Hagel Says,” http://www.huffingtonpost.com/2013/07/22/sequestration-militaryreadiness_n_3635686.html?utm_hp_ref=politics, Accessed 7/25/2013, rwg)
Army Gen. Martin Dempsey, the chairman of the Joint Chiefs of Staff, also recently said that unless
Congress addresses
sequestration, there will be "a dramatic impact in our readiness ."¶ On Tuesday, the Senate Budget Committee,
chaired by Sen. Patty Murray (D-Wash.), will
be holding a hearing examining the impact of sequestration and
national security. One of the witnesses will be Jennifer-Cari Green, a Madigan Army Medical Center employee and single mother who is
being furloughed.
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1ar: Court Politics Answers—Conservatives Angry Now
(--) Extend our Maass & Luciano evidence—conservatives are angry about the DOMA
decision and the Prop 8 decision—they feel their very livelihoods are imperiled—
massively swamping the link provided by the plan.
(--) Non-unique: Conservatives are angry with the court now—health care decision:
ASHBY JONES And BRENT KENDALL, 6/28/2012 (staff writers, “Roberts Straddles Ideological
Divide,” Accessed 7/25/2012 at http://online.wsj.com/article/SB100014240
52702303561504577494723149538572.html, rwg)
But even though it represents a clear victory for the Obama administration, Chief
Justice Roberts's opinion wasn't only a
tactical move. It may also further conservative jurisprudence in the long run by setting new limits on congressional power. The ruling
articulated limits on Congress's power to regulate interstate commerce, a bedrock of the modern state, and also placed new boundaries on
how the federal government could use its spending power. "Roberts showed he's more than just a member of a conservative bloc. It really is
Some Republicans were livid.
"Just because a couple of people on the Supreme Court declare something to be 'constitutional,' does
not make it so," said Sen. Rand Paul of Kentucky.
the Roberts Court," said Erwin Chemerinsky, dean of the University of California, Irvine, law school.
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1ar: Courts Politics Answers—No Spillover
(--) Extend our Redish and Cisar evidence—the assumption that institutional capital
affects unrelated issues is false—justices decide based on their feelings on individual
issues—not the overall reservoir of support it has.
(--) Capital doesn’t spill over to other decisions.
Redish, 1997 Law @ Northwestern U, 1997
Martin Redish, Law @ Northwestern U, Summer 1997, “Federalist Society Symposium: Washington, D.C.:
November 14 - November 16, 1996: Panel Three: Disciplining Congress: The Boundaries of Legislative
Power”, 13 J. L. & Politics 585
is that the Supreme Court has a limited pie of institutional
capital, of institutional goodwill, and if it spends some of that on constitutional federalism, it will be deprived of its opportunity to use that for where it really is needed -
The limited pie theory, associated with Professor Choper,
n39
individual rights. The reason institutional capital is really needed in individual rights is [*604] primarily that the states can protect themselves in the jungles of the political process,
while individuals cannot. To that, my colleague Michael Perry and others have added what implicitly underlies this: that individual rights are simply more important than constitutional
federalism. n40 I like to take the position that a true constitutional liberal should strongly believe in adherence to constitutional, not just political, limits on federalism, because
federalism serves an important function as a buffer between the government and the individual. The whole idea, the genius of the structure set up by the Framers, was that the
system of separation of powers, the system of federalism, and the system of individual rights would all interlock as different fail-safe mechanisms. If federalism and separation of
powers are working properly as divisions of government power, tyranny would be prevented, and presumably the number of instances where individuals and government conflict
over their rights would be reduced. The story that best illustrates how constitutional federalism can protect against tyranny is the story that I gather is true about Mussolini when he
was given a copy of the National Recovery Act, which ultimately was held unconstitutional, and he looks at it and he says in Italian, "Ah, now there's a dictator." And I think that
The limited pie theory, as
a justification, makes no sense because it assumes a kind of fungibility of institutional capital
that just doesn't comport with reality . How people feel about individual rights decisions will
not be determined by whether the Supreme Court has said anything about constitutional
federalism. Reactions to Roe v. Wade or Miranda v. Arizona are based on people's concerns
about those decisions. What the Supreme Court says or doesn't say about constitutional federalism will have little, if
any, effect on reactions to those decisions. [*605]
illustrates how dangerous it is in terms of the values of our constitutional system to vest full power within the federal government.
n41
n42
(--) Even if their overall theory is true, you can’t apply it to specific decisions—prefer
our evidence for drawing this distinction:
Grosskopf and Mondak, 1998 Profs of Poli Sci Long Island U and U of Illinois,
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey Mondak, Professor
of Political Science @ U of Illinois, 1998, “Do attitudes toward specific supreme court decisions matter? The
impact of Webster and Texas v Johnson on Public Confidence in the Supreme Court” Political Research
Quarterly, vol. 51 no 3 633-54 September1998)
Some evidence supports our political capital perspective, but the empirical record remains unsatisfying. Tanenhaus and
Murphy (1981) found that approval of Supreme Court rulings accounted for roughly 15 percent of the little variance in diffuse support
they detected. However, due to the nine-year gap between the waves of their panel survey, the authors could not attribute change in
support to any specific court rulings. Caldeira (1986) showed
response to judicial actions
to specific decisions.
that aggregate confidence in the Court varies in
such as support for defendants' rights, but Caldeira also
could not trace this effect
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Court Stripping Answers
(--) Congress won’t strip the Courts—bills to limit the Court’s jurisdiction don’t pass
even when Congress is angry:
Lawrence Baum, 2003 Department of Political Science, Ohio State University, June 2003
[“The Supreme Court in American Politics,”
http://arjournals.annualreviews.org/doi/full/10.1146/annurev.polisci.6.121901.085526;
jsessionid=n1HzQqZJALRe, rwg]
For Dahl, of course, the challenge stems partly from the sheer volume of intervention in the current era. Just as important,
the Court's
active participation in policy making has continued for a long period. Dahl suggested that significant interventions
occur chiefly in transitional periods, similar to what other scholars have labeled realignments.The several decades since 1960 are too long to be
labeled a transitional period. On the other hand, this is an era in which partisan control of House, Senate, and presidency has been divided most
of the time. In such an era, it is difficult even to identify a law-making majority, let alone characterize the Court's interventions in relation to
Congress can do more damage when it attacks the Court itself. But Congress seldom uses
its institutional powers against the Court in significant ways. For example, the Court's size has not
that majority.
been changed since the 1860s. Over that period, its jurisdiction has never been cut back as a negative
response to its policies despite a long list of bills with that purpose .
(--) Supreme Court decisions are almost impossible to reverse:
Baxter, 2005 7/12/2005 (Tom, staff writer, Atlanta Journal-Constitution, Lexis)
"Wars come and go, and the economy goes up and down, but a Supreme Court justice serves, on
average, 20 years," she said. "And once the court has made a decision, getting it reversed is practically
impossible."
(--) Justices will modify their behavior to avoid backlash from other branches:
Lawrence Baum, 2003 Department of Political Science, Ohio State University, June 2003
[“The Supreme Court in American Politics,” http://arjournals.annualreviews.org/doi/
full/10.1146/annurev.polisci.6.121901.085526;jsessionid=n1HzQqZJALRe]
Another possibility is that the justices ordinarily give little attention to their political environment but
take protective action when their decisions have aroused negative reactions from other policy
makers. Justices might reason that it is a poor strategy to depart from their most preferred positions
to avoid the possibility of an unfavorable response from the other branches. But when conflicts
actually occur, the justices retreat as a means to limit the damage . What might be called crisis-driven strategy is
analogous to the "fire alarm" form of congressional oversight over the executive branch. Compared with routine strategy, it would lead to more
interventions and more confrontations, but some periods of intervention would end abruptly as the justices responded to conflicts provoked by
their decisions.
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Hollow Hope DA Answers
(--) Non-unique: DOMA ruling was a huge civil rights victory:
Dan Orlando, 7/24/2013 (staff writer, “Same-Sex couples to receive estate tax refund in
NY,” http://www.bizjournals.com/newyork/news/2013/07/24/same-sex-couples-to-receiveestate-tax.html, Accessed 7/25/2013, rwg)
In a press release, Cuomo said: “The Supreme Court’s decision to strike down DOMA was a
groundbreaking civil rights victory that brought the LGBT community closer to the true meaning of
equal rights under the law. As a result of that decision, New York State is now able to issue refund
checks to qualified same-sex spouses who were required to pay taxes for no reason other than their
sexual orientation.”
(--) No link: the plan isn’t a win for a civil rights movement—it just strikes down the
embargo and better economically engages Cuba.
(--) NO LINK: Courts aren’t flypaper for social movements: movements have a realistic
understanding of the power of the Court:
Idit Kostiner, 2003 Jurisprudence and Social Policy Program, University of California, 2003
[“Evaluating Legality: Toward a Cultural Approach to the Study of Law and Social Change”, June,
http://www.blackwell-synergy.com/doi/full/10.1111/1540-5893.3702006]
Thus, a central finding in both McCann's and Silverstein's studies one crucial for supporting their model is that contrary to Scheingold's argument, activists for
social change are not caught up within a mythic perception of rights and legal institutions. Activists
interviewed in these studies instead express a sophisticated and disillusioned understanding of the
role of law. McCann and Silverstein suggest that activists use law not out of a mythic belief in its power, but rather as
an optimal strategy among "highly limited options available to them". This view of law enables activists to use legal
tactics strategically to promote their goals without falling into a falsely conscious perception of law
and without perpetuating the hegemonic nature of legal institutions. Relying on Gramsci's theory of counterhegemony
(1971) and on Hunt's interpretation of this theory (1990), McCann argues that movement activists who struggle to promote social change often have no other
choice but to use existing institutions, since "all struggles commence on old ground"
(--) Movements are already attracted to international law:
McGinnis, 2007 Professor of law at Northwestern University, and Somin Assistant Professor of Law at the George Manson University School of Law
(John McGinnis, Professor of law at Northwestern University, and Ilya Somin Assistant Professor of Law at the George Manson University School of Law , Should International
Law be Part of Our Law? , Stanford Law Review, March 2007
59 STAN. L. REV. 1175)
rise of raw international law may be its attractiveness to groups that are dissatisfied
with the outcomes of the domestic political process. Political scientist Ran Hirschl has suggested that political and social elites
A final explanation for the
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have reacted to the rise of democracy in the modern world by constructing more powerful and wide-ranging roles for the judiciary, over which
they retain substantial influence.37 Whatever the merits of Hirschl’s theory as an explanation for the rise of domestic judicial review, we believe
that it has important applications to raw international law. As discussed below in Part II, international law can be popular with
groups seeking political change because its content is not strongly constrained by the domestic legal process. It
allows domestic political “losers” to regain some of the ground they have lost
(--) TURN: The Court creates social change by balancing legal and policy
considerations
Lawrence Baum, 2003 Department of Political Science, Ohio State University, June 2003
[“The Supreme Court in American Politics,”
http://arjournals.annualreviews.org/doi/full/10.1146/annurev.polisci.6.121901.085526;jses
sionid=n1HzQqZJALRe]
Among students of judicial behavior, there is a lively debate over the justices' hierarchies of goals. The most contentious issue is whether
justices act almost exclusively on their interest in making good public policy or whether they balance that interest against the goal of
interpreting the law well. Most students of judicial behavior explicitly or implicitly take the first position. The work of some political scientists
policy
considerations certainly play a powerful part in shaping the justices' choices. Moreover, their impact is
likely to be especially strong in cases involving possible interventions, cases that have high stakes for
public policy. If justices balance legal and policy considerations, their policy goals can be expected to
challenges this position, explicitly or implicitly, in part by examining the legal frameworks in which decisions are made But
have the greatest impact when justices care most about the policy issues they face. In any event, adopting the
premise of policy-oriented behavior helps to illuminate the issues that I consider in this section.
(--) Brown proves: the law boslters social change:
Onwuachi-Willig, 2005 Acting Professor of Law, University of California, Michigan Law Review, May,
2005, 103 Mich. L. Rev. 1507, Lexis, rwg
Equally as important as Brown's moral victory was its impact on the Civil Rights Movement and race
relations in the United States. Indeed, two camps of scholars have explored and articulated the importance of the decision on
effecting social change. For some, such as Professor Mark Tushnet, Brown had a direct and forceful impact on the success
of the Civil Rights Movement and landmark civil rights legislation enacted during the 1960s. n116 According
to these scholars, Brown gave Blacks hope that racial equality would be achieved and that the rights of Blacks
would be recognized, thereby shaping and helping to forge a more aggressive Civil Rights Movement, a
movement that would result in strong anti-discrimination statutes such as Title VII of the Civil Rights Act
and the Voting Rights Act of 1965. n117
(--) Rosenberg is wrong: multiple reasons:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis, rwg
n199. See, e.g., Neal Devins, Judicial Matters, 80 Cal. L. Rev. 1027, 1030 (1992) (book review) (asserting
that Rosenberg's book "deserves harsh criticism because ... it endorses inconsistent measures of
effective judicial action, focuses on the Court in isolation rather than as part of a larger political culture,
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uses presumptions hostile to the recognition of a broad judicial role, and employs inadequate data and
questionable portrayals of existing research"); Peter H. Schuck, Public Law Litigation and Social Reform,
102 Yale L.J. 1763, 1771-72 (1993) (book review) (criticizing Rosenberg's theory for being "radically
indeterminate," for neglecting certain "dynamic effects unleashed by many Court decisions," and for
failing "to differentiate between constitutional and statutory interpretation decisions").
(--) Litigation on human rights mobilizes grassroots campaigns and educates the public
about human rights abuses:
Van Schaack, 2004 Assistant Prof. of Law @ Santa Clara University School of Law, Vanderbilt
Law Review, November, Beth, 57 Vand. L. Rev. 2305; Lexis, rwg)
Litigation as a visible, public, and "newsworthy" phenomenon can serve an educative function, by
teaching the general public about international norms of behavior, calling attention to injustices,
persuading changes of opinion, provoking a public outcry, and mobilizing grassroots campaigns. n163
Within the U.S., press accounts of [*2339] the extent of repression elsewhere, and even direct participation in the judicial
process by individual jurors, can generate a societal empathy for human rights victims, n164 thus
contributing to a domestic human rights consciousness and the development of a political constituency
supportive of an ethical foreign policy. n165 Greater domestic attention to rights abuses occurring
overseas will increase pressure on the U.S. government to condemn abuses and bring its influence to
bear on repressive governments. n166
(--) Judicial victories empower social movements:
Idit Kostiner, 2003 Jurisprudence and Social Policy Program, University of California, 2003
[“Evaluating Legality: Toward a Cultural Approach to the Study of Law and Social Change”, June,
http://www.blackwell-synergy.com/doi/full/10.1111/1540-5893.3702006]
Based on these findings, McCann argues that sociolegal scholars should rethink their critical view of the role of
law in social change. He suggests that this critical view is based on scholars' tendency to overdetermine
legal norms and to identify them too narrowly with formal legal institutions. He calls for a reconceptualization of
law in more relational, context-specific terms that would alter the ways of assessing the value of law in social reform. Accordingly, he argues
judicial victories may be seen as more empowering for social movements than critics often
recognize. Moreover, McCann maintains that the focus on winning judicial remedies is highly
misleading. He suggests that movements may benefit from the use of legal tactics regardless of actual
success in courts due to the empowering effects of participation in legal campaigns.
that
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1ar: DOMA non-uniques the link
(--) Extend our Orlando evidence, the strike down of the Defense of Marriage Act
totally swamps the plan—it’s a much bigger symbol that the Court is interested in
protecting civil rights than a strike down of the Cuban embargo. At a minimum, it is
perceived as a huge civil rights victory—non-uniquing the Disad and swamping our
link.
(--) DOMA victory was a huge civil rights victory:
Jason Mankey, 6/26/2013 (staff writer, “Deconstructing Stupid: Dumb Responses to the End
of DOMA, “http://www.patheos.com/blogs/panmankey/2013/06/deconstructing-stupid-dumbresponses-to-the-end-of-doma/, Accessed 7/25/2013, rwg)
I like to keep my posts squarely in the Pagan sphere, but there are times my inner snark just becomes
too much to bear. Today has been a huge step forward for equality and civil rights. Politics in the
United States are often round after round of disappointment, but today there was mostly joy. Sure, we
have many more battles ahead of us to realize full marriage equality on a nationwide level, but we
took major strides today.
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1ar: Brown v. Board Proves—Court Creates Social Change
(--) Brown fundamentally altered race relations in the country:
Onwuachi-Willig, 2005 Acting Professor of Law, University of California, Michigan Law Review,
May, 2005, 103 Mich. L. Rev. 1507, Lexis, rwg
Regardless of which camp one falls in, the direct or indirect Brown effect camp, the
undeniable truth is that Brown certainly
helped to transform race relations in this country. n120 Whether it ignited racial change because of a
stronger belief that Blacks' rights and interests would be acknowledged and protected or whether it
effected change in a more perverse manner by creating southern resistance that [*1533] invoked the
sympathies of northern Whites and politicians, Brown helped to change a nation. In sum, the Brown
decision was and is more than a symbol of racial equality. It was the impetus of a movement that
worked to change how Americans viewed and thought about race and resulted in important legislation
that helped to protect the civil liberties of Blacks and other minorities, even though, as Bell points out, with dwindling
force today.
(--) Brown fundamentally altered social attitudes toward social change:
Onwuachi-Willig, 2005 Acting Professor of Law, University of California, Michigan Law Review,
May, 2005, 103 Mich. L. Rev. 1507, Lexis, rwg
As Zelma Henderson, one of the Topeka parents, proclaimed about the moral victory of Brown, "When
you get right down to it, the message of the Brown decision ... is really that all human beings of all races
are created equal... . We went to the Supreme Court of the United States to affirm that fact, and we
won." n128 Regardless of the status of minorities today, that moral victory was significant. As Professor
Dennis Hutchinson recently asserted, "[Brown] de-legitimized Jim Crow. It said that the social attitude
... . this insulting, [*1535] demeaning, humiliating attitude that ... white people have about black
people - does not have the official imprimatur of the law." n129
(--) Brown fundamentally mobilized racial change in the United States:
Onwuachi-Willig, 2005 Acting Professor of Law, University of California, Michigan Law Review,
May, 2005, 103 Mich. L. Rev. 1507, Lexis, rwg
Furthermore, there was a practical effect to Brown that was equally significant. As I suggested earlier,
had there not been Brown, would segregation have tumbled so easily in other areas, such as with
busing and other public accommodations? n130 Moreover, what would have happened if Whites, in their efforts to equalize
schools under Bell's "separate but equal" plan, had simply decided that their social interests in preventing race-mixing were much higher than
their economic interests in funding only one school? n131 Is this not what Bell astutely points out that many poor and working-class Whites
The fact is that Brown gave society a goal to strive for and set the
stage for a movement that created racial change. Brown was more than a legal decision; it was "a
statement about the fundamental moral basis of democracy." n132 In other words, what is important here is not
have consistently done throughout history?
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whether "separate but equal" could have been achieved (which I do not believe was possible), but rather, as Ted Shaw proclaimed, whether we
would have been "satisfied with that as a nation." n133 The answer for many of us is a clear, resounding "No." Our ability to interact across
racial lines allows us to learn about the differences in each other's culture and history, and more importantly, about what we have in common,
what are our shared experiences, and what are our shared interests. It is only through this form of integration that true racial equality can be
achieved. n134 Indeed, the most recent debates regarding the Ten Percent Plan in the state of Texas reveal the ways in which integration and
the discovery of once concealed, common interests can lead to the unearthing of race and class inequality.
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1ar: Court Creates Social Change
(--) Studies arguing that the Court can’t produce social change ignore the effects of
how participation in the process itself activates leaders and bolsters movements:
Idit Kostiner, 2003 Jurisprudence and Social Policy Program, University of California,
[“Evaluating Legality: Toward a Cultural Approach to the Study of Law and Social Change”, June,
http://www.blackwell-synergy.com/doi/full/10.1111/1540-5893.3702006]
However, recent work on law and social change tempers this generalized assault on rights and provides a more complex and nuanced
description of the interplay between rights, political mobilization, and social change. Following Scheingold's "politics of rights" (1974),
McCann's study of the pay equity movement (1994) finds that legal norms and tactics have had a rather
positive effect on the movement. To understand this positive effect of law, McCann proposes that scholars re-envision law as
including more than formal legal norms or institutions. Drawing on legal consciousness literature, he suggests that law should be understood as
Thus,
while actual court decisions may have minimal effect on progressive social reform, McCann's model to
which he refers as the "legal mobilization model "suggests that participation in legal processes may
have positive effects on social movement mobilization. Based on this model, McCann finds that the use
of legal tactics by the pay equity movement has been valuable for elevating rights claims and thus for
mobilizing the movement. In particular, he finds that: Movement leaders effectively used successful
legal actions despite their doctrinal limitations to organize women workers in hundreds of workplaces
around the nation. A massive publicity campaign focusing on court victories initially put the issue on the national agenda and alerted
including the meanings that movement activists who use legal tactics assign to legal norms while participating in legal processes.
leaders that wage equity was "the working woman's issue of the 1980s." Lawsuits were then filed on behalf of working women as the
centerpiece of a successful union and movement organizing strategy in scores of local venues around the nation Sustained legal action over
time worked to render employers vulnerable to challenge, to expand the resources available to working women, to provide them a unifying
claim of egalitarian rights, and to increase both their confidence and sophistication in advancing those claims.
(--) Animal rights movements prove: the use of legal tactics bolsters social
movements:
Idit Kostiner,2003 Jurisprudence and Social Policy Program, University of California,
[“Evaluating Legality: Toward a Cultural Approach to the Study of Law and Social Change”, June,
http://www.blackwell-synergy.com/doi/full/10.1111/1540-5893.3702006]
Silverstein (1996) has joined McCann in reacting against the critique of rights and litigation. Her study of the animal rights movement is
symbolically titled Unleashing Rights. She finds that the use of legal tactics and of rights rhetoric by the animal
rights movement has been useful in many ways. For example, she suggests that litigation has been used
to dramatize abuses of animals, to embarrass particular institutional actors, and to win favorable media
attention. Silverstein concludes that despite their many constraints, both rights talk and litigation are
powerful resources for those who seek widespread and subtle change, especially when used by
strategically minded activists.
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Legitimacy DA Answers
(--) No link: we don’t overrule any prior precedent—we just apply international law in
a new area.
(--) Non-unique: Supreme Court legitimacy very low now:
Harold Maass, 7/22/2013 (staff writer, “How the Supreme Court got on the bad side of
everybody,”http://theweek.com/article/index/247206/how-the-supreme-court-got-on-the-badside-of-everybody, Accessed 7/25/2013, rwg)
The Supreme Court's approval rating plunged this month to its lowest level in eight years, according to a
new poll from Gallup. After an important term with landmark decisions on voting rights, gay rights, and
affirmative action, just 43 percent of Americans now approve of the court — near an all-time low
and
down 6 percentage points from last September. Forty-six percent of respondents disapproved of the justices, marking the first time their poll
numbers have been underwater since June 2005.¶ Why
Gallup says a
is the court's popularity suddenly in free fall? Andrew Dugan at
key reason might be that its divisive, blockbuster decisions have disappointed
conservatives and liberals alike . The justices angered the right when, in a 5-4 vote, they reaffirmed a lower court's overturning of
the Defense of Marriage Act; they made the left just as mad when, in another 5-4 vote, they upheld state voter ID laws that Democrats say
discourage left-leaning immigrant and minority blocs from casting ballots.
(--) Decisions don’t affect legitimacy:
Harold Maass, 7/22/2013 (staff writer, “How the Supreme Court got on the bad side of
everybody,”http://theweek.com/article/index/247206/how-the-supreme-court-got-on-the-badside-of-everybody, Accessed 7/25/2013, rwg)
The real cause for the loss of public confidence in what remains the least political branch of the
federal government has less to do with specific decisions and more to do with a general decline in
trust for public institutions. ..¶ The broader point that a poll like this stands for becomes apparent when you take into account
other polling that shows that Congress, the Presidency and, indeed, almost
any other public institution outside of the
military and police seem to have lost the trust of the public. In the long term, that's simply not healthy. [Outside the
Beltway]¶ Furthermore, the Supreme Court is in the unique position of having the last word on so many issues that divide us. It's hardly a
surprise that the justices take some of the blame when they take sides on issues the public is still fiercely debating.
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(--) Turn: Winners win for the Courts—controversial decisions enhance the court’s
legitimacy:
David Law, 2009 (Professor of Law and Professor of Political Science, Washington University in
St. Louis, Georgetown Law Journal, March 2009, 97 Geo. L.J. 723; “A Theory of Judicial Power
and Judicial Review,” Lexis, rwg)
Part IV of this Article discusses a counterintuitive implication of a coordination-based account of judicial power. Conventional
wisdom
suggests that courts secure compliance with their decisions by drawing upon their store of legitimacy,
which is undermined by decisions that are unpopular, controversial, or lack intellectual integrity. n25
Part IV argues that precisely the opposite is true : an unpopular or unpersuasive decision can, in fact,
enhance a court's power in future cases , as long as it is obeyed. Widespread compliance with a
decision that is controversial, unpopular, or unpersuasive serves only to strengthen the widely held expectation
that others comply with judicial decisions. This expectation, in turn, is self-fulfilling: those who expect others to
comply with a court's decisions will find it strategically prudent to comply themselves, and the aggregate result will, in fact, be widespread
compliance. Part IV illustrates these strategic insights--and the Supreme Court's apparent grasp of them--by contrasting [*734] Bush v. Gore
n26 with Brown v. Board of Education n27 and Cooper v. Aaron. n28
(--) Non-unique: Supreme Court legitimacy declining now:
Maggie O'Neill, 7/21/2013 (staff writer, “Supreme Court Approval Ratings Plummet, But It's Not
Their Job to Please People,” http://www.policymic.com/articles/55823/supreme-court-approval-ratingsplummet-but-it-s-not-their-job-to-please-people, Accessed 7/25/2013, rwg)
Historically, the Supreme Court as a body has enjoyed consistently positive approval ratings. With no political party officially designated as
in control, the court is able to command a sense of legitimacy that often eludes members of other
branches of government in such a polarized national dynamic.¶ Yet over the past year, the court's approval rating
has fallen from its previously dependable loft. Gallup reports that today only 43% of Americans hold a
favorable view of the Supreme Court, the court's lowest rate since 2005, and six points lower than September of
last year. Furthermore, 46% of Americans currently hold an unfavorable view of the Supreme Court,
marking only the second time since Gallup began running this poll that the disapproval rating is higher
than the approval rating.
(--) Non-unique: Series of 5-4 decisions are undermining the legitimacy of the Court:
David Paul Kuhn, 2012 staff writer, “The Incredible Polarization and Politicization of the
Supreme Court,” http://www.theatlantic.com/politics/archive/2012/06/the-incrediblepolarization-and-politicization-of-the-supreme-court/259155/, rwg)
The Roberts Court has decided more cases by a 5-to-4 ruling (about 21.5 percent) than any Court before it,
though only by a narrow margin. The previous Court, led by William Rehnquist, decided 20.5 percent of its cases by this minimum coalition.
That rate, however, represents roughly twice the share of 5-to-4 rulings in the Stone Court, during World War II. And the Stone Court had more
than three times the rate of 5-to-4 decisions of any Court prior. Roberts noticed the trend early in his term. "I
do think the rule of law
is threatened by a steady term after term after term focus on 5-4 decisions," Roberts told The New Republic's
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Jeffrey Rosen in 2006. "I
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think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn't, it's going to
lose its credibility and legitimacy as an institution."
(---) NO LINK: Court legitimacy is resilient: individual decisions are largely irrelevant:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis, rwg
The Relationship Between Institutional Legitimacy and the Substantive Sociological Legitimacy of Judicial Decisions. - Recent scholarship
supports two interesting conclusions about the relationship between the institutional legitimacy of the Supreme Court and the substantive
sociological legitimacy of particular decisions. First, although
the Court's institutional legitimacy varies with public
responses to particular rulings, it does so less sharply than earlier, less sophisticated studies had
indicated. n183 For example, recent surveys show that Bush v. Gore has had almost no impact on
"diffuse support" for the Court, notwithstanding critics' predictions. n184 The Court apparently
possesses a reservoir of trust that is not easily dissipated. n185
(---) NO LINK: Public doesn’t pay enough attention to constitutional interpretations to
influence Court legitimacy:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis, rwg
Perhaps even more significant than what the recent studies establish, however, is something that poll-based measures of diffuse support
cannot capture. As I have suggested already,
the public's relative lack of attentiveness makes it impossible to
gauge the substantive sociological legitimacy - in the strong sense of active endorsement - of
controversial methods of constitutional interpretation. If we focus on this concern, we will remain chronically uncertain
about judicial legitimacy in the sociological sense - even though other measures, including that of institutional legitimacy (or diffuse support),
would often support more affirmative judgments about the Court's sociological legitimacy.
(--) Individual decisions don’t undermine legitimacy:
Lawrence Baum, 2003 Department of Political Science, Ohio State University, June 2003
[“The Supreme Court in American Politics,”
http://arjournals.annualreviews.org/doi/full/10.1146/annurev.polisci.6.121901.085526;
jsessionid=n1HzQqZJALRe, rwg]
Unpopular decisions may cost the Court a degree of public support in the short run, but in the long
run the Court's standing tends to hold up well . Thus, justices have reason to think that even under
relatively difficult conditions, they can engage in policy interventions that they find appropriate
without fear of serious consequences
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Legitimacy Impact Defense vs. Pres Powers Impact
(--) Impact is empirically denied: power of the president has expanded throughout
history:
Robert Dallek, 2011 (staff writer, “Power and the Presidency, From Kennedy to Obama,”
http://www.smithsonianmag.com/history-archaeology/Power-and-the-Presidency-FromKennedy-to-Obama.html, Accessed 7/25/2012, rwg)
To be sure, the President’s control over foreign affairs had been growing since the Theodore Roosevelt
administration (and still grows today). TR’s acquisition of the Panama Canal Zone preceded Woodrow
Wilson’s decision to enter World War I, which was a prelude to Franklin Delano Roosevelt’s
management of the run-up to the victorious American effort in World War II. In the 1950s, Harry S. Truman’s
response to the Soviet threat included the decision to fight in Korea without a Congressional declaration of war, and Dwight Eisenhower used
the Central Intelligence Agency and brinksmanship to contain Communism. Nineteenth-century presidents had had to contend with
Congressional influences in foreign affairs, and particularly with the Senate Foreign Relations Committee. But by the early 1960s, the president
had become the undisputed architect of U.S. foreign policy.
(--) No impact: Court unnecessary to check the President:
Robert Dallek, 2011 (staff writer, “Power and the Presidency, From Kennedy to Obama,”
http://www.smithsonianmag.com/history-archaeology/Power-and-the-Presidency-FromKennedy-to-Obama.html, Accessed 7/25/2012, rwg)
Perhaps the lesson to be taken from the presidents since Kennedy is one Arthur Schlesinger suggested almost 40 years ago, writing about
Nixon: “The
effective means of controlling the presidency lay less in law than in politics. For the American
President ruled by influence; and the withdrawal of consent, by Congress, by the press, by public
opinion, could bring any President down.” Schlesinger also quoted Theodore Roosevelt, who, as the first modern practitioner of
expanded presidential power, was mindful of the dangers it posed for the country’s democratic traditions: “I think it [the presidency] should be
a very powerful office,” TR said, “and I think the president should be a very strong man who uses without hesitation every power that the
position yields; but because of this fact I believe that he should be closely watched by the people [and] held to a strict accountability by them.”
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Legitimacy DA Answers—Extensions: Non-Unique
Supreme Court legitimacy at a historic low now:
Tom Kludt, 7/24/2013 (staff writer, “Pew: SCOTUS Popularity Plummets Among Blacks
Following VRA Decision,” http://livewire.talkingpointsmemo.com/entry/pew-scotus-popularityplummets-among-blacks-following-vra, Accessed 7/28/2013, rwg)
The Supreme Court's popularity among the American public — particularly among blacks — has
dipped to an historic low, according to new findings released Wednesday by Pew Research Center.¶ Pew found that, for the first
time in almost three decades of polling, the Supreme Court's favorability rating has fallen below 50
percent. Forty-eight percent said they have a favorable opinion of the high court, down from 52 percent in March. The latest survey showed
that 38 percent have an unfavorable opinion, a 7-point increase since March.
(--) Non-unique: DOMA ruling has shattered the court’s legitimacy:
Nicole Lange, 6/26/2013 (staff writer, “The Supreme Court Crossed the Line With DOMA
Ruling,” http://www.charismanews.com/us/40035-the-supreme-court-crossed-the-line-withdoma-ruling, Accessed 7/25/2013, rwg)
This means that the lower court governing the northern district of California stands. Thus, only the decision striking down Prop 8 by the lower
district court remains in effect. The remaining parts of California are unaffected. No doubt litigation will ensue in the southern and middle
districts of California.¶ “Today,
the United States Supreme Court has lost its legitimacy as an arbiter of the
Constitution and the rule of law,” notes Mat Staver, founder and chairman of Liberty Counsel. “Today is the death of
the court’s legacy , because the decision in the federal Defense of Marriage Act case defies logic and
is a pure invention of a handful of justices.”
(--) Legitimacy of the court is down now:
Idaho Mountain Express, 6/28/2013 (“Narrow Supreme Court majorities erode
confidence,” http://www.mtexpress.com/index2.php?ID=2005147913#.UfFKuKzQtCw, Accessed
7/25/2013, rwg)
Reverence for all of our political institutions has fallen and with it so has support for the Supreme
Court. Only 44 percent of Americans say they approve of the judgment and fairness of the court. In
1994, that number was 80 percent.
(--) Neither conservatives nor liberals are happy with the court now:
Eric Black, 7/2013 (“Public doesn't much like any branch of federal government,”
http://www.minnpost.com/eric-black-ink/2013/07/public-doesnt-much-any-branch-federalgovernment, Accessed 7/25/2013, rwg)
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During the George W. Bush years, Republicans liked the Supremes better than Democrats in general did. The court's ruling upholding
Obamacare was a blow to that pattern and in one of Pew's polls right after the Obamacare ruling, a huge partisan gap opened up between high
(64 percent) approval of the court by Dems and low (38 percent) approval by Repubs. The
most recent batch of rulings
included some that liberals disliked (the gutting of the Voting Rights Act) and some that conservatives
disliked (striking down key portions of the Defense of Marriage Act), and the latest poll finds the court
in bipartisan trouble with Democrats approving the court's work by just over 50 percent, Republicans
at 48 and independents casting the deciding vote with just 47 percent approval.
(--) Health care ruling won’t save the legitimacy of the Court:
David Paul Kuhn, 6/29/2012 (staff writer, “The Incredible Polarization and Politicization of the
Supreme Court,” http://www.theatlantic.com/politics/archive/2012/06/the-incrediblepolarization-and-politicization-of-the-supreme-court/259155/, rwg)
Yet concerns about the
Court's apolitical credibility are hardly alleviated. At least two-thirds of the 5-4
rulings during the Roberts Court have split along ideological lines. Roberts has agreed with the three most conservative
justices -- Samuel Alito, Clarence Thomas and Antonin Scalia -- in at least eight in 10 non-unanimous rulings, according to calculations by
The health-care ruling will likely temper, for now, charges that the Court has become a
predictably political institution. Yet concerns about its apolitical credibility are hardly alleviated.
SCOTUSblog.
(--) Court legitimacy low now:
Noah Feldman, 6/17/2012 (staff writer, “Supreme Court’s Super Mondays Don’t Serve
Justice,” Accessed 7/28/2012 at http://www.bloomberg.com/news/2012-06-17/supreme-courts-super-mondays-don-t-serve-justice.html, rwg)
Today, the court has done Mr. Dooley one better: It doesn’t follow the election returns; it tries to lead
them. No wonder, then, that a recent poll suggests that public confidence in the court has never been
lower in the modern era, with just 44 percent of respondents approving of its performance.
(--) Court legitimacy is at its lowest level ever:
David Paul Kuhn, 6/29/2012 (staff writer, “The Incredible Polarization and Politicization of the
Supreme Court,” http://www.theatlantic.com/politics/archive/2012/06/the-incrediblepolarization-and-politicization-of-the-supreme-court/259155/, rwg)
In the Roberts Court, 5-to-4 majorities have allowed unlimited corporate and union campaign spending, upheld an individual's right to gun
ownership, limited an employee's ability to file a pay discrimination, decided states cannot impose mandatory life sentences on juvenile
murderers without the possibility of parole, and limited class-action suits as well as decided the constitutionality of the health-care law. This
polarization has not gone unnoticed. The
judiciary remains the most trusted branch of government. Sixty-three
percent of Americans said in autumn 2011 that they have a "great deal" or a "fair amount" of faith in it.
Yet that is the lowest share to express trust in the judicial branch since 1976, when Gallup first asked
the question.
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(--) Supreme Court reputation is sullied now:
David Paul Kuhn, 6/29/2012 (staff writer, “The Incredible Polarization and Politicization of the
Supreme Court,” http://www.theatlantic.com/politics/archive/2012/06/the-incrediblepolarization-and-politicization-of-the-supreme-court/259155/, rwg)
And the
Supreme Court is especially sullied. Prior to Thursday's decision, about three in four Americans
agreed that "personal or political views influence" current Court decisions, according to a recent New York
Times/CBS News Poll. Yet the public has not seen the Court as apolitical since, at least, it became more politically ordered. In 1946, a narrow
plurality, four in 10 Americans, told Gallup that they "agree" that "the Supreme Court decides many questions largely on the basis of politics."
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Legitimacy DA Answers—Extensions: Controversial Decisions Help the
Court
(--) Controversial decisions enhance the court’s power:
David Law, 2009 (Professor of Law and Professor of Political Science, Washington University in
St. Louis, Georgetown Law Journal, March 2009, 97 Geo. L.J. 723; “A Theory of Judicial Power
and Judicial Review,” Lexis, rwg)
Indeed, the reflexive avoidance of politically divisive or controversial cases--via the political question doctrine, the acte de government
doctrine, and the like n233 --might actually prove a counterproductive choice of strategy for a court keen to consolidate its power. This Article
contrary to conventional wisdom, controversial decisions have a tendency to enhance,
rather than diminish, a court's power, as long as they are obeyed. n234 Accordingly, a court that already
commands obedience and expects more of the same, such as the United States Supreme Court or the German
Bundesverfassungsgericht, has little to fear and perhaps even something to gain from embracing
has argued that,
controversy . By contrast, a court that lacks a similarly developed track record, such as a newly established constitutional court in an
emerging democracy, faces greater risk that its decisions will be disobeyed and its reputation for obedience stillborn. Should it succeed in
deciding such a case, however, it will engender expectations of future obedience that boost its power in subsequent cases. If those gains seem
more than commensurate with the risks involved, adjudication becomes a prudent gamble. A truly strategic court, as opposed to a merely timid
one, will recognize that its political environment is characterized not merely by risks, but also by rewards: nothing ventured, nothing gained.
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Legitimacy DA Answers—Individual Decisions Don’t Matter
(--) Court’s legitimacy is resilient: Unpopular decisions don’t undermine Court
legitimacy:
John C. Yoo, 2001 Professor of law at the University of California, 2001, [The University of
Chicago Law Review, “In defense of the court’s legitimacy,” rwg]
One way, then, to judge whether Bush v Gore has undermined the Court's institutional legitimacy in American society would be to examine
public attitudes toward the Court. Studies
have shown that public support for the Court and its role in society run
high, even though many have little knowledge about the Court's day-to-day activities.14 While this is not the
place to conduct a detailed study,15 we may perhaps draw some initial conclusions from recent Gallup polling data. Over the last decade, poll
respondents have usually held more confidence in the Supreme Court than in the other two branches of government.16 In June 2000, 47
percent of those polled said that they held either a "great deal" or "quite a lot" of confidence in the Supreme Court, versus 42 percent for the
presidency and 24 percent for Congress.17 Even
in light of the usual caveats surrounding the use of polling data, the
resiliency in the Court's public support has been relatively deep and wide,18 even as it has rendered a
series of controversial decisions ranging from affirmative action to abortion to civil rights to religion.
(--) Overruling doesn’t cost capital – overruling bad decisions boosts capital.
Linton, 1993 assoc general counsel Americans United for Life, 1993
(Paul Benjamin Linton, Associate General Counsel for Litigation, Americans United for Life, 1993,
“PLANNED PARENTHOOD V. CASEY: THE FLIGHT FROM REASON IN THE SUPREME COURT” 13
St. Louis U. Pub. L. Rev. 15)
The Court describes this first circumstance as "hypothetical." n272 The distinct impression left by
this passage is that decisions of the Supreme Court overruling earlier decisions on matters of
constitutional interpretation are rare and thus should not be too readily emulated, lest the
"legitimacy" of the Court be called into question. But this impression is wrong. On more
than 200 occasions, the Court has overturned previous decisions, and in nearly three-fourths of
those cases, the Court overruled because the earlier decision had wrongly interpreted the
Constitution. n273 What does this remarkable track re [*75] cord of "judicial correction" mean? At
the very least, that the "legitimacy" of the Court is not affected by its acknowledgement of
prior error, even when that error involved an intepretation of the Constitution. Indeed, as in
Brown and West Coast Hotel, the Court has often enhanced its credibility by overruling
decisions that were wrong when originally decided. One more overruling decision, if
otherwise appropriate, could not reasonably be expected to damage that credibility.
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(--) Even after controversial decisions, public opinion will always swing back in favor of
the Court.
John C. Yoo, 2001 Professor of law at the University of California, 2001, [The University of
Chicago Law Review, “In defense of the court’s legitimacy,” p. 75, rwg]
A second way to approach the question of legitimacy would be to compare Bush v Gore to other
historical periods in which the Court's authority has come into question. If the Court's actions today were similar in
significant ways to earlier moments of challenge to judicial legitimacy, then we might predict that the changes in the immediate polling data
Evaluating Bush v Gore in light of earlier historical periods, however,
suggests that any sustained assault on the Court's legitimacy is unlikely to arise.
may augur a more sustained attack on the Court.
(--) Individual decisions won’t undermine Court legitimacy:
Uhlmann, 2003 professor of government at Claremont Graduate University, October (
Michael M., “The Supreme Court Rules ww.orthodoxytoday.org/
articles2/UhlmannSupremeCourt.shtm)
The Court has acquired substantial power over our political culture. The public, which knows little about
the technical details or philosophical implications of constitutional doctrine, knows that much. And so do the
Justices. The remarkable thing about Roe v. Wade is not only the substance of the rule it announced, but the fact that the Court felt so little
But for all the controversy generated by the
abortion decisions, the public is generally not disposed to chasten the Court for its excesses on that or any
other subject. The modern Court has tutored the public well on how it ought to think about judicial power and the Constitution. And its
compunction about imposing a new and radical rule upon the entire nation.
central teaching, as I say, is not about the permanent principles that justify representative government but about the inevitability of, indeed the
duty to, change.
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Separation of Powers Answers
(--) Zero link: zero reason we affect separation of powers doctrine.
(--) No link and turn: Court enforcement of international law key to the separation of
powers:
Jordan J. Paust, 1999 (Law Foundation Professor, University of Houston Law Center, Michigan
Journal of International Law, Winter 1999, 20 Mich. J. Int'l L. 301, Lexis, Accessed 7/22/2013,
rwg)
[*335] Importantly, the
independent power and responsibility of the federal judiciary to identify and apply
customary international law was well-recognized by the Founders and in early opinions and decisions, several court
opinions using the terms "bound" or "duty." n172 This trend in expectation is evident throughout our history and continues. n173 Thus, it
is
not a violation of the separation of powers for the courts to apply international law. On the contrary,
it would be seriously thwarting of the balance and separation of powers not to do so in cases
otherwise properly before the courts. n174 In this sense, application of customary international law in The Paquete Habana
against favored and admitted Executive acts taken abroad against aliens in time of war, at the height of Executive power and discretion, was
supportive of a proper balance and separation of powers, since the Court identified and applied law to a case otherwise properly before it.
n175 It is also appropriate for the courts, and they have done so from time to time, to use customary international law as an aid for purposes of
interpreting constitutional rights, duties, powers, and competencies. n176 From the above, the
suggestion that courts should
step aside in the name of separation of powers to tolerate violations of the law is unacceptable. n177
(--) No terminal impact—the Bush administration ran roughshod over the other
branches in executive authority with no impact.
(--) Non-unique: NRLB decision to ignore court ruling violates separation of powers:
Senator Roy Blunt, 1/31/2013 (“Asserting the Senate’s power,”
http://blogs.reuters.com/great-debate/2013/01/31/asserting-the-senates-power/, Accessed
2/19/2013, rwg)
The Founders established the constitutional separation of powers for a reason. The Senate’s right to provide advice and consent is an important
check on the risk of this type of presidential overreach – and one we exercised last January. Yet despite of the
court’s unanimous
decision, the NLRB recently announced that it intends to ignore the ruling and carry on with business
as usual.¶ This is not an acceptable response — which is why I’ve introduced “The Advice and Consent Restoration Act” on
Wednesday to correct Obama’s blatant overreach. This bill would terminate the salaries of Obama’s illegal NLRB appointees and block the
board from taking any action until these appointees are legally confirmed. By doing so, this legislation — cosponsored by Senators Susan Collins
(R-Maine), John Cornyn (R-Texas), Ted Cruz (R-Texas), Mike Lee (R-Utah), Tim Scott (R-S.C.), Jim Inhofe (R-Okla.) and Pat Roberts (R-Kan.) — is
intended to reestablish the proper limits on the executive branch’s ability to make these kinds of appointments.¶ Allowing
the
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president to determine the Senate’s schedule does serious damage to the legislature’s autonomy,
and eliminates an important check on the executive branch . It is the Senate’s responsibility to protect these checks
and balances, and exercise its legislative powers to restore them if they are undermined.
(--) Judicial incorporation of customary international law doesn’t violate Separation of
Powers:
Jordan J. Paust, 1999 (Law Foundation Professor, University of Houston Law Center, Michigan
Journal of International Law, Winter 1999, 20 Mich. J. Int'l L. 301, Lexis, Accessed 7/22/2013,
rwg)
Professor Bradley aptly relates the issue concerning the interpretive role of customary international law to judicial power and responsibility.
Nonetheless, it
is precisely because the federal judiciary has both the power and responsibility to identify
and apply customary international law in cases otherwise properly before the courts that there is no
violation of the separation of powers when federal courts apply international law while interpreting
federal statutes. Additionally, his quotation of Chief Justice Marshall in The Charming Betsy n142 is curiously incomplete. n143 A fuller
quote actually demonstrates that rights under customary [*332] international law are to prevail over unavoidably inconsistent federal
statutes. What the Court actually declared was: "An act of Congress ought never be construed to violate the law of nations if any other possible
construction remains, and, consequently, can never be construed to violate ... rights ... further than is warranted by the law of nations as
understood in this country." n144
(--) Separation of powers is resilient:
Alan B. Handler, 2000 (former Associate Justice, New Jersey Supreme Court, Rutgers Law
Review, Summer, 2000, 52 Rutgers L. Rev. 1039, “Principled Decisions,” 2/19/2013, rwg)
The constitutional rules that govern the interaction of the governmental branches of government are subsumed under the separation-ofpowers doctrine. n168 This doctrine is usually formulated, almost as a set of Marquis de Queensbury rules, to assume that each branch of
government will be able to exercise only its own distinctive constitutional powers without interference or inhibition from the other branches
and to assure a fair fight when the branches are in conflict over the exercise of their respective constitutional powers. n169 Our
court,
understanding that the branches are constantly vying in the exercise of governmental authority,
pushing and shoving against one another when they find themselves together in the public policy ring,
has attempted to identify a more resilient essence of the separation-of-powers doctrine , one that
has stressed the principles of accommodation that must be applied if the constitutional scheme of
shared governmental powers is to succeed and government is to function effectively in the public interest. Separation-of-powers
conflicts invariably and inevitably involve important matters of public policy and broad social issues, which, as noted, are inherently legislative
in character and, when used by courts, invoke only discretion and cannot be determined by controlling legal authority. The question to be
addressed, however, is how responsibility for sharing social policy [*1063] should be managed.
(--) Non-unique: multiple violations of separation of powers now:
Jennifer C. Braceras, 2/18/2013 (lawyer and political commentator, “Autocrat Obama flouts
Constitution,” http://bostonherald.com/news_opinion
/opinion/op_ed/2013/02/autocrat_obama_flouts_constitution)
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President Obama,
thus, embroils American troops in Libya’s civil war without a formal declaration of war
from Congress. Rather than wait for Congress to pass comprehensive immigration reform, he simply
stops enforcing current law. When Congress, under its advice and consent power, does not confirm Obama’s appointments, he
installs them anyway. And if Congress won’t pass his vision of gun-control legislation, the president
threatens to enact it by executive order.¶ Rhetorically, Obama justifies this behavior on the grounds that Congress is being
“obstructionist” and that the American people “can’t wait.”¶ But wait we must.¶ Constitutional government, by its nature, moves slowly. It is
meant to be deliberative, to encourage compromise and protect those with minority viewpoints from the passions of the mob. In this sense,
gridlock is good. It’s a constitutional insurance policy put in place deliberately by our founders.¶ Today,
we hear little complaint
about presidential over-reach for the simple reason that the media agree with most of this
president’s policies. But liberals would be wise to remember that Democrats won’t always hold the keys to 1600 Pennsylvania Avenue.¶
Process matters — regardless of which party holds power.
(--) Non-unique: Separation of powers is eviscerated now:
Paul 2005, (Ron, U.S. House of Representatives-R, 14th District of Texas, “Lessons from the
Kelo Decision”, 7/4/2005, http://www.truthnews.net/world/2006060034.htm)
Kelo has several important lessons for all of us. We are witnessing the destruction of any last remnants
of the separation of powers doctrine, a doctrine our founders considered critical to freedom. The notion
that the judicial branch of government serves as a watchdog to curb legislative and executive abuses has
been entirely exposed as an illusion. Judges not only fail to defend our freedoms, they actively infringe
upon them by acting as de facto legislators.
(--) Separation of Powers is non-unique: The Supreme Court is too Strong Now:
Rep. Ted Poe, 2005 Huffington Post, 2005 [Rep. Ted Poe: Has the Supreme Court Lost its Way? July 11,
http://news.yahoo.com/s/huffpost/20050711/cm_huffpost/003993/nc:742]
The Framers of our Constitution made clear their vision for the federal judiciary. Named in Article III
behind both of the other branches, the Founders intended a court system with a narrow scope and
restricted authority. As Alexander Hamilton explained in his Federalist Papers, “the judiciary, from the nature of its functions, will
always be the least dangerous to the political rights of the Constitution.” He envisioned that the judicial branch would “have neither FORCE nor
History reveals that the Supreme Court has become the most
powerful branch of government and the citizenry – who ordains the Constitution – cannot hold justices
accountable for their actions.
WILL, but merely judgment.” Mr. Hamilton was wrong.
(--) Separation of Powers is Non-Unique: the Judiciary has emasculated the
Legislature
Steve Kellmeyer, 2005 The Illinois Leader, 2005 [The coming paradigm shift from the judiciary to the
corporation, July 7, http://www.illinoisleader.com/opinion/opinionview.asp?c=27040]
The growth of a bureaucratic culture allowed the legislature to be emasculated by the judiciary. The growth
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of an entertainment culture will allow the judiciary to be emasculated by the corporation. Just as the judiciary began as the weakest branch of
government but has become the strongest, so corporations are actually being transformed into the government right before our eyes.
Corporations will attain this power because we the people will vote them into power.
The courts, having been duly appointed
by the legislators, will in turn appoint to the corporations the power to govern us, the power to take
everything we own, just so long as they keep us comfortable and entertained.
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Political Question Doctrine in the Supreme Court
(--) Political Question Doctrine does not apply in the higher courts
LaTourette 8 (J.D. Candidate, Rutgers University School of Law Journal,
“NOTE: GLOBAL CLIMATE CHANGE: A POLITICAL QUESTION?”, 40 Rutgers L. J. 219, Accessed
7/21/2013,AKY)
Despite suggestions that the political question doctrine has lost its vitality at the judiciary's highest
levels, the doctrine is frequently invoked in lower courts, n59 particularly in cases that touch upon foreign affairs. n60
The doctrine has also figured prominently in some environmental cases. n61 Defendants have not hesitated to raise justiciability challenges in
such politically charged cases, n62 notwithstanding the Supreme Court's declaration that not every political case presents a political question.
n63 This pattern of overwrought political question arguments in the lower courts suggests that the time may be ripe to reign in the overuse of
the political question doctrine. Of greater import to the purpose of this Note, however, the political question analysis at work in the foreign
affairs and environmental contexts provide a lens through which the justiciability of climate change litigation can be thoughtfully examined.
[*229]
(--) The political question doctrine is limited in scope and rarely applied:
Breedon 8’ (J.D. from the University of Cincinnati, Ohio Northern University Law Review, 34 Ohio
N.U.L. Rev. 523, accessed 7/22/2013, AKY)
Cases decided by the Supreme Court since Baker have done little to clarify the contours of the political
question doctrine, other than to confirm- if only implicitly-that it is of limited scope. Finding the
doctrine inapplicable in the majority of cases, n45 the Court has held dismissal on political question
ground warranted in only a handful of instances. n46
(--) The Political Question Doctrine does not apply to foreign affairs.
Bederman 99’ (Professor of Law at Emory University, University of Colorado Law Review, 70 U. Colo.
L. Rev. 1439, accessed 7/22/2013, AKY)
My first contention is that the "pure" form of the political question doctrine is largely out of favor
today in the Supreme Court, even with respect to foreign affairs controversies. Just as Marbury v.
Madison n9 is the locus classicus of judicial review, and thus of American constitutional order, it is
also the touchstone of the political question doctrine and its use in foreign affairs matters. After all, it
was Chief Justice Marshall who noted, in dicta (the case did not, of course, concern foreign policy), that
(--) Non-unique: political question doctrine is buried now:
Bederman 99’ (Professor of Law at Emory University, University of Colorado Law Review, 70 U. Colo.
L. Rev. 1439, accessed 7/22/2013, AKY)
The recent decisions have all but given the political question doctrine a quiet burial. n31 With the exception
of Nixon v. United States, n32 in which the Court abstained in ruling on the manner of trying impeachments in the Senate, the political
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question doctrine has played almost no role in Supreme Court
[*1446] jurisprudence - and virtually none at all in
the foreign affairs realm. This Court, as conservative as it is, has consistently refused to give credence to the executive branch's claims that
certain kinds of disputes are nonjusticiable because they implicate political questions. But all that may well change.
Political Question Doctrine useless- never has effects
Siegel 04- Professor of Law at George Washington University Law School (3-31-04, Jonathon
R., George Washington University Law School, “Political Questions and Political Remedies,”
http://docs.law.gwu.edu/facweb/jsiegel/publications/pqd.pdf // AD)
This observation is, of course, nothing new. In his justly famous 1976 article, Is There a Political Question
Doctrine?, Louis Henkin pointed out that, in many cases, the political question doctrine serves no real
function, but only provides a confusing and deceptive packaging of obvious principles such as that “[t]he
courts are bound to accept decisions by the political branches within their constitutional authority,” and that “[t]he courts will not find
limitations or prohibitions on the powers of the political branches where the Constitution does not prescribe any.”6 Readers of the present
volume will probably be well versed in this basic point, articulated by Henkin thirty years ago. Nonetheless, I do not ask the reader’s pardon for
taking a few pages to drive the point home, because
the cases and the scholarly literature show that Henkin’s
point is still underappreciated, and because my main line of argument requires a clear understanding of what the real political
question doctrine actually does.
(--) Political Question Doctrine causes systemic damage- Lowry v. Reagan proves
Glennon 89- Professor of International Law at the Fletcher School of Law and Diplomacy, Tufts
University, Legal Counsel to the Senate Foreign Relations Committee (1989, Michael J.,
American Journal of International Law, “Foreign Affairs and the Political Question Doctrine,”
vol. 83, pg. 814 American Society of International Law // AD)
The Unevenness of congressional oversight, the proclivity of executive foreign affairs agencies for
violating the law and traditional responsibility of the courts as the last guardians of the Constitution- all point to the propriety
of an active role for the judiciary in ensuring governmental compliance with the law. Specifically,
courts should not decline to resolve foreign affairs disputes between Congress and the President because they
present “political questions.” The recent case of Lowry v. Reagan illustrates the serious systemic
damage wrought by judicial abstention in such disputes.
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DA’s are Non-Unique
(--) US Supreme Court has invoked international law to interpret US law in a number
of cases:
BENJAMIN MANCHAK, 2010 (staff writer, Boston College Third World Law Journal, “NOTE:
COMPREHENSIVE ECONOMIC SANCTIONS, THE RIGHT TO DEVELOPMENT, AND
CONSTITUTIONALLY IMPERMISSIBLE VIOLATIONS OF INTERNATIONAL LAW,” 30 B.C. Third
World L.J. 417, Lexis, Accessed 2/24/2013, rwg)
n90 See Rasul v. Bush, 542 U.S. 466, 484-85 (2004); Johnson v. Eisentrager, 339 U.S. 763, 776-77 (1950). The
Supreme Court of the
United States has invoked international law to interpret U.S. law in a number of cases, including Johnson v.
Eisentrager and, more recently, Rasul v. Bush. See Rasul, 542 U.S. at 484-85; Eisentrager, 339 U.S. at 776-77. The Supreme Court has
also stated unequivocally that [i]nternational law is part of our law , and must be ascertained and
administered by the courts of justice of appropriate jurisdiction, as often as questions of right
depending on it are duly presented for their determination." The Paquete Habana, 175 U.S. 677, 700 (1900); see also
Louis Henkin, International Law as Law in the United States, 82 MICH. L. REV. 1555, 1561-62 (1984) (discussing the historical convergence of
international law and U.S. law and the manner in which the relationship between the two co-equal forms has evolved).
(--) Supreme Court decides on international human rights cases all the time:
Jordan J. Paust, 1999 (Law Foundation Professor, University of Houston Law Center, Michigan
Journal of International Law, Winter 1999, 20 Mich. J. Int'l L. 301, Lexis, Accessed 7/22/2013,
rwg)
Contrary to their ahistorical assertions, actual
patterns of use of customary international law throughout our
history demonstrate that what they term the "modern position" was generally endorsed long ago and
has been evidenced fairly consistently in the continuous use of customary international law both
directly and indirectly by federal courts for more than 200 years. n28 More specifically with respect to their concern
about [*307] human rights, n29 such rights were of fundamental importance to the Founders and there has been significant attention to a rich
and wide array of human rights ever since the formation of the United States. n30 In fact, Chief Justice Marshall recognized in 1810 that our
judicial tribunals "are established ... to decide on human rights." n31 Federal
courts had been using human right precepts
prior to Chief Justice Marshall's affirmation of judicial authority and responsibility, and have done so
ever since.
n32 Further, what Professors Bradley and Goldsmith consider to be "new" law regulating "a state's treatment of its own
citizens," n33 including [*308] customary legal rights of individuals against states, especially human rights, is not new. Indeed, it is partly what
our nation and much of the Bill of Rights, especially the Ninth Amendment, were founded upon. n34 Moreover, one should not confuse the
supposed lack of direct remedies of individuals at the international level prior to World War II with a lack of individual rights under international
law and various remedies in domestic legal processes. n35 Although rare, such remedies at the international level had been recognized. n36
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(--) For a hundred years, the Supreme Court has upheld the idea that international law
is part of our law
Kedian 99 Kathleen m. Kedian is a lawyer for the us department of justice. Customary International Law and International
Human Rights Litigation in United States Courts: Revitalizing the Legacy of The Paquete Habana, 40 Wm. & Mary L. Rev. 1395 (1999),
(http://scholarship.law.wm.edu/wmlr/vol40/iss4/6)
Almost a century ago, in The Paquete Habana, the Supreme Court acknowledged that "[International
law is part of our law, and must be ascertained and administered by the courts of justice of
appropriate jurisdiction."2 The Court, in The Paquete Habana, upheld the idea that U.S. courts should
not ignore cases with international law elements; rather, they should engage in a legal analysis that
incorporates recognition of international law principles.22 The Paquete Habana also specifically
acknowledged the validity of customary international law by further clarifying that international law
could be binding even when no treaty or legislation codified that law:
(--) International law is part of our law, precedent since 1900
Dodge 05 Professor of Law, University of California, Hastings College of the Law The Story of The Paquete Habana: Customary
International Law as Part of Our Law 11/14/05
www.csb.uncw.edu/people/eversp/classes/BLA361/Intl%20Law/Required%20Readings/3.Story%20of%20the%20Paquette%20Haba
na.pdf
“International law is part of our law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented
for their determination.”1 These lines from Justice Gray’s majority opinion in The Paquete Habana have become the classic statement
of the incorporation of customary international law in the U.S. legal system and the courts’ duty to enforce that law.2 There was nothing new in
this declaration itself, or in The Paquete Habana’s statements about consulting the works of scholars and the evolving nature of international
law .
Each of these principles dates back to at least the eighteenth century. But in the meantime, the
underlying conception of international law had changed from a foundation in natural law to a
positivism based on state practice and consent.3 The Paquete Habana reflects this transition, but it
also stands for continuity—reiterating eighteenth-century principles in an age of legal positivism. It
teaches that, despite significant changes in the international and domestic legal orders over more
than two hundred years of U.S. history, courts should respect and accommodate the original
understanding of customary international law as part of the domestic legal system. That teaching is just as
relevant at the start of the twenty-first century as it was at the start of the twentieth.