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International Law Bad

1NC Strat
They cant access their international impacts because foreign judiciaries model
ineffectively and crudely
Chodosh 03 (Hiram, Professor of Law, Director of the Frederick K. Cox International
Law Center, Case Western Reserve University School of Law, 38 Tex. Int'l L.J. 587,
lexis)
Exposure to foreign systems is helpful but seldom sufficient for effective reform
design. Reform models are more likely to be successful if they are not merely copied
or transplanted into the system. The argument that transplants are easy and
common (though based on substantial historical evidence) profoundly undervalues
the relationship between law and external social objectives. 103 Furthermore,
reforms conceived as blunt negations of [*606] the status quo are not likely to be
successful. 104 Reform proposals based on foreign systems or in reaction to (or as a
negation of) recent domestic experience require careful adaptation to local
circumstances and conditions. However, most communities are not familiar with the
tools of adaptation and tend to think of foreign models as package deals to accept
or reject (but rarely to alter), and alterations tend to graft one institution onto
another without comprehensive consideration of the system as a whole. 105
Courts oppose judicial globalism now wont cite foreign justices
Schlafly 9 (Phyllis Schlafly, lawyer, author, and political analyst, Ginsburgs judicial
globalism, http://www.wnd.com/2009/04/95669/)
Taking a gratuitous swipe at her Supreme Court colleagues who have spoken out
against citing foreign law (which, as gentlemen, they will graciously pretend they
didnt hear), Ginsburg said, Why shouldnt we look to the wisdom of a judge from
abroad? Any first-year law student should be able to answer that question: because
all judges, before donning their black robes, raised their right hands and swore to
support this Constitution.
The Courts four conservatives all oppose citing foreign laws or decisions in rulings
on U.S. cases. Chief Justice John G. Roberts Jr. was explicit during his confirmation
hearings, explaining that no foreign judge was appointed by or confirmed by anyone
accountable to the American people.
Defense
International law is too weak to prevent conflict
AEI 5 (American enterprise inst, april, book review, inst for public policy research,
The Limits of International Law Jack L. Goldsmith and Eric A. Posner,
<http://www.angelfire.com/jazz/sugimoto/law.pdf>) "As the twentieth century
ended, optimism about international law...degradation and human rights abuses"
As the twentieth century ended, optimism about international law was as high as it
had ever beenas high as it was at the end of World War I and World War II, for
example. We can conveniently use 9/11 as the date on which this optimism ended,
but there were undercurrents of pessimism even earlier. The UN played a relatively

minor role in bringing the conflicts in the Balkans to the end. Members of the
Security Council could not agree on the use of force in Kosovo, and the NATO
intervention was thus a violation of international law. The various international
criminal tribunals turned out to be cumbersome and expensive institutions, they
brought relatively few people to justice, and they stirred up the ethnic tensions they
were meant to quell. Aggressive international trade integration produced a violent
backlash in many countries. Treaty mechanisms seemed too weak to solve the most
serious global problems, including environmental degradation and human rights
abuses.
Law uselessStates have found moral justification for its violation.
CFR 13
Is humanitarian military intervention against international law, or are there
exceptions? Question submitted by Sebastian de Armas, from Trinity Prep School,
June 27, 2013 http://www.cfr.org/international-law/humanitarian-militaryintervention-against-international-law-there-exceptions/p31017
As a matter of international law, humanitarian interventionsuch as the use of
military force to protect foreign populations from mass atrocities or gross human
rights abusesis permissible if authorized by the United Nations Security Council
(UNSC). Although many Western governments have taken the position that such
intervention may in some cases be morally justified even if not authorized by the
Security Council, most states and international legal experts do not regard that as
lawful. The main source of international law on this issue is the United Nations
Charter, which prohibits the use of military force against or in another state without
its consent except when authorized by the UNSC or in self-defense against armed
attack. The UNSC has authorized humanitarian interventions in cases such as
Somalia and Haiti, but it is often difficult to obtain the necessary votes in the UNSC
and to overcome resistance by permanent members Russia and China, which are
generally opposed to these actions. In the 1999 Kosovo crisis, NATO launched
military strikes to stop Serbian ethnic cleansing, despite opposition from Russia,
China, and many states of the global South. Although many Western states
regarded the action as morally legitimate under the circumstances, many other
states criticized it as violating the principle of state sovereignty. In recent years,
states have reached general consensus that they have a "Responsibility to Protect"
populations from mass atrocities, and that when a government fails in this
responsibility towards its own people, international action is appropriate. Many
states, however, maintain the position that only the UNSC can authorize armed
intervention. I consider these issues in a 2009 Council on Foreign Relations Special
Report,
Constitutional loopholes prevent solvencyThe US will always violate international
law.
Paulsen 9 (Michael, Professor @ St. Thomas School of Law, 118 Yale L.J. 1762, lexis)
jl
Thus, though treaties are part of the supreme law of the land under the U.S.
Constitution, their legal force as they concern the international law obligations of
the United States is, as a matter of U.S. law, always limited by (1) the Constitution's
assignment of certain indefeasible constitutional powers to the President and to
Congress with respect to foreign affairs and war; (2) the power of Congress to enact
inconsistent, overriding or limiting legislation; [*1786] (3) the fact that many treaty
commitments do not create self-executing U.S. domestic law obligations; and (4) the
President's foreign affairs executive power to interpret, apply, suspend (in whole or

in part), or even terminate a U.S. treaty's international obligation as a matter of U.S.


law. It is worth pausing to consider exactly what all of this means, for its
implications are mildly stunning, especially with respect to U.S. war powers: it
means that a treaty of the United States that is the law of the land under Article VI
of the Constitution - be it the U.N. Charter, the Geneva Conventions or any other
major agreement at the center of the contemporary regime of international law may not constitutionally limit Congress's power to declare war or the President's
Commander-in-Chief power to conduct war as he sees fit. It means that Congress
always may act to displace, or disregard, a treaty obligation. It means that the
President, too, always may act independently to displace, or disregard, a treaty
obligation. It means that treaties, as a species of international law with the
strongest claim to U.S. domestic constitutional law status, never meaningfully
constrain U.S. governmental actors. Their force is utterly contingent on the
prospective actions and decisions of U.S. constitutional actors. n55 This
conceptualization threatens all that the community of "international law" scholars
hold most dear. For it seems to say that the United States may disregard the
seemingly most sacred of international law treaty obligations almost at will. The
answer to such a charge is yes, this analysis suggests precisely that. At least it does
so as a matter of U.S. constitutional law. This does not mean, of course, that the
United States must or should disregard important international law treaty
obligations as a foreign policy matter. It certainly does not need to do so; other
nations might validly regard such actions as a breach of international law; such
nations might become very angry at the United States's actions (or they might not);
and such breaches, and reactions, may have serious international political
repercussions. These are very serious policy considerations. But as a matter of U.S.
constitutional law, it remains the case that Congress, and the President, may
lawfully take such actions, hugely undermining the force of such international
treaties as binding national law for the United States. The conclusion is blunt, but
inescapable: international law in the form of U.S. treaties is primarily a political
constraint on U.S. conduct - a constraint of international politics - more than a true
legal constraint. The "binding" international law character of a treaty obligation is,
as a matter of U.S. law, largely illusory.
xt defense
It will always get violated when it gets in the way.
Waxman 09
Intervention to Stop Genocide and Mass Atrocities International Norms and U.S.
Policy Author: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy
Council of Foreign relations. http://www.cfr.org/genocide/intervention-stop-genocidemass-atrocities/p20379
Another important part of this debate concerns the international legal system
governing the use of force in situations of actual or potential atrocities. In this
Council Special Report, Matthew C. Waxman asks whether this legal regime is
effective in preventing and stopping such crimes. The report notes that international
legal practices constrain swift action and require extensive consultation, especially
in the United Nations Security Council, before particular steps can be taken.
Waxman, though, argues that the system has certain benefits: it can confer
legitimacy and help actors coordinate both military and nonmilitary efforts to

prevent or stop atrocities. He also contends that different arrangements of the kind
some have proposed would be unlikely to prove more effective. He therefore
opposes wholesale reforms but recommends more modest steps the United States
could take to improve the current legal regime. These measures include expressing
strong but nuanced support for the responsibility to protect and working with other
permanent members of the UN Security Council to discourage the use of vetoes in
clear cases of mass atrocities. But the report also argues that the United States
must be prepared to act alone or with others in urgent cases without Security
Council approval. With thorough analysis and thoughtful recommendations,
Waxman points the way toward an international legal system capable of promoting
timely and effective action in cases of mass atrocities. This is a topic central to
ongoing debates about the limits of sovereignty and the responsibility of states for
their own citizens and others. It is also a subject that must be addressed if "Never
Again" is to become a reality rather than a slogan.
Even if the plan solves some violations, the constitution ensures that the entire
government is exempt, which means the US will always be in violation.
Snowden scandal proves that modern powers do not respect international law.
Bruton 13
Snowden hunt: Bolivia complains to UN over 'abduction' of its president By F. Brinley
Bruton, Staff Writer, NBC News
http://worldnews.nbcnews.com/_news/2013/07/03/19264421-snowden-hunt-boliviacomplains-to-un-over-abduction-of-its-president?lite
As a rumor circulated that Edward Snowden had boarded Bolivia's presidential plane
in Moscow, the aircraft was diverted to Austria when Portugal, France, Italy, and
Spain all closed their airspaces. NBC's Jim Maceda reports. Bolivia said it would
complain to the United Nations Wednesday over the "abduction" of its president,
Evo Morales, whose plane was grounded amid a false rumor that NSA leaker Edward
Snowden was on board. The country reacted with fury to the enforced diversion of
the plane, saying international law had been violated and that it would file a formal
complaint to the U.N. Human Rights Commission. Morales' jet took off from Vienna,
Austria, on Wednesday morning almost 14 hours after they say was forced to land
there because France, Portugal, Italy and Spain all denied it access to their airspace.
The aircraft was taking Morales home from Russia, where he had met with Russian
President Vladimir Putin at a summit for gas exporters. No unauthorized people
were found on board. Advertise | AdChoices We want to tell Bolivians, we want to
tell the world, that President Evo Morales, our president, the president of all
Bolivians, was kidnapped in Europe today," Vice President Alvaro Garca Linera said
late Tuesday in front of the official presidential residence in the capital, La Paz. "We
want to say to the nations of the world that President Evo Morales has been
abducted by imperialism and is being held in Europe.
-not enforced
Self-interest eliminates any chance of genuinely adhering to international law
Tsutsui & Burton 5 (Kiyotero Professor at the State University of New York, Emilie
Hafner, Professor @ Oxford University, American Journal of Sociology, V.110 N.5,
March, http://www.stanford.edu/~emiliehb/Papers/hr_practices.pdf)

For others, international legal regimes can influence state behavior in important
ways: regimes facilitate cooperation among sovereign states by providing
coordination and commitment mechanisms that identify state obligations and
provide a means of enforcement. Nevertheless, states join and comply with regimes
only when it is in their rational self-interest to do so (Keohane 1984; Downs et al.
1996). Thus, although the international human rights regime may encourage state
cooperation and circumscribe government repression of human rights, the pool of
states that commit to these institutions should be rather limited in the first place,
and compliance will heavily depend on the design of the regime.
Judicial incorporation of international law is unreliable and solves nothing
Kochan 6 Assistant Professor of Law, Chapman University School of Law (Donald,
Article: Sovereignty And The American Courts At The Cocktail Party Of International
Law: The Dangers Of Domestic Judicial Invocations Of Foreign And International Law,
Assistant Professor of Law, 29 Fordham Int'l L.J. 507)
The development of rules in the United States is meant to be tough - bicameralism
and presentment, for example, is one means by which the production of law is
controlled. Such controls do not necessarily exist in the production of foreign and
international law, making them more suspect and, in a system based in the rule of
law, inappropriate for judicial application. When a judge is defining law, reference to
laws generated according to U.S. constitutional processes is a closed set. Accepting
judicial ability to search the world allows judges to select from an open set, creating
the risk of selection bias. 152 Outcome determinative judges will select what best
supports their desired result. It is like giving a referee in America's National Football
League ("NFL") the power to selectively apply Australian rules when it suits him
during the game. This brings the Article back to the cocktail party. If the crowd at
the party is the whole world, judges have a nearly infinite number of guests they
can find to infuse and support their decisions. It is an intoxicating opportunity for
judicial activists. As stated previously, injecting international and foreign sources in
judicial decision-making can be described as the same as entering [*543] a crowded
cocktail party and avoiding all the unknown people, disliked people, annoying
people, or boring people, and scoping the scene to maneuver toward your friends.
153 With foreign and international law as potential and acceptable sources of
authority, judges have a large crowd to pick from and a large pool to ignore or
reject. Determining which countries matter, what principles matter, and what
constitutes "authority" is difficult, and - when decided by a judge looking beyond
U.S. borders - constitutes a preferential decision not necessarily endorsed by U.S.
lawmakers. 154 There is no reliable discerning principle for the selection of
applicable and appropriate extra-constitutional laws to the interpretation of U.S. law.
155 The concomitant effect is that the citizenry has no certain, predictable, and
identifiable means for understanding what the "law" is that governs their actions
when reference to, or reliance on, extra-constitutional sources of law are allowed.
Lack of enforcement undermines Ilaw
Katselli 10 Lecturer at Newcastle Law School (Elena, Ph.D., The Problem of
Enforcement in International Law: Countermeasures, the Non-Injured State and the
Idea of International Community,
http://internationallawobserver.eu/2010/05/18/the-problem-of-enforcement-in-

international-law-countermeasures-the-non-injured-state-and-the-idea-ofinternational-community/)
The problem of enforcement in international law is one that has undermined not
only the effectiveness of the international normative system but also its credibility.
For many international law sceptics there is only so much that international law can
do. To expect the international system to offer true justice to the states comprising
it is perhaps a utopian idea that cannot be fulfilled simply because the system does
not have the required mechanisms in place and the ability to achieve this.
International law is not enforcedgenocide in Darfur proves
Mareng 7 (Chuei D., Researcher for the Sudanese Tribune, International Law or Selfhelp Phenomenon, March 17, 2007, http://www.sudantribune.com/spip.php?
article20828)
Many ordinary citizens around the world have been wondering about the application
of international law when it comes to defining genocide and action of the United
Nations Member States in responding to such incidents. I am assuming that a
question that everyone should be asking about international law is this: How could
this be a law when it is not enforced even though its core roles had been violated? It
seems that international law is concept of self-help because many atrocities that
demonstrated the violation of international law had occurred, but the UN Member
States had taken no actions. For example, Darfurs genocide has happened, but
many of the UN Member States were not cleared about this concern. Even though
genocide has been properly defined by the convention, the UN Member States are
always slowed in responding to such confrontations.
International laws vague wording and lack of enforcement justifies mass murder
Mareng 7 (Chuei D., Researcher for the Sudanese Tribune, International Law or Selfhelp Phenomenon, March 17, 2007, http://www.sudantribune.com/spip.php?
article20828)
Apparently, the actions of the UN Member States had led its other member states to
be skeptical when an action is presented by a state which is assumed to be having a
variety of interests. While under the international law, genocide has been viewed as
the mass killing of a group of people as defined by Article 2 of the Convention on
the Prevention and Punishment of the Crime of Genocide as any of the following
acts committed to: (a) Killing members of the group; (b) Causing serious bodily or
mental harm to members of the group; (c) Deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole or in
part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly
transferring children of the group to another group. From this definition however, it
clears that genocide is a crime against humanity and war crime, but many of the UN
Member States are still reluctance in responding to what is going on in Darfur. I do
believe that recognition of genocide as a crime against humanity and war crime is a
collective responsibility and not just one state responsibility to call an action taken
by other state against its people a genocide. A good example of this would be a
testimony given before the Senate Foreign Relations Committee, on September 9,
2004 when a former United States Secretary of State, Colin Powell who called
atrocity in Darfur a genocide. But other permanent member of the UN Security
Council has not followed the same suit. Thus, the US seems to have retreat their

recognition of the atrocity as a genocide. This silence by other permanent member


of the UN Security Council and regular members indicated that the definition of
genocide under international law is unless because no binding mechanism. In a
moral sense however, it is wrong to standby when innocent people are being killed
by those who had power. The fundamental principle of international law was to
protect people regardless of their colour or status, but the current actions by the UN
Member States seem to be having bias and this is why I do wonder about the
application of international law. International law was supposed to protect those
who are being prosecuted by their government based on the above definition. But
there has been a mixed reaction from the UN Member States when it comes to a
mass killing. Of course, there are many mass killing that had taken places in this
world and not all of them could be called genocide. It is very clear from the
convention definitions that genocide is called when the action is based on how the
killing took place. Given the situation in Darfur, there is no doubt that the Sudanese
Government has committed genocide. But the UN Member States are not
responding as they should. It is obvious that there are no specific surveillances on
the ground that could give the UN Member States a better understanding of the
problem in the region in which they could enforce the rule of law. In this respect, the
Government of Sudan seems to be acting above the law, because there are no
specific consequences spelled out by the UN Member States regarding one state
that had violated the law. Barbara Harff noted that: It looks as if the state is above
the law since no effective international enforcement agency exists for the purpose
of punishing states that violate the human rights of their citizens. This indicates
that the UN Member States are the ignorance of international law in which atrocities
against the spirit of international peace and security are committed by states. It is
obvious that one person killed more than fifty people would not be viewed as a
genocide, because the scope it happened differs from the above definition. In Darfur
however, that killing of innocent civilians is a genocide because Sudanese
Government has armed the Arab militants to wipeout other ethnic groups in the
area. Why that killing could not be called a genocide by the UN Member States?
Realism proves international law inevitably fails- it cant be enforced
Goldsmith and Posner 5 *Harvard Law School professor and former US Assistant
Attorney General and **Professor of Law at UChicago Law School (Jack L. and Eric
A., The Limits of International Law, April,
http://www.angelfire.com/jazz/sugimoto/law.pdf)
The Limits of International Law intends to fill that gap. The book begins with the
premise that all states, nearly all the time, make foreign policy decisions, including
the decisions whether to enter treaties and comply with international law, based on
an assessment of their national interest. Using a simple game-theoretical
framework, Goldsmith and Posner argue that international law is intrinsically weak
and unstable, because states will comply with international law only when they fear
that noncompliance will result in retaliation or other reputational injuries. This
framework helps us understand the errors of the international law advocates and
their critics. On the one hand, large multilateral treaties that treat all states as equal
are unattractive to powerful states, which either refuse to enter the treaties, enter
them subject to numerous reservations that undermine the treaties obligations, or
refuse to comply with them. The problem with these treaties is that they treat states
as equals when in fact they are not, and they implicitly rely on collective sanctions
when states prefer to free ride. Thus, many human rights treaties are generally not

enforced, and so they have little effect on states behavior. And the international
trade system is mainly a framework in which bilateral enforcement occurs, so
powerful states may cooperate with other powerful states but not with weaker
states, whose remedies for trade violations are valueless. On the other hand,
international law is not empty or meaningless, as many critics have argued. States
are able to cooperate with each other, especially on a bilateral basis, and their
patterns of cooperation eventually congeal into the customary international norms.
Cooperation also occurs within bilateral treaties and within the general frameworks
set up in multilateral treaties. In the absence of a world government, the
cooperation remains relatively thin, and often erratic; its character changes as the
interests and relative power of nations change. But none of this is to claim that
international law is phony or illusory or a great public relations game. What it does
suggest, however, is that international law has no life of its own, has no special
normative authority; it is just the working out of relations among states, as they
deal with relatively discrete problems of international cooperation. There is no
reason to expect states to enter treaties just for the sake of expanding the domain
of international law; and there is no reason to expect states to comply with treaties
when their interests and powers change. The aggressive international legalization
expected and yearned for by international lawyers just cannot happen as long as
there are nearly 200 states with independent interests, agendas, and ideologies.
Even democratic states have no reason to commit them- selves to international law
when doing so does not serve the interests of the voters.
Countries wont comply with Ilaw- disagreements cause war
Goldsmith and Posner 5 *Harvard Law School professor and former US Assistant
Attorney General and **Professor of Law at UChicago Law School (Jack L. and Eric
A., The Limits of International Law, April,
http://www.angelfire.com/jazz/sugimoto/law.pdf)
Because other countries do not fully share the American agenda, and fear American
power, conflicts between these countries and the United States have erupted over
the meaning of existing legal structures, and the desirability of new ones. These
conflicts are no different from the kind of great power conflicts over international
order that have been going on for hundreds of years. Preoccupation with
international lawthe failure to see that international law is a part of international
politics, not a way of eliminating ithas led its advocates to overlook this essential
continuity, and to hold unrealistic expectations about what international law can
accomplish.

-no modeling
No modeling
Pedersen 8 Lecturer in Law at Newcastle Law School (Ole W., Fading influence of
the US Supreme Court, 9/18/08,
http://internationallawobserver.eu/2008/09/18/fading-influence-of-the-us-supremecourt/)

It appears that it is not only the EU whose authority is fading. Todays NY Times has
a very interesting story on the influence of the US Supreme Court, which is well
worth a read. The article states that the number of citations of US Supreme Court
cases in other jurisdictions is in decline compared to just ten years ago. There are
many reasons for this, according to, inter alia, Thomas Ginsburg of University of
Chicago and Aharon Barak, former president of the Israeli Supreme Court. One
reason is the rise in the numbers of constitutional courts elsewhere, which has,
through time, created a rich jurisprudence on constitutional law rendering the need
to cite US cases less essential. Additionally, US foreign policy may play a part in the
diminishing influence of the oldest constitutional court in world. Finally, the
reluctance of the US Supreme Court itself to cite foreign law when adjudicating may
play a role. This final point is perhaps the most interesting. Whereas European
(including the ECJ and the ECtHR), Australian and Canadian courts do not shy away
from referring to foreign law, it has always been a sensitive topic in the US where
many scholars favour leaving aside foreign law. This approach has its clear
democratic justification but as Justice Ruth Bader Ginsberg said in 2006 in an
address to the South African Constitutional Court: [F]oreign opinions are not
authoritative; they set no binding precedent for the U.S. judge. But they can add to
the store of knowledge relevant to the solution of trying questions. Yes, we should
approach foreign legal materials with sensitivity to our differences, deficiencies, and
imperfect understanding, but imperfection, I believe, should not lead us to abandon
the effort to learn what we can from the experience and good thinking foreign
sources may convey.
-no precedent
Citing Ilaw doesnt set a precedent
Liptak 8 Supreme Court correspondent for The New York Times, J.D. from Yale Law
School (Adam, U.S. Court Is Now Guiding Fewer Nations,
http://www.nytimes.com/2008/09/18/us/18legal.html?
_r=3&hp=&adxnnlx=1221753717-8pdanTsDalyAfCQgzjrVvQ&pagewanted=print)
Judicial citation or discussion of a foreign ruling does not, moreover, convert it into
binding precedent. Chief Justice John Marshall, sitting as a circuit court judge,
discussed the question in 1811. It has been said that the decisions of British
courts, made since the Revolution, are not authority in this country, he said. I
admit it but they are entitled to that respect which is due to the opinions of wise
men who have maturely studied the subject they decide. Indeed, American judges
cite all sorts of things in their decisions law review articles, song lyrics, television
programs. State supreme courts cite decisions from other states, though a decision
from Wisconsin is no more binding in Oregon than is one from Italy. Foreign
opinions are not authoritative; they set no binding precedent for the U.S. judge,
Justice Ruth Bader Ginsburg said in a 2006 address to the Constitutional Court of
South Africa. But they can add to the story of knowledge relevant to the solution of
trying questions. But Professor Fried said the area was a minefield. Courts have
been citing foreign law forever, but sparingly, for very good reason, he said. It is
an invitation to bolster conclusions reached on other grounds. It leads to more
impressionistic, undisciplined adjudication.
International law fails to set a binding precedent

Liptak 8 (Adam, the Supreme Court correspondent of The New York Times, U.S.
Court Is Now Guiding Fewer Nations, September,
http://www.nytimes.com/2008/09/18/us/18legal.html?
_r=3&hp=&adxnnlx=1221753717-8pdanTsDalyAfCQgzjrVvQ&pagewanted=print)
Judicial citation or discussion of a foreign ruling does not, moreover, convert it into
binding precedent. Chief Justice John Marshall, sitting as a circuit court judge,
discussed the question in 1811. It has been said that the decisions of British
courts, made since the Revolution, are not authority in this country, he said. I
admit it but they are entitled to that respect which is due to the opinions of wise
men who have maturely studied the subject they decide. Indeed, American judges
cite all sorts of things in their decisions law review articles, song lyrics, television
programs. State supreme courts cite decisions from other states, though a decision
from Wisconsin is no more binding in Oregon than is one from Italy. Foreign
opinions are not authoritative; they set no binding precedent for the U.S. judge,
Justice Ruth Bader Ginsburg said in a 2006 address to the Constitutional Court of
South Africa. But they can add to the story of knowledge relevant to the solution of
trying questions. But Professor Fried said the area was a minefield. Courts have
been citing foreign law forever, but sparingly, for very good reason, he said. It is
an invitation to bolster conclusions reached on other grounds. It leads to more
impressionistic, undisciplined adjudication.
Lack of an established framework for international law means judges will make
random and unpredictable decisions - they cant establish a coherent precedent
Sanchez 05, (Phil, B.A. University of Pennsylvania; University of Cambridge; J.D.
University of Pennsylvania, 2005 Ernesto J, A Case Against Judicial
Internationalism, 38 Conn. L. Rev. 185, December, Lexis)
Foreign laws, however, do not stem from the same philosophical base, but from
different circumstances, philosophies, traditions, and ideas. A foreign law does not
reflect an American constitutional principle or tradition, but merely represents the
needs and characteristics of a different society and culture, even though some of
these traits may outwardly resemble American ones. Consequently, foreign laws'
relevance to the circumstances surrounding an American legal issue with no
external implications whatsoever remains quite questionable. And the range of
these laws, and the social, cultural, and legal concepts they represent, is simply so
vast and diverse that a judge could probably find some foreign law supporting any
outcome when considering a specific issue. To date, Justice Breyer has offered what
appears to be the most detailed framework for an internationalist approach to
judicial decisionmaking -- reference to "standards roughly comparable to our own
constitutional standards in roughly comparable circumstances." 25 Given each
national legal system's own unique characteristics and idiosyncrasies, the absence
of any more specific guidelines for a judge to determine how to apply non-American
legal principles to purely domestic issues, utilizing a method entirely consistent with
the Constitution and the ideas it reflects, remains problematic.
One plan wont spillover no change in US stance
Moravcsik 4 Professor of Politics and International Affairs and director of the
European Union Program at Princeton and Nonresident Senior Fellow at the

Brookings Institution (Andrew, The Paradox of US Human Rights Policy in American


Exceptionalism and Human Rights, p. 197)
This is a sobering conclusion, for it suggests that U.S. ambivalence toward
international human rights commitments is not a short-term and contingent aspect
of specific American policies. It is instead woven into the deep structural reality of
American political life. This is so not, for the most part, because international human
rights commitments are inconsistent with a particular understanding of democratic
ideals like popular sovereignty, local control, or expansive protection of particular
rights shared by most Americans. It is true, rather, because a conservative minority
favored by enduring domestic political institutions has consistently prevailed in
American politics to the point where its values are now embedded in public opinion
and constitutional precedent. The institutional odds against any fundamental
change in Madisons republic are high. To reverse current trends would require an
epochal constitutional rupture an Ackermanian constitutional moment such as
those wrought in the United States by the Great Depression and the resulting
Democratic New Deal majority; in Germany, France, and Italy by the end of World
War II; and in all European countries through a half century of European human
rights jurisprudence. Short of all that, this particular brand of American ambivalence
toward the domestic application of international human rights norms is unlikely to
change anytime soon.
Citing international law doesnt set precedent
NYT 8 (http://www.nytimes.com/2008/09/18/us/18legal.html?
_r=2&hp=&adxnnlx=1221753717-8pdanTsDalyAfCQgzjrVvQ&pagewanted=print,
AD: 7/10/10) jl
Judicial citation or discussion of a foreign ruling does not, moreover, convert it into
binding precedent. Chief Justice John Marshall, sitting as a circuit court judge,
discussed the question in 1811. It has been said that the decisions of British
courts, made since the Revolution, are not authority in this country, he said. I
admit it but they are entitled to that respect which is due to the opinions of wise
men who have maturely studied the subject they decide. Indeed, American judges
cite all sorts of things in their decisions law review articles, song lyrics, television
programs. State supreme courts cite decisions from other states, though a decision
from Wisconsin is no more binding in Oregon than is one from Italy. Foreign
opinions are not authoritative; they set no binding precedent for the U.S. judge,
Justice Ruth Bader Ginsburg said in a 2006 address to the Constitutional Court of
South Africa. But they can add to the story of knowledge relevant to the solution of
trying questions. But Professor Fried said the area was a minefield. Courts have
been citing foreign law forever, but sparingly, for very good reason, he said. It is
an invitation to bolster conclusions reached on other grounds. It leads to more
impressionistic, undisciplined adjudication.
-not binding
The U.S. constitution prevents it from being bound to international law
Rivkin and Casey 6 *partner in the law firm Baker & Hostetler, LLP, and former
Deputy Director, Office of Policy Development, U.S. Department of Justice and
**served in the Office of Legal Counsel in the U.S. Department of Justice (David B.
Rivkin, Jr. and Lee A. Casey, International Law and the Nation-State at the U.N.: A

Guide for U.S. Policymakers, 8/18/06,


http://www.heritage.org/Research/Reports/2006/08/International-Law-and-theNation-State-at-the-UN-A-Guide-for-US-Policymakers)
Supreme law notwithstanding, however, treaties remain subject to the Constitution
and to later federal action. Where there is a conflict between the Constitution and a
treaty, the Constitution prevails.[12] Moreover, treaties can be applied directly by
the courts only to the extent that they are "self-executing" (most are not) or have
been the subject of implementing legislation.[13] Finally, Congress can modify or
eliminate a treaty's effect, at least as a matter of domestic law, by a later statute.
[14] American courts are bound to respect the plain meaning of such a law even if
treaty partners claim that this would violate U.S. international obligations and the
claim is accurate. In this regard, however, it should again be emphasized that such
a claim may or may not be correct in any given case, since no other state, group of
states, or international institution is entitled-absent specific U.S. consent-to
interpret or adjudicate American international law obligations. A difference of
opinion over the meaning of either a treaty or the requirements of custom does not
automatically amount to a violation of international law by any of the parties
involved. In addition, treaties are subject to a number of presidential actions. The
President is the "sole organ" of the United States in its external relations.[15]
Although a President can "make" a treaty only after obtaining the Senate's consent
(by a two-thirds vote), he can terminate a treaty (in accordance with its terms), or
abrogate the agreement entirely, on his own authority. Similarly, the President canas a lesser power-suspend American performance under a particular agreement as
one means of achieving U.S. policy goals. Of course, all of these actions may be
more or less controversial, depending on the circumstances.
Ilaws not binding
Casey 6 served in the Office of Legal Counsel in the U.S. Department of Justice
(Lee A., International Law and the Nation-State at the U.N.: A Guide for U.S.
Policymakers, http://www.heritage.org/Research/Reports/2006/08/InternationalLaw-and-the-Nation-State-at-the-UN-A-Guide-for-US-Policymakers)
Finally, although international law is generally considered to be part of American
law, the United States, like other sovereign nations, can derogate from the accepted
rules. And, like other aspects of the nation's foreign relations, the exercise of this
authority falls-at least in the first instance-to the President. The Supreme Court's
ruling in The Paquete Habana is not to the contrary, although claims are sometimes
made that it is. That case involved the U.S. Navy's capture, during the SpanishAmerican War, of fishing boats in Cuba's coastal waters. The Supreme Court was
called upon to determine whether these vessels were lawful captures and concluded
that they were not. Citing generally accepted rules of international law suggesting
that coastal fishermen were not to be molested by belligerent forces, the Court
ruled that the boats were not lawful "prizes" of war. However, in doing so, it
specifically noted that "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."[19] The suggestion is clear that, had there been a formal decision
by the President (or by Congress through appropriate legislation) to ignore the
otherwise applicable international rule, the United States courts would have been
bound by that decision.

Any impact is empirically deniedweve trampled on Ilaw from the beginning


Holloway 2000 (Steven, professor of political science at St. Francis Xavier University,
Global Governance, U.S. Unilateralism at the UN: Why Great Powers Do Not Make
Great Multilateralists July-September, p. 363,
http://findarticles.com/p/articles/mi_7055/is_3_6/ai_n28819055/pg_6/?
tag=content;col1)
There are, after all, grounds for doubting the constancy of the U.S. commitment to
multilateralism. In negotiations leading to the 1997 landmine treaty and the 1998
international criminal court treaty, the United States not only refused to lead the
world community but--in a striking display of unilateralism--also refused to sign
agreements supported by a majority of states and most of its Western allies. This
behavior led the Economist, a British magazine not usually noted as a bastion of
radicalism or anti-U.S. sentiment, to publish an editorial in December 1998 calling
the United States "a two-faced, half-hearted friend" rather than a champion of
international law. Important indicators of multilateralism are the negotiation and
support of new international norms. However, as the editorial observed, "the United
States has a sorry record of shilly-shallying, or plain obstruction, in the development
of international law. Instead of leading, America has ratified many human-rights
treaties only after most other countries have already done so." A litany followed.
Peter F. Cowhey associates this U.S. commitment to multilateralism with domestic
politics. He sees it as inherent in U.S. democratic institutions and stresses its
domestic ideological role in legitimizing U.S. foreign policy actions. Beginning with
FDR and Truman, multilateralism or internationalism was presented to the public as
an alternative to isolationism and unilateralism. [7] Several authors in Ruggie's book
deal with the distinction between universalism and multilateralism. They point out
that the latter does not require a universal normative consensus: dropping the
League of Nations requirement of unanimity in assembly voting is seen as a step
forward in this regard. Citing the problem of coordinating large numbers, Ruggie
discusses an approach (proposed elsewhere by Russell Hardin) in which many
multilateral agreements are at least intially created and maintained by a subset of
the membership, called K-Groups. Similarly, Miles Kahler speaks of a minilateralist
group. [8] But in making this distinction between universal/consensus and minilateral/core group, a conceptual Pandora's box is opened as to the status of multiple
groups or blocs within the institution. Even within NATO, a long tradition exists of
identifying hawks and doves. How, then, are we to determine which group in NATO
should be considered the core group? But the best example of this phenomenon is
perhaps found in the General Assembly, where groups of three or more states
coordinating their voting behavior have long existed. Support for this position can
be found in the works of traditional realist writers. In Power Politics, Martin Wight
states: "History affords little support for the assertion the great powers like to make
that they are more restrained and responsible than minor powers. It suggests,
rather, that they wish to monopolize the right to create international conflict."
Discussing the League of Nations (which he said brought "the formal
enfranchisement of the minor powers"), Wight claimed that these minor powers in
fact "were more capable than the great powers of pursuing consistently what might
be regarded as the universal interest of upholding international law and order." [10]
Compared to Wight, other realists have been more sanguine about the
multilateralist great-power concert idea, or what the idealist David Mitrany mocked

as the "rich man's burden" assumption. However, even Hedley Bull based greatpower multilateralism on the balance of power and argued that power imbalance
breeds noncompliance. "It is clear," Bull said, "that situations in which one state has
a position of preponderance are situations in which that state may be tempted to
disregard rules of law.... Where one state is preponderant, it may have the option of
disregarding the rights of other states, without fear that these states will reciprocate
by disregarding their rights in turn." He characterized such situations of regional
dominance as "the Unilateral Exercise of Local Preponderance" and cited as
examples early-twentieth-century interventionism by the United States in the
Caribbean and by the U.K. in the Middle East. These unilateralist situations, Bull
said, demonstrate a "habitual disregard [by the great power] of the universal norms
of interstate behavior that confer rights of sovereignty, equality and independence
upon these [smaller] states." [11] Over the years, all five permanent powers have
had recourse to the veto at one time or another. Several have been deeply in
arrears in their payments to the institution over matters of policy. The great naval
powers--the United States, the USSR, and the U.K.--were among the last to agree to
the new restrictions of the Law of the Sea. This explanation would predict that the
United States, as the largest of the great powers, would exhibit in the long term the
greatest unilateralism and ambivalence toward the UN. Furthermore, traces of that
behavior may be noted even in the early years of greatest U.S. cooperation with or
dominance of the UN. The Korean War (1950-1953), the first major UN collective
security operation, provides many examples of less than complete cooperation,
such as the U.S. government's refusal to place U.S. troops under a non-U.S.
commander and MacArthur's flouting of General Assembly guidelines on the
conduct of the military operations. In this article, I document the extent of U.S.
unilateralism in the General Assembly and show its growth in more recent years.
Finally, Thomas M. Franck provides compelling anecdotal evidence of the greatpower thesis in General Assembly voting to condemn military intervention and
aggression. He observes that the large powers are the most guilty of double
standards in this regard: "The superpowers ... consistently do not vote for the
principle but [vote] for political self-interest. As heads of alliances, they feel they
cannot afford to be principled. As militarily mighty states able to look after their own
security, they are not as reliant as the majority on the protection of rules and
principles. They can do more or less as they like, and often they do. The
superpowers, and a few other states that perceive themselves as lions among
sheep, value these short-term gains." [13] This observation succinctly states the
case against hegemonic stability theory and the United States as multilateralist.
-useless
I-Law uselessStates have found moral justification for its violation.
CFR 13
Is humanitarian military intervention against international law, or are there
exceptions? Question submitted by Sebastian de Armas, from Trinity Prep School,
June 27, 2013 http://www.cfr.org/international-law/humanitarian-militaryintervention-against-international-law-there-exceptions/p31017
As a matter of international law, humanitarian interventionsuch as the use of
military force to protect foreign populations from mass atrocities or gross human
rights abusesis permissible if authorized by the United Nations Security Council
(UNSC). Although many Western governments have taken the position that such
intervention may in some cases be morally justified even if not authorized by the
Security Council, most states and international legal experts do not regard that as

lawful. The main source of international law on this issue is the United Nations
Charter, which prohibits the use of military force against or in another state without
its consent except when authorized by the UNSC or in self-defense against armed
attack. The UNSC has authorized humanitarian interventions in cases such as
Somalia and Haiti, but it is often difficult to obtain the necessary votes in the UNSC
and to overcome resistance by permanent members Russia and China, which are
generally opposed to these actions. In the 1999 Kosovo crisis, NATO launched
military strikes to stop Serbian ethnic cleansing, despite opposition from Russia,
China, and many states of the global South. Although many Western states
regarded the action as morally legitimate under the circumstances, many other
states criticized it as violating the principle of state sovereignty. In recent years,
states have reached general consensus that they have a "Responsibility to Protect"
populations from mass atrocities, and that when a government fails in this
responsibility towards its own people, international action is appropriate. Many
states, however, maintain the position that only the UNSC can authorize armed
intervention. I consider these issues in a 2009 Council on Foreign Relations Special
Report,
Snowden scandal proves that modern powers do not respect international law.
Bruton 13
Snowden hunt: Bolivia complains to UN over 'abduction' of its president By F. Brinley
Bruton, Staff Writer, NBC News
http://worldnews.nbcnews.com/_news/2013/07/03/19264421-snowden-hunt-boliviacomplains-to-un-over-abduction-of-its-president?lite
As a rumor circulated that Edward Snowden had boarded Bolivia's presidential plane
in Moscow, the aircraft was diverted to Austria when Portugal, France, Italy, and
Spain all closed their airspaces. NBC's Jim Maceda reports. Bolivia said it would
complain to the United Nations Wednesday over the "abduction" of its president,
Evo Morales, whose plane was grounded amid a false rumor that NSA leaker Edward
Snowden was on board. The country reacted with fury to the enforced diversion of
the plane, saying international law had been violated and that it would file a formal
complaint to the U.N. Human Rights Commission. Morales' jet took off from Vienna,
Austria, on Wednesday morning almost 14 hours after they say was forced to land
there because France, Portugal, Italy and Spain all denied it access to their airspace.
The aircraft was taking Morales home from Russia, where he had met with Russian
President Vladimir Putin at a summit for gas exporters. No unauthorized people
were found on board. Advertise | AdChoices We want to tell Bolivians, we want to
tell the world, that President Evo Morales, our president, the president of all
Bolivians, was kidnapped in Europe today," Vice President Alvaro Garca Linera said
late Tuesday in front of the official presidential residence in the capital, La Paz. "We
want to say to the nations of the world that President Evo Morales has been
abducted by imperialism and is being held in Europe.
-violations inevitable
Constitutional loopholes prevent solvencyThe US will always violate international
law.
Paulsen 9 (Michael, Professor @ St. Thomas School of Law, 118 Yale L.J. 1762, lexis)
jl
Thus, though treaties are part of the supreme law of the land under the U.S.
Constitution, their legal force as they concern the international law obligations of
the United States is, as a matter of U.S. law, always limited by (1) the Constitution's

assignment of certain indefeasible constitutional powers to the President and to


Congress with respect to foreign affairs and war; (2) the power of Congress to enact
inconsistent, overriding or limiting legislation; [*1786] (3) the fact that many treaty
commitments do not create self-executing U.S. domestic law obligations; and (4) the
President's foreign affairs executive power to interpret, apply, suspend (in whole or
in part), or even terminate a U.S. treaty's international obligation as a matter of U.S.
law. It is worth pausing to consider exactly what all of this means, for its
implications are mildly stunning, especially with respect to U.S. war powers: it
means that a treaty of the United States that is the law of the land under Article VI
of the Constitution - be it the U.N. Charter, the Geneva Conventions or any other
major agreement at the center of the contemporary regime of international law may not constitutionally limit Congress's power to declare war or the President's
Commander-in-Chief power to conduct war as he sees fit. It means that Congress
always may act to displace, or disregard, a treaty obligation. It means that the
President, too, always may act independently to displace, or disregard, a treaty
obligation. It means that treaties, as a species of international law with the
strongest claim to U.S. domestic constitutional law status, never meaningfully
constrain U.S. governmental actors. Their force is utterly contingent on the
prospective actions and decisions of U.S. constitutional actors. n55 This
conceptualization threatens all that the community of "international law" scholars
hold most dear. For it seems to say that the United States may disregard the
seemingly most sacred of international law treaty obligations almost at will. The
answer to such a charge is yes, this analysis suggests precisely that. At least it does
so as a matter of U.S. constitutional law. This does not mean, of course, that the
United States must or should disregard important international law treaty
obligations as a foreign policy matter. It certainly does not need to do so; other
nations might validly regard such actions as a breach of international law; such
nations might become very angry at the United States's actions (or they might not);
and such breaches, and reactions, may have serious international political
repercussions. These are very serious policy considerations. But as a matter of U.S.
constitutional law, it remains the case that Congress, and the President, may
lawfully take such actions, hugely undermining the force of such international
treaties as binding national law for the United States. The conclusion is blunt, but
inescapable: international law in the form of U.S. treaties is primarily a political
constraint on U.S. conduct - a constraint of international politics - more than a true
legal constraint. The "binding" international law character of a treaty obligation is,
as a matter of U.S. law, largely illusory.
It will always get violated when it gets in the way.
Waxman 09
Intervention to Stop Genocide and Mass Atrocities International Norms and U.S.
Policy Author: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy
Council of Foreign relations. http://www.cfr.org/genocide/intervention-stop-genocidemass-atrocities/p20379
Another important part of this debate concerns the international legal system
governing the use of force in situations of actual or potential atrocities. In this
Council Special Report, Matthew C. Waxman asks whether this legal regime is
effective in preventing and stopping such crimes. The report notes that international
legal practices constrain swift action and require extensive consultation, especially

in the United Nations Security Council, before particular steps can be taken.
Waxman, though, argues that the system has certain benefits: it can confer
legitimacy and help actors coordinate both military and nonmilitary efforts to
prevent or stop atrocities. He also contends that different arrangements of the kind
some have proposed would be unlikely to prove more effective. He therefore
opposes wholesale reforms but recommends more modest steps the United States
could take to improve the current legal regime. These measures include expressing
strong but nuanced support for the responsibility to protect and working with other
permanent members of the UN Security Council to discourage the use of vetoes in
clear cases of mass atrocities. But the report also argues that the United States
must be prepared to act alone or with others in urgent cases without Security
Council approval. With thorough analysis and thoughtful recommendations,
Waxman points the way toward an international legal system capable of promoting
timely and effective action in cases of mass atrocities. This is a topic central to
ongoing debates about the limits of sovereignty and the responsibility of states for
their own citizens and others. It is also a subject that must be addressed if "Never
Again" is to become a reality rather than a slogan.
-US NOT key
The Snowden scandal destroyed US ability to support International Law.
Mallett 13
Venezuela's Maduro Condemns Violation of International Law Against Morales,
Reiterates Support for Snowden at UNASUR Summit Jul 5th 2013, by Ryan MallettOuttrim, staff writer for Venezuelaanalysis.com
http://venezuelanalysis.com/print/9811
Mrida, 5th July 2013 (Venezuelanalysis.com) Venezuelan President Nicolas
Maduro has joined with other Latin American leaders in condemning the raid on
Bolivian president Evo Morales' flight out of Europe earlier this week. At an
emergency summit of the Union of South American Nations (UNASUR) in
Cochabamba, Bolivia on Thursday, member states issued a joint statement calling
for an explanation from European countries that barred Morales' flight from entering
their airspace earlier this week, including France, Spain, Italy and Portugal. Along
with Maduro, the presidents of Argentina, Ecuador, Bolivia, Suriname and Uruguay
attended the summit. South America and Latin America deserve answers and
explanations-more than explanations, apologies... to restore trusting relationships
and move forward on any other issue, Maduro told the summit. He criticised the
actions of the European governments involved, and stated that a violation of
international law against Evo Morales is [a violation] against all of us. What would
happen if the same happened in a South American territory to any of the presidents
of Europe or the U.S. president? The Security Council of the UN would be called to
come with all their brutality and military force, he stated. What was the
cause?...The pursuit of a 29-year old that has revealed to the world how the elite
U.S. imperialists aim to control via massive spying, Maduro also stated on
Thursday. He also criticized U.S. Secretary of State John Kerry for allegedly
pressuring the Venezuelan government to reject a request for political asylum from
former U.S. intelligence contractor Edward Snowden. John Kerry has been calling
for the Venezuelan Foreign Ministry...[trying] to put pressure and keep it from acting
on the basis of humanitarian law, Maduro stated, adding that the U.S. government
is working to erase the history of public international humanitarian asylum law.

The battle for International law is Latin America vs. Europe. US has been rendered
irrelevant.
Bruton 13
Snowden hunt: Bolivia complains to UN over 'abduction' of its president By F. Brinley
Bruton, Staff Writer, NBC News
http://worldnews.nbcnews.com/_news/2013/07/03/19264421-snowden-hunt-boliviacomplains-to-un-over-abduction-of-its-president?lite
As a rumor circulated that Edward Snowden had boarded Bolivia's presidential plane
in Moscow, the aircraft was diverted to Austria when Portugal, France, Italy, and
Spain all closed their airspaces. NBC's Jim Maceda reports. The country reacted with
fury to the enforced diversion of the plane, saying international law had been
violated and that it would file a formal complaint to the U.N. Human Rights
Commission. Morales' jet took off from Vienna, Austria, on Wednesday morning
almost 14 hours after they say was forced to land there because France, Portugal,
Italy and Spain all denied it access to their airspace. The aircraft was taking Morales
home from Russia, where he had met with Russian President Vladimir Putin at a
summit for gas exporters. No unauthorized people were found on board. Advertise |
AdChoices We want to tell Bolivians, we want to tell the world, that President Evo
Morales, our president, the president of all Bolivians, was kidnapped in Europe
today," Vice President Alvaro Garca Linera said late Tuesday in front of the official
presidential residence in the capital, La Paz. "We want to say to the nations of the
world that President Evo Morales has been abducted by imperialism and is being
held in Europe. In a statement from aboard his presidential plane Wednesday,
Morales underlined the indignation and fury felt at the highest levels of the Bolivian
government, and made a thinly-veiled attack on Western powers. Bolivian President
Evo Morales boards his plane prior leaving the Vienna International Airport on
Wednesday. The Bolivian government angrily denied wrongdoing on after the plane
was diverted to Vienna over suspicion fugitive NSA leaker Edward Snowden was on
board. I feel this was an excuse to frighten, intimidate and punish me. More than
anything, an excuse to try and silence us on the struggle against the politics of
plunder, invasion and domination, president Morales said. The statement added
that Morales life was put in grave danger when Portugal and France stopped his
plane at the last minute. I dont understand why France, Italia, Portugal and Spain
would say ... that they were stopping me because I was taking a certain Edward
Snowden, he said. Snowden was "no suitcase that could be taken aboard a plane"
and flown to Bolivia, the statement added. Cuba echoed his comments, denouncing
the international decision to divert Morales' flight as "inadmissible, unfounded and
arbitrary." "Cuba calls on the international community to mobilize against these
violations of international law and human rights," said a foreign ministry statement
that was issued late Tuesday and carried by state media on Wednesday, according
to Reuters. Earlier on Wednesday, Morales told journalists in the Vienna airport who
asked about the delay that officials were "surely consulting with their friend, and
their friend must be the United States." The Morales government already has a
strained relationship with the U.S. In September 2008, his administration expelled
the U.S. ambassador along with DEA agents and USAID officials. And in April 2009,
Morales said he suspected U.S. intelligence was behind an attempt to assassinate
him at a hotel. Police commandos shot dead three men in a hotel room in the
eastern city of Santa Cruz, which was said to be the base for plot to stage a coup.
The U.S. denies his claims. Sacha Llorentty Solz, Bolivia's ambassador to the United

Nations, told reporters in Geneva that Austria's move was an act of aggression and
a violation of international law.
-Resilient
I Law ResilientRecent scandals prove nations respect it more than world powers.
Martynov 13
VOR host Ric Young talked with Boris Martynov, deputy director of the Latin America
Institute in Moscow, who recalled U.S. abuses of international law in other contexts
as well. Morning Show Did EU countries violate international law in Morales
flight debacle? Jul 5, 2013
http://voicerussia.com/_print/117321161.html
So what do you think should happen next? Hmm. Anything can happen. If only such
countries as Russia, China, India, and Latin American countries will oppose the
violation of international law, (then) we cant imagine the international policy based
on anarchy. And if anarchy, what next? Only international law (can suffice).
Unfortunately, the respect for international law in the United States, and generally
speaking, in the West, is very low these days. Well, can you tell me what
international law was broken in the way in which President Morales was turned
away? Of course, it was broken. Because, according to the convention, and
according to international custom which dates back to the 19th century, every head
of state, every diplomat with a diplomatic passport, not speaking even of a head of
state, has immunity from any action directed against him. Immunity. The same
immunity which President Morales had when flying in his airplane, which is not a
regular airplanenot a passenger airplane or whatever else. Its a part of the
national territory. So the treatment should be realized according to the convention
with the most favorable treatment on the most favorable person. And the green
light should be given to it in all the trajectory of its flight. But I cant understand the
reason why it was done so. Maybe it was done to show the Latin Americans that
they are still part of the United States (zone of influence). But it is not so. It has long
ceased to be so. And I dont see why the United States should worsen its relations
with Latin America, which are nowadays rather far from being good. Well, what do
you think of President Evo Morales threat to close the US embassy in his country, in
Bolivia? No, I dont suppose (this will happen). You see, that would not be very
profitable for the Latin American countries, for President Evo Morales, and other
presidents of Latin America to resort to some sanctions as a response to the
situation. The positive thing about Latin America is that they have always respected
international law. Since the very beginning of their independent existence, they
decided their mutual problems on the basis of international law, mostly, mostly, of
course. They introduced many norms and rules in the general international law by
their proper initiative. So I suppose it would be better for them to continue so, so
they could give some hope, maybe, yes, maybe some hope that international
relations could return to this sphere of law, to the lawful treatment. If not so, I dont
see any promise for the world in general.
Executive Specific
Separation of Powers
International law destroys separation of powers and transfer lawmaking to a vague,
indeterminate process that is not subject to popular sovereignty key to national
security

Delahunty and Yoo 2k7 (Robert, professor of law at St. Thomas School of Law, and
John, professor of law at Berkeley School of Law and Visiting Scholar at American
Enterprise Institute, Executive Power v. International Law, Online,
http://works.bepress.com/cgi/viewcontent.cgi?article=1033&context=johnyoo)
Critics of the Bush administrations conduct of the war on terrorism and the wars in
Afghanistan and Iraq have made the claim that the President cannot order conduct
that is inconsistent with international law. Not only is the argument undertheorized,
it runs counter to the best reading of the constitutional text, structure, and the
history of American practice. A careful examination of the constitutional text, for
example, shows that international law that does not take the form of a treaty or
other authoritative adoption by the political branches will not enjoy supremacy
effect. If international law cannot claim the status of federal law, like the
Constitution, statutes, or treaties, it has no binding effect on the President through
the Take Care Clause. Allowing international law to limit the Presidents exercise of
his constitutional powers also runs counter to the constitutional structure, primarily
by undermining the traditional understanding of the allocation of the foreign affairs
power between the President and Congress. Raising customary international law to
the status of law binding on the President would transfer lawmaking authority to a
vague, indeterminate process that is not subject to popular sovereignty. Important
moments in American military and diplomatic history illustrates the precedence of
the Presidents constitutional authority over international law. The Civil War, the
World War II bombings of Japan, the Cuban Missile Crisis, and the Kosovo War, for
example, show that even if American wartime conduct may have been inconsistent
with, or at least stretched international law, no one has plausibly argued that these
presidential decisions violated the Constitution. Indeed, these moments suggest the
serious harm to American national security which might result if we were to read the
Constitution to impose international law as a constraint on legitimate exercises of
the Presidents Chief Executive and Commander-inChief powers. The better reading
of the Constitution is that it gives the political branches the discretion to make
decisions which protect vital American national security and foreign policy interests,
and that compliance with international law is one, but only one, policy consideration
to be taken into account by Presidents constitutionally charged with safeguarding
the nation.
In terms of executive power, compliance with international law distorts the
constitutional structure (this card also says Congress cannot enact statutes
interfering with the presidents commander-in-chief authority)
Delahunty and Yoo 2k7 (Robert, professor of law at St. Thomas School of Law, and
John, professor of law at Berkeley School of Law and Visiting Scholar at American
Enterprise Institute, Executive Power v. International Law, Online,
http://works.bepress.com/cgi/viewcontent.cgi?article=1033&context=johnyoo)
Requiring that Presidents obey customary international law in the exercise of their
commander-in-chief or chief executive authority would also distort constitutional
structure by raising the authority of international law above that of ordinary
statutes. Ordinary statutes cannot infringe on the Presidents valid constitutional
power; a statute, for example, could not forbid the President from exercising his
removal authority over an executive branch official. Similarly, Congress could not
enact statutes interfering with the Presidents commander-in-chief authority to

make tactical or strategic decisions in wartime. This restriction arises from the same
reasoning that forbids Congress from interfering with the Constitutions conferral of
the judicial power on the federal courts. 31 The Constitution is the highest form of
federal law, and its distribution of authority among the branches cannot be
overridden by statute, executive order, or judicial decision. If customary
international law can limit, as a matter of domestic law, what would otherwise be a
valid exercise of the commander-in-chief or chief executive power, it would have
greater force within our system than an act of Congress or a judicial decision.
International law harms US sovereignty and executive power and separation of
powers.
Delahunty and Yoo 2k7 (Robert, professor of law at St. Thomas School of Law, and
John, professor of law at Berkeley School of Law and Visiting Scholar at American
Enterprise Institute, Executive Power v. International Law, Online,
http://works.bepress.com/cgi/viewcontent.cgi?article=1033&context=johnyoo)
This theory of popular sovereignty has important implications with regard to
international law. The Framers were concerned that their agentsthe President,
Congress, or the federal courtswould make law inconsistent with the peoples
fundamental grant of authority in the Constitution. Hence, they decided to rely on a
written Constitution to police their agents. They held this concern even though their
agents would be chosen through regular election or appointment by constitutional
methods, and thus would be accountable to the people. In a structural sense, the
written Constitution serves as an ultimate safeguard should the regular political
process fail to control government officials from acting against the peoples wishes.
The principal-agent problem that worried the Framers would have been
compounded if there were a possibility that international law, which is created
outside the American political system, automatically was part of the Law of the
Land. Other scholars have identified a number of other structural problems that
arise if customary international law is considered federal law binding on the
President. 39 Giving customary international law the effect of federal law
undermines the treaty power and the doctrine of non-self-execution. Even if the
United States refused to sign a multilateral treaty, or signed one with the
understanding that it was non-self-executing, if enough nations joined the treaty
would conceivably assume the status of customary international law, and thus
become federal law without the assent of the President or Senate. Raising
customary international law to the level of federal law would run counter to Erie R.R.
Co. v. Tompkins 40 by reintroducing a general common law enforceable by the
federal courts. Under Swift v. Tyson, customary international law formed part of the
general common law applied by federal courts, but was not considered to be law of
the United States for federal question jurisdiction.41 Eriereplaced the Swift
framework in favor of specialized federal common law in limited areas which
amount to true federal law for jurisdictional purposes. If customary international law
was to remain true federal law, binding on the President, it would preempt state law
without undergoing the regular lawmaking process that gives the states an
opportunity to influence through Senate participation. Formally considering
international law to be federal law could interfere with the separation of powers by
preventing the President from conducting foreign relations effectively as the sole
organ of the United States. A President may wish to violate international law in

order to create a new rule of customary international law, as President Reagan did
when he unilaterally extended American maritime boundaries. 42 A President,
acting on behalf of the United States, may disagree with the majority of other
nations that a new rule of customary international law should come into being.
Considering customary international law to be federal law would preclude the
President from engaging in these courses of action, even though under the
Constitution, as interpreted by the Supreme Court, he plays the leading diplomatic
role on behalf of the United States.
Nuke war
Redish 1991 Martin H., Northwestern Law (Professor Of Law And Public Policy,
Northwestern University), and Elizabeth J. Cisar, Law Clerk to United States Court of
Appeals, Seventh Circuit, Duke Law Journal, December, 1991, 41 Duke L.J. 449, p.
472-474
In any event, the political history of which the Framers were aware tends to confirm
that quite often concentration of political power ultimately leads to the loss of
liberty. Indeed, if we have begun to take the value of separation of powers for
granted, we need only look to modern American history to remind ourselves about
both the general vulnerability of representative government, and the direct
correlation between the concentration of political power and the threat to individual
liberty. The widespread violations of individual rights that took place when President
Lincoln assumed an inordinate level of power, for example, are well documented.
Arguably as egregious were the threats to basic freedoms that arose during the
Nixon administration, when the power of the executive branch reached what are
widely deemed to have been intolerable levels. Although in neither instance did the
executive's usurpations of power ultimately degenerate into complete and
irreversible tyranny, the reason for that may well have been the resilience of our
political traditions, among the most important of which is separation of powers
itself. In any event, it would be political folly to be overly smug about the security of
either representative government or individual liberty. Although it would be all but
impossible to create an empirical proof to demonstrate that our constitutional
tradition of separation of powers has been an essential catalyst in the avoidance of
tyranny, common sense should tell us that the simultaneous division of power and
the creation of interbranch checking play important roles toward that end. To
underscore the point, one need imagine only a limited modification of the actual
scenario surrounding the recent Persian Gulf War. In actuality, the war was an
extremely popular endeavor, thought by many to be a politically and morally
justified exercise. But imagine a situation in which a President, concerned about his
failure to resolve significant social and economic problems at home, has callously
decided to engage the nation in war, simply to defer public attention from his
domestic failures. To be sure, the President was presumably elected by a majority of
the electorate, and may have to stand for reelection in the future. However, at this
particular point in time, but for the system established by separation of powers, his
authority as Commander in Chief to engage the nation in war would be effectively
dictatorial. Because the Constitution reserves to the arguably even more
representative and accountable Congress the authority to declare war, the
Constitution has attempted to prevent such misuses of power by the executive. It
remains unproven whether any governmental structure other than one based on a
system of separation of powers could avoid such harmful results. In summary, no

defender of separation of powers can prove with certitude that, but for the
existence of separation of powers, tyranny would be the inevitable outcome. But the
question is whether we wish to take that risk, given the obvious severity of the harm
that might result. Given both the relatively limited cost imposed by use of
separation of powers and the great severity of the harm sought to be avoided, one
should not demand a great showing of the likelihood that the feared harm would
result. For just as in the case of the threat of nuclear war, no one wants to be forced
into the position of saying, "I told you so."
Also harms the ability of the president in the foreign affairs area they can choose
whether to make or break international agreements
Delahunty and Yoo 2k7 (Robert, professor of law at St. Thomas School of Law, and
John, professor of law at Berkeley School of Law and Visiting Scholar at American
Enterprise Institute, Executive Power v. International Law, Online,
http://works.bepress.com/cgi/viewcontent.cgi?article=1033&context=johnyoo)
Giving customary international law a limiting effect on presidential power would also
create a strange deformation in the Constitutions allocation of the foreign affairs
power. Under current practice, the Constitution is understood as granting the bulk of
the foreign affairs power to the President. According to Supreme Court opinions, the
President is the sole organ 32 of the nation in its diplomatic relations, and he
exercises broad powers to set foreign policy, to protect the national security, and to
make or break international agreements. Critics of presidential power would
preclude the President in these activities from violating international law. At the
same time, however, it is relatively settled that Congress can violate international
law by statutefor some reason, supporters of customary international law as a
restraint on presidential power are willing to abide by this aspect of The Paquete
Habana. This legal interpretation would give Congress the authority to violate
international law while denying that authority to the President, even though the
President is thought to exercise the bulk of the nations foreign affairs power.
Misc
Also harms the ability of the president in the foreign affairs area they can choose
whether to make or break international agreements
Delahunty and Yoo 2k7 (Robert, professor of law at St. Thomas School of Law, and
John, professor of law at Berkeley School of Law and Visiting Scholar at American
Enterprise Institute, Executive Power v. International Law, Online,
http://works.bepress.com/cgi/viewcontent.cgi?article=1033&context=johnyoo)
Giving customary international law a limiting effect on presidential power would also
create a strange deformation in the Constitutions allocation of the foreign affairs
power. Under current practice, the Constitution is understood as granting the bulk of
the foreign affairs power to the President. According to Supreme Court opinions, the
President is the sole organ 32 of the nation in its diplomatic relations, and he
exercises broad powers to set foreign policy, to protect the national security, and to
make or break international agreements. Critics of presidential power would
preclude the President in these activities from violating international law. At the
same time, however, it is relatively settled that Congress can violate international
law by statutefor some reason, supporters of customary international law as a
restraint on presidential power are willing to abide by this aspect of The Paquete

Habana. This legal interpretation would give Congress the authority to violate
international law while denying that authority to the President, even though the
President is thought to exercise the bulk of the nations foreign affairs power.
Doesnt Work
There is no imperative to comply this is especially true in terms of executive
power
Delahunty and Yoo 2k7 (Robert, professor of law at St. Thomas School of Law, and
John, professor of law at Berkeley School of Law and Visiting Scholar at American
Enterprise Institute, Executive Power v. International Law, Online,
http://works.bepress.com/cgi/viewcontent.cgi?article=1033&context=johnyoo)
Surprisingly, little academic literature critically assesses the contention that the
President is bound by customary international law. 13 Sustained academic attention
is long overdue, because such a conclusion would have revolutionary implications
for the Presidents exercise of his constitutional powers, and perhaps significant
limitations on the war on terrorism. This Article advances the position that the
Constitution does not require the President to obey international law. There is no
compelling reason in the Constitutional text, structure, or the history of its
ratification to read the Presidents authority as chief executive and commander-inchief as circumscribed by international law. There are some statements during the
early Republic that suggest some Framers believed, after the Constitutions
adoption, that federal law included international law, but it appears that the
significance of this history has been over-interpreted. Practice, when more
completely read, seems to stand for the opposite proposition: that the Constitution
does not forbid Presidents from taking action under their constitutional powers that
run counter to rules of international law.
International laws fail to restrain executive war powers anyways
Delahunty and Yoo 2k7 (Robert, professor of law at St. Thomas School of Law, and
John, professor of law at Berkeley School of Law and Visiting Scholar at American
Enterprise Institute, Executive Power v. International Law, Online,
http://works.bepress.com/cgi/viewcontent.cgi?article=1033&context=johnyoo)
Nonetheless, the Executive has also, on occasion, unilaterally ordered or authorized
actions that have placed the United States in breach of international law, including
the law of war. Characteristically, Presidents have taken such actions on the basis of
their constitutional authorities to safeguard national security, protect the lives of
citizens, interpret and execute treaties, and manage the foreign affairs of the United
States and the disposition of its Armed Forces. The Presidents power to disregard
international law is at its apogee when the survival of the nation is at stake: as
former Secretary of State Dean Acheson said with regard to the legality of the
United States 1962 naval blockade during the Cuban Missile Crisis, law simply does
not deal with such questions of ultimate power . . . . No law can destroy the state
creating the law. The survival of states is not a matter of law. 62 But even when the
stakes are lower, practice attests that the Executive is not constitutionally
constrained to follow international law.
Even if you win international law is good, the malleability of i-law allows presidents
to twist it for their own agenda especially true for war powers/agenda

Delahunty and Yoo 2k7 (Robert, professor of law at St. Thomas School of Law, and
John, professor of law at Berkeley School of Law and Visiting Scholar at American
Enterprise Institute, Executive Power v. International Law, Online,
http://works.bepress.com/cgi/viewcontent.cgi?article=1033&context=johnyoo)
First, Presidents are understandably reluctant to acknowledge publicly that they are
violating international law. Little is gained by such an admission, and elite reaction,
both at home and abroad, would surely be hostile. In those circumstances,
Presidents or their advisers will instead cast about for arguments of greater or less
plausibility in an effort to show that their actions satisfy international legal norms.
Given the malleability of much international law, a most pliant code [that] nations
have always bent to their purposes, 63 such arguments are not hard to find. For
example, in the period between the outbreak of the Second World War and the
United States entry into the War after Pearl Harbor, President Franklin Roosevelt
concluded that it was essential to the United States security to provide Great
Britain, either directly or through subterfuges, with sufficient material aid to enable
it to avert an Axis victory in Europe. Yet as a neutral power rather than a belligerent,
the United States was constrained in what it could lawfully do to assist Britain.
Article 6 of the 1907 Convention Concerning the Rights and Duties of Neutral
Powers in Naval War(HagueXIII) 64 (to which the United States was a party) 65
provided that [t]he supply, in any manner, directly or indirectly, by a neutral Power
to a belligerent Power, of war-ships, ammunition, or war material of any kind
whatever, is forbidden. 66 Yet in his address to Congress on September 21, 1939,
in which he urged the amendment of the Neutrality Act of 1935, Roosevelt argued
that underthe age-old doctrines of international law, the United States would be
free to sell to belligerent nations such goods and products of all kinds as the
belligerent nations . . . were able to buy from us or sell to us. 67 Subsequently,
Roosevelt decided in August, 1940 to sell several U.S. Navy destroyers to Great
Britain directly, in exchange for certain air and naval bases in Britains colonies. One
legal scholar who has examined this transaction carefully has found that even the
Presidents legal advisers believed that it violated both international law and
domestic legislation implementing it. 68 Second, the law of war itself may have
ambiguous or indeterminate standards, or indeed no applicable standards at all.
Several explanations may be offered for this. To begin with, before the creation of
the Permanent Court of International Justice (PCIJ) (the predecessor to the present
International Court of Justice (ICJ)), questions of international law were not
adjudicated before standing international judicial bodies, but instead tended to be
resolved in an ad hoc manner by national courts, international arbitration panels,
the agreement of states or, in the case of the law of war, national or international
military commissions. 69 Further, because the ICJ lacks compulsory jurisdiction,70 it
is often unavailable to adjudicate questions of the legality of the use of force. 71
Absent binding judicial rulings, the interpretation of the international law lacks
definitiveness and certainty. Apart from that, developments in weaponry and
military technique (such as submarines, airplanes, and lasers) have often outpaced
the ability of States to frame appropriate international regulatory regimes. Finally,
given the sometimes crippling faults to which it is vulnerable, including the great
diversity of State views and practices and the inherently subjective weighing of
the evidence for them, customary international law in particular is often uncertain
and contentious. 72 Thus, Presidents have often ordered or authorized actions
whose legality under the law of war was or remains arguable. We offer four

examples of such debatable violations from different periods of the countrys


history: (1) the policy of the Union Army, sanctioned by President Abraham Lincoln,
of deliberately attacking and destroying civilian objectives, for the primary purpose
of demoralizing the enemys civilian population; (2) the policy of attacking enemy
civilian targets from the air during the Second World War, especially densely
populated civilian centers in Japan; (3) President Dwight D. Eisenhowers program of
covert aerial surveillance of the Soviet Union, and (4) the so-called Cuban
quarantine under President John F. Kennedy
History proves international law doesnt work
Delahunty and Yoo 2k7 (Robert, professor of law at St. Thomas School of Law, and
John, professor of law at Berkeley School of Law and Visiting Scholar at American
Enterprise Institute, Executive Power v. International Law, Online,
http://works.bepress.com/cgi/viewcontent.cgi?article=1033&context=johnyoo)
The Kosovo Air War launched by NATO against Serbia in 1999 provides, we think,
the clearest recent case of a violation of contemporary jus ad bellum based on the
Presidents claim of constitutional authority. 114 Article 2(4) of the United Na tions
Charter unequivocally prohibits the use or the threat of force in international
relations. The ICJ, in its 1986 Nicaragua merits decision, affirmed that this
prohibition also forms part of customary international law, and indeed characterized
it as having the character of jus cogens. 115 Only two exceptions from this
uncompromising legal norm are recognized in the Charter: self-defense in response
to an armed attack (Art. 51) and military action taken or authorized by the Security
Council pursuant to its powers under Chapter VII of the Charter (Arts. 39-41). 116
NATOs Air War against Serbia did not come within either of those two exceptions:
it failed to obtain the authorization of the Security Council and the circumstances
would not sustain claims of self-defense. 117 It follows directly that it was in breach
of the Charter. 118 True, some legal scholars have sought to defend the legality of
the NATO Air War, usually on the ground that a novel customary international law
norm permitting humanitarian intervention is in the process of supplanting the
Charters restric tions. 119 Apart from other substantial flaws, 120 this argument
suffers from the debilitating difficulty that the United States, the central actor in
NATOs Kosovo campaign, steadfastly refused to defend the intervention on that
basis. 121 Indeed, even after Serbia sought to sue NATOs members in the
International Court of Justice over the legality of NATOs bombing, 122 the
respondent states were reluctant to offer a legal justification of the bombing.
Rather, the focus of the responses has been on challenging the jurisdiction of the
Court. 123 Thus, even assuming (controversially) that a customary norm could
supplant the Charters explicit provisions on the use of force, 124 a necessary
element in the formation of such customthe requirement of opinio juris, or a sense
that the practice at issue conforms to a legal obligation 125 is lacking
Hurts US Interests
International law doesnt work and compliance hurts US interests too
decentralized
Encyclopedia of the New American Nation 2k13 (Americanforeignpolicy.com,
International Law Constraints on US Foreign Policy, Online,
http://www.americanforeignrelations.com/E-N/International-Law-Constraints-on-u-sforeign-policy.html)

The international system imposes structural constraints on the ability of American


decision makers to create legal rules favorable to U.S. national interests. The
enduring feature of the international system is its decentralization. There are no
central institutions to legislate standards or to ensure their enforcement. Nor does a
common political culture exist in which to anchor an agreed-upon body of norms for
governing the behavior of states. The upshot for U.S. foreign policy is a highly
competitive international system in which there is constant expectation of violence
and conflict and little expectation that either international law or appeals to
normative principles will significantly influence the resolution of contentious issues.
International Law is a self-help system the US, as the lone super power, can
employ its resources and policies to help push its agenda
Encyclopedia of the New American Nation 2k13 (Americanforeignpolicy.com,
International Law Constraints on US Foreign Policy, Online,
http://www.americanforeignrelations.com/E-N/International-Law-Constraints-on-u-sforeign-policy.html)
A second structural constraint flows from the fact that the world system is a selfhelp system. The United States, like all governments, ultimately relies upon itself to
accomplish foreign policy objectives. To do otherwise risks being manipulated by
other governments. Similarly, the self-help principle impresses upon U.S. officials
the need to bring policy goals and national resources into balance. International law
strives to facilitate that. The pursuit of excessive goals, without adequate resources
to attain them, can enervate a government and diminish its ability to respond
effectively to future challenges. For the United States the tragedy of the Vietnam
War remains a constant reminder of that truth. A third structural constraint rests in
the hierarchical character of the international system. The equality of states implicit
in the legal principle of sovereignty is a political fiction. The notion of sovereignty
dates back to the Treaty of Westphalia in 1648 and the origins of modern states. As
a political construct, the sovereignty principle affirms that no legal authority exists
above the state except that which the government voluntarily accepts. The reality
of twenty-first-century international relations is markedly different. Sovereignty
remains more a matter of degree than an absolute condition. States are inherently
unequal, and the resources they use to exercise power in their international
dealings are distributed unequally around the world. As the lone super-power state
in the early twenty-first century, the United States has access to more resources,
possesses greater capabilities, and can exercise greater power than any other state.
In this context international law defines permissible ways and means that the U.S.
government may employ those resources and capabilities in its foreign relations.
Compliance with international law allows the executive branch to twist those laws
into implementing new regulations in order to comply with international law
Kopel 4/17/2013 (David, research director of the Independence Institute and an
adjunct professor of law at the University of Denver, The US Is Right to Be
Skeptical, http://www.nytimes.com/roomfordebate/2012/12/06/have-treaties-goneout-of-style/the-us-is-right-to-be-skeptical-of-un-treaties)

Its true that a U.N. committee cannot force Congress to enact new statutes. But
executive branch officials can use the U.N. committees orders as a pretext to
create new regulations implementing a treaty. Aggressive judges can rule that a
treaty (which pursuant to the U.S. Constitution is the supreme law of the land)
means exactly what the U.N. says it does.
By US Constitution, the government can choose whether or not they want to comply
Delahunty and Yoo 2k7 (Robert, professor of law at St. Thomas School of Law, and
John, professor of law at Berkeley School of Law and Visiting Scholar at American
Enterprise Institute, Executive Power v. International Law, Online,
http://works.bepress.com/cgi/viewcontent.cgi?article=1033&context=johnyoo)
Fourth, the Supremacy Clause uses the phrase made in Pursuance thereof. This
language requires that any laws of the United States entitled to supremacy must
undergo the procedures set out in the Constitution. This language even suggests
that the laws made by Congress must comport with the Constitution, not just as a
procedural but as a substantive matter. 21 At a minimum, those who argue over the
legitimacy of judicial review agree that made in Pursuance thereof requires that
all Laws of the United States undergo the procedural requirements of bicameralism
and presentment. International law is not made pursuant to the Constitution, but by
the practice and agreement of states. It does not undergo the same bicameralism
and presentment that apply to the Laws of the United States. 22 Of course, if
Congress were to choose to incorporate international law through a statute, the law
would then satisfy bicameralism and presentment and become a Law of the United
States entitled to supremacy.
***DEMOCRACY Turn
1nc democracy turn
Turn democracy
Reliance on i-law wrecks global democracy and turns their impacts
Rivkin and Casey 2000 David B. Rivkin, Jr., American Enterprise Institute; and Lee A.
Casey, Adjunct Professor of Law, George Mason School of Law, 2000/2001 WINTER,
The National Interest
Although the Clinton administration has been generally supportive of the new
international law, its key tenets create problems of the highest order for the United
States. First, as a philosophical matter, any attack upon the principle of sovereignty
threatens the very foundation of American democracy. Sovereignty is the necessary
predicate of self-government. As Vattel wrote, a "sovereign State" is one that
"governs itself, under what form so ever." Any limitation on sovereignty as an
organizing principle, any "cession", to paraphrase Secretary Albright, is an
abdication of the right of the citizens of the United States to be governed solely in
accordance with their Constitution, and by individuals whom they have elected and
who are ultimately accountable to them. To the extent that international law allows
supranational, or extra-national, institutions to determine whether the actions of the
United States are lawful, ultimate authority will no longer be vested in the American
people, but in these institutions. Thus, for all of its humanitarian and democracy-

building rhetoric, the new international law is profoundly undemocratic at its core.
Indeed, with its lack of accountability and disdain for democratic practice (as
opposed to rhetoric), it arguably poses the greatest challenge to Francis Fukuyama's
anticipated global triumph of liberal democracy. If the aspirations of today's
international law proponents were ever to prevail, the resulting international system
would not remotely resemble a community of democratic nations.
This causes extinction
Diamond 95 Larry, Senior Research Fellow, Hoover Institution, Co-Director,
International Forum for Democratic Studies, Co-Editor, Journal of Democracy,
October 1995, http://www.carnegie.org//sub/pubs/deadly/dia95_01.html
OTHER THREATS This hardly exhausts the lists of threats to our security and wellbeing 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. LESSONS OF THE TWENTIETH CENTURY The
experience of this century offers important lessons. Countries that govern
themselves in a truly democratic fashion do not go to war with one another. They do
not aggress against their neighbors to aggrandize themselves or glorify their
leaders. Democratic governments do not ethnically "cleanse" their own populations,
and they are much less likely to face ethnic insurgency. Democracies do not sponsor
terrorism against one another. They do not build weapons of mass destruction to
use on or to threaten one another. Democratic countries form more reliable, open,
and enduring trading partnerships. In the long run they offer better and more stable
climates for investment. They are more environmentally responsible because they
must answer to their own citizens, who organize to protest the destruction of their
environments. They are better bets to honor international treaties since they value
legal obligations and because their openness makes it much more difficult to breach
agreements in secret. Precisely because, within their own borders, they respect
competition, civil liberties, property rights, and the rule of law, democracies are the
only reliable foundation on which a new world order of international security and
prosperity can be built.
2nc democracy turn overview
Extend our democracy turnjudicial incorporation of international law destroys
democratic accountability and wrecks the credibility of the US model by using
foreign bases for domestic decisionsdemocratic control is powered by the ability
to create or control how laws are created which the aff clearly destroys
This causes extinction, thats Diamondkey to stopping nuclear and biological
proliferation, environmental collapse, and war in general, the sheer breadth of
scenarios outweighs

Turns every other i-law benefit


Wouters et al 2004 Jan Wouters, Professor of International Law Leuven University,
and Bart De Meester, Scientific collaborator, Institute for International Law, Leuven
University, and Cedric Ryngaert, Researcher Fund, Institute for International Law,
Leuven University Jan-June 2004, Interdisciplinary Research Group on International
Agreements and Development,
http://www.law.kuleuven.ac.be/iir/eng/wp/WPLirg5.pdf
Influential writings have long called for a democratic society as a basis for peaceful
international relations. In 1795, Immanuel KANT envisioned the idea of a democratic
peace: the republican polity would temper the demand for war by the States and
make eternal peace on earth possible. In 1917, during World War I, the link was
made with international law. At the annual conference of the American Society of
International Law Elihu ROOT, president of the Society, gave a speech entitled The
effect of democracy on international law, in which he stated that democracy was an
existential condition for international law. Democracy was supposed to be at its
heart. ROOT claimed that historical experience had proven the failure of the
Westphalian system based on sovereign equality. The peace treaties that followed
the Westphalian Peace (1648) were systematically broken and could not avoid the
large European wars of the modern age. According to ROOT, absolute national
sovereignty could never be the basis on which an international legal system could
be maintained and enforced. On the contrary, he concluded - somewhat
optimistically - that democratically elected governments steadily dominated the
international arena. ROOT saw in this breakthrough of democracy a remedy against
the warlike claims of nations. Familiarity with the normative framework of the
domestic democracy would enable States to honour international agreements.
Autocracies that deny the rule of law at the internal level, on the other hand, will
also not be eager to comply with their agreements at the international level.
Presumptively outweighsdemocracy accesses and solves every terminal impact
Beng 2k (Phar Kim, Senior Correspondent @ Straits Times + consultant to Waseda
University in Japan on Southeast Asian matters, Straits Times, 1/14, lexis)
The spread of democracy can enhance US national interests in four major ways.
Firstly, by encouraging other nations to democratise, the political conditions of
otherwise repressive republics would improve.
The pressure and attraction for others to enter America illegally would thus be
reduced significantly.
Secondly, as more countries democratise, that is by instituting multi-party electoral
competition, the prospect of governments launching wars against one another
would decline exponentially.
This is because the decision to go to war would not be made by any one man or
party at the helm, but would be subject to the purview and discretion of the public.
Given the greater degree of public accountability, it would be correspondingly
difficult for any government to justify the launching of an open war against the US
or other nations.
Democratic peace would, therefore, prevail across the world, much to the US'
interests.
Thirdly, democracy is also conducive to economic growth.

A World Survey of Economic Freedom for 1995 to 1996, found that the countries
rated "free" generated 81 per cent of the world's output even though they had only
17 per cent of the world's population.
In another study by The Heritage Foundation, it was found that countries classified
as "free" had annual 1980-1993 real per capita Gross Domestic Product (GDP)
growth rates of 2.88 per cent.
In "mostly-free" countries, the rate was 0.97 per cent; in "mostly-not-free" ones,
minus 0.32 per cent; and in "repressed" countries, minus 1.44 per cent.
Fourthly, the US should spread democracy because the citizens of democracies do
not suffer from famines.
Most of the countries that have experienced severe famines in recent decades have
been among the world's least democratic: the Soviet Union (Ukraine in the early
1930s), China, Ethiopia, Somalia, Cambodia and Sudan.
Throughout history, famines have occurred in many different types of countries, but
never in a democracy.
Democracies do not experience famines for reasons of greater transparency and
accountability.
To the extent that the incidence of famine continues to fall, massive cross-border
human emigration would cease, too.
Global and regional security would thus be enhanced, by which the US would no
doubt stand to gain due to its extensive political and economic interests abroad.
2nc kills democracy
Judicial incorporation of international law destroys democratic accountability and
wrecks the credibility of the US model
Kochan, 06 (Donald, professor of law at Chapman University, 29 Fordham Int'l L.J.
507, SOVEREIGNTY AND THE AMERICAN COURTS AT THE COCKTAIL PARTY OF
INTERNATIONAL LAW: THE DANGERS OF DOMESTIC JUDICIAL INVOCATIONS OF
FOREIGN AND INTERNATIONAL LAW, February, lexis)
Finally, in terms of activism, reliance on extraterritorial "law" is a run around
Congress's ability, prerogative, and responsibility to define U.S. law. 161 Indeed,
some cases have relied on certain international or foreign "laws" despite direct
evidence of Congress's intent that such documents not create legal obligations or
liabilities and are not drafted as "law." 162 When courts have discretion to look
beyond the United States for the foundations of their decisions, serious dangers
arise to the rule of law [*546] and the sanctity of the concept that the law is known
and ascertainable by persons subject to it. Congress has failed to ratify the vast
majority of human rights treaties sponsored by the United Nations. 163 This record
indicates a general unwillingness on the part of the United States to recognize
broad principles of human rights as controlling legal authority. 164 For the courts to
ignore this reality and insist that these documents form a foundation for
ascertaining the applicable law in the United States demonstrates disdain for
recognized lawmaking processes. 165
D. Democracy Concerns
Related to sovereignty and the rule of law are democracy concerns. Lawmaking
power, in democracies, lies with the lawmakers as selected and directed by the
people. 166 Judges do not fit that role in the United States. 167 Many scholars have
[*547] noted the tendency of international law to erode sovereignty, to the
detriment of democratic lawmaking. 168 Thus, resort to international or foreign laws

is uniquely un-American and un-democratic. It runs completely afoul of the


observations by Alexis de Tocqueville regarding the primacy of the "sovereignty of
the people" in the United States 169:
At the present day the principle of the sovereignty of the people has acquired in the
United States all the practical development that the imagination can conceive. It is
unencumbered by those fictions that are thrown over it in other countries, and it
appears in every possible form, according to the exigency of the occasion.
Sometimes the laws are made by the people in a body, as at Athens; and
sometimes its representatives, chosen by universal suffrage, transact business in its
name and under its immediate supervision. 170
Tocqueville continues to describe how U.S. democracy looks internally for the source
of its laws - not outside, as some today advocate. He articulates positively that laws
foreign to the U.S. system are non-controlling:
In some countries a power exists which, though it is in a degree foreign to the social
body, directs it, and forces it to pursue a certain track. ... But nothing of the kind is
to be seen in the United States; there society governs itself for itself. All power
centers in its bosom, and scarcely an individual is to be met with who would venture
to conceive or, still less, to express the idea of seeking it elsewhere. The nation
participates in the making of its laws by the choice of its legislators, and in the
execution of them by the choice of the agents of the executive government; it may
almost be said to govern itself, so feeble and restricted is the share left to the
[*548] administration, so little do the authorities forget their popular origin and the
power from which they emanate. The people reign in the American political
world ... . They are the cause and the aim of all things; everything comes from
them, and everything is absorbed in them. 171
These historical references underscore the idea that democracy demands that the
people be the masters of their own domain. Judicial injection of foreign and
supposed international law violates this principle and denigrates the reverence
many have had for the uniqueness of the U.S. system. Federal judges are largely
unaccountable to democratic controls. 172 Thus, the allowance for judges to adopt
or import foreign laws presents them with un-democratic lawmaking power. The
foundation of democratic governance lies in the people's ability, responsibility, and
power to create law or control the mechanisms by which law is created. 173
Democratic control is lost when sources outside the domestic political processes
serve as the bases of decision. Kenneth Anderson accurately opines that the
government in the United States receives its consent from the people and should be
constrained by their expressed judgment as to what laws should and should not
exist:
Without fidelity to the principle of democratic, self-governing provenance over
substantive content in the utilization of constitutional adjudicatory materials, a
court becomes merely a purveyor of its own view of best policy. Yet this is not solely
an issue of an unconstrained Court. It is, more importantly, a violation of the
compact between government and governed, free people who choose to give up a
measure of their liberties [*549] in return for the benefits of government - a
particular pact with a particular community, in which the materials used in the
countermajoritarian act of judging them nonetheless have, in some fashion, even
indirectly, democratic provenance and consent. 174
There is a genuine risk of democratic collapsei-law strikes at the core of
democracy

Rivkin 2000, former DOJ director, 2Kpartner in the law firm of Baker & Hostetler,
LLP, and was Deputy Director, Office of Policy Development, U.S. Department of
Justice, and served in the White House Counsels Office. (David and Lee A. Casey
served in the Office of Legal Counsel in the U.S. Department of Justice, The Rocky
Shoals of International Law, Winter
2000, http://findarticles.com/p/articles/mi_m2751/is_2000_Winter/ai_68547471/,
AMiles)
With the end of the Cold War things have changed. Activists,
scholars, international institutions like the United Nations, and even a number
of governments (including, episodically at least, the Clinton administration) have
redoubled their efforts, championing a new international legal order by which states
are subject to the will of the elusive "international community" at large. Nongovernmental organizations (NGOs) have been the leading force in this process.
They have been particularly active in
promoting the adoption of international treaties and conventions,
including the Rome treaty (which established the new
permanent International Criminal Court, or ICC), the Land Mines
Convention, the Chemical Weapons Convention and the Kyoto Protocol.
NGOs have also worked to steer and
hasten the evolution of customary international law, an area where traditionally only
state practice gave rise, at a rather glacial pace, to the emergence of legal norms.
Now customs seem to be spawned overnight, through nothing more tangible
than the convening of scholarly conferences or the publication of papers.
Significantly, it is now alleged that states do not have any choice in deciding
whether to comply with these newly minted international law norms. The NGOs
have been arguing that they are able to represent public aspirations at
both the national and global levels--that is, to speak for the (nonexistent) "global
civil society"--better than any government. While these claims are quite obviously
false--NGOs are not elected, not accountable to any body politic, and are not
inherently better or worse than other special interests--such groups have had
considerable success in shaping the new international law. These groups were
omnipresent during the 1998 Rome Conference, which adopted the ICC treaty, and
actually achieved mention as vessels of the "public conscience" in the Land Mines
Convention.
The substantive body of the new international law that these groups have
sponsored has a number of specific manifestations, not all of them entirely
consistent with each other. These include claims that heretofore purely domestic
public policy issues--such as the death penalty, abortion, gay rights, environmental
protection, and the relationship between parents and children--must be resolved in
accordance with "prevailing" international standards; that, with the possible
exception of repelling armed attack, only the United Nations Security Council can
authorize the use of military force; that the "international community" is entitled to
intervene under a variety of circumstances in the internal affairs of states; and
that the actions of individual civilian and military officials of states fall
under the purview of international criminal jurisdiction.
At the core of these efforts is a frontal assault on sovereignty as the organizing
principle of the international system. Proponents of the new order are not shy about
saying so. Among the new international law's strongest supporters is
Secretary of State Madeleine Albright, who has plainly stated,

Great nations who understand the importance of sovereignty at various times cede
various portions of it in order to achieve some better good for their country. We are
looking at how the nation-state functions in a totally different way than people did
at the beginning of this century.(n3)
The Threat to the United States
ALTHOUGH THE Clinton administration has been generally
supportive of the new international law, its key tenets create problems of the
highest order for the United States. First, as a philosophical matter, any attack
upon the principle of sovereignty threatens the very foundation of American
democracy. Sovereignty is the necessary predicate of self-government. As Vat-tel
wrote, a "sovereign State" is one that "governs itself, under what form so ever." Any
limitation on sovereignty as an organizing principle, any "cession", to paraphrase
Secretary Albright, is an abdication of the right of the citizens of the United States
to be governed solely in accordance with their Constitution, and by individuals
whom they have elected and who are ultimately accountable to them. To the extent
that international law allows supranational, or extra-national, institutions to
determine whether the actions of the United States are lawful, ultimate authority
will no longer be vested in the American people, but in these institutions.
Thus, for all of its humanitarian and democracy-building
rhetoric, the new international law is profoundly undemocratic at its core. Indeed,
with its lack of accountability and disdain for democratic practice (as opposed to
rhetoric), it arguably poses the greatest challenge to Francis Fukuyama's anticipated
global triumph of liberal democracy.
If the aspirations of today's international law proponents were ever to prevail,
the resulting international system would not remotely resemble a
community of democratic nations.
xt wrecks us model
Incorporating international law kills US democratic model
McGinnis 06, law prof, 6Professor of Law at Northwestern (John O, Harvard Journal
of Law & Public Policy, The Comparative Disadvantage of Customary International
Law, HeinOnline)
Finally, one might argue that a nation should follow raw international law to take
into account the interests of foreign nationals. But it seems almost axiomatic that
the touchstone of the American regime should be the welfare of Americans. But
even assuming that the United States should take a more encompassing view of
human welfare, American law may actually be better than international law at
protecting the interests of citizens around the world.
First, not all of the activities purportedly covered by modern customary international
law generate substantial negative spillovers from one nation to another. For
example, most of the American government's decisions about human rights directly
affect only those who have subjected themselves to the jurisdiction of the United
States. Yet, the United States' power to determine its own law in this regard has
benefits for foreigners. One benefit is that some individuals may choose to move to
America, as millions do each decade, to take advantage of its particular bundle of
rights and responsibilities. Moreover, all [*14] democratic nations may evaluate
American rights and embrace as many as are good for them. If the United States
had followed the prevailing norms at the time of the Declaration of Independence, it
would never have declared the truths about the nature of man and government that

have become the foundations of democratic processes around the world. By forcing
a convergence of domestic law to some international standard, customary
international law may preclude similar gifts that American exceptionalism might still
deliver to the world.
US democratic model is better than i-lawits key to global democracy, trade and
stability
McGinnis 07, law prof, 7Stanford Clinton, Sr. Professor of Law, Northwestern
University School of Law (John and Ilya Somin-assistant law prof, George Mason,
Should International Law Be Part of Our Law?, 59 Stan. L. Rev.
1175, http://lawreview.stanford.edu/content/vol59/issue5/mcginnis.pdf, AMiles)
In addition to having a strong incentive to contribute to the production of
international public goods, the United States also often has an interest in providing
private goods for foreign citizens. As a result of its role as the biggest player in the
world economy, the United States often has both the interest and the means to
extend the peace and prosperity of the world. n301 This part of our argument is the
most tentative one, since any nation's incentive to produce private benefits for
foreigners is necessarily smaller than its incentives to produce benefits for its own
citizens or international public goods that benefit many nations. By no means are
we arguing that the United States will always take foreign private goods into
account in the development of its domestic legal [*1244] rules. Nonetheless, we
suggest several reasons to believe that U.S. law is likely to be superior to raw
international law in this field.
First, the United States usually gains when other nations are prosperous. Its
exporters can sell goods to them, and its importers can obtain useful products and
production inputs. n302 As a result, it has an interest in keeping open the avenues
of trade that make other nations prosperous and in fostering sound commercial and
trade practices around the world. n303 By contrast, it is far from clear that the elites
who generate raw international law have as much interest in promoting
international trade. n304
The United States also has an interest in implanting democratic governments and
the rule of law overseas. Democratic government is more likely to be peaceable
government. Democracies both generally initiate fewer wars than
dictatorships n305 and nearly always refrain from attacking each
other. n306 Moreover, governments that respect the rule of law are more likely to
respect the property rights that American citizens will acquire by investing some of
the vast wealth of the United States abroad. n307 Although the United States does
not always promote democracy and the rule of law and will sometimes subordinate
this objective to other interests, it surely has a much stronger interest in expanding
the domain of democracy than do authoritarian states, international legal elites
(many of whom represent nondemocratic [*1245] governments), and international
institutions such as the United Nations (where nondemocratic governments have
great influence). n308
All of these private goods are in part the product of law. International trade depends
on the rules the United States adopts to open its borders to goods from other
nations. The spreading of democracy and rule of law institutions depends to some
degree on American decisions about aid and other foreign policy decisions and the
flexibility to carry them out. Better norms in this area mean a greater likelihood of
peace and prosperity.

In some cases, of course, the U.S. interest in furthering prosperity and the rule of
law abroad may be overwhelmed by concern about distributional consequences. For
instance, it may be the case that the United States would like, other things being
equal, to prevent pollution from harming other nations, since the prosperity of other
nations for which pollution is detrimental ultimately redounds to the benefit of the
United States. But other things are not equal if the costs of pollution control on the
United States are greater than these external benefits. And certainly sometimes
that will be the case.
But the question here is whether U.S. law is likely to be better than raw international
law on average. That can be the case even if in certain instances U.S. law imposes
more costs than benefits. And even in those instances, international law may well
be even worse than suboptimal American rules because the lack of democratic
participation and transparency allows special interests to have greater leverage on
the shape of international norms. Thus, because of its incentive structure, one may
well think that U.S. law is to be preferred to international law for private goods even
from the perspective of foreigners.
Incorporation of international law destroys democratic accountability
Kochan, 06 (Donald, professor of law at Chapman University, 29 Fordham Int'l L.J.
507, SOVEREIGNTY AND THE AMERICAN COURTS AT THE COCKTAIL PARTY OF
INTERNATIONAL LAW: THE DANGERS OF DOMESTIC JUDICIAL INVOCATIONS OF
FOREIGN AND INTERNATIONAL LAW, February, lexis)
A Nation has the right to make its own laws and to define the means by which those
laws are created and interpreted. 144 In the United States, laws are not created by
the judiciary, but instead, by collaboration between the elected branches.
"Sovereignty denotes independence. A sovereign [State] is one that acknowledges
no superior power over its own government." 145 Indeed, sovereignty was the basis
for the revolution and the independence of the United States. 146 Yet the idea of
sovereignty is under attack in today's society - in part by judges who rely on
extraterritorial authority. [*541] Some prominent authorities lead the fight against
its sanctity: "In the spring of 1994, Louis Henkin, then the president of the American
Society for International Law, urged that the word 'sovereignty' should be 'banished
from polite or educated society.'" 147 Judges who recognize this concept of
sovereignty clearly overstep their role in the United States when they resort to "law"
that has been developed outside the constitutional processes for law through U.S.
institutions. 148 As one author states:
The case against transnational law is sometimes made purely in terms of
sovereignty: giving force to transnational rules laid down by non-American decision
makers surrenders U.S. sovereignty. The reasoning appears self-evident: sovereignty
as a "final say" is a sine qua non of statehood, and it is indivisible. To the extent that
a state is subject to law made elsewhere, it has lost its sovereignty and, perhaps, in
some deep way, its right to call itself a "state." 149
It is primarily a matter of control. 150 A Nation should have the freedom to control
the development of its own laws. 151 The elected branches, which develop U.S. law,
lose that control if [*542] judges are able to exhort extraterritorial and extraconstitutional sources for the determination of legally applicable standards.
xt concentrates judicial power

International law increases the likelihood of judicial activismits on the decline in


domestic courts
McGinnis and Somin, 2004 (John, professor of law at Northwestern, and Ilya,
professor of law at George Mason, Against International Law a Part of Our
law,http://www.law.uchicago.edu/files/int-law/mcginnis-somin.pdf)
3. The Judiciary as a Cosmopolitan Restraint on Local Democracy. A final
explanation for the rise of raw international law may be the decline in the credibility
of sources previously relied upon for domestic judicial activism. It is frequently
observed that the Supreme Court in particular and the federal courts in general are
no longer in the vanguard of movements for social change. One of the
consequences of the waning enthusiasm for judicial activism has been to shrink the
domestic legal materials available to the Court to displace domestic democratic
decisionmaking. It simply is not as acceptable as it was in the Warren Court to base
decisions on the judges own notions of justice or on some contestable claims
about the world.
Thus, the use of raw international law offers a substitute for
former sources of judicial activism that have fallen into disuse. International law
provides a category of binding norms, not simply the stuff of moral intuitions.
Moreover, by its nature, it has universal claims and cannot be dismissed as some
parochial empirical study, as can some of the material on which the Warren Court
relied for its famous decisions changing society. And yet, as we will discuss below,
international law is popular with groups seeking social change because its content
is not strongly constrained by the domestic legal process. Its virtue is that it can be
influenced by those who may not be in good position to succeed in our domestic
process and yet provides a putatively legal standard to displace the results of that
process. As such, the rise of international law may be part of the rise of what has
been labeled jurocracy. The political scientist, Alan Hirschl, has suggested that
political and economic elites have reacted to the greater democracy of the modern
world by constructing more powerful and wide ranging role for the judiciary over
which they have substantial influence. The use of raw international law under this
conception would be an important category of this jurocracy.
Judicial expansion of international law concentrates power in the judiciary
Weisburd, 88 (Arther, professor of law at the University of North Carolina, 41 Vand.
L. Rev. 1205, The Executive Branch and International Law, November, lexis)
Judicial control of foreign policy is an obviously startling aspect of applying
customary international law to the Presidency, but the idea raises other questions
as well. Neither the Constitution nor any statute explicitly establishes any
presidential duty to adhere to customary international law. If customary
international law, nonetheless, is seen as binding on the President as a matter of
American law, it is necessary to determine precisely how customary international
law fits into the body of American law -- a determination not easy to make.
Moreover, to argue that the judiciary may control the President's actions on the
basis of a body of nonconstitutional, nonstatutory law assumes the existence of a
very broad reach for the lawmaking power of federal courts that would not likely be
limited to the field of international law.
xt domestic lawmaking superior

International law is fundamentally undemocraticworse than domestic rulemaking


McGinnis 07, Law Professor at Northwestern, 7 (John, Should International Law Be
Part of Our Law?, Stanford Law Review, March, 59 Stan. L. Rev. 1175)
[*1181] Part II presents a comprehensive analysis of the democracy deficit of raw
international law. The deficit is inherent in the political processes that "make"
international legal rules. Since the Treaty of Westphalia, international law has been
constructed from the actions of nation-states, many of which are far from
democratic.
Second, according to most theories of international law generation, nation-states do
not explicitly agree on many principles that are deemed customary international
law. Instead, these rules are inferred from state actions by publicists - such as
international law professors - and international courts. Both of these groups are
highly unrepresentative and not subject to democratic control, thereby exacerbating
the democracy deficit.
Third, customary international law suffers from the problem of the "dead hand."
Because of the requirement that international law be made by consensus, our
generation finds it difficult to change past international law to meet new conditions,
which further reduces the law's quality. Fourth, because international law is more
opaque to citizens than domestic law, we argue that it has comparatively high
agency costs, reducing its quality and permitting insiders to manipulate it to their
advantage. In the long run, international law with global application may also
undermine democratic control of government by diminishing the scope of "exit
rights," which enable citizens to "vote with their feet" by emigrating from nations
with harmful or oppressive policies. n22 Part II ends by focusing on other potential
process justifications for international law, including custom and the common law.
We show that the processes generating raw international law lack the advantages of
the common law or custom that might in the domestic context compensate for a
democracy deficit.
Part III discusses how the process defects in the generation of international law
militate against its use in interpreting the Constitution, construing statutes, or
adopting customary international law as a domestic rule of decision. In particular,
we discuss in detail the way in which the low quality of the processes for generating
international law counts against using it to displace the decisions of political
branches, including Congress, the President, and state legislatures.
Part IV addresses the argument that incorporation of international law into the
domestic sphere is necessary to serve the interests of the people of
the [*1182] world as a whole, even if it does not serve the parochial interests of
Americans. Even if valid, this claim still does not justify its use in the many cases
where U.S. domestic law does not create significant externalities. Defenders of raw
international law have claimed that it should displace domestic law even in many
situations where there are no real spillover effects. By reaching into areas without
substantial negative externalities, international law may actually harm the people of
the world by undermining the benefits of international diversity and migration.
But even in situations where externalities are possible, international law may do
more harm than good if it is worse than the U.S. law it displaces. U.S. domestic law
may in fact be better for the citizens of the world even in spite of externalities.
Because of its dominant position in the world economy, the United States has strong
incentives to provide both public and private goods for foreign citizens and thus is
likely to generate legal norms that facilitate such goods. At the very least, it has

better incentives to do so than do the political elites who create raw international
law. Foreigners as well as Americans are likely to be better off if we do not allow raw
international law to override our domestic legal rules.
Judicial incorporation of customary international law violates fundamental principles
of democratic accountability
Trimble, 86 (Phillip, professor of law at UCLA, 33 UCLA L. Rev. 665, A REVISIONIST
VIEW OF CUSTOMARY INTERNATIONAL LAW, February, lexis)
The story of customary international law, like that of the crows, does not fit the
American political tradition. 188 The location of law-making authority outside
American institutions cannot be reconciled with American political philosophy. The
foundations of the American political tradition are many and diverse, but its
principal ideas can be traced to a [*719] group of seventeenth-century libertarians
and eighteenth-century figures of the Enlightenment, notably John Locke. 189 The
American colonists borrowed, elaborated, and adopted as their distinct contribution
to eighteenth-century thought a number of general principles that were said to
govern the exercise of government power: the notion of limited government
absolutely barred from interfering with natural rights, and the notion that the source
of political authority resided in the "people." 190 Originally viewed quite strictly, this
philosophy held that elected representatives could only carry out the precise
instructions given them and had no independent ability to do what they thought
was good for the country. 191 These ideas shaped the new constitutional structure
of government -- limited legislative authority in the federal government, with law
making concentrated in politically accountable branches of government through a
complicated system of checks and balances -- and they have informed the rhetoric
of power ever since. 192 The authority of law-making institutions was said to rest on
the consent of the governed and to be directly responsive to the wishes of their
constituencies. 193 [*720] Of course, as life became more complicated the reality
changed -- direct instruction was replaced by representative government.
Government remained responsive to the particular interest of the electors, however,
because the power "surrendered by the people" was in the hands of representatives
elected by them and loyal to the interests of the immediate constituency. 194
Although our society has undergone radical changes in 200 years, the power of
these central ideas remains strong. American political tradition is remarkably
continuous, and although there have indeed been sharp debates over important
issues, some basic assumptions of the system -- and much of the rhetoric used to
explain it -- remain unchanged. 195 The Supreme Court still explains decisions by
reference to the intent of the framers. 196 Members of Congress invoke the Original
Plan in opposition to contemporary treaties. 197 And political commentators invoke
the Founders and eighteenth-century political philosophy to support policy
positions. 198 The American eighteenth-century tradition, [*721] exalting limited
and responsive representative government, lives on in today's rhetoric and political
philosophy. 199 No doubt the use of this rhetoric conceals other underlying
objectives and motivations. But the fact that eighteenth-century rhetoric is still used
to explain positions surely is significant. It suggests that some basic values
concerning the conditions of governmental authority remain intact, and that popular
acceptance of the particular form of judicial power discussed in this Article is not
likely. In this intellectual universe the idea of customary international law
encounters substantial problems, because at least some of the potential lawmakers,

such as foreign governments, are neither representative of the American political


community nor responsive to it. The foreign nature of these sources of legal
obligation cannot be reconciled with American political philosophy. It is one thing to
delegate authority to Congress and the President, checked and balanced by each
other, and elected by different groups within the political constituency. But if
customary international law can be made by practice wholly outside the United
States it has no basis in popular sovereignty at all. Many foreign governments are
not responsive to their own people, let alone to the American people. This critique
of customary international law in terms of a domestic political tradition may be
criticized as an outdated and parochial view, inappropriate to the interdependent
world of the 1980's. 200 I believe it is not outdated because we still use traditional
rhetoric, presumably because it expresses an attitude and yields results acceptable
to the American political community. It may be parochial, but that too reflects the
community. America has always had an active isolationist tendency, and even when
it became actively involved on a regular basis with other countries after the Second
World War, it did so with a parochialism that continues [*722] to reflect its
suspicion of "foreign ways." 201
International law destroys democratic accountability
McGinnis and Somin, 2004 (John, professor of law at Northwestern, and Ilya,
professor of law at George Mason, Against International Law a Part of Our
law,http://www.law.uchicago.edu/files/int-law/mcginnis-somin.pdf)
Part II of the paper details the democratic deficit of international law. This deficit is
inherent the theory of international law. Since the peace of Westphalia, international
law is constructed from the actions of states, not individuals and many of the acting
states are far from democratic. This deficit is more than a theoretical problem,
because many states that helped in constructing modern international law were not
only not democratic but totalitarian. This aspect of the democratic deficit is
particularly acute as applied to parts of customary international law inferred from
multilateral treaties, because nondemocratic nations have been involved in the
fabrication of such treaties. Second, nations do not explicitly agree on many
principles that are deemed customary international law. Instead they are inferred
from state actions by publicists and courts. Both kinds of agents are very
unrepresentative of citizens. In particular, there is no democratic participation in
the appointment of publicists. Third, customary international law suffers from the
problem of the dead hand. Because of the requirement that international law be
made by consensus, our generation finds it difficult to change past international
law to meet new conditions, reducing its quality. Fourth, international law is opaque
to ordinary citizens.. Because international law is much more opaque to citizens
than domestic law, we argue that it has peculiarly high agency costs, reducing its
quality and permitting insiders to manipulate it to its advantage.
at: assumes CIL, not treaties
Wrong
McGinnis 2006, law prof, 6Professor of Law at Northwestern (John O, Albany Law
Review, Symposium: "Outsourcing Authority?" Citation to Foreign Court Precedent in

Domestic Jurisprudence: Contemporary Foreign and International Law in


Constitutional Construction, June, 69 Alb. L. Rev. 801)
International law is different from foreign law, because international law at least
purports to claim some kind of universality, which foreign law does not. Here I
address international law that has not been ratified by our political process to create
actual domestic obligations. Such "raw" international law, includes the use of
treaties the United States has not signed, customary international law, and the
decisions of the International Court of Justice as law that may be given weight in
interpretation of our Constitution. In my view, any discrepancy between
international law and our law should not cast doubt on the beneficence of our own
law. The basic reason is that international law does not purport to be democratic
and thus its results do not impeach the product of our own democratic processes.
International law reflects the consent of nation states, not the peoples of the world
or global demos.
The democratic deficit of international law is not a mere theoretical problem. Take,
for instance, the many human rights treaties that are basis of modern human rights
law, but that have not been ratified by the United States. These treaties, including
the rights of the Child Convention and many treaties on civil rights and human
rights, were fabricated during the time when the Soviet Union and its allies were
important actors on the international stage. I believe that provisions of treaties that
required the give and take of negotiations with totalitarian nations cannot be
presumed beneficial by virtue of the process that generated them. These provisions
may be beneficial for some other reason, but are not good simply because they are
a part of international law. Remember, my objection is only to the use of such
provisions in constitutional interpretation from the authority of international law.
Some of these provisions may be good for other reasons but it is those reasons not
their status as international law that make [*806] them suitable as an influence on
the Constitution.
Customary international law in fact faces democratic deficits beyond the fact that
nondemocratic nations are involved at many points in influencing its fabrication.
Customary international law is not written down, and thus its principles depend on
inferences about the propositions to which nation states have consented. n8 Those
responsible for inferring these principles from the confusing welter of state practices
and declarations are not democratically chosen. These fabricators include publicists
and international courts. You may wonder, what is a publicist? You are looking at a
publicist. International law professors are publicists. But we have strong evidence
that international law professors are not very representative of their fellow citizens,
at least in the United States. n9 International courts are not representative either,
both because some members are appointed by authoritarian nations and because
even those appointed by democratic government are appointed through processes
that are unlikely to elicit the consensus of their societies.
Both treaties and customary international law are anti-democratic
McGinnis and Somin, 04 (John, professor of law at Northwestern, and Ilya, professor
of law at George Mason, Against International Law a Part of Our
law,http://www.law.uchicago.edu/files/int-law/mcginnis-somin.pdf)
As we discuss in greater detail below, the practical generation of international law
belies the plausibility of this response. Because customary law norms are nowhere

committed to text, they must be created from inferences about state practices.
Those charged with making such inferences, publicists and international courts, are
very unrepresentative groups, and thus reliance on their judgments creates a
democratic deficit. Second, many treaties unratified by the United States provide
important evidence of customary international law. Because treaties are bundles of
provisions the stances of nondemocratic nations can influence the content of these
treaties and result in the inclusion of provisions to which democratic nations would
not assent on their own. Third, even democratic nations rarely give the international
norms to which they assent direct domestic effect in their own polity. Thus, such
customary international law may be cheap talk rather than norms whose credibility
can be assumed by the willingness of those espousing them to have them enforced
on themselves. Finally, international law norms cannot be changed without
widespread consensus and thus customary international law provision that have
outlive their usefulness can be sustained by nondemocratic nations.
at: democracy down now
Just creates a brinkeven if theres faltering states like Afghanistan and Sudan the
overall system is intact and sudden jurisprudence shifts would destabilize the world.
Our impact is lineareach democratic state is less likely to go to war, taking away
the survivors makes extinction inevitable.
There is no autocratic revivaldemocracy strong now
Deudney and Ikenberry 09 (Daniel Deudney, Professor of Political Science at Johns
Hopkins University and the author of Bounding Power: Republican Security Theory
From the Polis to the Global Village. G. JOHN IKENBERRY is Albert G. Milbank
Professor of Politics and International Affairs at Princeton University, a Global
Eminence Scholar at Kyung Hee University, and the author of After Victory:
Institutions, Strategic Restraint, and the Rebuilding of Order After Major Wars,
Foreign Affairs Jan/Feb 2009, "The Myth of the Autocratic
Revival"http://www.foreignaffairs.com/articles/63721/daniel-deudney-and-g-johnikenberry/the-myth-of-the-autocratic-revival)
How compatible are authoritarian political systems with privateproperty-based
capitalist economies today? The autocratic revivalists claim that the combination of
authoritarian political systems and capitalism in major countries such as China and
Russia is not a fleeting stage of transition but a durable alternative to the Western
combination of political democracy and capitalism. If this is true, then the prospects
for liberal democracy are far less bright than the liberal narrative stretching from
the Enlightenment to the 1990s allows. The autocratic revival thesis holds that deep
political incompatibilities between states will persist alongside the ongoing spread
of capitalism, dashing hopes for the transformation of international politics into a
universal liberal peace. This thesis, however, has several profound weaknesses.
Proponents of the autocratic viability argument set up something of a straw man in
their insistence that the absence of political liberalization in China and Russia
refutes the liberal vision. The spectacular end of the Cold War and the rush of
political and economic change in its wake produced unrealistic expectations. And
their inevitable disappointment has provided the opening for the larger claims of
autocratic revival. On the U.S. political scene, the debate during the Clinton era
about the pros and cons of Chinese ascension to the World Trade Organization (wto)

was accompanied by assertions that China's opening up to international capitalism


would soon bear fruits of political liberalization. These expectations for rapid
political opening, however, had little basis in the theories connecting capitalist
modernization with political liberalization. (The theories did not claim that the
political consequences would be immediate and acknowledged that there would be
uneven and lagging transitions.) Also, there are compelling explanations for the
short-term persistence of autocracy in China and Russia, related to their historical
experience as multiethnic states subject to fragmentation and foreign great-power
encroachment. These external and historical factors slowing liberalization were long
in the making, but they can be ameliorated by the engagement and accommodation
of the Western powers. Contrary to the autocratic revival thesis, there are in fact
deep contradictions between authoritarian political systems and capitalist economic
systems. These contradictions exist in todays capitalist autocracies, and the
resolution of these contradictions is likely to lead to political liberalization. There are
many ways in which capitalism connects to political democracy, but three are most
important. First, rising levels of wealth and education create demands for political
participation and accountability. The basic logic behind this link is that rising living
standards made possible because of capitalism over time generate a socioeconomic
strata-loosely, the middle class-whose interests come to challenge closed political
decision-making. Second is the relationship between capitalist property systems
and the rule of law. In a capitalist economic system, by definition, the means of
production are held as private property and economic transactions occur through
contracts. For capitalism to function, the enforcement of contracts and the
adjudication of business disputes require court systems and the rule of law. The
practice of independent rights in the economic sphere and the institutions they
require are an intrinsic limitation on state power and, over time, create demands for
wider political rights. Third, the economic development propelled by capitalism
leads to a divergence of interests. Modem industrial societies are marked by an
explosion of complexity and the emergence of specialized activities and
occupations, thus producing a plural polity rather than a mass polity. The increasing
diversity of socioeconomic interests leads to demands for competitive elections
between multiple parties. Looking at the Chinese experience through this lens
suggests two important flaws in the autocratic revival case. First, the foundations
for sustainable political liberalization are just now beginning to reach a critical mass
in China. Despite rapid rates of growth, China remains a very poor country overall,
with a very large population that has only partially tasted the fruits of capitalist
modernization. A Chinese middle class is emerging, and there are already ample
indicators that it has a growing interest in accountable political institutions. As
capitalist modernization deepens, the complexity of interdependence rises in
society, creating new stakeholders whose interests, when infringed on, stimulate
demands for accountability. For example, in the ongoing tainted-milk scandal, it has
become clear that the modernization of China's food production and distribution
system has outstripped traditional forms of accountability, a mismatch that is now
creating pressures for political regulatory reform. Second, there is nothing in the
liberal vision that specifies the exact timing of political opening as a part of the
socioeconomic transformation. Capitalism creates the conditions for liberal
democracy, but the trigger for actual political change is utterly unpredictable. If the
experience of the emergence of liberal democracy in Western countries is any
guide, the process of transformation can take decades and be interrupted by
unpredictable stops and starts. In Germany, for example, capitalist modernization

arrived early, but liberal democracy emerged only after the dislocations of two
world wars. Even without war, the pathway to political change in China is not likely
to be straightforward or quick. The autocratic revival thesis fails because the classic
indictment of illiberal government is essentially correct. The liberal argument is that
deeply rooted incapacities and dysfunctions are inherent in the structure of
autocratic hierarchies. First is the problem of corruption. The abusive use of state
authority for the aggrandizement of government officials is a tendency in every
political system, but it is much harder to check in autocratic regimes. In earlier
centuries, before the capitalist era, autocratic regimes were straightforwardly
predatory, and taxation was essentially confiscatory. As a consequence, merchant
wealth was chronically insecure. It is not by accident that capitalism first emerged in
places such as England, Holland, and Venice, where government had come to be
restrained in various ways by nascent constitutional checks. In the new hybrid of
autocracy and capitalism, government officials are in continuous transactions with
capitalist firms and face myriad opportunities to demand bribes for the fulfillment of
their official duties. Despite periodic campaigns for the rectitude of officialdom and
episodic prosecutions, curbing corruption is difficult without institutional checks on
state power. Russian President Dmitry Medvedev's recent denunciations of "legal
nihilism" are likely to remain impotent so long as Russia remains a single-party
autocracy. Second, autocratic capitalist regimes face deep contradictions related to
inequality. In capitalist societies, inequality has been a significant force for political
change. Inequality is historically endemic. Premodern autocratic states were highly
stratified predatory systems in which the ruling class was essentially parasitic on
the vast, politically repressed peasant base. But with the advent of capitalism,
particularly industrial capitalism, class stratification and economic inequality
became fundamental political challenges and the triggers long political struggles.
These conflicts were only resolved by the achievement of universal- franchise
democracy, the rise of political parties responsive to working-class needs and
interests, and the establishment of the welfare state. The presence of acute
inequality in contemporary autocratic capitalist regimes suggests that the other
shoe has not dropped in their political evolution. A major source of political
democratization in China is likely to be the large numbers of dispossessed peasants,
marginalized migrants, and underpaid workers. Third, autocratic hierarchies have
to contend with limitations on their performance because of weak accountability
and insufficient flows of information. Their top-down, closed structure chokes off
information from outside sources and distorts it, due to the imperatives of political
control. Closed political systems are prone to policy mistakes arising from bad
information. The historical record of tyrannies, despotisms, and dictatorships bears
this out. Contemporary autocratic capitalist regimes show much greater capacities
than their precapitalist predecessors, but they are still intrinsically impeded by
censorship and the absence of open debate on policy alternatives. The sars
outbreak in China in 2003 vividly illustrated both the presence of closed decisionmaking and its severe consequences for public welfare and political legitimacy. Even
faced with something as apolitical as the emergence of a dangerous new disease,
Chinese officialdom's routine penchant for secrecy and unquestioned decisionmaking turned what should have been a manageable problem into an international
public health crisis. Looking at the overall situations in China and Russia, there is
little evidence for the emergence of a stable equilibrium between capitalism and
autocracy such that this combination could be dignified as a new model of
modernity.

Compared to where these countries were several decades ago, they have made
remarkable progress in throwing off centuries of accumulated economic and political
backwardness, and by the yardstick of world historical change, they have moved
and are moving in directions consistent with the liberal modernization narrative.
China and Russia are not liberal democracies, but they are much more liberal and
democratic than they have ever been-and many of the crucial foundations for
sustainable liberal democracy are emerging. To be sure, for Russia, the cushion of
plentiful oil and gas has delayed political liberalization; high energy prices and
exports help subsidize bad government. But China has no such luxury, as it faces an
array of developmental restraints, most notably overpopulation, environmental
decay, and energy dependence. Autocracy's deep intrinsic flaws remain an
impediment to the realization of the full modern development sought by the people
of these countries. The problems of corruption, inequality, and unaccountability will
continue to drive political change in China, Russia, and the rest of the world's
autocracies. [**several paragraphs removed to fit the article within space
limitations] This bleak outlook is based on an exaggeration of recent developments
and ignores powerful countervailing factors and forces. Indeed, contrary to what the
revivalists describe, the most striking features of the contemporary international
landscape are the intensification of economic globalization, thickening institutions,
and shared problems of interdependence. The overall structure of the international
system today is quite unlike that of the nineteenth century. Compared to older
orders, the contemporary liberal-centered international order provides a set of
constraints and opportunities-of pushes and pulls-that reduce the likelihood of
severe conflict while creating strong imperatives for cooperative problem solving.
Those invoking the nineteenth century as a model for the twenty-first also fail to
acknowledge the extent to which war as a path to conflict resolution and greatpower expansion has become largely obsolete. Most important, nuclear weapons
have transformed great-power war from a routine feature of international politics
into an exercise in national suicide. With all of the great powers possessing nuclear
weapons and ample means to rapidly expand their deterrent forces, warfare among
these states has truly become an option of last resort. The prospect of such great
losses has instilled in the great powers a level of caution and restraint that
effectively precludes major revisionist efforts. Furthermore, the diffusion of small
arms and the near universality of nationalism have severely limited the ability of
great powers to conquer and occupy territory inhabited by resisting populations (as
Algeria, Vietnam, Afghanistan, and now Iraq have demonstrated). Unlike during the
days of empire building in the nineteenth century, states today cannot translate
great asymmetries of power into effective territorial control; at most, they can hope
for loose hegemonic relationships that require them to give something in return.
Also unlike in the nineteenth century, today the density of trade, investment, and
production networks across international borders raises even more the costs of war.
A Chinese invasion of Taiwan, to take one of the most plausible cases of a future
interstate war, would pose for the Chinese communist regime daunting economic
costs, both domestic and international. Taken together, these changes in the
economy of violence mean that the international system is far more primed for
peace than the autocratic revivalists acknowledge. The autocratic revival thesis
neglects other key features of the international system as well. In the nineteenth
century, rising states faced an international environment in which they could
reasonably expect to translate their growing clout into geopolitical changes that
would benefit themselves. But in the twenty-first century, the status quo is much

more difficult to overturn. Simple comparisons between China and the United States
with regard to aggregate economic size and capability do not reflect the fact that
the United States does not stand alone but rather is the head of a coalition of liberal
capitalist states in Europe and East Asia whose aggregate assets far exceed those of
China or even of a coalition of autocratic states. Moreover, potentially revisionist
autocratic states, most notably China and Russia, are already substantial players
and stakeholders in an ensemble of global institutions that make up the status quo,
not least the un Security Council (in which they have permanent seats and veto
power). Many other global institutions, such as the International Monetary Fund and
the World Bank, are configured in such a way that rising states can increase their
voice only by buying into the institutions. The pathway to modernity for rising states
is not outside and against the status quo but rather inside and through the flexible
and accommodating institutions of the liberal international order. The fact that
these autocracies are capitalist has profound implications for the nature of their
international interests that point toward integration and accommodation in the
future. The domestic viability of these regimes hinges on their ability to sustain high
economic growth rates, which in turn is crucially dependent on international trade
and investment; today's autocracies may be illiberal, but they remain fundamentally
dependent on a liberal international capitalist system. It is not surprising that China
made major domestic changes in order to join the WTO or that Russia is seeking to
do so now. The dependence of autocratic capitalist states on foreign trade and
investment means that they have a fundamental interest in maintaining an open,
rule-based economic system. (Although these autocratic states do pursue bilateral
trade and investment deals, particularly in energy and raw materials, this does not
obviate their more basic dependence on and commitment to the wto order.) In the
case of China, because of its extensive dependence on industrial exports, the wto
may act as a vital bulwark against protectionist tendencies in importing states.
Given their position in this system, which so serves their interests, the autocratic
states are unlikely to become champions of an alternative global or regional
economic order, let alone spoilers intent on seriously damaging the existing one.
The prospects for revisionist behavior on the part of the capitalist autocracies are
further reduced by the large and growing social net- works across international
borders. Not only have these states joined the world economy, but their people particularly upwardly mobile and educated elites - have increasingly joined the
world community. In large and growing numbers, citizens of autocratic capitalist
states are participating in a sprawling array of transnational educational, business,
and avocational networks. As individuals are socialized into the values and
orientations of these networks, stark "us versus them" cleavages become more
difficult to generate and sustain. As the Harvard political scientist Alastair Iain
Johnston has argued, China's ruling elite has also been socialized, as its foreign
policy establishment has internalized the norms and practices of the international
diplomatic community. China, far from cultivating causes for territorial dispute with
its neighbors, has instead sought to resolve numerous historically inherited border
conflicts, acting like a satisfied status quo state. These social and diplomatic
processes and developments suggest that there are strong tendencies toward
normalization operating here. Finally, there is an emerging set of global problems
stemming from industrialism and economic globalization that will create common
interests across states regardless of regime type. Autocratic China is as dependent
on imported oil as are democratic Europe, India, Japan, and the United States,
suggesting an alignment of interests against petroleum-exporting autocracies, such

as Iran and Russia. These states share a common interest in price stability and
supply security that could form the basis for a revitalization of the International
Energy Agency, the consumer association created during the oil turmoil of the
1970s. The emergence of global warming and climate change as significant
problems also suggests possibilities for alignments and cooperative ventures cutting
across the autocratic-democratic divide. Like the United States, China is not only a
major contributor to greenhouse gas accumulation but also likely to be a major
victim of climate-induced desertification and coastal flooding. Its rapid
industrialization and consequent pollution means that China, like other developed
countries, will increasingly need to import technologies and innovative solutions for
environmental management. Resource scarcity and environmental deterioration
pose global threats that no state will be able to solve alone, thus placing a further
premium on political integration and cooperative institution building. Analogies
between the nineteenth century and the twenty-first are based on a severe
mischaracterization of the actual conditions of the new era. The declining utility of
war, the thickening of international transactions and institutions, and emerging
resource and environmental interdependencies together undercut scenarios of
international conflict and instability based on autocratic-democratic rivalry and
autocratic revisionism. In fact, the conditions of the twenty-first century point to the
renewed value of international integration and cooperation.
***HEGEMONY
1nc heg turn
Relying on i-law destroys US hegemonywe cant all be like Europe
Delahunty and Yoo, 05 (Robert, professor of law at the University of St. Thomas,
and John, professor of law at Berkeley, 29 Harv. J.L. & Pub. Pol'y 291, Against
Foreign Law, Fall, lexis)
Not only do their histories differ, but the United States and Europe face social and
political circumstances so different as to counsel against any attempt to transplant
constitutional values from one to the other. Europe has spent the last sixty years
turning away from great power conflict and forging a cooperative enterprise that
has solved the problem of German ambition and melded former enemies into a
broad economic common market. 158 The tools for this amazing integration have
not been military power and conquest, but rather supranational institutions,
international law, and diplomacy. As Robert Kagan explains, "Europe is turning away
from power, or to put it a little differently, it is moving beyond power into a selfcontained world of laws and rules and transnational negotiation and cooperation."
159 The United States, on the other hand, relies on power rather than international
law, employs military force as much as persuasion, and sees a world threatened by
terrorist organizations, rogue nations, and the proliferation of weapons of mass
destruction. 160 The difference between European and American attitudes has
promoted the integration of Europe and permitted Europeans to attempt a new
experiment in political organization. 161 [*328] The ability of European nations to
put aside their historical animosities and engage in integration may be the result of
an American security guarantee. The North Atlantic Treaty Organization and heavy
American military presence in Western Europe deterred the Soviet Union and
allowed European integration to proceed. As Lord Ismay, the first secretary general

of NATO, famously quipped, the purpose of the Atlantic alliance was "to keep the
Americans in, the Russians out, and the Germans down." 162 Existing disparities in
defense spending have only grown since the end of the Cold War. In the 1990s,
Europeans discussed increasing collective defense expenditures from $ 150 billion
to $ 180 billion a year while the United States was spending $ 280 billion a year.
163 Ultimately, the Europeans could not, and had no political desire to, emulate
high U.S. defense spending. The United States has become the "indispensable
nation," without which Europe cannot handle even civil wars along its borders. Only
the United States has the ability to project power globally. 164 Without the United
States's willingness to engage in power politics, Europe would not have had the
luxury to integrate. If this is correct, then European constitutional values are
inappropriate for the United States. These values were developed because
European governments enjoyed a different tradeoff between national security and
individual liberties and economic prosperity. The United States, which has greater
responsibility for keeping international peace and for guaranteeing stability in
Europe, faces a different balance between the demands of national security and
constitutional liberties.
Global nuclear war
Kagan, 07 senior fellow at the Carnegie Endowment for International Peace
(Robert, End of Dreams, Return of History, 7/19,
http://www.realclearpolitics.com/articles/2007/07/end_of_dreams_return_of_histor.ht
ml)
This is a good thing, and it should continue to be a primary goal of American foreign
policy to perpetuate this relatively benign international configuration of power. The
unipolar order with the United States as the predominant power is unavoidably
riddled with flaws and contradictions. It inspires fears and jealousies. The United
States is not immune to error, like all other nations, and because of its size and
importance in the international system those errors are magnified and take on
greater significance than the errors of less powerful nations. Compared to the ideal
Kantian international order, in which all the world's powers would be peaceloving
equals, conducting themselves wisely, prudently, and in strict obeisance to
international law, the unipolar system is both dangerous and unjust. Compared to
any plausible alternative in the real world, however, it is relatively stable and less
likely to produce a major war between great powers. It is also comparatively
benevolent, from a liberal perspective, for it is more conducive to the principles of
economic and political liberalism that Americans and many others value. American
predominance does not stand in the way of progress toward a better world,
therefore. It stands in the way of regression toward a more dangerous world. The
choice is not between an Americandominated order and a world that looks like the
European Union. The future international order will be shaped by those who have
the power to shape it. The leaders of a postAmerican world will not meet in
Brussels but in Beijing, Moscow, and Washington. The return of great powers and
great gamesIf the world is marked by the persistence of unipolarity, it is
nevertheless also being shaped by the reemergence of competitive national
ambitions of the kind that have shaped human affairs from time immemorial. During
the Cold War, this historical tendency of great powers to jostle with one another for
status and influence as well as for wealth and power was largely suppressed by the
two superpowers and their rigid bipolar order. Since the end of the Cold War, the

United States has not been powerful enough, and probably could never be powerful
enough, to suppress by itself the normal ambitions of nations. This does not mean
the world has returned to multipolarity, since none of the large powers is in range of
competing with the superpower for global influence. Nevertheless, several large
powers are now competing for regional predominance, both with the United States
and with each other. National ambition drives China's foreign policy today, and
although it is tempered by prudence and the desire to appear as unthreatening as
possible to the rest of the world, the Chinese are powerfully motivated to return
their nation to what they regard as its traditional position as the preeminent power
in East Asia. They do not share a European, postmodern view that power is pass;
hence their now twodecadeslong military buildup and modernization. Like the
Americans, they believe power, including military power, is a good thing to have
and that it is better to have more of it than less. Perhaps more significant is the
Chinese perception, also shared by Americans, that status and honor, and not just
wealth and security, are important for a nation. Japan, meanwhile, which in the past
could have been counted as an aspiring postmodern power with its pacifist
constitution and low defense spending now appears embarked on a more
traditional national course. Partly this is in reaction to the rising power of China and
concerns about North Korea 's nuclear weapons. But it is also driven by Japan's own
national ambition to be a leader in East Asia or at least not to play second fiddle or
"little brother" to China. China and Japan are now in a competitive quest with each
trying to augment its own status and power and to prevent the other 's rise to
predominance, and this competition has a military and strategic as well as an
economic and political component. Their competition is such that a nation like South
Korea, with a long unhappy history as a pawn between the two powers, is once
again worrying both about a "greater China" and about the return of Japanese
nationalism. As Aaron Friedberg commented, the East Asian future looks more like
Europe's past than its present. But it also looks like Asia's past. Russian foreign
policy, too, looks more like something from the nineteenth century. It is being driven
by a typical, and typically Russian, blend of national resentment and ambition. A
postmodern Russia simply seeking integration into the new European order, the
Russia of Andrei Kozyrev, would not be troubled by the eastward enlargement of the
EU and NATO, would not insist on predominant influence over its "near abroad," and
would not use its natural resources as means of gaining geopolitical leverage and
enhancing Russia 's international status in an attempt to regain the lost glories of
the Soviet empire and Peter the Great. But Russia, like China and Japan, is moved by
more traditional greatpower considerations, including the pursuit of those valuable
if intangible national interests: honor and respect. Although Russian leaders
complain about threats to their security from NATO and the United States, the
Russian sense of insecurity has more to do with resentment and national identity
than with plausible external military threats. 16 Russia's complaint today is not with
this or that weapons system. It is the entire postCold War settlement of the 1990s
that Russia resents and wants to revise. But that does not make insecurity less a
factor in Russia 's relations with the world; indeed, it makes finding compromise
with the Russians all the more difficult. One could add others to this list of great
powers with traditional rather than postmodern aspirations. India 's regional
ambitions are more muted, or are focused most intently on Pakistan, but it is clearly
engaged in competition with China for dominance in the Indian Ocean and sees
itself, correctly, as an emerging great power on the world scene. In the Middle East
there is Iran, which mingles religious fervor with a historical sense of superiority and

leadership in its region. 17 Its nuclear program is as much about the desire for
regional hegemony as about defending Iranian territory from attack by the United
States. Even the European Union, in its way, expresses a panEuropean national
ambition to play a significant role in the world, and it has become the vehicle for
channeling German, French, and British ambitions in what Europeans regard as a
safe supranational direction. Europeans seek honor and respect, too, but of a
postmodern variety. The honor they seek is to occupy the moral high ground in the
world, to exercise moral authority, to wield political and economic influence as an
antidote to militarism, to be the keeper of the global conscience, and to be
recognized and admired by others for playing this role. Islam is not a nation, but
many Muslims express a kind of religious nationalism, and the leaders of radical
Islam, including al Qaeda, do seek to establish a theocratic nation or confederation
of nations that would encompass a wide swath of the Middle East and beyond. Like
national movements elsewhere, Islamists have a yearning for respect, including
selfrespect, and a desire for honor. Their national identity has been molded in
defiance against stronger and often oppressive outside powers, and also by
memories of ancient superiority over those same powers. China had its "century of
humiliation." Islamists have more than a century of humiliation to look back on, a
humiliation of which Israel has become the living symbol, which is partly why even
Muslims who are neither radical nor fundamentalist proffer their sympathy and even
their support to violent extremists who can turn the tables on the dominant liberal
West, and particularly on a dominant America which implanted and still feeds the
Israeli cancer in their midst. Finally, there is the United States itself. As a matter of
national policy stretching back across numerous administrations, Democratic and
Republican, liberal and conservative, Americans have insisted on preserving
regional predominance in East Asia; the Middle East; the Western Hemisphere; until
recently, Europe; and now, increasingly, Central Asia. This was its goal after the
Second World War, and since the end of the Cold War, beginning with the first Bush
administration and continuing through the Clinton years, the United States did not
retract but expanded its influence eastward across Europe and into the Middle East,
Central Asia, and the Caucasus. Even as it maintains its position as the predominant
global power, it is also engaged in hegemonic competitions in these regions with
China in East and Central Asia, with Iran in the Middle East and Central Asia, and
with Russia in Eastern Europe,
Central Asia, and the Caucasus. The United States, too, is more of a traditional than
a postmodern power, and though Americans are loath to acknowledge it, they
generally prefer their global place as "No. 1" and are equally loath to relinquish it.
Once having entered a region, whether for practical or idealistic reasons, they are
remarkably slow to withdraw from it until they believe they have substantially
transformed it in their own image. They profess indifference to the world and claim
they just want to be left alone even as they seek daily to shape the behavior of
billions of people around the globe. The jostling for status and influence among
these ambitious nations and wouldbe nations is a second defining feature of the
new postCold War international system. Nationalism in all its forms is back, if it
ever went away, and so is international competition for power, influence, honor, and
status. American predominance prevents these rivalries from intensifying its
regional as well as its global predominance. Were the United States to diminish its
influence in the regions where it is currently the strongest power, the other nations
would settle disputes as great and lesser powers have done in the past: sometimes
through diplomacy and accommodation but often through confrontation and wars of

varying scope, intensity, and destructiveness. One novel aspect of such a multipolar
world is that most of these powers would possess nuclear weapons. That could
make wars between them less likely, or it could simply make them more
catastrophic. It is easy but also dangerous to underestimate the role the United
States plays in providing a measure of stability in the world even as it also disrupts
stability. For instance, the United States is the dominant Nval power everywhere,
such that other nations cannot compete with it even in their home waters. They
either happily or grudgingly allow the United States Navy to be the guarantor of
international waterways and trade routes, of international access to markets and
raw materials such as oil. Even when the United States engages in a war, it is able
to play its role as guardian of the waterways. In a more genuinely multipolar world,
however, it would not. Nations would compete for naval dominance at least in their
own regions and possibly beyond. Conflict between nations would involve struggles
on the oceans as well as on land. Armed embargos, of the kind used in World War i
and other major conflicts, would disrupt trade flows in a way that is now impossible.
Such order as exists in the world rests not merely on the goodwill of peoples but on
a foundation provided by American power. Even the European Union, that great
geopolitical miracle, owes its founding to American power, for without it the
European nations after World War ii would never have felt secure enough to
reintegrate Germany. Most Europeans recoil at the thought, but even today Europe
's stability depends on the guarantee, however distant and one hopes unnecessary,
that the United States could step in to check any dangerous development on the
continent. In a genuinely multipolar world, that would not be possible without
renewing the danger of world war. People who believe greater equality among
nations would be preferable to the present American predominance often succumb
to a basic logical fallacy. They believe the order the world enjoys today exists
independently of American power. They imagine that in a world where American
power was diminished, the aspects of international order that they like would
remain in place. But that 's not the way it works. International order does not rest on
ideas and institutions. It is shaped by configurations of power. The international
order we know today reflects the distribution of power in the world since World War
ii, and especially since the end of the Cold War. A different configuration of power, a
multipolar world in which the poles were Russia, China, the United States, India, and
Europe, would produce its own kind of order, with different rules and norms
reflecting the interests of the powerful states that would have a hand in shaping it.
Would that international order be an improvement? Perhaps for Beijing and Moscow
it would. But it is doubtful that it would suit the tastes of enlightenment liberals in
the United States and Europe. The current order, of course, is not only far from
perfect but also offers no guarantee against major conflict among the world's great
powers. Even under the umbrella of unipolarity, regional conflicts involving the large
powers may erupt. War could erupt between China and Taiwan and draw in both the
United States and Japan. War could erupt between Russia and Georgia, forcing the
United States and its European allies to decide whether to intervene or suffer the
consequences of a Russian victory. Conflict between India and Pakistan remains
possible, as does conflict between Iran and Israel or other Middle Eastern states.
These, too, could draw in other great powers, including the United States. Such
conflicts may be unavoidable no matter what policies the United States pursues. But
they are more likely to erupt if the United States weakens or withdraws from its
positions of regional dominance. This is especially true in East Asia, where most
nations agree that a reliable American power has a stabilizing and pacific effect on

the region. That is certainly the view of most of China 's neighbors. But even China,
which seeks gradually to supplant the United States as the dominant power in the
region, faces the dilemma that an American withdrawal could unleash an ambitious,
independent, nationalist Japan. In Europe, too, the departure of the United States
from the scene even if it remained the world's most powerful nation could be
destabilizing. It could tempt Russia to an even more overbearing and potentially
forceful approach to unruly nations on its periphery. Although some realist theorists
seem to imagine that the disappearance of the Soviet Union put an end to the
possibility of confrontation between Russia and the West, and therefore to the need
for a permanent American role in Europe, history suggests that conflicts in Europe
involving Russia are possible even without Soviet communism. If the United States
withdrew from Europe if it adopted what some call a strategy of "offshore
balancing" this could in time increase the likelihood of conflict involving Russia
and its near neighbors, which could in turn draw the United States back in under
unfavorable circumstances. It is also optimistic to imagine that a retrenchment of
the American position in the Middle East and the assumption of a more passive,
"offshore" role would lead to greater stability there. The vital interest the United
States has in access to oil and the role it plays in keeping access open to other
nations in Europe and Asia make it unlikely that American leaders could or would
stand back and hope for the best while the powers in the region battle it out. Nor
would a more "evenhanded" policy toward Israel, which some see as the magic key
to unlocking peace, stability, and comity in the Middle East, obviate the need to
come to Israel 's aid if its security became threatened. That commitment, paired
with the American commitment to protect strategic oil supplies for most of the
world, practically ensures a heavy American military presence in the region, both on
the seas and on the ground.
The subtraction of American power from any region would not end conflict but
would simply change the equation. In the Middle East, competition for influence
among powers both inside and outside the region has raged for at least two
centuries. The rise of Islamic fundamentalism doesn't change this. It only adds a
new and more threatening dimension to the competition, which neither a sudden
end to the conflict between Israel and the Palestinians nor an immediate American
withdrawal from Iraq would change. The alternative to American predominance in
the region is not balance and peace. It is further competition. The region and the
states within it remain relatively weak. A diminution of American influence would
not be followed by a diminution of other external influences. One could expect
deeper involvement by both China and Russia, if only to secure their interests. 18
And one could also expect the more powerful states of the region, particularly Iran,
to expand and fill the vacuum. It is doubtful that any American administration would
voluntarily take actions that could shift the balance of power in the Middle East
further toward Russia, China, or Iran. The world hasn 't changed that much. An
American withdrawal from Iraq will not return things to "normal" or to a new kind of
stability in the region. It will produce a new instability, one likely to draw the United
States back in again.
2nc heg overview
Extend the heg turnDelahunty says i-law ties our hands and forces us to run our
state like radically different EU nations, this seems nice in the abstract but is utterly
incompatible with our unusual leadership role. Hard power is worthless without pre-

emption and deterrence breaks down without some exceptionalism, we cant all be
like France. Impact comes firstextinctions inevitable without hegemony because
it controls the link to all conflict escalation and checks international aggression,
power vacuum makes every crisis worse
Ferguson 2004 (Niall Ferguson, Professor, History, School of Business, New York
University and Senior Fellow, Hoover Institution, Stanford University, SeptemberOctober 2004 A World Without Power Foreign Policy,
http://www.hoover.org/publications/digest/3009996.html)
So what is left? Waning empires. Religious revivals. Incipient anarchy. A coming
retreat into fortified cities. These are the Dark Age experiences that a world without
a hyperpower might quickly find itself reliving. The trouble is, of course, that this
Dark Age would be an altogether more dangerous one than the Dark Age of the
ninth century. For the world is much more populous--roughly 20 times more--so
friction between the world's disparate "tribes" is bound to be more frequent.
Technology has transformed production; now human societies depend not merely on
freshwater and the harvest but also on supplies of fossil fuels that are known to be
finite. Technology has upgraded destruction, too, so it is now possible not just to
sack a city but to obliterate it. For more than two decades, globalization--the
integration of world markets for commodities, labor, and capital--has raised living
standards throughout the world, except where countries have shut themselves off
from the process through tyranny or civil war. The reversal of globalization-- which a
new Dark Age would produce--would certainly lead to economic stagnation and
even depression. As the United States sought to protect itself after a second
September 11 devastates, say, Houston or Chicago, it would inevitably become a
less open society, less hospitable for foreigners seeking to work, visit, or do
business. Meanwhile, as Europe's Muslim enclaves grew, Islamist extremists'
infiltration of the EU would become irreversible, increasing trans-Atlantic tensions
over the Middle East to the breaking point. An economic meltdown in China would
plunge the Communist system into crisis, unleashing the centrifugal forces that
undermined previous Chinese empires. Western investors would lose out and
conclude that lower returns at home are preferable to the risks of default abroad.
The worst effects of the new Dark Age would be felt on the edges of the waning
great powers. The wealthiest ports of the global economy--from New York to
Rotterdam to Shanghai--would become the targets of plunderers and pirates. With
ease, terrorists could disrupt the freedom of the seas, targeting oil tankers, aircraft
carriers, and cruise liners, while Western nations frantically concentrated on making
their airports secure. Meanwhile, limited nuclear wars could devastate numerous
regions, beginning in the Korean peninsula and Kashmir, perhaps ending
catastrophically in the Middle East. In Latin America, wretchedly poor citizens would
seek solace in Evangelical Christianity imported by U.S. religious orders. In Africa,
the great plagues of AIDS and malaria would continue their deadly work. The few
remaining solvent airlines would simply suspend services to many cities in these
continents; who would wish to leave their privately guarded safe havens to go
there? For all these reasons, the prospect of an apolar world should frighten us
today a great deal more than it frightened the heirs of Charlemagne. If the United
States retreats from global hegemony--its fragile self-image dented by minor
setbacks on the imperial frontier--its critics at home and abroad must not pretend
that they are ushering in a new era of multipolar harmony, or even a return to the
good old balance of power. Be careful what you wish for. The alternative to

unipolarity would not be multipolarity at all. It would be apolarity--a global vacuum


of power. And far more dangerous forces than rival great powers would benefit from
such a not-so-new world disorder.
power. And far more dangerous forces than rival great powers would benefit from
such a not-so-new world disorder.
Decline sets up multiple theaters for nuclear war in Asia
Brezezinksi 04 (Zbigniew-, Counselor @ CSIS, The Choice: Global Domination or
Global Leadership, P. 110-111; Jacob)
Ultimately, war or peace in the Far East will be determined largely by how China and
Japan interact with each other and with the United States. If the United States were
to withdraw its forces from the region, a repetition of the twentieth century
European scenario would be very probable. Japan would have little choice but to
rapidly unveil and accelerate its ongoing rearmament; China would be likely to
engage in a rapid buildup of its nuclear forces, which till now have been designed to
give China a minimal deterrent; the Taiwan Straits would become the locus of
Chinese national self-assertion; Korea would most likely experience a violent end to
its partition and perhaps emerge unified as a nuclear power; and the ChineseIndian-Pakistani nuclear triangle could provide a dangerous umbrella for the
resumption of open conventional warfare. A single match could then set off an
explosion.
2nc kills hegemony
First, flexibilitythey hamstring itkills ability to dictate the terms of international
agreements it enters
Kochan 2006 (Donald J., Assistant Professor of Law, Chapman University School of
Law, February 2006, Fordham International Law Journal, 29 Fordham Int'l L.J. 507, p.
550)
When the judiciary involves itself in foreign or international law, there are also
problematic concerns involving foreign policy and control over national
security. n179 It is the province of the elected branches to adopt or reduce into
domestic law foreign concerns.
When the judiciary itself chooses to adopt such standards or allows private plaintiffs
to present causes of action based on the same, judicial decisions necessarily make
pronouncements regarding the appropriate behavior of our own and foreign
countries. In so acting, the judiciary risks embroiling the U.S. elected branches in
unwanted controversy. It potentially removes the discretion and choice normally
reserved to the elected branches to determine U.S. acceptance or non-acceptance
of extraterritorial mandates or advice.
Flexibility key
Khalilzad 1995 (Zalmay, Spring 1995, The Washington Quarterly)
Finally, and most important, there is no guarantee that the system will succeed in
its own terms. Its operation requires subtle calculations and indications of intentions
in order to maintain the balance while avoiding war; nations must know how to
signal their depth of commitment on a given issue without taking irrevocable steps

toward war. This balancing act proved impossible even for the culturally similar and
aristocratically governed states of the nineteenth-century European balance of
power systems. It will be infinitely more difficult when the system is global, the
participants differ culturally, and the governments of many of the states, influenced
by public opinion, are unable to be as flexible (or cynical) as the rules of the system
require. Thus, miscalculations might be made about the state of the balance that
could lead to wars that the United States might be unable to stay out of. The
balance of power system failed in the past, producing World War I and other major
conflicts. It might not work any better in the future - and war among major powers
in the nuclear age is likely to be more devastating.
And, Flexibility outweighsits the biggest internal link to maintenance of
hegemony
CJCS 2K (Chairman of the Joint Chiefs of Staff, Joint Vision
2020, http://permanent.access.gpo.gov/LPS5598/jv2020.pdf, AMiles)
The complexities of the future security environment demand that the United States
be prepared to face a wide range of threats of varying levels of intensity. Success in
countering these threats will require the skillful integration of the core competencies
of the Services into a joint force tailored to the specific situation and objectives.
Commanders must be afforded the opportunity to achieve the level of effectiveness
and synergy necessary to conduct decisive operations across the entire range of
military operations. When combat operations are required, they must have an
overwhelming array of capabilities available to conduct offensive and defensive
operations and against which an enemy must defend. Other complex contingencies
such as humanitarian relief or peace operations will require a rapid, flexible
response to achieve national objectives in the required timeframe. Some situations
may require the capabilities of only one Service, but in most cases, a joint force
comprised of both Active and Reserve Components will be employed.
The complexity of future operations also requires that, in addition to operating
jointly, our forces have the capability to participate effectively as one element of a
unified national effort. This integrated approach brings to bear all the tools of
statecraft to achieve our national objectives unilaterally when necessary, while
making optimum use of the skills and resources provided by multinational military
forces, regional and international organizations, non-governmental organizations,
and private voluntary organizations when possible. Participation by the joint force in
operations supporting civil authorities will also likely increase in importance due to
emerging threats to the US homeland such as terrorism and weapons of mass
destruction.
Second, direction of linkonly we access Kagan because i-law crushes military
power and deterrence but mutlilat is irrelevant
Persaud 04, IR prof, 4Associate Professor of International Relations, American
University, School of International Service (Randolph, Shades of American
Hegemony: The Primitive, the Enlightened, and the Benevolent, 19 Conn. J. Int'l L.
263, AMiles)
The third key characteristic of primitive hegemony is the reliance on the threat
and/or use of coercion, and more specifically military force, to achieve goals. In
military terms, the U.S. has, for all practical purposes, achieved 'Full Spectrum

Dominance,' and has a stated goal of unchallengeable military supremacy. David


Mosler and Bob Catley note that:
U.S. conventional forces . . . have the capacity to fight and win wars in most regions
of the world and at all levels of intensity. Because of their size and quality, they are
superior to any other national forces. Since U.S. forces have the capacity to win
MTWs [major-theatre wars], the United States can use force in order to achieve
decisive victories and achieve its other objectives. n3
[*265] Full Spectrum Dominance is the overarching vision of U.S. military
preparedness. n4 The Joint Vision 2020 report defines it as "the ability of US forces,
operating unilaterally or in combination with multinational and interagency
partners, to defeat any adversary and control any situation across the full rage of
military operations." n5 Full spectrum dominance is in part tied to the ever
expanding economic interests of the United States in the wider world. Joint Vision
2020 specifically notes that "transportation, communications, and information
technology will continue to evolve and foster expanded economic ties." n6 The
global economic interests of the United States then is one element of the "strategic
context" informing Full Spectrum Dominance.
The fourth characteristic of primitive hegemony is that multilateralism, international
law, and more broadly, international institutions are generally seen as obstacles to
American global objectives, except in those circumstances where the United States
is able to have effective veto power over what transpires. The military aspect of this
position is clearly articulated in the Joint Vision 2020 report. Thus it states that:
The complexity of future operations also requires that, in addition to operating
jointly, our forces have the capability to participate effectively as one element of a
unified national effort. This integrated approach brings to bear all the tools of
statecraft to achieve our national objectives unilaterally when necessary, while
making optimum use of the skills and resources provided by multinational military
forces, regional and international organizations, non-governmental organizations,
and private voluntary organizations ... n7
The American (and British) invasion and occupation of Iraq seems to be a textbook
case for the Joint Vision strategy as described above. The U.S. carried out the
invasion without U.N. Security Council authorization. It has since been attempting to
make use of "the skills and resources provided by multinational military forces." In
an extraordinarily candid expression of primitive hegemony, Richard Perle, then
Chair of the Defense Policy Board, triumphantly pronounced the United Nations
dead, and thanked God for that. n8
The fifth feature of primitive hegemony is actually more of a principle. The principle
is that strength is more important than legitimacy, and by implication that when
strength is applied in the form of coercion, there will be followers, or at a minimum
the will of adversaries may be broken. In geostrategic terms this is based on the
notion of positional advantage. n9 Positional advantage, in part, is a
strategic [*266] concept that advocates the diffusion of United States military
capability all over the world. In addition to the obvious advantage of being able to
rapidly respond to actual conflict theatres world wide, positional advantage is also
intended to forge compliant behavior on account of the proximity and
preponderance of American military power. Here is what the Joint Vision 2020 report
says on that subject:
Third, no turnscooperation fails because other people will game the system

Rivkin 2000, former DOJ director, 2Kpartner in the law firm of Baker & Hostetler,
LLP, and was Deputy Director, Office of Policy Development, U.S. Department of
Justice, and served in the White House Counsels Office. (David and Lee A. Casey
served in the Office of Legal Counsel in the U.S. Department of Justice, The Rocky
Shoals of International Law, Winter
2000, http://findarticles.com/p/articles/mi_m2751/is_2000_Winter/ai_68547471/,
AMiles)
ALTHOUGH international law has always been a consideration for American foreign
policymakers, it has rarely commanded the focus of their attentions. Under the next
president, this will have to change. Since the Cold War's end, a number of
international organizations, human rights activists and states have worked to
transform the traditional law of nations governing the relationship between states
into something akin to an international regulatory code. This "new" international law
purports to govern the relationship of citizens to their governments, affecting such
domestic issues as environmental protection and the rights of children. Among
other things, it would: nearly eliminate the unilateral use of military force; create
the unattainable requirement of avoiding all civilian casualties in combat; promote
the criminal prosecution of individual state officials by the courts of other states and
international tribunals; and permit--or even require--international "humanitarian"
intervention in a state's intern al affairs. Recast as such, international law
constitutes a real and immediate threat to U.S. national interests.
The impetus for extending the reach of international law stems from both our allies
and our adversaries, who have chosen to use it as a means to check, or at least
harness, American power. While each group has different strategic goals, from the
perspective of both, the great "problem" of international affairs in the post-Cold War
world is the unchallenged military, diplomatic, economic and even cultural
predominance of the United States. [1] Our global antagonists, particularly China,
would like to see the United States disengage from world affairs. For our allies, who
continue to depend far too much on U.S. military might to wish for a new American
isolationism, the great danger has become American "unilateralism"--an all-purpose
term for U.S. action not sanctioned by the "international community." They do not
want to prevent U.S. global engagement; they want to influence and control it.
Also, they force isolationism
Rivkin 2000, former DOJ director, 2Kpartner in the law firm of Baker & Hostetler,
LLP, and was Deputy Director, Office of Policy Development, U.S. Department of
Justice, and served in the White House Counsels Office. (David and Lee A. Casey
served in the Office of Legal Counsel in the U.S. Department of Justice, The Rocky
Shoals of International Law, Winter
2000, http://findarticles.com/p/articles/mi_m2751/is_2000_Winter/ai_68547471/,
AMiles)
In this regard, it is essential to explain the role of American exceptionalism and the
heroic component in our national civic culture. Our European allies may well be able
to accommodate their national aspirations within the context of the European
Union, looking back to the universalism of the Middle Ages; but the United States
cannot. It was not a part of Charlemagne's empire or of medieval Christendom. An
American president can motivate the American people to undertake a global

leadership role-a role that continues to be critical to Europe's security-only by


invoking patriotism, idealism and the national interest.
This is particularly true when the use of American military force may be involved.
Our allies should understand that doctrines denigrating patriotism and national
sovereignty inherently promote American isolationism. It is simply impossible to
engage the U.S. military on the basis of the imperatives of multilateral institutions
alone.
xt kills heg
Relying on European sources of constitutional interpretation would destroy US
power projection and causes fascism within the US
Delahunty and Yoo, 05 (Robert, professor of law at the University of St. Thomas,
and John, professor of law at Berkeley, 29 Harv. J.L. & Pub. Pol'y 291, Against
Foreign Law, Fall, lexis)
The Court's recent turn toward foreign law in constitutional adjudication involves
reliance primarily on European decisions. Perhaps it is too early to make this
generalization; decisions from Asia, Africa, and Latin America may appear over the
next few years. For now, however, the Court's use of foreign decisions appears to be
a European phenomenon. 152 This part argues that Europe may not be the
appropriate model for American constitutional interpretation. Europe and the United
States share different political histories. While the United States continues to exist
in a Lockean framework in which government derives from a social contract with the
American people, at least according to some sociologists, 153 [*326] Europe has
been given to fluctuations of ideological extremes. In the Nineteenth Century, many
European nations still considered monarchy the best system of government. Indeed,
the other European powers intervened after the French Revolution to restore the
Bourbon dynasty to power. In the Twentieth Century, monarchy was followed by
fascism, socialism, and communism. 154 As history has demonstrated, the
performance of these regimes has been less than exemplary. In particular, fascism
and communism, which were once viewed by some as advanced, modern
ideologies, were adopted by regimes that murdered millions. Should the Supreme
Courts of the 1930s or the 1950s have looked to the decisions of Nazi or Soviet
courts for guidance? 155 While the relative stability or gradual change in American
political philosophy may have prevented the United States from adopting programs
or policies viewed by some as progressive or enlightened, it may also have kept the
nation from pursuing ideological extremes that resulted in disaster for European
nations. Some attribute moderation in American politics, in part, to our written
Constitution. 156 Separation of powers and federalism make it difficult to enact any
sweeping, ideologically inspired legislation, and the Bill of Rights curtails
government action that infringes individual liberties. Appealing to European
decisions evades these structural checks on federal lawmaking because Supreme
Court decisions are not subject to strict restraints of bicameralism, presentment,
and federalism that apply to Congress and the President. It is therefore doubtful
that current European attitudes are superior to those of Americans. While current
European constitutional [*327] schemes may appear to protect individual liberties
more effectively, or better balance the tension between government power and
individual rights, it is difficult to predict whether history will vindicate the choices
that Europe has made. Some Americans once thought that fascism and communism

were progressive ideologies from which the United States could learn, but history
has demonstrated otherwise. Those ideologies resulted in the oppression of
domestic populations, inter-European warfare, and the deaths of millions. 157
International law hurts U.S. leadership by eroding superior US domestic law
McGinnis and Somin, 04 (John, professor of law at Northwestern, and Ilya, professor
of law at George Mason, Against International Law a Part of Our
law,http://www.law.uchicago.edu/files/int-law/mcginnis-somin.pdf)
But even in situations with externalities, international law may be of the quality
that it does more harm than good. Even domestic regimes can create more social
costs than they solve. If international law is of low quality, it will be particularly
likely to impose net costs. In fact, the domestic law of the United States may be
better for the citizens of the world even given these externalities. The United States
is peculiarly likely to take the interests of citizens of other nations into account
even in its domestic law. According to a theory in international law called the stable
hegemon theory, a stable hegemon has an interest in providing public goods, like
prosperity and order, to the rest of the world because it receives the lions share of
the gains from such order. The legal corollary of this theory is that the stable
hegemons law will be fairly good at producing these public goods. It is obvious that
the United States is stable hegemon of the world today. But two factors makes it
even more likely to produce public goods than the ordinary stable hegemon. First,
its democratic processes make it more likely to get the judgments right about what
public goods are necessary. Second, it immigrant population gives other peoples of
the world some virtual representation in its democratic processes. Third, the media
of today makes the people of the world more virtually present to Americans,
providing the decisionmakers in the stable hegemon with greater sympathy with the
world citizens. This should also improve the quality of the law that furnishes public
goods. Thus, given the low quality of international law we may paradoxically provide
greater benefits for foreigners as well as our citizens by enforcing our domestic law
without regard to raw international law.
Judges dont enforce customary international law nowdoing so would require the
renunciation of the use of nuclear weapons and the death penalty
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
Customary international law ("CIL") is technically "part" of U.S. domestic law, 54 but
most U.S. judges and courts decide cases on the basis [*639] of statutes, the
English common law, and modern case law. They view CIL as changeable and at
times inconsistent with U.S. laws and policies. For example, many international
lawyers would argue that the death penalty and the use of nuclear weapons violate
CIL but U.S. law/policy accepts them.
xt kills heg (warfighting)
International law destroys US hegemony

David Rivkin, Jr. and Lee Casey 2000, attorneys for the Hunton & Williams Law Firm,
The National Interest, Winter, 2000/2001
Second, as a practical matter, the new international law has the potential to
undermine American leadership in the post-Cold War global system. Even more
fundamentally, international law may well make the world safe for aggression, by
imposing undue constraints on those countries that are willing to use force to deter
and punish it. Although, as noted above, the new international law has a number of
manifestations, those elements dealing with the use of military force, and the
potential consequences for individual American officials who order or implement its
use, are the most advanced and pernicious. As the world's pre-eminent military
power, with global interests and responsibilities, the United States should be very
concerned about any effort to create international judicial institutions capable of
prosecuting individual soldiers, officers and elected officials in the chain of
command. The international criminal "norms" applied in these courts, both in the ad
hoc criminal courts for the former Yugoslavia and Rwanda and in the International
Criminal Court, are ambiguous in their meaning and remarkably fluid in their
application. For example, one of the "war crimes" prosecutable in the ICC is defined
as "[i]ntentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the natural environment which would
be clearly excessive in relation to the concrete and direct overall military advantage
anticipated." Whether any particular attack causes "excessive" civilian injuries or
environmental damage is very much a matter of opinion. This is, in fact, a crime
that can be tailored to fit almost any circumstances, as was all but openly
acknowledged by the prosecutor's office of the Yugoslav tribunal during its
investigation of alleged NATO war crimes. This investigation was undertaken after a
number of NGOs complained that nato's 1999 air campaign against Serbia resulted
in too many civilian deaths. As candidly noted in the report to the prosecutor, "[t]he
answers to these questions [regarding allegedly excessive civilian casualties] are
not simple. It may be necessary to resolve them on a case by case basis, and the
answers may differ depending on the background and values of the decision-maker.
It is unlikely that a human rights lawyer and an experienced combat commander
would assign the same relative values to military advantage and to injury to
noncombatants. Further, it is unlikely that military commanders with different
doctrinal backgrounds and differing degrees of combat experience or national
military histories would always agree in close cases." The key underlying problem
here is that injuries to noncombatants and their property -- so-called "collateral
damage" -- are an endemic consequence of combat. As a result, the traditional law
of war, jus in bello, although proscribing certain hostile actions toward civilians,
eschewed overly rigid rules on collateral damage. Unfortunately, instead of
continuing to rely on the broad, traditional jus in bello principles of proportionality
and discrimination, the new norms have come to resemble American domestic
regulatory law. These rules are overly prescriptive and proscriptive, to such an
extent that ensuring full compliance has become almost impossible. This is
particularly the case because the new international law seems to suggest that zero
civilian casualties and no collateral damage are not only attainable outcomes in
modern combat, but that these should be the norm. The combination of the
unrealistic norms and unaccountable judicial bodies that would apply them is
particularly problematic. The American military is particularly vulnerable here. This

is because U.S. military doctrine has always been attrition-oriented, emphasizing


the intensive application of firepower and the use of "decisive force." It is inevitable
that damage to civilian sites, and civilian casualties, will result. This is all the more
likely given the growing American aversion to combat casualties, which forces our
military commanders to rely more and more on air strikes and missile attacks. This
raises the real possibility that American soldiers and officials will be considered
subject to prosecution, even in situations where the intervention has been
"humanitarian" in character, as with the air campaign against Serbia. Significantly,
while no prosecutions against NATO officials are currently planned, even the
relatively tame Yugoslav tribunal did not give the alliance a clean bill of health.
Indeed, the prosecutor's office declined to bring indictments, not because it
concluded that no crimes were committed by NATO, but because "[i]n all cases,
either the law is not sufficiently clear or investigations are unlikely to result in the
acquisition of sufficient evidence to substantiate charges against high level accused
or against lower accused for particularly heinous offenses." Future outcomes in the
permanent ICC, a court that will be less dependent upon U.S. and NATO largesse
than is the Yugoslav tribunal, may be very different. And the fact that the United
States has not signed, and would not ratify, the ICC treaty will not prevent the ICC
from pursuing Americans. The court claims to exercise a form of "universal
jurisdiction" that will allow it to prosecute American citizens when their actions, or
the effects of their actions, take place on the territory of a state that has signed the
ICC treaty. Moreover, the danger here is not limited to the potential actions of the
ICC. Based on the "universal jurisdiction" theory -- which suggests that any state
can prosecute international humanitarian violations wherever they occur, whether
or not that state's own citizens are involved -- any state, or even a low-level foreign
magistrate, can begin a prosecution against American military or civilian officials.
This was, of course, the case with the former Chilean dictator, Augusto Pinochet,
who traveled to England for medical treatment in 1998, and was very nearly
extradited to Spain to stand trial for his actions during his rule in Chile. Overall,
there is no doubt that, insofar as they can successfully claim the right to prosecute
military and civilian leaders for violations of the laws of war and international
humanitarian norms, international judicial bodies and interested states will be able
effectively to shape American policy. An American president would be far less likely
to use force if there were a genuine possibility that U.S. soldiers or officials,
including himself, would face future prosecution in a foreign court.

xt eurocentric
US incorporation of international law is EurocentricAmerican judges will rarely
refer to the laws of developing countries
Sanchez 05 (Ernesto, J.D. University of Pennsylvania, 2004, ASIL member and law
clerk at the U.S. Court of Federal Claims, December, 38 Conn. L. Rev. 185, lexis)
In reality, the likelihood that an American judge will refer to the laws of developing
countries in Asia or Africa as an appropriate model for a decision probably remains
slim. What has likely driven the Eurocentrism evident in most internationalist
decisions is the fundamental truth that the United States has historically shared
more in common culturally with the nations of Western Europe than with any other

region of the world. Even today, as the rate of non-European descendants as a


share of the American population increases, 214 the vast majority of natural-born
Americans can still trace their ancestry to the nations of Europe. 215 With that
ancestry comes such shared cultural traits as the relation of the English language to
Europe's many Anglo-Saxon languages or adherence to the Christian faith. If
American courts restrict their non-United States legal references to laws and court
decisions from these countries, where they may have arisen from similar cultural
contexts, then, is judicial internationalism really a trend to fear?
Incorporation of customary international law will overwhelmingly rely on European
sourcesthis is Eurocentric
Wilkinson 04 (Harvie, Circuit Judge on the United States Court of Appeals for the
Fourth Circuit + formerly Professor of Law at the University of Virginia Law School
and Deputy Assistant Attorney General of the United States Department of Justice,
Civil Rights Division, Spring, 27 Harv. J.L. & Pub. Pol'y 423, lexis)
Judges have not sought to consider these questions in a systematic way. To date,
the foreign sources that have been cited come largely from Europe. Obviously, our
historical connections with our European friends may make reliance on European
cases more appealing. But American citizens come from all corners of the globe. I
worry that judges will appear to indulge an unfortunate Eurocentrism by overlooking
the practices of Asian, Middle Eastern, African, and Latin American states. Moreover,
the Court's piecemeal approach has done little to illuminate why the experiences of
some European countries have been chosen and others omitted. If the use of
comparative law continues to expand, then we would need to think much more
about which country's experiences are sufficiently relevant to our own to use as
examples in our own case law. As the relevant academic literature suggests, the
study of comparative law involves a careful assessment of different countries'
historical, political, and demographic characteristics. Before importing another
nation's views or law on a particular issue into our own law, we must determine
whether that nation's history, governmental structure, demographics, and other
relev ant indicia are similar to our own. The [*429] problems with this most
sensitive of inquiries are legion.
Finally, I would note that the increase in the use of international sources has been
matched by the selectivity in the use of international sources. In recent cases,
comparative analysis has appeared to be a one-way ratchet toward expansion of
individual rights and toward restriction of democratic prerogatives. The countries
that take a more traditionalist view of social questions are almost never referred to.
And foreign experiences seem to be consulted only on issues in which the United
States is more traditional than other nations. Is this fair? Is this balanced? Again, my
point today pertains not to results reached in recent decisions but to methodology. I
hope there will be some recognition that the course on which courts are newly
embarked presents the oldest form of legal danger -- that of a treacherous and
slippery slope.
This Eurocentrism is racist
Caro 02 (Manuel, Assistant Professor of Sociology and Criminology, Barry University,
Summer, 54 Rutgers L. Rev. 893, lexis)

In this Europe, the old ethnocentric racism - the nationals of each country used to
hate people from every other country - is substituted by a modern Eurocentric
racism, under which European citizens differentiate themselves from non-European
nationals. 30 Specifically, a Europe of liberty, reason, enlightenment, and modernity
defines itself in opposition of an Asia and Africa - an Islamic World - of oppression,
premodernity, and despotism. "Europe's historic frontier ... with the world of Islam is
being reactivated" with this sort of differentiation in mind. 31

at: one voice


The Garamendi and Crosby decisions reaffirmed the need to act with one voice in
foreign affairs
Hollis, 06 (Duncan, professor of law at Temple University, 79 S. Cal. L. Rev. 1327,
EXECUTIVE FEDERALISM: FORGING NEW FEDERALIST CONSTRAINTS ON THE
TREATY POWER, September, lexis)
Garamendi also reaffirmed an idea some new federalists had declared moribund
189 - the need to restrain exercises of state power that hamper the president's
ability to speak for the Nation with "one voice." 190 The Garamendi Court reasoned
that California's statute undercut the president's "considerable independent
constitutional authority" to conduct foreign relations even though Congress had not
expressly approved his actions. 191 Similarly, in 2000, the Court decided in Crosby
v. National Foreign Trade Council that the president's foreign policy toward Burma
preempted different policies in a Massachusetts statute imposing sanctions on
Burma. 192 Crosby concluded that the state's statute conflicted with the president's
authority "to speak for the United States among the world's nations" - an authority
it found, citing Youngstown, was at its "maximum" given congressional approval and
the president's own constitutional powers, including the treaty-making power. 193
Thus, Crosby suggests the case for a "one voice" override of states' rights is
stronger when the executive and legislative branches take a common position. But
that is exactly the scenario where new federalists insist on overruling Missouri - that
is, cases where the president's conclusion of a treaty, with Senate [*1358] advice
and consent, is followed by implementing legislation that exceeds the power
Congress has absent the treaty. 194 Taken together, Garamendi and Crosby reveal
a Court concerned not only with protecting state autonomy from federal
interference in the commerce context, but also protecting foreign affairs autonomy
from state interference in the foreign relations context. Given the competing strains,
it becomes difficult to conclude that new federalism will win out over foreign affairs.
Unlike Missouri, however, this issue may receive judicial clarification. A Texas state
court is currently deliberating whether to give effect to President Bush's decision
that state courts will comply with U.S. obligations under the Vienna Convention on
Consular Relations ("VCCR") as interpreted by the International Court of Justice
("ICJ") in the Avena case, even if it requires preemption of state procedural default
rules. 195 Should it decline to do so, the foreign affairs power may again find its
way before the Court.
Raich proves theres no threat to the treaty power

Hollis, 06 (Duncan, professor of law at Temple University, 79 S. Cal. L. Rev. 1327,


EXECUTIVE FEDERALISM: FORGING NEW FEDERALIST CONSTRAINTS ON THE
TREATY POWER, September, lexis)
The revival of a strong foreign affairs power is not the only landscape change since
new federalists called for restraining the treaty power. From 1937 until Lopez in
1995, the Court largely refused to employ federalism to void federal statutes. 196
This may explain why, as a doctrinal matter, notwithstanding Senator Bricker's
efforts, Missouri's nationalist view held sway for so long. 197 Given Lopez and its
progeny, however, new federalists [*1359] suggest the tide has turned. 198 Now,
they envision a "substantial risk" that legislative power limitations or the
anticommandeering doctrine will apply to the treaty power; revisiting Missouri is
only a matter of time. 199
But the new federalist characterization of the Court's jurisprudence no longer tells
the whole story. In 2005, the Court decided in Gonzales v. Raich that the commerce
power authorized Congress to prohibit marijuana possession even where it was
cultivated and consumed intrastate for medicinal purposes. 200 The Court found
that Congress had the power to regulate even intrastate, noncommercial activity if
necessary to effectuate regulation of an interstate market. 201 In doing so, the
Court distinguished Lopez and Morrison, choosing to rely instead on an earlier "New
Deal" decision, Wickard v. Filburn, left intact by Lopez. 202 A full assessment of
Raich's implications for the Court's Commerce Clause jurisprudence is beyond the
scope of this Article. At a minimum, however, Raich suggests that Lopez and
Morrison did not entirely supplant the Court's earlier view of a broad commerce
power. Alternatively, one could view Raich as Justice O'Connor did in dissent - that
is, "irreconcilable" with Lopez and Morrison. 203 Either way, Raich suggests a Court
that will still, on occasion, read Congress's legislative powers quite [*1360] broadly.
Thus, post-Raich, the new federalist assertion that extending legislative power limits
to the treaty power will effectively constrain that power vis-a-vis the states no
longer appears a foregone conclusion. And, if that is true, the argument that the
Court needs to extend those limits to the treaty power loses much of its force.
***TERRORISM
1nc war on terrorism turn
I-law halts the war on terror
MacGinnis 2009 John O. McGinnis 9, Stanford Clinton, Sr. Professor of Law,
Northwestern University School of Law and Ilya Somin, Assistant Professor of Law,
George Mason University School of Law, [84 Notre Dame L. Rev. 1739] 2009
Another method for integrating international human rights law into domestic
jurisprudence is to require that domestic legislation be interpreted consistently with
international law wherever possible. In the United States, advocates who argue this
approach gain support from ancient Supreme Court precedent, like Murray v.
Schooner Charming Betsy, n38 that seeks to harmonize, wherever possible,
American [*1751] statutory law with the norms of the wider world. n39 In
particular, modern international human rights advocates suggest that the statutory
authority on which the President relies in military and law enforcement operations in

the War on Terror should be interpreted against the background of a complex web of
international human rights law and international humanitarian law. n40 Such
interpretations would constrain the President's authority by requiring that it be
exercised in accordance with purported international norms.
Extinction
Jerusalem Post 2004/5/12 (lexis)
In the first case, he maintained that submission only serves to encourage terrorists
and their leaders and boost their motivation, while survival would depend on
nations taking all necessary steps to reduce the risks, including international
intelligence cooperation. "Dealing with terrorism requires a broad range of
responses, starting with clear and coherent policies. It is necessary to have quality
intelligence, as well as law enforcement, the military, and the means to counter
technological and cyber-terrorism," said Alexander. "We also need an educational
response because the children of today will be the terrorists of tomorrow. Unless we
can defuse the extremist ideological and theological elements and their
propaganda, the measures won't work. "We have to deal with the root causes and
try to improve economic and social conditions - a sort of global Marshall plan - but
first it is necessary to deal with the terror leadership. "To this end some innocent
civilians might be harmed but, make no mistake, this is war and to fight it nations
have to pool their resources. No nation can deal with the problem unilaterally. "In
the past, terrorism was regarded as a tactical rather than a strategic threat but it
has become a permanent fixture and a challenge to the strategic interests of
nations. "In fact," said Alexander, "it represents the most threatening challenge to
civilization in the 21st century. The question of survival will depend to a great extent
on how civilized society tackles this threat."
Any future attack will cause nuclear war
Ayson 10 (Robert, Professor of Strategic Studies, Director of Strategic Studies: New
Zealand, Senior Research Associate with Oxfords Centre for International Studies.
After a Terrorist Nuclear Attack: Envisaging Catalytic Effects. Studies in Conflict and
Terrorism, Volume 33, Issue 7, July 2010, pages 571-593)
Washington's early response to a terrorist nuclear attack on its own soil might also
raise the possibility of an unwanted (and nuclear aided) confrontation with Russia
and/or China. For example, in the noise and confusion during the immediate
aftermath of the terrorist nuclear attack, the U.S. president might be expected to
place the country's armed forces, including its nuclear arsenal, on a higher stage of
alert. In such a tense environment, when careful planning runs up against the
friction of reality, it is just possible that Moscow and/or China might mistakenly read
this as a sign of U.S. intentions to use force (and possibly nuclear force) against
them. In that situation, the temptations to preempt such actions might grow,
although it must be admitted that any preemption would probably still meet with a
devastating response. As part of its initial response to the act of nuclear terrorism
(as discussed earlier) Washington might decide to order a significant conventional
(or nuclear) retaliatory or disarming attack against the leadership of the terrorist
group and/or states seen to support that group. Depending on the identity and
especially the location of these targets, Russia and/or China might interpret such
action as being far too close for their comfort, and potentially as an infringement on

their spheres of influence and even on their sovereignty. One far-fetched but
perhaps not impossible scenario might stem from a judgment in Washington that
some of the main aiders and abetters of the terrorist action resided somewhere
such as Chechnya, perhaps in connection with what Allison claims is the Chechen
insurgents' long-standing interest in all things nuclear.42 American pressure on
that part of the world would almost certainly raise alarms in Moscow that might
require a degree of advanced consultation from Washington that the latter found
itself unable or unwilling to provide.
2nc war on terror good (australia)
War on terror key to US-Australian relations and solving terrorism
Horowitz 2000, PhD candidate, 2kMichael Horowitz, Ph.D. Candidate Harvard
and 2000 NDT Champion, Dont Take Canberra for Granted: The Future of the U.S.Australian Alliance, Orbis, 48(3), Summer 2004
Implications for U.S.-Australian Relations. Important as China and the war on terror
are, neither is likely to completely break the U.S.-Australia alliance. Even Latham
felt moved to clarify in a recent speech that he does not support severing the U.S.
alliance with Australia.21 However, given the strains in U.S.-Australian relations
during much of the 1980s and 1990s, a more sustainable basis for cooperation than
Howards political power must be devised. The alliance needs a more stable
foundation than the personal rapport between Bush and Howard. Australias
defense transformation is also imperiled, both politically and in the nations budget.
The United States ties with Australia may appear to be the least of the Bush
administrations concerns right now, but the tensions in the Australian body politic
that could threaten the vitality of the alliance are bubbling not far from the surface
and may be exposed in the fall 2004 elections there. Howards position will become
increasingly untenable if the U.S.-Australia FTA founders in Congress, if the issue of
Australian nationals held at Guantanamo Bay goes unresolved, and if America is
perceived as slighting Australian interests. Any reorientation of Australian priorities
away from America would likely be toward a more independent foreign policy. At a
minimum, Australian cooperation with U.S. missile defense plans, political and
military support during future regional contingencies, and support for U.S. strategy
regarding China could all be at risk.
Staying the Course
The rise of China and the war on terrorthe very issues that critics of Howards
vision for Australia citealso highlight the risks involved if U.S.- Australian relations
deteriorate and Australian defense transformation stalls.
War on Terror.
Terrorism represents the biggest threat to the Australian homeland. Australian
deployments in the war against it, especially if the theater of conflict shifts closer to
Australia, will be essential. While optimists might argue that the probability of a
terrorist strike on Australian soil is low, the early-March train bombing in Madrid,
apparently targeted at Spain in part due to its active military cooperation with the
United States, demonstrates that the risk to Australia is higher than was previously
suspected. The perceived success of the Madrid bombing in influencing Spains
elections heightens the threat of a terrorist strike against other U.S. allies, such as
Australia, that are holding elections this year. Australias counterterrorism efforts in
Southeast Asia will provide the intelligence needed to defeat threats to its own

homeland. Simultaneously, as Australian defense transformation proceeds,


Australian forces will become increasingly capable of performing alongside U.S.
soldiers in complicated missions aimed at defeating rogue states, stabilizing failed
states, and/or uprooting terrorist cells.22 Australia and the United States need each
other to combat the threat of Al Qaeda in Southeast Asia. Though Australia
continues to be perceived as an outsider by Southeast Asia, it does have economic
and political weight in the region. For example, partly due to anti-Americanism in
Malaysia, U.S. cooperation with the new counterterrorism center in Kuala Lumpur
has been restricted. Australia and Malaysia, in contrast, have already begun
deepening their counterterrorism cooperation.23 These developments indicate that
the United States and Australia can leverage independent sources of influence in
Southeast Asia to create overlapping structures of counterterrorism activities that
will be more effective than if either country goes it alone. Cooperation with the
United States will also give Australia access to U.S. intelligence, helping it
effectively handle peacekeeping and counterterrorism operations too politically
sensitive for the active inclusion of American forces or when strictly Australian
interests are at risk.
The increasing cooperation between Australia and Southeast Asian countries seems
to show that the purported tradeoff between cooperation with Asia and the United
States is more apparent than real. Most Southeast Asian governments desire
stronger cooperation with the United States notwithstanding popular antiAmericanism, Ross Terrill, a research associate at the Fairbanks Center for East
Asian Research at Harvard and respected China scholar, has noted that Australias
relations with countries in Asia have been steadily improving despite its cooperation
with the United States in the war on terror.24 Moreover, the Bush administration
appears willing to take a backseat in the fight against terrorism in Southeast Asia,
as evidenced by its agreement to back away from a public role in supporting the
new Malaysian counterterrorism center. This shows that cooperating with the United
States will not impede close ties between Australia and Asia and demonstrates the
necessity of Australias engagement in the war on terror, given the impossibility of
an active U.S. role in some cases. Closer ties with the United States, especially in
the war on terror, can showcase Australias reliability as a partner, making future
Australian promises in other areas more credible and helping it obtain the benefits
of closer economic relations with dynamic Asian economies. Moreover, standing by
America at this time will give Australia special influence in the United States, giving
Australia an important voice in the U.S. decision-making process.
Australian relations are key to Asian stability.
Downer 2001 Australian Minister for Foreign Affairs (6/29, Alexander, The
Australia-United States Alliance and East Asian Security, Australia's Alliance with
the United States: Maintaining the Fabric of Peace,
http://www.dfat.gov.au/media /speeches/foreign/2001/010629_fa_us_alliance.html)
In fact, ANZUS was seen from the outset as a means of enhancing our ties with the
region: Percy Spender, who pushed so strongly to conclude the ANZUS Treaty, did so
with a clear and expressed conviction that Australia's destiny was bound up with
Asia. He saw the Australia - US alliance as a linchpin for stability in the region. On
the eve of his departure for the Colombo Conference in January 1950, Spender said
that "Australia and the United States of America are the two countries which can, in
co-operation one with the other, make the greatest contribution to stability and to

democratic development of the countries of South-East Asia." This was 13 months


before the crucial Canberra negotiations at which the fundamentals of ANZUS were
hammered out. And the preamble to the treaty itself noted the desire of the parties
"to strengthen the fabric of peace in the Pacific Area". The contemporary argument
in favour of ANZUS and the Australia-US alliance doesn't rest fundamentally on the
genuinely close emotional and cultural links between the two countries - as
important and long-standing as they are - but on the continuing congruence of
Australian and US national interests and values in so many areas. In short, it is
mutually beneficial. Let me make four key points in support of my argument. First,
from the outset, ANZUS was conceived as a security pact flexible enough to be
relevant to a range of challenges. Initially, this was Australia's concern to be
protected against the threat of a militarily resurgent Japan. Then, in the Cold War, it
was protection against the threat of Communist expansionism. Now, in what
President Bush has recently described as an era in which the threats come from
uncertainty, it provides a bedrock of certainty and security on which both Australia
and the United States know they can always rely. Second, the alliance helps cement
the US into the security architecture of the region. The United States, through its
engagement in the Western Pacific, plays a particularly important role in balancing
and containing potential rivalries in the region. For all the crises of the past three
years, the power balance in the region has remained stable, essentially because the
US has maintained and strengthened its alliances with Asia-Pacific countries.
Extinction
Dibb 2001 head of the Strategic and Defense Studies Centre in the Research
School of Pacific and Asian Studies for The Australian National University, former
Deputy Secretary for Strategic Policy and Intelligence in the Australian Department
of Defense and director of the Joint Intelligence Organisation (Paul, Naval War
College Review, "Strategic trends: Asia at a crossroads", 54:1, ProQuest, WEA)
The areas of maximum danger and instability in the world today are in Asia,
followed by the Middle East and parts of the former Soviet Union. The strategic
situation in Asia is more uncertain and potentially threatening than anywhere in
Europe. Unlike in Europe, it is possible to envisage war in Asia involving the major
powers: remnants of Cold War ideological confrontation still exist across the Taiwan
Straits and on the Korean Peninsula; India and Pakistan have nuclear weapons and
ballistic missiles, and these two countries are more confrontational than at any time
since the early 1970s; in Southeast Asia, Indonesia-which is the world's fourthlargest country-faces a highly uncertain future that could lead to its breakup. The
Asia-Pacific region spends more on defense (about $150 billion a year) than any
other part of the world except the United States and Nato Europe. China and Japan
are amongst the top four or five global military spenders. Asia also has more
nuclear powers than any other region of the world.
Asia's security is at a crossroads: the region could go in the direction of peace and
cooperation, or it could slide into confrontation and military conflict. There are
positive tendencies, including the resurgence of economic growth and the spread of
democracy, which would encourage an optimistic view. But there are a number of
negative tendencies that must be of serious concern. There are deep-seated
historical, territorial, ideological, and religious differences in Asia. Also, the region
has no history of successful multilateral security cooperation or arms control. Such
multilateral institutions as the Association of Southeast Asian Nations and the

ASEAN Regional Forum have shown themselves to be ineffective when confronted


with major crises.
2nc i law kills WOT
The use of force and pre-emptive strikes against terrorists is explicitly rejected
under international lawceding to international law would end hard-line, war on
terror policies
Duffy 2005, director of INTERIGHTS, 5Legal Director of INTERIGHTS, an
international Human rights law center. Previously worked as Legal Officer in the
Prosecutors Office, International Criminal Tribunal as Counsel to Human Rights
Watch and as Legal Director of the Centre for Human Rights and Legal Action,
Guatemala. (Helen, The "war on terror" and the framework of international law,
Cambridge U Press, 209-214, AMiles)
209 First, the US National Security Strategy appears to depart radically from the
standard for self defence established in international law, set out in the legal
framework in Chapter 5, sectionA above. It premises self defence not on an existing
attack, nor indeed (expressly rejecting the Caroline criteria) an imminent
attack. The focus is on the threat represented by terrorists and tyrants, but that
threat need not necessarily exist, as the US National Security Strategy envisages
military action against such emerging threats before they are fully formed with an
emphasis on the language of prevention, pre-emption and deterrence.284 Such a
policy of pre-emptive 210 force does not apparently require clear and specific
evidence of impending attack, but covers situations where uncertainty remains as
to the time and place of the enemys attack.285 It is unclear how speculative the
threat, or potential threat, might be to purport to justify the pre-emptive use of
force in self defence. The threat is embodied in terrorists on the one hand, and
tyrants and rogue states . . . determined to acquire WMDs on the other. While the
link between the two is referred to throughout the US National Security Strategy
by reference to the crossroads of radicalism and technology and the overlap
between states that sponsor terrorism and those that pursue weapons of mass
destruction the basis for the assertion of this link has been the subject of
controversy in relation to Iraq and beyond.286 As intent to possess or indeed mere
possession of weapons must be itself insufficient to justify the use of force, what
evidence might be required, if any, as to the plans or immediate intentions of the
state for it to amount to a threat that could plausibly give rise to the legitimate
exercise of self defence? In the absence of an actual attack, questions arise not only
relating to the evidence of a threat giving rise to self defence, but also as to how
proportionality might be measured.287 In particular, where the potential threat from
rogue states is thought to be nuclear attack, it has been questioned what would be
the proportionate response.288 The expansive approach to the threat in question is
coupled with a broad view of against whom or what such a threat might be directed
including the United States, the American people and our interests at home and
abroad.289 As noted, while defence of territory and (more controversially) of
nationals has long been the US position, the ambiguity and 211 potentially
extremely wide-reaching scope of the reference to other interests begs questions
as to the nature of such interests and limits thereon. The protection of
interests beyond the integrity and independence of the state, and, arguably,
nationals abroad, finds no justification within the law of self defence. If

the revolutionary290 view of self defence advanced in the US National


Security Strategy were to be accepted, the implications for the law on the use of
force, and its application in other situations, would be serious. Particularly so where
the expansive view of anticipatory self defence combines with the apparent
loosening or abolition of the state responsibility link: the net impact is that an
unclear threat from an unclear entity with unclear links to states may render those
states and their representatives vulnerable to attack.But there is cause to doubt
that the US National Security Strategy marks such a shift in international law.
First, it is doubtful whether the document was intended to present a legal argument
as to the state of the law. As one commentator noted, [t]he Security Strategy
provisions on pre-emptive action may yet prove more a rhetorical device designed
to put pressure on Iraq than a serious attempt to rewrite international law on self
defense.291 Second, the approach to anticipatory self defence advanced in this
document and in relation to Iraq has met with a chilly response internationally. On
the one occasion when it appears to have been relied upon, by the US in relation to
Iraq, it was not endorsed by any other stateinvolved in that intervention and met
with firm rebuke from many other states and commentators. The perceived excess
of such a claim may indeed have impelled a reassertion of the collective security
system.292 5B.3.2 Internationalism, unilateralism or exceptionalism? The US
National Security Strategy describes itself as based on a distinctly American
internationalism.293 While there are several references to allies, coalitions and
international institutions (in that order), it clearly presents 212 a multilateral
approach to the use of force as optional rather than mandatory and places
emphasis on the readiness of the US to use pre-emptive force unilaterally. It notes
that: [w]hile the US will constantly strive to enlist the support of the international
community, we will not hesitate to act alone, if necessary, to exercise our right of
self defence by acting preemptively.294 A second feature of the US National
Security Strategy of particular note is therefore its unilateralism. Finally, questions
may also be asked regarding the prominence and relevance of international law in
the US National Security Strategy. As noted above, there is no apparent attempt,
direct or indirect, to justify the policy by reference to international law.International
law is referred to explicitly only once, with regard not to US policy but in the
characterisation of rogue stateswhich, inter alia, display no regard for
international law, threaten their neighbours, and callously violate international
treaties to which they are party.295 Does the US National Security Strategy
envisage that those rules applicable to others are applicable also to the US? And
conversely, does it envisage that the same standards regarding pre-emptive self
defence that it advances for the US should be available to others? If the answer to
either or both is negative, it may be that the questions arising relate not so much
to a doctrine of unilateralism as one of USexceptionalism, with the consequent
challenges for the universality of international law inherent in such an
approach. 5B.4 Conclusion The interventions in Afghanistan and Iraq that followed
9/11 are in many ways very different. Not least among the differences are states
reactions to them. The use of force in Afghanistan, like the September 11 attacks
that preceded it, met with international unity. The use of force in Iraq caused
international division rarely seen in the post-Cold War era. But to varying degrees
and in different ways, both raise issues regarding an expansive approach to self
defence and a failure to engage the collective security system, in preference for a
unilateralist approach, whether exercised individually or through informal coalitions
of the willing. The 213 more exorbitant claims that arose in the context of Iraq and

beyond relate to the purported right to use force to topple governments in the name
of defending ones state, friends and allies from potential danger, and to do so
without Security Council approval, where the Council does not respond to the
request by states to take the required action.The lack of indication of acceptance of
such an approach by the broader international community of states means that it is
highly unlikely, however, at least for the time being, to impact on
international law.296 In this respect the very different response to the Afghan
intervention, by contrast, raises more difficult questions. The unity around
Afghanistan is on one level surprising, given that the Afghan intervention raises a
number of questions (highlighted above). Among them is the fact that Afghan
territory and the institutions of the Afghan government were attacked without
clarity as to whether the state was considered responsible for the original attack (or
for an imminent threat) or only for other wrongs in respect of terrorists on its
territory, and what relevance, if any, such responsibility had to the justification of
the use of force against it. Whatever the lawfulness or not of the use force in the
particular circumstances of Afghanistan, the danger of its legacy may stir so far as
legal principles of broader application are discerned and relied upon to justify the
use of force in other contexts in the future, for example against any of the many
other states with terrorist cells operating out of their territory on the basis of
unclear standards of responsibility. The reaction to Afghanistan, or lack thereof, is
perhaps less surprising than at first appears, given the global political context into
which plans for the Afghan military campaign emerged and states reactions were
rendered. Shock and revulsion at the September 11 attacks, followed by
apprehension as to the response that might ensue, particularly in light of the
threatening rhetoric that those not for the campaign would be considered against
it, and held to account accordingly.297 Afghanistan was not only a pariah state with
an exceptionally notorious human rights record, for which it had been widely
condemned, its de facto government was also uniquely unpopular in the region and
beyond. At least in the short term there was much to be lost and little to be gained
geopolitically from 214 opposition to this conflict. It is easy to speculate that certain
reactions, or the absence thereof, may have been based less on a view as to the
lawfulness of military action and more on flexibility borne of a reluctance to defend
the Taliban or take the intervening forces to task. In assessing the impact that state
reactions may nonetheless have had on the law,298 reference should be had to
Afghanistan intervention not in isolation but in context, by reference for example to
events that followed immediately thereafter, such as the intervention in Iraq and
Israeli attacks on Syria,299 and the more critical reactions thereto. States have
continued to express the same reservations with self defence being invoked against
terrorist groupsonanother states territory aswere heardbefore 9/11.With time, and
in the wake of the Iraq intervention they have come to place renewed stress on the
collective security system as opposed to unilateral force that the role of the
United Nations should be brought into full play.300 In particular, assertions of the
unilateral right to use force preemptively have been openly rejected.301 When it is
assessed, as it must be, by reference to subsequent statements and responses to
events, it has been suggested that the impact on the law of actions and reactions
post 9/11 will be less striking than it may at first have appeared.
Perception of force is vital to a successful war on terror signaling strength causes
global populations to tip toward the U.S.

Gitz 07, IR prof, 7Bradley R. Gitz, William Jefferson Clinton Professor of


International Politics Lyon College, Perception as Destiny, Arkansas DemocratGazette (Little Rock), 1-14-2007, Lexis
Muslim majorities will eventually reject Islamism only if it is perceived as being
effectively and resolutely resisted, as is happening at present in the horn of Africa.
They will accommodate themselves to Islamism regardless of their personal
preferences if they feel it is the stronger force and represents their reluctant future.
Osama bin Laden would be the first to agree that what we are engaged in is a
struggle for the hearts and minds of the world's Muslims and that the single most
important variable influencing that struggle is perceptions of who is stronger, the
Islamists or us. To the extent that Islamist fanatics appear to be winning because we
in the West lack the necessary resolve to use our superior power to resist their
advances, our superior values will never get the chance to prove their appeal.
The appropriate analogy here comes from the urban war zones of America, where
the willingness of law-abiding residents to cooperate with the police in their struggle
against drug dealers and street gangs is contingent upon which side they feel can
hurt or protect them more. Such people constitute the vast majority of the residents
of those neighborhoods and almost certainly want the same things for their children
that those living in the affluent suburbs want, but they can only afford to "do the
right thing," i.e., help the police identify and arrest the criminals, if they can do so
without risking their lives and those of their children.
Just as the "good guys" (the police) can prevail in crime-ridden neighborhoods only
by receiving the help of the people living there and the people living there will help
only if they believe that the police are stronger than the bad guys, moderate
Muslims around the world will only reject the terrorists and their governments will
cooperate with ours in the struggle against those terrorists only if they believe that
we, not the terrorists, will win.
Such a struggle is playing out in miniature inside Iraq at present and features
almost exactly the same incentive system for ordinary Iraqis. We can build a stable
democracy in Iraq only if we can overcome the terrorists and the sectarian militias,
but to overcome the terrorists and diminish the appeal of the sectarian militias we
must first win the support and confidence of the Iraqi people. The people of Iraq
would almost certainly prefer to actively cooperate with us and with the
government most of them stood in long lines to elect, but will do so only if it doesn't
mean jeopardizing themselves and their families.
If the people of Iraq believe that the insurgents are stronger and our will to prevail is
too weak, they will accommodate the insurgents who control their neighborhoods
and punish those who defy them. If they believe that we are about to throw up our
hands and withdraw in frustration, they will find protection wherever they can, most
obviously among Iraq's heavily armed sectarian militias.
In Vietnam, we lost primarily because the villagers of South Vietnam feared the Viet
Cong to a greater extent than they trusted either their army or our soldiers to
protect them. Most of them didn't want the kind of oppressive future that
communism promised, but then most Muslims don't want to be ruled by the Taliban
or al-Qa'ida, either.
Thus, what we should never forget when discussing our options in Iraq and
elsewhere is that the strength of the other side will be determined by perceptions of
our strength and resolve.

Hardline policies empirically solve and are key to deter attacksconcessions make
terror inevitable
Phillips 06, former CRS fellow, 6Former Research Fellow at the Congressional
Research Service. Senior Research Fellow for Middle Eastern Affairs at Council for
Foreign Policy Studies. Bachelors in IR from Brown and Masters in International
Security Studies at Tufts (James, The Evolving Al-Qaeda Threat, 17 March
2006,http://www.heritage.org/research/homelandsecurity/hl928.cfm, AMiles)
Al-Qaeda's core group is disciplined, relentless, and fanatical and probably cannot
be deterred to any significant degree. They undoubtedly will continue to launch
their attacks until they are killed, captured, and decisively defeated. Bin Laden's top
lieutenants are cold and rational plotters who will persevere in their efforts despite
long periods of adverse conditions because of their strong belief in their eventual
triumph. The lust for "martyrdom" that permeates the middle and lower levels of alQaeda make those terrorists difficult to deter. Individual suicide bombers, once
clasped tightly in al-Qaeda's embrace and brainwashed by a tight circle of zealous
associates, are unlikely to be deterred from carrying out their lethal plots.
It is easier to discourage potential recruits from joining al-Qaeda than to stop them
from attacking once they have been indoctrinated and prepared for what they are
persuaded is religious martyrdom. To deter someone from joining, it would be
helpful to convince them beforehand that al-Qaeda is fighting a losing battle, that it
hurts the Muslim community by its ruthless tactics, and that its long-term goals are
unrealistic and even run counter to the interests of most Muslims. The United States
can influence perceptions of al-Qaeda's prospects for success by relentlessly
hunting down its members and bringing them to justice. But it must rely on Muslim
political and religious leaders to drive home the other points. Close cooperation with
the intelligence and law enforcement agencies of Muslim governments also can help
discourage potential recruits from joining by underscoring that they will face
counteraction not just from the United States, but from many other governments.
Visible progress in defeating al-Qaeda's forces in Iraq, especially if Sunni nationalist
insurgent groups can be turned against al-Qaeda, would go far to deterring young
Muslim militants from joining al-Qaeda. Fewer people would want to die in a losing
jihad than in one that appears to be on track to victory. As bin Laden himself noted
in a candid videotape captured in Afghanistan in late 2001, "When people see a
strong horse and a weak horse, by nature they will like the strong horse."
The sooner the war in Iraq is turned over to the Iraqi government, the better for the
broader war on terrorism. The stream of non-Iraqi recruits attracted to Iraq would
diminish over time if potential recruits realized that their primary opponent there is
not an army of infidels, but a democratic Iraqi government supported by the
majority of Iraq's Sunni Arabs.
Another important goal is to deter states from assisting al-Qaeda. The Bush
Doctrine, enunciated in the President's September 20, 2001, speech before
Congress, warned that "any nation that continues to harbor or support terrorism will
be regarded by the United States as a hostile regime." This tough stance led
Pakistan to break with al-Qaeda and Afghanistan's Taliban regime, which it
previously had cooperated with against India.
The United States also accrued considerable deterrent credibility by subsequent
military campaigns that successfully overthrew regimes that harbored terrorists in
Afghanistan and Iraq. The demonstration effect of these military campaigns
influenced Libya to surrender its WMD and disavow terrorism. And Iran suddenly

became very cooperative in freezing its uranium enrichment program in 2003. But
the strength of deterrence against Iran apparently has been undermined by the
growing Iranian perception that the United States is bogged down in Iraq and
Afghanistan.
Finally, the U.S. and its allies can deter al-Qaeda terrorists by refusing to give in to
their demands. Making concessions under the threat of terrorist attacks only
rewards and emboldens terrorists and encourages future attacks. In the long run,
suicide bombers will claim fewer victims if the targeted countries stand firm and
refuse to appease them.
Specifically, international law stops preventative detentions
McGinnis 06, law prof, 6Professor of Law at Northwestern (John O, Harvard Journal
of Law & Public Policy, The Comparative Disadvantage of Customary International
Law, HeinOnline)
To evaluate the quality of raw international law, one could simply cite instances
where American law and professed customary international law diverge and then
argue that the American law is better. American law, for example, permits the
Executive to detain enemy combatants associated with al Qaeda who have not been
convicted of specific crimes. n5 Many international lawyers assert that customary
international law does not allow for such detention. n6 Yet, determining which law is
normatively better might not be very productive. People who agree on abstractions
like fairness often disagree on particular norms like these. One might instead assess
whether the process of making raw international law is better than the process of
making American law, which is based on domestic legal processes about which
there is a consensus. To do so, one must [*9] compare international law with
American law--first as it affects Americans and then as it affects the wider world.
Thats key to prevent attacks
Taylor 03 (Stuart, Rights, Liberties, and Security: Recalibrating the Balance after
September 11, The Brookings Review, Winter, Vol.21 No.1, pp. 2531,http://www.brookings.edu/press/review/winter2003/taylor.htm)
But the case for some kind of preventive detention has never been as strong. AlQaida's capacity to inflict catastrophic carnage dwarfs any previous domestic
security threat. Its "sleeper" agents are trained to avoid criminal activities that
might arouse suspicion. So the careful ones cannot be arrested on criminal charges
until it is too late. And their lust for martyrdom renders criminal punishment
ineffective as a deterrent.
Without preventive detention, the Bush administration would apparently have no
solid legal basis for holding the two U.S. citizens in military brigs in this country as
suspected "enemy combatants"or for holding the more than 500 noncitizens at
Guantanamo Bay. Nor would it have had a solid legal basis for detaining any of the
19 September 11 hijackers if it had suspected them of links to al-Qaida before they
struck. Nor could it legally have detained Moussaouiwho was suspected of
terrorist intent but was implicated in no provable crime or conspiracyhad he had
not overstayed his visa.

***HUMAN RIGHTS
1nc human rights turn
Turn: international law crushes rightseven undemocratic domestic rule is superior.
McGinnis and Somin 2009 - *Sr. Professor of Law at Northwestern, **Assistant
Professor of Law at George Mason University School of Law (April, Democracy and
International Human Rights Law, Notre Dame Law Review, 84 Notre Dame L. Rev.
1739, Lexis, WEA)
Our analysis rests on both theory and example. As a matter of theory we show how
domestic democratic processes are likely to generate human rights norms superior
to those embodied in international law. International law is often enacted through
the influence of nondemocratic governments and unaccountable, unrepresentative
elites from democratic states. Even the assent of democratic governments to
international human rights norms is often "cheap talk," because that assent does
not reflect a willingness to have these norms directly enforced. We also show that
many specific international human rights norms are at best debatable and at worse
potentially harmful. One of the key structural problems is that the institutions
interpreting such norms are not democratic, but bureaucratic and oligarchic and,
thus, often hostile to basic economic and personal liberties.
We do not argue against the use of international human rights law to replace
democratic decisionmaking because democracy produces perfect results. We
merely contend that even a flawed democratic process is likely to produce better
legal rules than the international lawmaking system. The democratic process to
some degree reflects the decisions of the people either directly or, more often,
through their representatives. The international law system, by contrast, reflects the
views of national governments, whether democratic [*1742] or not, and unelected
publicists, who are accountable to no one. There is no good reason to believe that
such a process will better choose appropriate human rights, including minority
rights, than a democracy will. This is particularly clear if one includes the
constitution-making processes of complex, modern democracies as part of the
domestic lawmaking system.
This creates the conditions for nuclear war.
Human Rights Web 97 ("An Introduction to the Human Rights Movement," 1/25,
http://www.hrweb.org/intro.html)
Many also realized that advances in technology and changes in social structures
had rendered war a threat to the continued existence of the human race. Large
numbers of people in many countries lived under the control of tyrants, having no
recourse but war to relieve often intolerable living conditions. Unless some way was
found to relieve the lot of these people, they could revolt and become the catalyst
for another wide-scale and possibly nuclear war. For perhaps the first time,
representatives from the majority of governments in the world came to the
conclusion that basic human rights must be protected, not only for the sake of the
individuals and countries involved, but to preserve the human race.
xt i-law kills rights

International law chills foreign direct investment and destroys global development
turns rights
Kochan, 06 (Donald, professor of law at Chapman University, 29 Fordham Int'l L.J.
507, SOVEREIGNTY AND THE AMERICAN COURTS AT THE COCKTAIL PARTY OF
INTERNATIONAL LAW: THE DANGERS OF DOMESTIC JUDICIAL INVOCATIONS OF
FOREIGN AND INTERNATIONAL LAW, February, lexis)
Finally, economic development and its concomitant contribution to the
advancement of human rights and democracy can be threatened when the judiciary
meddles in foreign and international law. 180 If corporate investment is chilled
because of potential international "law" liability, then economic development,
democracy, and the enhancement of human rights are chilled as well. If courts have
free reign to adopt foreign and international laws, the certainty and predictability of
law are unsettled and thus may cause detrimental concerns. After all, people need
to know the rules they are playing by in order to be fully willing and able to play the
game. That effort is much easier if there is a corpus of law that is identifiable. It is
identifiable when companies or individuals know the source of lawmaking authority
- at home and abroad. Recognizing that judges might invoke precedents from
extraterritorial sources makes this process difficult [*551] and indeterminate,
necessarily creating investment risks that will affect market and development
activities. For example, when private companies become subject to ATS suits, such
suits threaten to discourage the very overseas investment and development that
help expand individual liberty, human rights, and democracy abroad. New liabilities
will discourage foreign investment, handicapping the advancement of human rights
in developing countries. The uncertainties of applicable law that arise when judges
intonate that they can look outside our borders when deciding cases have the same
effect on investment predictability both within and outside the walls of the United
States.
The plans precedent will be used to restrict constitutional rights
Sanchez, 05 (Ernesto, JD at the University of Pennsylvania, 38 Conn. L. Rev. 185, A
Case Against Judicial Internationalism, December, lexis)
The fact that foreign opinion and laws stem from different cultural contexts, as
previously discussed, would certainly make few Americans want the courts to
embark upon such a trend. Many foreign legal systems in other democracies, for
example, do not recognize rights that Americans take for granted. 249 One could
argue that the United States allows more freedom of speech than France or
Germany given those two countries' prohibitions on "hate" or racist speech or
similar activities. 250 While most Americans would probably (and hopefully) find the
ideas underlying such speech or activities abhorrent, the right to say whatever one
wants without bringing about physical harm to innocent parties and to believe in
whatever ideology one wishes constitutes a central tenet of the American legal
psyche. 251 Speech regulations are not the only area where the United States
differs [*234] from several foreign states. The First Amendment prohibits the
establishment of any religion. 252 But England has established the Anglican church
as the official state church, which receives government preferences that other
denominations cannot obtain. The concept that one is innocent until proven guilty is
a fundamental tenet of the American criminal justice system, leading to an
elaborate array of protection for criminal suspects such as preclusions on

unreasonable searches and seizures and the privilege against self-incrimination. 253
Yet in most other countries, especially those adhering to a civil law system, the
rejection of the exclusionary rule demonstrates how a more inquisitorial philosophy
pervades criminal justice systems. 254 And in spite of the jury system's "deep
roots" in Great Britain, criminal trial by jury is nowhere near as common there as it
is here. 255 The right to criminal or civil trial by jury is also not as common in the
civil law states of Europe as it is in common law ones. 256 And again, these
differences only involve nations that otherwise qualify as democracies which bear a
degree of cultural similarity to the United States. If courts are to assume that
United States law should assume a certain approach to an issue because other
states take the same approach, would the next step not consist of reevaluating
some of the rights and guarantees of the United States Constitution to make them
consistent with the laws of other nations? Again, the chance that a future Supreme
Court will undertake such an extensive review of American law is not great. But
having a foreign law guide the American approach to a given constitutional issue to
even a small extent, when American law is nonetheless available or when a case
raises no non-United States law implications, certainly appears to pose this danger.

xt i-law kills rights


No turnsstringent incorporation is only worthwhile for autocracies who would
never listen anyway, forcing international human rights in democracies is counterproductive.
McGinnis and Somin 2009 - *Sr. Professor of Law at Northwestern, **Assistant
Professor of Law at George Mason University School of Law (April, Democracy and
International Human Rights Law, Notre Dame Law Review, 84 Notre Dame L. Rev.
1739, Lexis, WEA)
We have argued that raw international human rights law should generally not be
given the authority to alter the domestic human rights law of democratic states.
This conclusion flows naturally from the democracy deficit of all raw international
law, which makes it likely that its norms will generally be less beneficial than those
of domestic law generated by democratic processes. In the case of human rights
law, international lawmaking processes are particularly suspect because of the
extensive influence of repressive nondemocratic governments who have an interest
in suppressing human rights rather than promoting them.
While it may not be desirable for international human rights law to provide rules of
decision in the domestic law of democracies, our analysis points to a different
conclusion for nondemocratic states. In many cases, international human rights law
norms may well be superior to the domestic law of dictatorships. In the extreme
case of totalitarian states that suppress virtually all human rights or engage in mass
murder, n224 almost any set of legal rules is likely to be preferable to those enacted
by the state's domestic rulers.
This factor points to the possibility that we should strive for an asymmetric system
of international human rights law: one that regulates dictatorships more strictly than
democracies. While traditional international law has historically sought to treat all
states as possessing equal rights and obligations, the merits of this stringent
perspective in the field of human rights law seem dubious. In particular, there may
be a much stronger case for imposing substantive legal norms (as opposed to those

that merely facilitate democratic processes) through international law on


dictatorships than on democracies. Of course, the governments of such nations are
unlikely to enforce human rights directly against themselves. But outside
institutions, including international tribunals, may well be justified in enforcing
international human rights norms that displace the nation's own norms, when such
institutions have jurisdiction over a matter. While we cannot fully expound on the
strengths and weaknesses of an asymmetric system of [*1797] international
human rights law in this article, the possibility merits further inquiry. n225
Obviously, the role of nondemocratic states in influencing the content of
international human rights law is a major obstacle to the creation and enforcement
of rules that would impose meaningful constraints on such states. Thus, reform
efforts will have to focus on limiting the influence of such states on the content of
international human rights norms, as well as on ensuring that the resulting laws will
be adequately enforced against them. The issues involved are complex, and we
cannot even begin to resolve them here. Their consideration is, however, a logical
extension of our analysis that should be undertaken in future research.
This turns the caseinternational law will be manipulated by authoritarian regimes
and distorted to repress rights.
McGinnis and Somin 2009 - *Sr. Professor of Law at Northwestern, **Assistant
Professor of Law at George Mason University School of Law (April, Democracy and
International Human Rights Law, Notre Dame Law Review, 84 Notre Dame L. Rev.
1739, Lexis, WEA)
A. The Influence of Nondemocratic States
A particularly important and underappreciated element of democracy deficit of
international human rights law is the influence of nondemocratic states over its
content. Nondemocratic governments have little incentive to take account of the
interests of either their own people or those of foreign states in determining their
stances on international law. The influence of nondemocratic states is most obvious
in multilateral human rights treaties that, although in many cases are not ratified by
the United States, are often claimed as a basis for customary international law. n95
Totalitarian nations such as those of the Soviet bloc played a key role in negotiating
these treaties, and exercised effective veto power over their adoption.
The Soviet bloc influenced the content of the Universal Declaration of Human Rights
(UDHR), arguably the most important international human rights treaty. Joseph
Stalin's representatives successfully advocated inclusion of social and economic
rights in the document, n96 watered down protections for political liberties and
freedom of speech, n97 and blocked the addition of any significant protection for
private property rights. n98 The Soviet bloc also exercised influence [*1766] over
the content of the International Covenant on Civil and Political Rights (ICCPR),
perhaps the second most notable international human rights treaty. n99 These
treaties represent bargains among national governments. The democratic
governments had to engage in give and take in international negotiation. As a
result, we cannot be confident that the same provisions would have emerged
absent communist influence. We are, of course, not suggesting that all the
provisions in these treaties are necessarily harmful, only that we cannot be
confident of their merits by virtue of the process that generated them.
Nondemocratic states also influence the content of other types of raw international
law. To the extent that customary international law is based on state practice, n100

it is important to recognize that even today 104 of the world's 193 nations are rated
either "Not Free" or only "Partly Free" according to Freedom House's annual survey
of political freedom around the world. n101 Thus, the majority of those states
influencing the content of state practice are either dictatorships or at least not fully
democratic. Nondemocratic states are also heavily represented in the U.N. Human
Rights Council and other international bodies that influence the development of
human rights law. n102 The same is true of more narrowly focused committees
tasked with [*1767] interpreting and applying more specific international human
rights treaties. n103
The influence of nondemocratic states is an important shortcoming of all raw
international law. n104 But it is a particularly serious problem in the case of
international human rights law. Nondemocratic states are by far the most important
violators of human rights. State-sponsored mass murder is responsible for the
deaths of hundreds of millions of innocent people in the twentieth century alone,
n105 easily overshadowing all other rights violations. The Soviet Union - the
nondemocratic government that exercised the most influence on the content of
modern international human rights law - was also arguably the greatest of all
twentieth century violators of human rights. n106 Current estimates of the death
toll of government-sponsored mass murder in the USSR range from twenty million to
as high as sixty-one million. n107 And these figures do not even consider the Soviet
governments' many other human rights violations, such as infringements on
freedom of speech and religion.
In short, nondemocratic states that influence the content of international human
rights law have a fundamental conflict of interest. They have every incentive to
transform the content of rights whose implementation might interfere with their
own repressive policies or threaten their hold on power.
An even more serious impediment to automatically assuming that international
human rights law is beneficial is the ability of authoritarian nations to use their
influence to promote rights that legitimize their authority and justify their use of
repression against potential political opponents. Examples of the latter include the
Soviet bloc's successful efforts to include bans on hate speech in the UDHR and
ICCPR, rights whose inclusion they sought in part to justify the suppression of
opposition political speech under communist governments. n108 Communist states
also sponsored a longstanding and partially successful effort to use international law
to justify and legitimate [*1768] military interventions intended to repress
domestic opposition to communist totalitarian regimes. n109
at: UN solves
The UN makes it worse.
Bandow 9 (Doug BandowSenior Fellow at the Cato Institute, The Big Joke, June
15, http://www.cato.org/pub_display.php?pub_id=10290)
The United Nations and human rights do not belong in the same sentence. Last
Wednesday the UN Human Rights Council praised Cuba's human rights
achievements. The Council was far more concerned about the U.S. embargo against
Cuba than the Cuban government's brutality towards its own people.
The UN long has claimed to represent the greatest aspirations of humanity, running
back to the Universal Declaration of Human Rights, which was approved more than
six decades ago. But the UN's Commission on Human Rights routinely embarrassed

the "international community." Often dominated by human rights abusers, the body
routinely whitewashed oppressive governments and spent much of its time
attacking Israel. It was one of Turtle Bay's finest comedy clubs -- only the
performances were underwritten by U.S. taxpayers.
Three years ago the Commission was replaced by the Human Rights Council in a
vain attempt to improve operations. The Bush administration refused to dignify the
body with America's presence, but in March the Obama administration announced
its decision to return. Doing so obviously was a mistake.
The membership list reads like a Who's Who of repressive regimes: Angola, Egypt,
Gabon, China, Jordan, Saudi Arabia, Azerbaijan, Russia, and Cuba. Many of the other
members have lesser human rights problems. Authoritarian states have an obvious
incentive to go easy on their fellow autocracies. Even worse, these member
governments view violating human rights as a positive good and one of the chief
responsibilities of government (in their hands, at least).
As part of its commitment to human rights, the Council conducts an annual review -which culminates in a three hour debate on the nation's human rights record.
Strangely, these reviews seem a bit, shall we say, superficial?
Cuba's record isn't hard to assess. The State Department helpfully summarizes the
Cuban record in its annual human rights report: The government continued to deny
its citizens their basic human rights and committed numerous, serious abuses. The
government denied citizens the right to change their government. At year's end
there were at least 205 political prisoners and detainees. As many as 5,000 citizens
served sentences for "dangerousness," without being charged with any specific
crime. The following human rights problems were reported: beatings and abuse of
detainees and prisoners, including human rights activists, carried out with impunity;
harsh and life-threatening prison conditions, including denial of medical care;
harassment, beatings, and threats against political opponents by governmentrecruited mobs, police, and State Security officials; arbitrary arrest and detention of
human rights advocates and members of independent professional organizations;
denial of fair trial; and interference with privacy, including pervasive monitoring of
private communications.
The group Freedom House ranks Cuba at the bottom in both political rights and civil
liberties. "Although the degree of repression has ebbed and flowed over the past
decade, the neutralization of organized political dissent remains a regime priority,"
explains Freedom House. More by Doug Bandow
Freedom House compiles a special report on freedom of the press and, not
surprisingly, ranks Cuba as "not free" in this category as well. There was some
relaxation of repression last year, but "Cuba continued to have the most restrictive
laws on free speech and press freedom in the hemisphere." Moreover, "state
security agents continued to threaten, arrest, detain, imprison, and restrict the right
of movement of local and foreign journalists throughout the year."
Cuba also is one of the worst violators of religious liberty. Last year, explained the
State Department in its annual International Religious Freedom Report: "The
government continued to exert control over all aspects of social life, including
religious expression. Certain groups, particularly Seventh-day Adventists and
Jehovah's Witnesses, faced significant harassment and maltreatment." Although
repression had eased of late, "The Ministry of the Interior continued to engage in
efforts to control and monitor religious activities and to use surveillance, infiltration,
and harassment against religious groups, religious professional, and laypersons."
Last month the United States Commission on International Religious Freedom placed

Cuba on its Watch List since "Within this reporting period, the government
expanded its efforts to silence critics of its religious freedom policies and crack
down on religious leaders whose churches operate outside of the governmentrecognized umbrella organizations for Protestant denominations."
There are worse offenders, of course. Compare any country against Burma or North
Korea and even the worse human rights offender looks pretty good. But Cuba's
record could not survive the most cursory review by a serious body. Unfortunately,
the Human Rights Council is not a serious body.
The UN issued an official press release summarizing the debate, if it can be called
that, on Cuba and two other states (Saudi Arabia and Cameroon): In the discussion
on Cuba, speakers said Cuba had withstood many tests, and continued to uphold
the principles of objectivity, impartiality and independence in pursuance of the
realization of human rights. Cuba was and remained a good example of the respect
for human rights, including economic, social and cultural rights. The Universal
Periodic Review of Cuba clearly reflected the progress made by Cuba and the Cuban
people in the protection and promotion of human rights, and showed the
constructive and responsive answer of Cuba to the situation of human rights. Cuba
was the victim of an unjust embargo, but despite this obstacle, it was very active in
the field of human rights. The trade, financial and economic blockade by the United
States should be brought to an end, as it was the primary obstacle to the full
development of Cuba.
In short, the problem is not the brutality of the Castros' regime. It is the American
trade embargo -- counterproductive in my view, but ignored by everyone else and
actually used by the Cuban government to enhance its control. As my Cato Institute
colleague Juan Carlos Hidalgo put it, "This is not from The Onion, but the UN."
However, the Council summary does not do the debate justice. Pakistan wished
Cuba well in realizing "all human rights for all citizens." Venezuela (you don't have
to be a member to comment) lauded "the iron will" of Cuba's government. Russia
said, "Cuba had taken a serious and responsible approach." Uzbekistan "stressed
Cuba's work in the promotion of human rights." China declared that "Cuba had
made important contributions to the international human rights cause." Egypt
opined that "Cuba's efforts were commendable." And so it went.
Again, this is not from the pages of The Onion. It is from a debate before the Human
Rights Council.
Needless to say, the Cuban government was pleased. The Cuban Interests Section
(which acts as Havana's de facto embassy) put out a press release headlined: "Cuba
recognized in the Human Rights Council." Havana grandly announced that it was
accepting most of the Council's recommendations, and "reaffirmed its commitment
to the strengthening of international cooperation on human rights issues and to the
UN Human Rights Council, which must be based on the principles of universality,
objectivity, impartiality and non-selectiveness."
Is there some way, in theory, in which the Human Rights Council might help
advance the cause of human rights? Perhaps, but it certainly is not apparent how
that might be. The official "Report of the Working Group on the Universal Periodic
Review" of Cuba was as stomach-churning as the ensuing debate. Rather than
advancing the cause of human liberty, the Council is providing cover for the
oppressors and persecutors. Like the Castro Brothers & Co.
After receiving its UN whitewash, the Cuban government exclaimed: "The exemplary
achievements of the Cuban Revolution in relation to human rights have been

acknowledged once again by the international community. It has not been possible
to silence the truth."
Rather than going back into the Council, the U.S. and other serious states should
make a quick exit. The problem is not Cuba. It is the UN. Saudi Arabia, too, received
gentle treatment. Up the next day were Azerbaijan and China -- the latter of which
praised the records of Cuba, Saudi Arabia, and Cameroon. This incestuous process
will continue, day after day, at the expense of the rest of us.
Human rights. United Nations. Never shall the twain meet, except in a tiresome
comedy routine in an expensive club operating out of a famed high-rise in New
York's Turtle Bay.

***ALIEN TORT STATUtE


1nc ats turn
The plan leads to a new flood of Alien Tort Statute claims
Ku, 05 (Julian, professor of law at Hofstra University, 19 Emory Int'l L. Rev. 105,
Spring, lexis)
Should the executive branch attempt a more frontal assault on the ability of the
Court to independently interpret CIL, the Court has suggested in its latest sovereign
immunity case that it will consider a rule requiring deference to executive branch
views. 92 In sum, Sosa recognizes, but does not squarely address, the scope of
executive powers to bind a domestic court's interpretation of CIL. It suggests that
the Court will adopt a rule of great deference, but it is unclear whether that
deference will rise to the level of complete submission that characterized judicial
attitudes toward the CIL of foreign sovereign immunity. The scope of executive
power to define and to control the interpretation of CIL remains uncertain.
Conclusion
Sosa leaves the door ajar for a new wave of ATS lawsuits challenging the legality of
U.S. conduct of the war on terrorism. This war, which involves a number of actions
of questionable legality under customary international law, has already sparked a
number of lawsuits challenging key elements of the U.S. government's strategy for
detaining and interrogating suspected terrorists. Unlike previous waves of ATS
lawsuits, the third wave of ATS lawsuits will [*127] directly challenge the conduct
of the U.S. government itself, usually under customary international law. My
prediction is that the third wave of ATS lawsuits, however meritorious, will lead
defendants to test the scope of the executive branch's power to control judicial
interpretations of CIL. In fact, executive branch supervision of the application of CIL
by domestic federal and state courts has a solid historical and doctrinal pedigree.
This executive power may pose the greatest obstacle to the emerging third wave.
This means we will target China with civil lawsuits. The impact is relations
Bradley 2001 law professor at the University of Virginia (Curtis, Chicago Journal of
International Law, The Costs of International Human Rights Litigation, 2 Chi. J. Int'l
L. 457, lexis)

The most significant cost of international human rights litigation is that it shifts
responsibility for official condemnation and sanction of foreign governments away
from elected political officials to private plaintiffs and their representatives. n12 The
plaintiffs and their representatives decide whom to sue, when to sue, and which
claims to bring. These actors, however, have neither the expertise nor the
constitutional authority to determine US foreign policy. Nor, unlike our elected
officials, will these actors have the incentive to weigh the benefits of this litigation
against its foreign relations costs. There is simply no reason to expect that, in
pursuing their specific litigation goals, the plaintiffs and their lawyers will take into
account broader issues relating to the US national interest. Furthermore, these
individuals lack the accountability of elected officials for making bad foreign
relations decisions.
Admittedly, foreign relations costs are difficult to measure. Strains in international
relationships may undermine a variety of cooperative ventures, ranging from trade,
to environmental protection, to the war on drugs, to arms control, to combating
terrorism. n13 They also may incrementally heighten the risk of military conflicts
and incrementally reduce US national security. But no one case is likely to create a
foreign relations crisis, and it is extremely difficult to know exactly how much strain
any particular lawsuit will create and what precise effects this strain will cause. It is
our elected officials, however, and not private litigants, who have the
authority, [*461] expertise, and incentives to make these difficult evaluative and
predictive decisions and to balance the benefits of international condemnation
against its potential costs.
The US approach to China is a good illustration of the balancing act engaged in by
US officials when making these determinations. Although the President and
Congress often have criticized China's human rights practices, they have done so as
part of a carefully calibrated strategy that balances criticism against the benefits of
engagement in economic and related matters. Thus, for example, the US
government recently approved permanent normal trade relations with China, but it
also has continued to direct measured criticism at China for its human rights
practices. Human rights lawsuits, such as the one against Chinese leader Li Peng,
threaten to interfere with this sort of political balancing. n14
Relations prevent nuke war
Conable and Lampton 93 (Barber B., President Emeritus World Bank and David,
President National Committee, China: The Coming Power, Foreign Affairs,
December / January, Lexis)
Regionally American interests are both numerous and important. The two most
protracted, economically distracting and politically explosive American military
commitments in the post-World War II era were Korea and Vietnam. In both cases
China figured prominently. The lesson is that regional stability requires workable
U.S.-China relations. Competition between Beijing and Washington takes the form of
exploiting indigenous regional conflicts by both powers, resulting in local problems
that expand to suck both countries into a self-defeating vortex. The most serious
threats to American security and economic interests in Asia include armed conflict
with nuclear potential between the two Koreas and between India and Pakistan; a
deterioration of relations between Beijing and Taipei that could lead to economic or
military conflict; a re-ignition of the Cambodian conflict; and a botched transition to
Beijing's sovereignty in Hong Kong in 1997. None of these problems can be handled

effectively without substantial Sino-American cooperation. Constructive relations


with Beijing will not assure P.R.C. cooperation in all cases; needlessly bad relations
will nearly ensure conflict. The Republic of Korea's formal diplomatic recognition of
Beijing last August, at the expense of Taipei, is just one indication of the increasing
importance the region attaches to building positive ties to the P.R.C.

2nc link evidence


The Courts are deferring to the executive now on ATS
Ku, 05 (Julian, professor of law at Hofstra University, 19 Emory Int'l L. Rev. 105,
Spring, lexis)
Sosa alludes to one potential obstacle to third wave ATS lawsuits. In a footnote,
Justice Souter suggests that the executive branch's views on the effect of an ATS
suit on U.S. foreign policy should, in appropriate circumstances, be given great
deference. 58 This allusion highlights one of the least explored obstacles to
successful ATS lawsuits: the use of executive statements of interest. Because of the
historic [*119] role of the executive branch in the application of international law especially CIL - in domestic courts, the coming third wave of ATS lawsuits will likely
spur greater use of this power.
A. The Source of Executive Branch Control over Customary International Law
Historically, the executive branch always has played an important role in the
supervision of cases involving CIL in domestic federal and state courts. While it is
true that the Supreme Court has declared (and reaffirmed in Sosa) that customary
"international law is part of our law," the Court has also recognized that judicial
interpretation of CIL is subject to override by the executive branch in appropriate
cases.
I-Law gives judges an excuse to override the executive
Wilkins, 05 (Brinton, 2005 B.Y.U.L. Rev. 1415, lexis)
Customary international law may be compared to Procrustes' bed: n208 advocates
can, with enough violence, force any issue to fit within its confines. Because CIL
evades clear definition, the United States should be careful in adopting CIL norms as
grounds for causes of action unless those norms have been explicitly adopted by
the U.S. Congress. n209 Given the breadth and vagaries of CIL, its incorporation into
U.S. law should give those affected pause. If judges are deemed competent to hear
cases arising from CIL that has [*1456] not been defined by Congress or the
President, the judges might use CIL as a thin legal pretext for having the final say in
personal political issues - the power to define the contours of international
customary law, not merely apply it, is inherently political.
Plan will get spun as up upholding CIL which means more ATS suits
Ku 10 (Julian, Professor of Law at Hofstra, former Court of Appeals Judge Fifth Circuit
"The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed
System of Judicial Lawmaking"
http://works.bepress.com/julian_ku/1)

In the late 1990s, the ATS became the subject of a second line of attack not only
rooted in separation of powers but also in federalism. Because almost all early ATS
cases involved aliens suing other aliens, courts had to find a basis for federal court
subject matter jurisdiction under Article III of the U.S. Constitution. Most courts,
including the Filartiga court, concluded that ATS cases created federal questions
thereby satisfying Article III because customary international law raised a question
of federal law.1 But the conclusion that customary international law is federal law is
hardly self-evident from the text of the Constitution or even well-supported in preFilartiga precedent. For example, in a 1946 decision, Judge Learned Hand applied a
rule of customary international law under the assumption that it formed part of New
Yorks state common law rather than part of federal law. 2 Despite this uncertain
doctrinal record, post-Filartiga courts and academic defenders of the ATS simply
asserted that CIL is federal common law without offering a solid basis for such a
conclusion.3 The most egregious example of such conclusory assertions, as two of
the sharpest ATS critics pointed out, was the Restatement Third of U.S. Foreign
Relations Laws largely unsupported assertion that CIL is federal common law. 4
The plan results in a massive expansion of the use of the Alien Tort Statute
Windsor 03, JD University of Iowa, 3 (Pedro Juan, Cry for Freedom: Boriken (Puerto
Rico) & Indigenous Nations in America, Journal of Gender Race & Justice, Fall, 7 J.
Gender Race & Just. 439)
The first school of thought purports that the incorporation of customary
international law into U.S. law must take place by way of "special
transformation."n210 Special transformation requires that there be specific
legislation that grants domestic effect to rights enumerated under a treaty. n211 In
general, the theory is that because the U.S. Constitution does not contain explicit
"incorporation" language for customary international law, only an act of Congress
can give customary international law direct domestic effect in U.S. law. n212
Nevertheless, there are possible ways that customary international law can be
incorporated into U.S. law under this conservative legal philosophy.
As discussed above, one possible way is with the use of federal statutes, such as
the Alien Tort Statute, which gives U.S. courts the ability to adjudicate claims arising
from either treaties or customary international law.n213 For example, the Alien Tort
Statute explicitly refers to the "law of nations", lending support to the argument
that it was Congress's intent to incorporate customary international law into U.S.
law. n214 Indeed, this is a possible avenue that U.S. courts can take in incorporating
the customary international law principle of self-determination in their decisions. For
example, they can use this principle within their judicial analysis of
cases [*471] that question the validity or over breadth of particular U.S. laws
and/or doctrines that impinge on "tribal" sovereignty.
1 Filartiga, 630 F.2d at 890.
2 Bergman v. De Sieyes, 170 F.2d 360 (2d Cir. 1948). Accord Ker v. Illinois, 119 U.S.
436 (1886).
3 Curtis A. Bradley and Jack L. Goldsmith, Customary International Law as Federal
Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997)
[hereinafter Bradley & Goldsmith, Critique]; A.M. Weisburd, State Courts, Federal
Courts, and International Cases, 20 Yale J. Int'l L. 1 (1995).
4 Bradley and Goldsmith, Critique, supra 3 at 820.

at: ATS dead


Its not over yet
The Economist 10/7 (Trial trails: An American court blocks human-rights suits
against businesses http://www.economist.com/node/17199924?
story_id=17199924&fsrc=rss)
The decision, if upheld, will bring new clarity and an end to such lawsuits. But until
all avenues of appeal are exhausted, the precedent will not be firmly set. The
Supreme Court declined on October 4th to rule immediately on the specific question
of whether corporations could be held liable under international law. It had been
asked to do so by Talisman Energy of Canada, which won a case brought by
Sudanese plaintiffs who accused it of conspiring with their government to commit
genocide.
ATS lawsuits still possible
Ku 10 (Julian, Professor of Law at Hofstra, former Court of Appeals Judge Fifth Circuit
"The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed
System of Judicial Lawmaking"
http://works.bepress.com/julian_ku/1)
Despite the sharp divisions among commentators and litigants leading up to the
case, the Court reached a surprisingly high level of consensus. All members of the
Court agreed with the defendants that the ATS did not by itself create a cause of
action for claims under CIL and that the ATS merely created jurisdiction. All
members of the Court further expressed concern that existing and future ATS
litigation could raise separation of powers problems by involving federal courts in
matters implicating foreign affairs. All members of the court agreed that the
changes in the nature of common law after Erie v. Tompkins should sharply limit
federal court applications of such law. And all members of the Court further agreed
that Alvarez-Machains particular claim that his detention violated CIL was not
sufficiently well-accepted and specific to sustain his cause of action. 5 This
consensus did not, however, lead the Court to eliminate the possibility of future ATS
lawsuits. The Court went on to uphold a limited federal court power in recognizing
causes of action under CIL. Such a power, the Court cautioned, must be carefully
used and only invoked to recognize causes of actions that are specific, obligatory,
and universally accepted.6 The Court emphasized that even where international law
rules obtain undisputed acceptance as a general matter, they must be defined to a
level of specificity to plainly encompass the particular defendants alleged conduct. 7
It is not sufficient to show agreement upon an abstract rule; there must also be
uncontroversial agreement that the defendants specific alleged conduct violated
that rule. This insistence on specificity reflects the Courts concern with the dangers
of federal court lawmaking. Many rules might have widespread and universal
agreement in the abstract, but whose application remains highly unsettled.
5 Sosa, 542 U.S. at 720.
6 Id.
7 See Sosa, 542 U.S. at 732-33 & n.21 (describing requirement of clear
definition.).

Additionally, the Court noted that the question of specificity includes the question of
whether international law extends the scope of liability for a violation of a given
norm to the perpetrator being sued.8
at: ATS lawsuits now
No more ATS lawsuits now court deference
Ku 10 (Julian, Professor of Law at Hofstra, former Court of Appeals Judge Fifth Circuit,
Goodbye to the Alien Tort Statute? Second Circuit Rejects Corporate Liability for
Violations of Customary International Law
http://opiniojuris.org/2010/09/17/goodbye-to-ats-litigation-second-circuit-rejectscorporate-liability-for-violations-of-customary-international-law/ 9/17/10)
In a blockbuster opinion that could spell the end of the vast bulk of Alien Tort
Statute litigation, the U.S. Court of Appeals for the Second Circuit has held that
corporations cannot be liable for violations of customary international law under the
Alien Tort Statute. The decision, Kiobel v. Royal Dutch Petroleum, dismisses an ATS
lawsuit against Royal Dutch Shell for allegedly aiding and abetting the Nigerian
government in the commission of serious human rights violations. Writing for two
members of the panel, Judge Jose Cabranes held that (in my very quick and dirty
summary): 1) International Law governs the scope of liability for violations of
international law, hence the question of whether a corporation is liable for violating
international law is itself governed by international law. 2) Under Supreme Court
precedent, the Alien Tort Statute requires courts to apply norms of international law,
and not domestic law, to the scope of defendants liabilities. Such norms must be
specific, universal, and obligatory. 3) Under international law, corporations are not
liable for violations, and any such norm of corporate liability is far from specific,
universal, and obligatory. I should note that one judge on the panel, Pierre Leval,
took sharp exception to this holding in his concurring opinion. It is worth noting that
his criticism is not on the question of whether corporations are liable for violations
of international law, but whether international law should even govern this question.
I have an article coming out later this fall in the Virginia Journal of International Law
which takes the same position on this question as Judge Cabranes. So I am both
pleased that someone agrees with me, and horrified that I may have to seriously
revise and update that article. Judge Cabranes analysis is very strong on points two
and three above. Indeed, I dont think Judge Leval or the plaintiffs in this case
seriously challenged these points. The only bone of contention is with point one,
whether international law is indeed the governing law for the question of corporate
liability. And I assume that will be the main issue if this case (as I fully expect), an
appeal to the U.S. Supreme Court is made to this decision. But taking a step back,
what I find fascinating is that there appears to be no serious argument left that
customary international law can impose duties on private corporations. I think this is
right, and foreign academics, most notably James Crawford, have strongly rejected
corporate liability. But I think the vast weight of U.S. legal academic opinion has
gone the other way on this point. I have personally participated on at least three
conferences where I was the only one arguing against corporate liability. In any
event, I will ahave more thoughts about this case and this issue soon. There is a lot
here to digest and think about. The bottom line for litignts though: The wave of ATS
lawsuits against corporations is, at least for the moment, DEAD in the Second
Circuit. And I wouldnt feel good about ATS suits in other circuits either.
8 Sosa, 542 U.S. at 733.

Even if some ATS lawsuits are proceeding now, the status quo has built in
uniqueness--generally, the court still defers to the executive because the precedent
of the plan hasnt been set, thats our Ku evidence
Our international law links are uniquegeneral incorporation hasnt occurred, the
Court has paid lip service to international law but not incorporated it into explicit
doctrine or used it to control any specific outcomesthe plan changes this and that
act sets a massive new precedent in international law
Kochan, 06 (Donald, professor of law at Chapman University, 29 Fordham Int'l L.J.
507, Sovereignty and the American Courts at the Cocktail Party of International
Law: the Dangers of Domestic Judicial Invocations of Foreign and International Law,
February, lexis)
There are multiple problems with the judiciary's reliance on extraterritorial and
extra-constitutional foreign or international sources to guide its decisions. 9 Perhaps
the most fundamental flaw is its interference with rule of law values. 10 To borrow
from [*509] Judge Harold Leventhal, the use of international sources in judicial
decision-making might be described as "the equivalent of entering a crowded
cocktail party and looking over the heads of the guests for one's friends." 11 When
judges are allowed to cherry-pick from laws around the world to define and interpret
their laws at home, activism is emboldened and the rule of law is diminished. 12
The "cocktail party" analogy and debate recently reached the U.S. Senate floor
when the newly appointed Chief Justice John Roberts went through his confirmation
hearings. 13 Responding to questions on the trend of using foreign or international
laws, Chief Justice Roberts rejected its legitimacy and cautioned its dangers:
Domestic precedent can confine and shape the discretion of the judges. Foreign law,
you can find anything you want. If you don't find it in the decisions of France or
Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As
somebody said in another context, looking at foreign law for support is like looking
out over a crowd and picking out your friends. You can find them. They're there. And
that actually expands the discretion of the judge. It allows the judge to incorporate
his or her own personal preferences, cloak them [*510] with the authority of
precedent - because they're finding precedent in foreign law - and use that to
determine the meaning of the Constitution. 14
Chief Justice Roberts's comments underscore the concern that reference or reliance
on extraterritorial laws can be abused to buttress an activist's conclusion.
The Court rejected the use of international law in expanding ATS claims but left
room for future interpretation
Kochan, 06 (Donald, professor of law at Chapman University, 29 Fordham Int'l L.J.
507, Sovereignty and the American Courts at the Cocktail Party of International
Law: the Dangers of Domestic Judicial Invocations of Foreign and International Law,
February, lexis)
The primary holding of the Supreme Court in Sosa was that the ATS is a
jurisdictional statute but causes of action for violations of "international law" may
still be considered: [*536]
In sum, although the ATS is a jurisdictional statute creating no new causes of
action, the reasonable inference from the historical materials is that the statute was

intended to have practical effect the moment it became law. The jurisdictional grant
is best read as having been enacted on the understanding that the common law
would provide a cause of action for the modest number of international law
violations with a potential for personal liability at the time ... . We assume, too, that
no development in the two centuries from the enactment of 1350 to the birth of the
modern line of cases beginning with Filartiga v. Pena-Irala has categorically
precluded federal courts from recognizing a claim under the law of nations as an
element of common law. 129
The Supreme Court set certain standards for bringing claims under the ATS, but
rejected the ATS as a general vehicle for "international law" claims. The Supreme
Court nonetheless called for great caution in light of the potential for international
law jurisprudence to interfere with foreign affairs responsibilities of the elected
branches: "Since many attempts by federal courts to craft remedies for the violation
of new norms of international law would raise risks of adverse foreign policy
consequences, they should be undertaken, if at all, with great caution." 130 Yet, the
majority explained that the courts cannot completely disassociate themselves from
the world community: "It would take some explaining to say now that federal courts
must avert their gaze entirely from any international norm intended to protect
individuals," 131 but "the judicial power should be exercised on the understanding
that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow
class of international norms today." 132 Despite "caution," some words of the Sosa
majority seemed to have no problem with, and in fact endorsed, the expansionist
evolution of ATS jurisprudence described in the first four waves:
We think it would be unreasonable to assume that the First Congress would have
expected federal courts to lose all capacity [*537] to recognize enforceable
international norms simply because the common law might lose some metaphysical
cachet on the road to modern realism. Later Congresses seem to have shared our
view. The position we take today has been assumed by some federal courts for 24
years, ever since the Second Circuit decided Filartiga v. Pena-Irala ... . 133
In the end, however, the Sosa Court found Alvarez did not have a claim for unlawful
abduction in violation of international law. 134
ATS suits have suffered significant setbacks that are currently preventing their
expansion
Kochan, 05 (Donald, assistant professor of law at Chapman University, 8 Chap. L.
Rev. 103, Spring, lexis)
There have indeed been significant defeats in some courts in the attempt to expand
the scope of supposed international "law" liability under the ATS. The question
becomes whether such defeats demonstrate a restraint, or are simply a temporary
setback, or speed bump, in the increased evolution of liability in the face of a
continuing effort to promote private, civil enforcement of supposed international
norms. Additional suits will undoubtedly be filed as a result of this fourth wave of
ATS jurisprudence, and the question becomes whether further avenues for civil
enforcement of international norms will follow the expansive nature of these first
few waves or whether the next wave will limit civil enforcement. Much depends on
how lower [*119] courts interpret the pivotal, first impression opinion by the U.S.
Supreme Court on the ATS in 2004.
The Supreme Court has limited ATS claims based on customary international law

Ku, 05 (Julian, professor of law at Hofstra University, 19 Emory Int'l L. Rev. 105,
Spring, lexis)
Although the Sosa Court decided to, in its words, keep the door "ajar" 44 for federal
courts to hear claims by aliens alleging violations of customary international law, it
believed it was placing limitations on that power. It held that "courts should require
any claim based on the present-day law of nations to rest on a norm of international
character accepted by the civilized world and defined with a specificity comparable
to the features of the 18th-century paradigms we have recognized." 45 The Court
did not elaborate substantially on how to apply this standard for recognizing CIL. 46
It cited three lower court cases that had recognized CIL causes of action that were
"specific, universal, and obligatory." 47 It also explained in a footnote that, in
appropriate cases, international law might require plaintiffs to exhaust local [*117]
remedies or alternative remedies before bringing their case to U.S. federal court. 48
The Court then applied this new standard to dismiss Alvarez-Machain's claim that
"arbitrary arrest" is a violation of CIL that is cognizable in federal courts. 49 The
Court surveyed the sources Alvarez-Machain cited as evidence of a CIL norm against
any arbitrary detentions in excess of positive legal authority and found insufficient
support for treating such a norm as CIL. Such a norm is largely an "aspiration" and
"exceeds any binding customary rule having the specificity we require." 50 This
analysis does not necessarily clarify the Court's new limiting standard because the
lower court in the case, on the same facts, found that Alvarez-Machain's claim that
"arbitrary detention" did constitute a violation of CIL norms because they were
"specific, universal, and obligatory." 51 Noting that leading scholars, major
international human rights instruments, and decisions by international human rights
tribunals agreed that "arbitrary detention" was indeed a violation of CIL, the Ninth
Circuit had little difficulty holding that Alvarez-Machain had properly stated a cause
of action under CIL. 52 Indeed, the only clear difference between the analysis of the
Supreme Court and the Ninth Circuit appeared to turn entirely on the length of
Alvarez's detention. 53 While the Ninth Circuit refused to read a "lengthy detention"
requirement into the definition of arbitrary detention, the Supreme Court held
otherwise. 54 But the basis of the Court's holding is unclear [*118] given the
substantial support from international sources marshaled by both Alvarez-Machain
and the Ninth Circuit for its reading of the CIL norm. In the end, application of the
Supreme Court's new test for determining CIL norms will, as Justice Scalia's
concurrence in Sosa predicts, 55 almost certainly require extensive lower court
experimentation.
Current ATS litigation is being moderated by lawyersnew high profile cases will
cause a flood, disrupting US foreign policy
Van Schaack, 2004 (Beth, professor of law at Santa Clara University School of Law,
57 Vanderbilt Law Review 2305, November, lexis) (NOTE: ATCA and ATS are the
same)
[*2316] Nonetheless, the proliferation of lawyers involved in ATCA-style litigation
has given rise to concerns about coordination and oversight. Given the
indeterminacy of the ATCA's reach and the weak constraints on initiating suit,
activists and entrepreneurs of various stripes have seized on the statute's potential
to serve as the basis for suit for any number of grievances that may be styled as
"torts in violation of international law." n43 Thus, in certain instances, the statute

has become a vehicle for advocacy groups to advance their more narrow political
agendas through cause-based litigation n44 or for plaintiffs' attorneys to pressure
deep-pocketed defendants. n45 To date, the courts have proved themselves capable
of rigorously evaluating the underlying claims n46 to ensure that they are grounded
in international law n47 and are consistent with domestic and international law
immunity principles. Even where unmeritorious ATCA-style cases are disposed of by
the courts in the same way that they dispose [*2317] of other weak cases that
come before them, the notoriety of several high profile suits has nonetheless given
rise to a perception that ATCA-style litigation is proceeding without adequate
limitations, increasingly motivated by less than meritorious impulses, interfering
with U.S. foreign relations and trade opportunities, and, accordingly, is less worthy
of approbation. Further, cases advancing weak or frivolous claims may threaten to
trivialize more worthy cases. Pleas for a cautionary approach have even begun to be
heard from seasoned ATCA lawyers who, as a result of this more decentralized
development of ATCA jurisprudence and the emerging diversity of lawyers engaged
in this work, have difficulty keeping track of all the cases that have been filed to
date n48 and must consider whether and how to influence shaky cases in order to
protect case precedent and the integrity of the enterprise. It remains to be seen to
what extent the Supreme Court's guidance in Sosa will curb some of the more
controversial cases.

at: hamdan codified i-law


The Hamdan decision was too narrow to have any effect on current detention
policies, and was only a minimal adoption of international law. congress isnt bound
to accept the courts interpretation
David B. Rivkin, Jr. and Lee A. Casey, both served in the Justice Department under
Presidents Reagan and George H.W. Bush, 7/13/06 (The Washington Times)
The practical result, however, is minimal. Most if not all of Common Article 3 is
entirely consistent with what has been Bush administration policy. Most importantly,
the provision requires that detainees must be treated humanely (a point the
president has consistently stressed) and that they can be criminally punished only
after "judgment pronounced by a regularly constituted court." Because another
UCMJ section (836) requires that military commissions generally follow the same
rules as regular courts martial, and because the government failed to justify
departures from this, the court ruled that these military commissions were not
"regularly constituted." This was the technical, and narrow, basis of the court's
decision; the critics' claims that the court has held the Geneva Conventions apply to
the war on terror are just wrong. Moreover, the Supreme Court did not suggest nor
could it have suggested that Congress was bound by the court's interpretation of
Common Article 3, or any other part of the Geneva Conventions, in future military
commission legislation. That interpretation is the law of the Hamdan case and must
be followed as precedent by lower courts facing similar factual situations. However,
the political branches are constitutionally entitled to determine the meaning of
treaties as they relate to the international legal obligations of the United States. In
the first instance, the president (as in the Supreme Court's own words, the "sole
organ" of American foreign-policy) is entitled to interpret treaties to which the

United States is a party. In addition, Congress is constitutionally entitled to legislate


in ways that are inconsistent with the Supreme Court's view of any particular treaty
(or, for that matter, with the president's view), and the court must apply the later
enactment as binding. That is textbook constitutional law.Therefore, the Supreme
Court has not required that the Geneva Conventions be applied in the war on terror;
neither members of al Qaeda nor their allies, including members of the Taliban,
must be granted POW status because of the Hamdan decision. Even more
importantly, Congress is not required to adopt the court's view of Common Article 3
in its consideration and enactment of new legislation on military commissions. That
legislation should, of course, be consistent with U.S. international obligations but
only as interpreted by the president and Congress in their respective constitutional
roles.
The ruling on common article 3 was extremely narrow
David B. Rivkin, Jr. and Lee A. Casey, both served in the Justice Department under
Presidents Reagan and George H.W. Bush, 7/13/06 (The Washington Times)
One of the more serious misconceptions about the Supreme Court's decision in
Hamdan v. Rumsfeld is that it requires application of the 1949 Geneva Conventions
to the war on terror generally and that as a result Congress is somehow constrained
in how it chooses to address detainee issues. This is simply not the case. The
Hamdan court ruled on a narrow issue involving Common Article 3 "common"
because it appears in all four Geneva treaties. It did not suggest that the Geneva
Conventions otherwise benefit members of al Qaeda or their allies, that such
individuals must be given the rights and privileges of lawful prisoners of war or that
Congress must reflect this policy in a new statute authorizing military
commissions. Indeed, both as a matter of constitutional law and policy, Congress
has very broad discretion in devising an appropriate set of procedures for military
commissions.

2nc trade impact


ATS influx will cause trade wars
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
ATS suits challenge the basic tenet of international law that sovereign governments
are equal and that no nation will stand in judgment in a "municipal court setting"
over another. Congress created a limited exception to this principle of sovereign
equality in the FSIA 40 in 1976, allowing suits against nations engaged in a
commercial activity that had effects in the United States 41 or if the state were
responsible for a non-commercial tort in the United States. 42 Congress expanded
the FSIA in 1996 to allow suits against select renegade states for extra-judicial
killings and torture. 43 Complementing the FSIA is the judicially created Act of State
Doctrine that in general requires courts to give due deference to the authorized act
by a foreign sovereign within its own territory. 44 Some U.S. courts hold that the

Act of State Doctrine is no defense in ATS suits alleging torture and summary
execution because such abuses cannot be legitimate acts of a state, and that
offending senior state officials may be held personally accountable. 45 Other courts
rely on the Supreme Court decision in Sabbatino which states that the Act of State
Doctrine will only apply if the foreign "legislation" conforms to international
standards and was passed in the public interest. 46 Needless to say, some nations
regard this aspect of Sabbatino to be judicial imperialism because it allows U.S.
courts to sit in judgment of foreign legislation. The lack of "containment" of ATS
litigation - as in Unocal - places [*637] the Act of State doctrine in constant
jeopardy. 47 Lowering the bar judicially will allow U.S. courts to retry foreign
disputes or legislation, applying U.S. standards to new definitions of a company's
role or responsibility (or power). At minimum, this course may create political
turmoil as activists seek out a U.S. company in a nation as an excuse to decide the
"legitimacy" of that nation's laws. 48 More likely than not, it will invite retaliation
from many other nations against U.S. business.
Nuclear war
Copley News Service, December 1, 1999, Commentary
For decades, many children in America and other countries went to bed fearing
annihilation by nuclear war. The specter of nuclear winter freezing the life out of
planet Earth seemed very real. Activists protesting the World Trade Organization's
meeting in Seattle apparently have forgotten that threat. The truth is that nations
join together in groups like the WTO not just to further their own prosperity, but also
to forestall conflict with other nations. In a way, our planet has traded in the threat
of a worldwide nuclear war for the benefit of cooperative global economics. Some
Seattle protesters clearly fancy themselves to be in the mold of nuclear
disarmament or anti-Vietnam War protesters of decades past. But they're not.
They're special-interest activists, whether the cause is environmental, labor or
paranoia about global government. Actually, most of the demonstrators in Seattle
are very much unlike yesterday's peace activists, such as Beatle John Lennon or
philosopher Bertrand Russell, the father of the nuclear disarmament movement,
both of whom urged people and nations to work together rather than strive against
each other. These and other war protesters would probably approve of 135 WTO
nations sitting down peacefully to discuss economic issues that in the past might
have been settled by bullets and bombs. As long as nations are trading peacefully,
and their economies are built on exports to other countries, they have a major
disincentive to wage war. That's why bringing China, a budding superpower, into the
WTO is so important. As exports to the United States and the rest of the world feed
Chinese prosperity, and that prosperity increases demand for the goods we
produce, the threat of hostility diminishes. Many anti-trade protesters in Seattle
claim that only multinational corporations benefit from global trade, and that it's the
everyday wage earners who get hurt. That's just plain wrong. First of all, it's not the
military-industrial complex benefiting. It's U.S. companies that make high-tech
goods. And those companies provide a growing number of jobs for Americans. In
San Diego, many people have good jobs at Qualcomm, Solar Turbines and other
companies for whom overseas markets are essential. In Seattle, many of the
100,000 people who work at Boeing would lose their livelihoods without world trade.
Foreign trade today accounts for 30 percent of our gross domestic product. That's a
lot of jobs for everyday workers. Growing global prosperity has helped counter the

specter of nuclear winter. Nations of the world are learning to live and work
together, like the singers of anti-war songs once imagined. Those who care about
world peace shouldn't be protesting world trade. They should be celebrating it.

2nc aerospace impact (heg + econ)


ATS will collapse the defense-industrial base and kill aerospace
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
This paper is principally focused on the effects of the recent spate of ATS litigation
on national security; although this focus should not obscure the compelling need for
broad congressional action to sharply curtail future frivolous ATS actions against
U.S. companies arising from their normal business operations and investment
abroad. Hampering the ability of U.S. companies to be full participants in global
trade and business is equally threatening to U.S. national interests as the other
defense issues discussed herein. Nevertheless, Congress should ensure that any
remedial legislation that it passes should firmly establish a "government contractor"
defense against ATS for those corporations that support DOD activities abroad. At a
minimum, the ATS will increase the cost of business operations for defense
contractors because of the necessity to purchase additional [*664] insurance 117
which, given the novel and uncontrollable nature of ATS cases, could be very
expensive. Judgments exceeding or outside of insurance coverage will have obvious
impacts on profitability and corporate survival. Whether most defense contractors
are capable of sustaining these types of blows is far from certain. This is because
over 80% of the recent DOD increases in defense spending are for necessary "fact
of life adjustments" and replenishment of consumables, as opposed to major new
spending or capital acquisition programs which can have high profit margins. 118
Certainly, any increased costs of defending against ATS litigation will also divert
precious dollars away from the private sector R&D essential to the development of
next generation weapons systems that the DOD can only develop and procure in
partnership with industry. A more pernicious impact of increased ATS litigation is
the departure of smaller, less well-capitalized companies from defense contracting
because they cannot afford the risks associated with foreign operations under the
ATS. Some companies have already concluded that the risks of producing for the
new Department of Homeland Security (DHS) without judicially tested "government
contractor" defense are too high until their legal position is improved. 119 The
White House is now reportedly considering an Executive Order to limit the liability
exposure of contractors whose product or service has been certified as "high-risk"
by the Homeland Security Secretary to supplement provisions in the 2002
Homeland Security Act. 120 But this initiative would not ameliorate most ATS
liability concerns since ATS can be used as a litigation vehicle for an almost infinite
number of different types of causes of action. [*665] The problems that mining, oil,
drug and construction companies have encountered from activists using the ATS
could easily hit the defense sector; the same activists who oppose oil and mining
companies are likely hostile to the "military industrial complex." ATS suits could be

very destabilizing in the short term because defense contractors have fewer
customers than other businesses, and their size and their attempts to diversify their
portfolios have been described as "spotty at best." 121 Defense industry
consolidations have left only five major contractors: Boeing, Raytheon, Lockheed
Martin, Northrop-Grumman, and General Dynamics. Most major defense contractors
are operating at less than 50% capacity utilization, and some segments such as
shipbuilding are operating as low as 20%. 122 Unquestionably, a rash of ATS suits
against defense contractors would hamper their ability to tackle their excess
capacity issues and make capital investments for innovative changes and
diversification to remain viable. Even if they prevailed in all the suits, the very high
costs of defending the lawsuits would probably be entirely borne by the individual
businesses since current cost accounting rules would very likely preclude this
expense from being charged to "cost plus" contract with the government.
This destroys the economy and heg
Aviation Week and Space Technology, 2000 (Whats at Stake in US Aeronautics
Decline COL. 153, NO. 14, PG. 82 10-2-2000, LN)
Several huge national problems will result for the U.S. if these trends are not
reversed:
-- If air traffic expands to meet the expected demand, twice as many passengers
will be flying 10 years hence, and within 20 years there will be triple the number
flying today. But that is only a market projection. If ATC is not modernized, the
system will choke in 8-10 years. Tweaking the current system will not do enough.
What is required is new approaches to air traffic management and the application of
new technologies.
-- If aviation cannot continue to expand, growth of the ''new economy'' will be
stifled. Few Americans realize how much e-commerce depends on aviation. The
Internet can handle the front end of a transaction, but it takes airplanes to deliver
the goods.
-- The ''old'' economy would suffer, too. Airlines and aircraft manufacturing account
for an estimated $ 436 billion in annual economic activity and a net 3% of the Gross
Domestic Product. More important, aerospace is the largest net exporter in the U.S.
economy -- more than $ 40 billion annually. But Boeing is losing market share to
Airbus Industrie and has fewer recently designed aircraft to offer. And, the U.S. does
not even manufacture regional jets. Such trade surpluses cannot last without new
products and the better technology they require.
-- Finally, national security could be threatened if the U.S. does not maintain
leadership in aeronautics. The Defense Dept. has no strategy that does not assume
U.S. air superiority. But that cannot be assumed if R&D spending continues to flag.
No one in Congress set out to gut U.S. leadership in aeronautics. It was just easy to
cut. The trouble, as former NASA Administrator James M. Beggs points out, is that a
nation can postpone investment in R&D without suffering any ill effects -- until a
decade or so later.
But the erosion must be stopped now. First, Congress should adequately fund
aviation R&D in the NASA, Defense Dept. and FAA budgets in Fiscal 2001. The
Administration requests would begin to reverse the downward trend. But more
needs to be done to address the nexus of problems in U.S. aviation and aerospace.
No candidate for President has indicated much recognition of the problems or what
is at stake, much less articulated a vision for aviation in the nation's future. Perhaps

that is too much to ask in a campaign year. But it is not too much to ask of an
incoming administration. We applaud the planned creation of a national commission
on the future of the U.S. aerospace industry, and we urge the next President to
become personally involved to ensure its success.
Aviation and aerospace are vital to the U.S.' future. If Americans fail to support
aeronautics and aviation-related research, there will be no next generation of
professionals to solve the obvious looming problems and create products the world
will demand. And without that, the U.S. puts at risk a linchpin of its economy,
national security and quality of life.
Growth prevents global war and instability
Tilford 2008 PhD in history from George Washington University, served for 32
years as a military officer and analyst with the Air Force and Army (Earl, Critical
mass: economic leadership or dictatorship, Cedartown Standard, lexis)
Could it happen again? Bourgeois democracy requires a vibrant capitalist system.
Without it, the role of the individual shrinks as government expands. At the very
least, the dimensions of the U.S. government economic intervention will foster a
growth in bureaucracy to administer the multi-faceted programs necessary for
implementation. Bureaucracies, once established, inevitably become self-serving
and self-perpetuating. Will this lead to socialism as some conservative economic
prognosticators suggest? Perhaps. But so is the possibility of dictatorship. If the
American economy collapses, especially in wartime, there remains that possibility.
And if that happens the American democratic era may be over. If the world
economies collapse, totalitarianism will almost certainly return to Russia, which
already is well along that path in any event. Fragile democracies in South America
and Eastern Europe could crumble. A global economic collapse will also increase
the chance of global conflict. As economic systems shut down, so will the
distribution systems for resources like petroleum and food. It is certainly within the
realm of possibility that nations perceiving themselves in peril will, if they have the
military capability, use force, just as Japan and Nazi Germany did in the mid-to-late
1930s. Every nation in the world needs access to food and water. Industrial nations
the world powers of North America, Europe, and Asianeed access to energy.
When the world economy runs smoothly, reciprocal trade meets these needs. If the
world economy collapses, the use of military force becomes a more likely
alternative. And given the increasingly rapid rate at which world affairs move; the
world could devolve to that point very quickly.
Hegemony prevents extinction
Thayer 2006 [Bradley A., Assistant Professor of Political Science at the University of
Minnesota, Duluth, The National Interest, November -December, In Defense of
Primacy, lexis]
A remarkable fact about international politics today--in a world where American
primacy is clearly and unambiguously on display--is that countries want to align
themselves with the United States. Of course, this is not out of any sense of
altruism, in most cases, but because doing so allows them to use the power of the
United States for their own purposes--their own protection, or to gain greater
influence. Of 192 countries, 84 are allied with America--their security is tied to the
United States through treaties and other informal arrangements--and they include

almost all of the major economic and military powers. That is a ratio of almost 17 to
one (85 to five), and a big change from the Cold War when the ratio was about 1.8
to one of states aligned with the United States versus the Soviet Union. Never
before in its history has this country, or any country, had so many allies. U.S.
primacy--and the bandwagoning effect--has also given us extensive influence in
international politics, allowing the United States to shape the behavior of states and
international institutions. Such influence comes in many forms, one of which is
America's ability to create coalitions of like-minded states to free Kosovo, stabilize
Afghanistan, invade Iraq or to stop proliferation through the Proliferation Security
Initiative (PSI). Doing so allows the United States to operate with allies outside of
the UN, where it can be stymied by opponents. American-led wars in Kosovo,
Afghanistan and Iraq stand in contrast to the UN's inability to save the people of
Darfur or even to conduct any military campaign to realize the goals of its charter.
The quiet effectiveness of the PSI in dismantling Libya's WMD programs and
unraveling the A. Q. Khan proliferation network are in sharp relief to the typically
toothless attempts by the UN to halt proliferation. You can count with one hand
countries opposed to the United States. They are the "Gang of Five": China, Cuba,
Iran, North Korea and Venezuela. Of course, countries like India, for example, do not
agree with all policy choices made by the United States, such as toward Iran, but
New Delhi is friendly to Washington. Only the "Gang of Five" may be expected to
consistently resist the agenda and actions of the United States. China is clearly the
most important of these states because it is a rising great power. But even Beijing is
intimidated by the United States and refrains from openly challenging U.S. power.
China proclaims that it will, if necessary, resort to other mechanisms of challenging
the United States, including asymmetric strategies such as targeting
communication and intelligence satellites upon which the United States depends.
But China may not be confident those strategies would work, and so it is likely to
refrain from testing the United States directly for the foreseeable future because
China's power benefits, as we shall see, from the international order U.S. primacy
creates.
The other states are far weaker than China. For three of the "Gang of Five" cases-Venezuela, Iran, Cuba--it is an anti-U.S. regime that is the source of the problem; the
country itself is not intrinsically anti-American. Indeed, a change of regime in
Caracas, Tehran or Havana could very well reorient relations. THROUGHOUT
HISTORY, peace and stability have been great benefits of an era where there was a
dominant power--Rome, Britain or the United States today. Scholars and statesmen
have long recognized the irenic effect of power on the anarchic world of
international politics. Everything we think of when we consider the current
international order--free trade, a robust monetary regime, increasing respect for
human rights, growing democratization--is directly linked to U.S. power.
Retrenchment proponents seem to think that the current system can be maintained
without the current amount of U.S. power behind it. In that they are dead wrong and
need to be reminded of one of history's most significant lessons: Appalling things
happen when international orders collapse. The Dark Ages followed Rome's
collapse. Hitler succeeded the order established at Versailles. Without U.S. power,
the liberal order created by the United States will end just as assuredly. As country
and western great Ral Donner sang: "You don't know what you've got (until you lose
it)." Consequently, it is important to note what those good things are. In addition to
ensuring the security of the United States and its allies, American primacy within
the international system causes many positive outcomes for Washington and the

world. The first has been a more peaceful world. During the Cold War, U.S.
leadership reduced friction among many states that were historical antagonists,
most notably France and West Germany. Today, American primacy helps keep a
number of complicated relationships aligned--between Greece and Turkey, Israel
and Egypt, South Korea and Japan, India and Pakistan, Indonesia and Australia. This
is not to say it fulfills Woodrow Wilson's vision of ending all war. Wars still occur
where Washington's interests are not seriously threatened, such as in Darfur, but a
Pax Americana does reduce war's likelihood, particularly war's worst form: great
power wars. Second, American power gives the United States the ability to spread
democracy and other elements of its ideology of liberalism. Doing so is a source of
much good for the countries concerned as well as the United States because, as
John Owen noted on these pages in the Spring 2006 issue, liberal democracies are
more likely to align with the United States and be sympathetic to the American
worldview.3 So, spreading democracy helps maintain U.S. primacy. In addition, once
states are governed democratically, the likelihood of any type of conflict is
significantly reduced. This is not because democracies do not have clashing
interests. Indeed they do. Rather, it is because they are more open, more
transparent and more likely to want to resolve things amicably in concurrence with
U.S. leadership. And so, in general, democratic states are good for their citizens as
well as for advancing the interests of the United States. Critics have faulted the
Bush Administration for attempting to spread democracy in the Middle East, labeling
such an effort a modern form of tilting at windmills. It is the obligation of Bush's
critics to explain why democracy is good enough for Western states but not for the
rest, and, one gathers from the argument, should not even be attempted.
Of course, whether democracy in the Middle East will have a peaceful or stabilizing
influence on America's interests in the short run is open to question. Perhaps
democratic Arab states would be more opposed to Israel, but nonetheless, their
people would be better off. The United States has brought democracy to
Afghanistan, where 8.5 million Afghans, 40 percent of them women, voted in a
critical October 2004 election, even though remnant Taliban forces threatened
them. The first free elections were held in Iraq in January 2005. It was the military
power of the United States that put Iraq on the path to democracy. Washington
fostered democratic governments in Europe, Latin America, Asia and the Caucasus.
Now even the Middle East is increasingly democratic. They may not yet look like
Western-style democracies, but democratic progress has been made in Algeria,
Morocco, Lebanon, Iraq, Kuwait, the Palestinian Authority and Egypt. By all
accounts, the march of democracy has been impressive. Third, along with the
growth in the number of democratic states around the world has been the growth of
the global economy. With its allies, the United States has labored to create an
economically liberal worldwide network characterized by free trade and commerce,
respect for international property rights, and mobility of capital and labor markets.
The economic stability and prosperity that stems from this economic order is a
global public good from which all states benefit, particularly the poorest states in
the Third World. The United States created this network not out of altruism but for
the benefit and the economic well-being of America. This economic order forces
American industries to be competitive, maximizes efficiencies and growth, and
benefits defense as well because the size of the economy makes the defense
burden manageable. Economic spin-offs foster the development of military
technology, helping to ensure military prowess.

Perhaps the greatest testament to the benefits of the economic network comes from
Deepak Lal, a former Indian foreign service diplomat and researcher at the World
Bank, who started his career confident in the socialist ideology of postindependence India. Abandoning the positions of his youth, Lal now recognizes that
the only way to bring relief to desperately poor countries of the Third World is
through the adoption of free market economic policies and globalization, which are
facilitated through American primacy.4 As a witness to the failed alternative
economic systems, Lal is one of the strongest academic proponents of American
primacy due to the economic prosperity it provides. Fourth and finally, the United
States, in seeking primacy, has been willing to use its power not only to advance its
interests but to promote the welfare of people all over the globe. The United States
is the earth's leading source of positive externalities for the world. The U.S. military
has participated in over fifty operations since the end of the Cold War--and most of
those missions have been humanitarian in nature. Indeed, the U.S. military is the
earth's "911 force"--it serves, de facto, as the world's police, the global paramedic
and the planet's fire department. Whenever there is a natural disaster, earthquake,
flood, drought, volcanic eruption, typhoon or tsunami, the United States assists the
countries in need. On the day after Christmas in 2004, a tremendous earthquake
and tsunami occurred in the Indian Ocean near Sumatra, killing some 300,000
people. The United States was the first to respond with aid. Washington followed up
with a large contribution of aid and deployed the U.S. military to South and
Southeast Asia for many months to help with the aftermath of the disaster. About
20,000 U.S. soldiers, sailors, airmen and marines responded by providing water,
food, medical aid, disease treatment and prevention as well as forensic assistance
to help identify the bodies of those killed. Only the U.S. military could have
accomplished this Herculean effort. No other force possesses the communications
capabilities or global logistical reach of the U.S. military. In fact, UN peacekeeping
operations depend on the United States to supply UN forces. American generosity
has done more to help the United States fight the War on Terror than almost any
other measure. Before the tsunami, 80 percent of Indonesian public opinion was
opposed to the United States; after it, 80 percent had a favorable opinion of
America. Two years after the disaster, and in poll after poll, Indonesians still have
overwhelmingly positive views of the United States. In October 2005, an enormous
earthquake struck Kashmir, killing about 74,000 people and leaving three million
homeless. The U.S. military responded immediately, diverting helicopters fighting
the War on Terror in nearby Afghanistan to bring relief as soon as possible. To help
those in need, the United States also provided financial aid to Pakistan; and, as one
might expect from those witnessing the munificence of the United States, it left a
lasting impression about America. For the first time since 9/11, polls of Pakistani
opinion have found that more people are favorable toward the United States than
unfavorable, while support for Al-Qaeda dropped to its lowest level. Whether in
Indonesia or Kashmir, the money was well-spent because it helped people in the
wake of disasters, but it also had a real impact on the War on Terror. When people in
the Muslim world witness the U.S. military conducting a humanitarian mission, there
is a clearly positive impact on Muslim opinion of the United States. As the War on
Terror is a war of ideas and opinion as much as military action, for the United States
humanitarian missions are the equivalent of a blitzkrieg. THERE IS no other state,
group of states or international organization that can provide these global benefits.
None even comes close. The United Nations cannot because it is riven with conflicts
and major cleavages that divide the international body time and again on matters

great and trivial. Thus it lacks the ability to speak with one voice on salient issues
and to act as a unified force once a decision is reached. The EU has similar
problems. Does anyone expect Russia or China to take up these responsibilities?
They may have the desire, but they do not have the capabilities. Let's face it: for
the time being, American primacy remains humanity's only practical hope of solving
the world's ills.
xt ats kills aerospace/defense
Defense contractors will be directly targeted by new ATS litigation
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
Remedial legislation extending the government contractor defense to the ATS is an
immediate priority to assure continuity of contractor support of current military
operations. U.S. defense contractors are highly vulnerable defendants in future ATS
litigation, along with those companies already targeted. Defense contractors are
perceived to have the resources to pay adverse ATS judgments, and they are
attractive from the perspective of activists who seek to conjure up "David vs.
Goliath" images in suits against the "military industrial complex." Of course, the
reality is that many U.S. defense contractors are in a poor position to weather the
costs of this type of litigation, and none should have to. There are valid U.S. laws
that apply to crimes; we need not create laws and remedies from a statute that was
never intended for that purpose.

xt aerospace key to heg


this will collapse the us military
Wright, Major, USAF, 1993 [Stephen,
http://www.dtic.mil/doctrine/jel/research_pubs/p195.pdf]
A more dramatic indication of military dysfunction is evident in the DoD response to
Senator Sam Nunns questioning of the efficacy of the military having four air forces
[meaning the four services}.{14} The DoD response came in General Colin Powells
report on roles and missions.{15} The report argues that "the other services have
aviation arms essential to their specific roles and functions but which also work
jointly to
project Americas air power."{16} The debate argues that as it makes no sense to
assign all radios or trucks to one service, so to it would not make sense to assign all
aircraft to one service. Is this an aerospace rationale? Would we need aerospace
forces to operate differently in the services strategies if there were only one air
service? Would we not be better served to describe what we want U.S. forces (land,
sea, and aerospace) to do and develop an integrated strategy to achieve some
desired end state? For example, if the nation wants a highly mobile amphibious

assault capability it needs Marines with airpower. If the nation wants sea control and
power projection capabilities with minimal reliance on other nation support, it needs
a Navy with airpower in the form of carrier air wings. If the U.S. wants an Army with
the capability to do sustained, heavy combat with low casualties, it will need
aerospace power. If the nation wants to exploit air and space forces as in it did in
Desert Storm, it will need many air and space capabilities. As we found in Chapter
4, the future service strategies depend on aerospace power. The political
imperatives driving those strategies devolve upon aerospace capabilities. If the
Defense Department is to answer Senator Nunn, it must answer within the context
of a military aerospace strategy. The ties linking the aerospace with its military
counterpart were forged through two world wars, a cold war, Korea, Vietnam, and
other lesser conflicts. Add to this crucible of the past the economic challenges of the
future and one sees the desideratum of aerospace power. To achieve a position of
predominance in aerospace, the U.S. requires a national aerospace strategy.
Whither the Aerospace Nation? {17} If this paper serves no other purpose, it must
serve as a wake-up call, a call to action for the aerospace nation. United States
policy makers must view aerospace power as a national treasure. If economists like
Robert Reich, Michael Porter and Lester Thurow, are correct, the aerospace industry
will be critical to Americas future economic prosperity. Each argues that the future
belongs to those nations with trained, skilled workers that add unique, high value to
products. Each agrees that aerospace is one of those industries. Militarily we cannot
operate without control of aerospace--all military strategies rely upon it. Aerospace
dominance provides the capability for U.S. forces to win within the political
imperatives of the future, especially with reference to casualties. Aerospace power,
both its economic and military elements, is under great pressure to succeed in the
future. To do so requires a national aerospace strategy.

2nc terrorism impact


Judicial enforcement of the alien tort statute sets precedents that destroy U.S.
national security and the war on terror
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
The American judicial system has been remarkably well insulated from the
pressures of international law. Consequently, when federal judges try to apply
international principles in domestic cases there are mistakes and collateral damage.
This is a story of how some federal courts have taken the relatively obscure Alien
Tort Statute ("ATS"), a two hundred year old law, and applied it in such a bizarre
fashion that it threatens the overseas activities of most U.S. companies. It also
threatens U.S. security operations, since the Department of Defense ("DOD") relies
heavily on contractors for essential combat support services in foreign theaters of
operations. The DOD also relies on foreign governments to wage coalition warfare or
apprehend terrorists. Recent ATS decisions have the potential to interfere with the
manufacture and use of new weapons systems and operational concepts, disrupt

foreign training programs, and undermine good order and discipline if individual
servicepersons become the objects of suit. This paper will focus on the foreign
policy and national security implications of recent ATS rulings and how this weapon
of judicial activism can be used to ambush DOD planners and contractors when the
order is given to engage a foreign enemy.
The attack causes miscalc and nuclear war
Ayson 10 (Robert, Professor of Strategic Studies, Director of Strategic Studies: New
Zealand, Senior Research Associate with Oxfords Centre for International Studies.
After a Terrorist Nuclear Attack: Envisaging Catalytic Effects. Studies in Conflict and
Terrorism, Volume 33, Issue 7, July 2010, pages 571-593)
Washington's early response to a terrorist nuclear attack on its own soil might also
raise the possibility of an unwanted (and nuclear aided) confrontation with Russia
and/or China. For example, in the noise and confusion during the immediate
aftermath of the terrorist nuclear attack, the U.S. president might be expected to
place the country's armed forces, including its nuclear arsenal, on a higher stage of
alert. In such a tense environment, when careful planning runs up against the
friction of reality, it is just possible that Moscow and/or China might mistakenly read
this as a sign of U.S. intentions to use force (and possibly nuclear force) against
them. In that situation, the temptations to preempt such actions might grow,
although it must be admitted that any preemption would probably still meet with a
devastating response. As part of its initial response to the act of nuclear terrorism
(as discussed earlier) Washington might decide to order a significant conventional
(or nuclear) retaliatory or disarming attack against the leadership of the terrorist
group and/or states seen to support that group. Depending on the identity and
especially the location of these targets, Russia and/or China might interpret such
action as being far too close for their comfort, and potentially as an infringement on
their spheres of influence and even on their sovereignty. One far-fetched but
perhaps not impossible scenario might stem from a judgment in Washington that
some of the main aiders and abetters of the terrorist action resided somewhere
such as Chechnya, perhaps in connection with what Allison claims is the Chechen
insurgents' long-standing interest in all things nuclear.42 American pressure on
that part of the world would almost certainly raise alarms in Moscow that might
require a degree of advanced consultation from Washington that the latter found
itself unable or unwilling to provide.
2nc bizcon impact
Further ATS expansions collapse bizon
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
The decision trend and the high probability that some pending case could further
expand the ATS are raising concerns because overseas investment is an essential
business strategy in a global economy. Businesses are vulnerable to these decisions
because the courts applied standards which are: 1) vague and in a constant state of
flux; and 2) do not apply to foreign competitors that do not have a presence in the

United State. Additionally, these suits are very difficult and costly to defend because
all of the witnesses (and physical evidence) are in foreign countries; they undermine
the ability of U.S. companies to engage in constructive engagement; and they have
an unjustified negative impact on corporate reputations.
This impacts the entire economy
Braithwaite, 04 (John, Australian Research Council Federation fellow, Australian
National University, The Annals of The American Academy of Political and Social
Science, March, lexis)
The challenge of designing institutions that simultaneously engender emancipation
and hope is addressed within the assumption of economic institutions that are
fundamentally capitalist. This contemporary global context gives more force to the
hope nexus because we know capitalism thrives on hope. When business
confidence collapses, capitalist economies head for recession. This dependence on
hope is of quite general import; business leaders must have hope for the future
before they will build new factories; consumers need confidence before they will
buy what the factories make; investors need confidence before they will buy shares
in the company that builds the factory; bankers need confidence to lend money to
build the factory; scientists need confidence to innovate with new technologies in
the hope that a capitalist will come along and market their invention. Keynes's
([1936]1981) General Theory of Employment, Interest and Money lamented the
theoretical neglect of "animal spirits" of hope ("spontaneous optimism rather
than . . . mathematical expectation" (p. 161) in the discipline of economics, a
neglect that continues to this day (see also Barbalet 1993).
The impact is global conflict and instability
Tilford 2008 PhD in history from George Washington University, served for 32
years as a military officer and analyst with the Air Force and Army (Earl, Critical
mass: economic leadership or dictatorship, Cedartown Standard, lexis)
Could it happen again? Bourgeois democracy requires a vibrant capitalist system.
Without it, the role of the individual shrinks as government expands. At the very
least, the dimensions of the U.S. government economic intervention will foster a
growth in bureaucracy to administer the multi-faceted programs necessary for
implementation. Bureaucracies, once established, inevitably become self-serving
and self-perpetuating. Will this lead to socialism as some conservative economic
prognosticators suggest? Perhaps. But so is the possibility of dictatorship. If the
American economy collapses, especially in wartime, there remains that possibility.
And if that happens the American democratic era may be over. If the world
economies collapse, totalitarianism will almost certainly return to Russia, which
already is well along that path in any event. Fragile democracies in South America
and Eastern Europe could crumble. A global economic collapse will also increase
the chance of global conflict. As economic systems shut down, so will the
distribution systems for resources like petroleum and food. It is certainly within the
realm of possibility that nations perceiving themselves in peril will, if they have the
military capability, use force, just as Japan and Nazi Germany did in the mid-to-late
1930s. Every nation in the world needs access to food and water. Industrial nations
the world powers of North America, Europe, and Asianeed access to energy.
When the world economy runs smoothly, reciprocal trade meets these needs. If the

world economy collapses, the use of military force becomes a more likely
alternative. And given the increasingly rapid rate at which world affairs move; the
world could devolve to that point very quickly.
xt bizcon
ATS suits hammer business confidence
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
Unocal's subsidiary was a minority investor in a pipeline project in Myanmar led by
the French company, Total. 38 While acknowledging that Total was beyond ATS
jurisdiction, the Ninth Circuit panel said that Unocal "should have known" that the
Burmese army security detail that was hired by Total would use improper labor
practices vis-a-vis the local populace. 39 Totally disregarding the different
corporations involved, the Ninth Circuit panel held that the U.S. parent could be held
liable because its subsidiary's investment "aided and abetted" human rights abuses
by the Burmese military. There was no evidence that the U.S. parent company had
direct knowledge either that the security detail had been hired, or of its activities.
However, the precedent forced many multinational corporations to reassess their
foreign direct investment because U.S. corporations were now facing liability in
federal court for the remote actions by host government officials. As a result of
Unocal, senior management is now being advised that they need to consider:
. Reduced overseas investment. This would please activists, cede projects and
markets to foreign companies beyond ATS reach, and damage U.S. companies,
developing nations' economies and U.S. policies and interests); and
. Not invest in a foreign country until after a thorough investigation of [*636] its
officials, customs, laws and institutions. Assuming that such investigations could be
reliably conducted, most foreign officials and the Department of State would
probably consider such a process to be offensive to sovereignty and potentially
damaging to U.S. foreign policy. These due diligence steps would not deter activists
from continuing to harass corporations that do business with any regime(s) that
they dislike.
2nc arms sales good impact
The litigation will curtail American arms sales, replaced by more destabilizing
foreign arms sales
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)

Unwanted arms proliferation is another risk. U.S. arms sales come with strict enduse monitoring requirements to ensure that the receiving state does not retransfer
the arms to another country without U.S. government permission. End-use rules also
specify that arms shall only be used for legitimate self-defense. End-use monitoring
is not fool-proof; but it provides the U.S. important political leverage if an improper
use of arms is being contemplated by a foreign buyer. Most foreign buyers prefer
U.S. arms and training because of the high standards of quality and reliability. If ATS
litigation created a liability minefield for foreign states, this could undercut U.S.
influence.
The ATS would not stop the customers from buying arms; only from buying them
from the U.S. Government or from American companies. There are plenty of private
arms dealers and unscrupulous states that will be only too happy to fill any
armaments gaps in the market. Once a state turns to unscrupulous suppliers or
providers hostile to the United States, valuable leverage will be lost. Equally
important, many foreign arms suppliers who fill that gap will be out of reach of ATS
suits. So long as the supplies do not have a presence in the U.S., they would avoid
liability under the ATS and the expanse of export control restrictions.
American arms sales are key to readiness
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
There are other costs to increased ATS liability for U.S. manufacturers, DOD
personnel, or contractors associated with the provision of defense articles and
services to foreign armed forces. In 2001, the total value of U.S. FMS transactions
and export sales was about $ 14 billion, 105 or about 21.5 % of total U.S.
expenditure that year for military procurement. FMS sales help DOD recoup the
costs of non-recurring Research, Development, Test and Evaluation ("RDT & E") in
particular [*659] systems, and help reduce unit costs of systems for U.S. forces.
Loss of the overseas component of the defense industrial economy would increase
the prices that DOD pays for its systems and would deprive the defense economy of
much needed capital for company investment, new equipment, and R&D.
A weak military is worse than none at allpromotes miscalculation and war
Feaver 2003 Professor of Political Science at Duke (Peter D., Armed Servants:
Agency, Oversight, and Civil-Military Relations, p.213)
The civil-military problematique is a simple paradox: The very institution created to
protect the polity is given sufficient power to become a threat to the polity.3 This
derives from the agency inherent in civilization. We form communities precisely
because we cannot provide for all our needs and therefore must depend on other
people or institutions to do our bidding. Civilization involves delegation, assigning
decision making from the individual to the collective (in the form of a leader or
leaders) and consigning the societal protection function from the leader to
specialists or institutions responsible for violence. The civil-military problematique is
so vexing because it involves balancing two vital and potentially conflicting societal
desiderata. On the one hand, the military must be strong enough to prevail in war.

One purpose behind establishing the military in the first place is the need, or
perceived need, for military force, either to attack other groups or to ward off
attacks by others. Like an automobiles airbag, the military primarily exists as a
guard against disaster. It should be always ready even if it is never used. Moreover,
military strength should be sized appropriately to meet the threats confronting the
polity. It serves no purpose to establish a protection force and then to vitiate it to
the point where it can no longer protect. An inadequate military institution may be
worse than none at all. It could be a paper tiger inviting outside aggression, strong
enough in appearance to threaten powerful enemies but not strong enough in fact
to defend against their predations. Alternatively, it could lull leaders into a false
confidence, leading them to rash behavior and then failing in the ultimate military
contest.
2nc democracy impact
ATS suits jeopardize IMET programsthis is key to expanding democratic military
forces and interoperability for the war on terror
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
Military assistance and sales programs (direct commercial sales and government-togovernment transactions) are carefully regulated by DOD and the Department of
State. There is also Congressional oversight of sales of major defense equipment
and transactions that exceed certain dollar thresholds. 99 Despite this oversight by
two branches of government, ATS litigation scenarios 4 and 5 in Table 1 could
jeopardize the continued viability of U.S. assistance programs. The scenarios of
immediate concern are: Suits against foreign military trainees in the U.S. - A
considerable number of foreign military personnel receive training in the U.S. each
year. These individuals would be attractive targets for suits filed by putative victims
from their home countries. Military trainees do not have diplomatic immunity or any
special status while present in the United States and would seem to be ripe targets
for suit. 100 Suits against US military personnel, civilian employees, or contractors
involved in military assistance programs for "aiding and abetting" in human rights
abuses - providing assistance to foreign military forces that somehow harm the
foreign plaintiffs. The classic ATS scenario would be a suit mounted against the U.S.
government or contractors [*656] involved in the training of individuals or
members of a foreign armed or police force which were, in some way, connected to
later human rights abuses. 101 Suits against trainees are particularly vexing
because DOD and the State Department aggressively promote training on the
systems DOD sells as part of a "total package" approach it takes to defense sales.
An integral part of U.S. military assistance programs is the International Military
Education Training Program ("IMET") which provides grant training assistance to
many military students from lesser developed countries. In FY 2002, IMET trained
over 11,000 foreign military students (most in the U.S.) at approximately 150
military schools and installations. DOD and the State Department call the program:
an investment in ideas and people ... it presents democratic alternatives to key
foreign militaries and civilian leaders. Military cooperation is strengthened as

foreign militaries improve their knowledge of U.S. military doctrine and operational
procedures. This cooperation leads to opportunities for military-to-military
interaction, information sharing, joint planning, and combined force exercises that
facilitate interoperability with U.S. forces. Additionally, access to foreign military
bases and facilities is notably expanded, the utility of which is readily evident in the
war on terrorism. 102
IMET is key to successful democratic transitions
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
A subset of the IMET program is the Expanded International Military Education and
Training Program (EIMET). EIMET authorizes non-lethal training in subjects such as
military management, military law enforcement, and oceanography for students
from less-developed countries that the U.S. is helping to transition to democratic
rule. A large part of the training deals with respect for human rights, the rule of law,
and military justice. This type of training has been provided in "high risk" situations
in Rwanda (immediately prior to civil war in that country), Indonesia, and is now
being provided to military officers from various Balkan countries.
Extinction
Diamond, 95 (Larry Diamond, senior fellow at the Hoover Institution, December
1995, Promoting Democracy in the 1990s,
http://wwics.si.edu/subsites/ccpdc/pubs/di/1.htm)
OTHER THREATS This hardly exhausts the lists of threats to our security and wellbeing 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. LESSONS OF THE TWENTIETH CENTURY The
experience of this century offers important lessons. Countries that govern
themselves in a truly democratic fashion do not go to war with one another. They do
not aggress against their neighbors to aggrandize themselves or glorify their
leaders. Democratic governments do not ethnically "cleanse" their own populations,
and they are much less likely to face ethnic insurgency. Democracies do not sponsor
terrorism against one another. They do not build weapons of mass destruction to
use on or to threaten one another. Democratic countries form more reliable, open,
and enduring trading partnerships. In the long run they offer better and more stable
climates for investment. They are more environmentally responsible because they
must answer to their own citizens, who organize to protest the destruction of their
environments. They are better bets to honor international treaties since they value

legal obligations and because their openness makes it much more difficult to breach
agreements in secret. Precisely because, within their own borders, they respect
competition, civil liberties, property rights, and the rule of law, democracies are the
only reliable foundation on which a new world order of international security and
prosperity can be built.
xt ATS kills IMET
targeting military training with ats suits wrecks u.s. readiness because the u.s. will
lose access to foreign training revenue and it decreases interoperability
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
A proliferation of lawsuits that results in U.S. military training activities shutting
their doors to military trainees would cause significant turbulence in U.S. military
training commands. Most foreign training is provided on a fully reimbursable basis
from the foreign government. Loss of foreign students would cost DOD millions of
dollars and likely cause DOD to curtail some of the training for U.S. military
personnel. Unlike lost sales of defense equipment in which the U.S. government is a
contracting conduit, a far greater percentage of revenues for training activities are
paid directly into DOD training accounts. Interoperability and U.S. military readiness
are major costs if DOD has to step out of the training business because teachers
and students are fearful of ATS litigation. To wage coalition warfare effectively and
avoid incidents of friendly fire, it is essential that the armed forces of all participants
have a common operational frame of reference. Common equipment and training is
essential to preserve interoperability and also creates a motivation for U.S. and
foreign forces to work together. One [*658] need only recall the number of
"friendly fire" incidents during past Gulf conflicts involving allied forces to gain an
appreciation of the critical need for there to be commonality of tactics, training, and
equipment.
cutting back military training reduces the u.s. ability to influence foreign militaries
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
There are added political costs of not being able to "set the standard" and to
develop personal relationships with foreign military officials. In many lesserdeveloped countries, the military is the only source of stability and professionalism.
If U.S. assistance programs are terminated, or vastly curtailed, the U.S. government
will lose valuable contacts with the military and political elites in a number of
foreign countries. Important diplomatic opportunities will be lost or wasted if this
occurs.

ATS kills prez powers


ATS suits damage presidential powers
Kochan, 05 (Donald, assistant professor of law at Chapman University, 8 Chap. L.
Rev. 103, Spring, lexis)
The second problematic issue involves foreign policy and control over national
security. 126 To the extent private plaintiffs are allowed to sue nation-states or
corporations acting in concert with such states for alleged human rights' abuses,
judicial decisions necessarily make pronouncements regarding the appropriate
behavior of foreign countries. This could embroil the United States elected branches
in unwanted controversy and remove their negotiating options and discretion on the
world stage.

ATS kills SOP


ATS violates separation of powers
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
Groups like Greenpeace present one kind of "threat" to the DOD and businesses
around the world; 64 ATS litigation is another. A central criticism of the modern
trend in ATS decisions is that courts are increasingly intrusive in areas involving
sensitive foreign policy concerns. The Constitution assigns powers over foreign
relations to the political branches (Congress and the President), not the judiciary.
Indeed, it is up to Congress, not the courts to "define and punish ... offenses against
the Law of Nations." 65 When federal judges undertake to define the scope of
liability of international law violations in ATS cases, they are interfering with the
power of Congress.
ATS kills heg
Expanding ATS suits kill US hegemony
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
Scenarios 2 through 5 show that, while the U.S. government cannot be sued directly
under the ATS, federal officials or contractors could be held liable in tort for
combatant actions that kill or harm foreigners. A U.S. government employee or
contractor working in a high-risk law enforcement, intelligence, or military operation
could be sued for his or her direct participation. Liability might also attach to more

passive activities such as providing intelligence, technical support, or arms to a


foreign government (resulting in death or injury to a foreign person). Providing
construction services and maintenance work on facilities might also give rise to ATS
liability if it could be linked to a tortious outcome e.g., construction of a prison.
Since the U.S. government has not waived sovereign immunity for these types of
actions, the individual military and civilian employees would have to initially bear
responsibility for their defense. 94 They would also ultimately be liable for the
payment of any judgment in these suits.
Liability for U.S. government contractors in most of these scenarios is troublesome
because there is no established "government contractor defense." 95 Contractors
are especially attractive magnets for suits mounted by anti-war activists or
entrepreneurial attorneys, because contractors are a convenient punching bag for
the press or Congress who attack them to indirectly challenge U.S. security policies.
Contactors have far fewer protections under the network of Status of Forces
("SOFA") agreements [*654] and contractors today are more closely aligned with
the operating forces - including combat forces. Contractor risk also extends beyond
that in a traditional DOD setting since they have been widely used by federal
agencies like the CIA or DEA to provide security, logistical support, and to pilot
aircraft, in conjunction with hazardous counter-drug operations because of lack of
critical skills in the federal workforce or manpower shortages. There are severe
constitutional issues imbedded in suits of these sorts because the cases pit a single
federal judge against the competence of the President to be the Commander-inChief and lesser officials conduct the foreign affairs of the United States. 96 If
private litigants can legally challenge the outcomes of U.S. military assistance,
intelligence or counter-drug assistance programs, it will seriously undermine U.S.
power and prestige. Depending on the invasiveness and notoriety of the lawsuits,
foreign friends and allies might prefer not to cooperate with the U.S. for fear of suit
or the public exposure of their cooperation. This risk is inflated in the especially
high-risk special operations, intelligence, and counter-narcotics areas in which
foreign government assistance is essential to mission accomplishment. The suits
could severely curtail the ability of military and civilian personnel to perform their
ordinary duties. The specter of civil liability over national security operations
overseas will have an obvious impact on recruitment and retention of military
personnel. War fighters will have to add risk of civil suit to the litany of other issues
involved in planning combat operations. 97 Mission accomplishment could suffer.
People in national security operations are accustomed to ultra-hazardous activities
and risk-taking to defeat a military threat or a drug warlord. Those risks cannot be
eliminated, and undue caution or timidity in mission execution is harmful to its
success and ultimately national interest. Moreover, even if government employees
could purchase liability insurance, adoption of a "risk management" approach to
preserve insurability is unacceptable. Mission accomplishment, not minimizing risk
of an ATS action, must be the primary goal.
Expanding the ATS will cripple the DODs ability to deter war
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)

Even though ATS litigants have yet to use the statute to attack DOD operations
abroad, the same issues that concern the international business community apply
with equal force to DOD operations. The DOD has almost no indigenous industrial
production capacity and a shrinking logistics base. Today, the DOD relies heavily on
contractors to provide it [*634] the equipment, training, repair services and
technical assistance that it needs to deter or wage war. The DOD and other national
security agencies should be equally concerned as multinational corporations
because their primary operating environment is overseas - the domain of the ATS.
Like it or not, the DOD is involved in many types of high-risk activities which may
provide the factual predicate for suit to recover damages or for harassment
purposes. The DOD should also be concerned because it is more dependent than
ever on the contractors that accompany them overseas and because the ATS can
almost certainly be used as a jurisdictional tool to harass or injure contractor
personnel and operations. Defense telecommunications are today almost totally
reliant on commercial technology and also non-DOD networks. 32 The President has
challenged all federal agencies to increase outsourcing and privatization to make
government more "citizen based" and to lower costs. 33 DOD civilian and military
positions eliminated by outsourcing number in the hundreds of thousands - with
more to come. 34 According to P.W. Singer of the Brookings Institution, "several
hundred companies will send ... contractors to war with Iraq - about one civilian for
every 10 military personnel." 35 Contractors in Operation Iraqi Freedom numbered
10 times more than during the 1991 Persian Gulf War." 36 Since defense contractors
are vulnerable to the same kinds of lawsuits as other companies, DOD, and its
mission, could be severely impaired.
ATS litigation could cripple the u.s. military
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
Civil litigation trends do not normally concern national security officials because civil
suits do not normally restrict U.S. freedom of action in the defense arena. But U.S.
military forces today rely more than ever on: (a) private sector equipment and
personnel; (b) a credible public image and support; and (c) political support from
allies and foreign access. Here are five ATS litigation scenarios that undermine U.S.
security policies and the tactical execution of defense policies: Litigation Scenarios
Case 1: Negligent Injury Caused by Defective Weapons System. It is reasonable to
conjure civil suits against weapon's manufacturers for tortious deaths or injuries of
foreign persons associated with US military operations overseas. The case would be
based on injuries to, or deaths of, foreign non-combatant persons from a combat
system that malfunctions during combat, or negligent design of the system. There
are numerous situations in which this might occur ranging from the crash of aircraft
due to equipment malfunction, bombing the wrong site because the coordinates
were improperly programmed or because a fire control system failed to properly
discriminate between a "hostile" that was hiding among a group of civilians. Direct
suits against the United States for such actions are barred by sovereign immunity
because the United States has only consented to suit 71 under the Federal Tort

Claims Act (FTCA) 72 for torts arising in the U.S. and for noncombatant/governmental activities. However, U.S. consent to suit under the FTCA
does not extend to independent contractors 73 unless the tort arises in the United
States and the contractors were supervised to the extent that they became
"statutory employees." Then, the U.S. is [*646] substituted as the defendant. 74
No such body of case law exists under the ATS. Contractors can be considered
"employees" of the U.S. government under some status of forces agreements, 75
and perhaps under some foreign legal systems (so that they would be eligible for
limited immunity), but the rules are not uniform. Case 2: Human Rights Violation Illegal Weapons. The manufacturer or foreign officials that use a weapon considered
"illegal" under CIL are viable litigation targets. Foreign combatants are also potential
plaintiffs for injuries or deaths at the hands of U.S. service persons using illegal
weapons. As noted above, other states consider weapons like cluster munitions,
landmines, and other items in the U.S. arsenal illegal under their interpretation of
CIL. Plaintiffs would assert that any U.S. decision to use such "illegal" weapons must
be measured by general "international standards" established by such bodies as the
International Committee of the Red Cross, Amnesty International, and the
International Criminal Court ("ICC") and individuals associated with the use of such
weapons would be subject to personal liability. Contractors involved in fielding these
weapons could also be subject to the same risks of violating the customary laws of
war and would probably not be able to utilize the immunities that ordinarily apply to
the U.S. government contractors. Case 3: Human Rights Violation - Waging Illegal
War. Business entities, U.S. military or civilian employees, or foreign government
officials might be sued under ATS for violating international law for waging an illegal
"offensive war" under the new International Criminal Code 76 ("ICCd"). Waging
illegal war might include the strategic decision to initiate hostilities or may cover
"tactical" decisions to target certain areas that result in collateral damage to
civilians or their property. Waging illegal war could extend to the treatment of
prisoners of war, detainees, or incidents arising during an occupation. Litigation
might also [*647] be predicated on the prosecution of "negligently supervising" in
the war effort in which troops commit war crimes against civilians. Direct suits
against the U.S. Government for the activities of its employees are probably barred
by sovereign immunity; 77 however, there is no blanket immunity for individual
servicepersons for conduct that causes tortious injury to foreign persons. 78 A direct
suit against a foreign government would probably also be barred by the 1989
Supreme Court's decision in Argentine Republic v. Hess, 79 except for those limited
waivers of foreign government immunity in the FSIA. 80 However, the recent
judgment against the former Serbian leader Radovan Karadzic 81 indicates that
while governments per se cannot be sued, heads of states can be held liable under
the ATS for serious violations of international law. One might surmise that if a
judgment were taken against a sitting foreign leader, or a high-ranking civilian or
military official, then the foreign government might intervene in the suit and assert
"Act of State" and other defenses. However, if such an appearance were made, it is
quite possible that a presiding judge would disregard the traditional immunities that
are accorded to foreign heads of state if the judge felt that the foreign leader had
seriously departed from the expected norms of behavior. If military personnel or
support contractors were acting pursuant to a military mission authorized under
international law 82 and by the U.S. Congress, most courts would probably hold that
the individuals are protected by "combatant privilege." 83 But it is not difficult to
envision [*648] a scenario in which a U.S. government employee (or military

person) is found tortiously liable for military or para-military activities 84 that are
not explicitly sanctioned under international law or conducted outside of the War
Powers Resolution. 85 The absence of a specific UNSC Resolution authorizing US
combat operations in Operation Iraqi Freedom could still be exploited by
enterprising plaintiffs in an ATS suit for injuries arising from an illegal war. The fact
that Congress authorized the military action does not mean that war was
necessarily legal under the "law of nations" or that the methods and means chosen
by U.S. and British forces were universally accepted. Case 4: Human Rights Violation
- Liability for Providing Equipment or Other Assistance to a Foreign Government to
Wage Illegal War or Otherwise Oppress Foreign Citizens. The liability of a U.S.
corporation or U.S. government officials for "aiding and abetting" a foreign
government to violate the human rights of its citizens can be generally envisioned
under the "joint venture" principles stated in Unocal. A direct suit against the U.S.
government for "illegal" foreign military sales to an irresponsible regime would likely
be prohibited because there has been no waiver of sovereign immunity. Suits
against a contractor for participating in sales of "defense articles and services"
would also likely be barred by the FSIA or the Act of State Doctrine since the sales of
defense articles and services on the U.S. Munitions List is extensively regulated by
the Arms Export Control Act, 86 the Foreign Assistance Act, and other regulations
(ITAR). 87 Those regulations also [*649] establish that foreign military sales
transactions are "government to government." The situation is much less clear in
the export of "munitions list" defense articles to overseas foreign governments
under a commercial export license. U.S. government approval is required before a
U.S. defense contractor can export a munitions list item but, the transaction is still
considered "business to foreign government" 88 in which ordinary commercial
terms apply. Because "customary" commercial terms apply to those transactions,
courts may be willing to attach ATS liability. A fertile area of potential "joint venture"
liability in a defense setting would involve suits against US supplies of non-lethal
military equipment, technical support, or information/ intelligence to a country that
then uses the military assistance in a context in which alleged human rights
violations occur involving foreign nationals. US firms involved in selling civil aircraft,
heavy equipment, pharmaceuticals, computers, communications supplies or
services, or other commodities to the government of Israel are all potentially at risk
because these sales of non-military materials could be somehow linked to the
"illegal occupation" of territory and/or oppression of the Palestinian people. Potential
U.S. contractor liability is also easy to envision for those involved in the construction
or operation of a detention facility - such as those in Guantanamo Bay, Iraq, or
Afghanistan to house persons being detained for war crimes or on suspicion of
terrorist activity. A number of federal agencies fund and deliver military and civil
assistance programs overseas to promote economic development, democratic
principles, and respect for the rule of law. Training of foreign students abroad or in
the United States is the major component of these assistance programs. This
training, provided by federal employees and contract personnel, is intended to
enable the recipient nation to become militarily and economically self-sufficient.
However, the vast majority of U.S. training dollars is earmarked for countries that
have a history of economic or political instability. All too often, however, the goals of
these programs are not shared by fundamentalists or radicals who believe that
these activities violate the principle of national self-determination. Or, as is currently
being witnessed in the rebuilding of Iraq, these training programs are a direct threat
to elites from regimes that have been deposed. Regardless, there is legal risk for

those directly involved in providing military and development assistance to states at


risk. A most plausible [*650] scenario would be an ATS suit based on extensive
participation of U.S. military personnel and US defense contractors in the retraining
of the armed forces and police forces in the Balkans, Afghanistan, and Iraq. Other
theories would focus on the downstream effects of training. If, for example, a
foreign trainee is found to have abused a local inhabitant, one could envision direct
suits against U.S. government or corporate trainers under the ATS. Case 5: Human
Rights Violation - Colluding with a Foreign Government in Illegal Police Actions.
Liability for human rights abuses of foreigners overseas in connection with a police
action is a growing area where suit is possible. 89 In prosecuting the "Wars" on
terrorism and drugs, U.S. officials (and contractors) must cooperate directly with
foreign officials in order to monitor and interdict terrorists and drug traffickers. In
this two-front campaign against heavily armed and determined adversaries, it is
often necessary to adopt unconventional tactics including coercive interrogation,
bribery of criminal informants, paramilitary actions, and intrusive surveillance. The
interrogation and capture of multiple Al-Quaeda suspects in Pakistan, the seizure AlQuaeda funds in the custody of Islamic charities, and the extra-judicial execution of
Al-Quaeda officials in Yemen in November 2002 are all incidents which could end in
civil litigation in U.S. courts. A mounting number of filed cases in the law
enforcement area that suggest that expansion of lawsuits is likely. In AlvarezMachain v. United States, the Ninth Circuit held that a Mexican national could sue
Mexican policemen in a U.S. court for abducting him and returning him to U.S.
authorities to stand trial for a U.S. DEA agent's murder. 90 In the pending DynCorp
case Ecuadorian farmers are suing the U.S. contractors that are assisting DEA in
drug eradication operations. Finally, in Turkmen et. al. v. Ashcroft, 91 an action was
recently initiated against federal officers under the [*651] ATS on behalf of Middle
Eastern males who were incarcerated post - 9/11 in Guantanamo Cuba under "color
of law." In the amicus brief filed by the Justice Department in the Ninth Circuit in
Unocal, these concerns were underscored: Claims have already been asserted
against foreign nationals who have assisted our Government in the seizure of
criminals abroad. See Alvarez-Machain v. United States (citation omitted). This
Court's approach to the ATS bears serious implications for our current war against
terrorism, and permits ATS claims to be easily asserted against our allies in that war.
Indeed, such claims have already been brought against the United States itself in
connection with its efforts to combat terrorism. 92
ATS suits threaten U.S. foreign basing
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
The U.S. Navy and Marine Corps are "expeditionary forces" that do not need a
"permission slip" to operate in a particular area. But, even expeditionary forces
need proximate foreign access for logistics, mail, personnel, and to make repairs.
The U.S. Army and Air Force have even greater needs for foreign access, to stage
forces, preposition equipment and logistics, and for bases of operations. Deputy
Secretary of Defense Wolfowitz appeared before the House Armed Services
Committee on April 9, 2002, and declared that a component of the U.S. military

strategy is to counter "anti-access" forces because "today, U.S. power projection


depends heavily on access to large overseas bases, airfields, and ports." 106 Even
Secretary of Defense Rumsfeld, who has been a vigorous proponent for
transformational policies which stress insertion of "light" forces, has listed among
his six transformational objectives protecting the "U.S. homeland and our bases
overseas." 107 Rumsfeld knows that even "light" special operation forces need
logistics and air support from land bases or from the sea. Also, as most recently
witnessed in Operation Iraqi Freedom, the brilliant successes of special operations
forces would probably not have been possible without heavy U.S. armor forces on
the ground to engage the Republican Guard units. Rumsfeld is right, and his
statements reflect frustration that the current network of bases is under pressure
because of changes in the international political landscape. There are new
opportunities for bases in Eastern Europe and the Caucasus, but sea access to the
southern portions of the region is highly restricted because of rules governing the
Turkish Straits. Similarly, DOD gains in Eastern Europe are more than offset by
adverse development in Saudi Arabia, which has asked the U.S. to vacate [*660]
the massive Prince Sultan airfield and combined operations center 108 by the end
of 2003. There is also widespread press reporting that the United States is
considering dismantling many post-WWII Army and Air Force bases in Germany and
shifting its focus to Eastern Europe and the littoral countries around the Black Sea.
Finally, the March 2003 election victory in Turkey of a more Islamist government and
its refusal to allow U.S. use of its bases to open a northern front during the war in
Iraq, raise concerns that the operating restrictions on U.S. forces may become too
onerous to justify the continued cost of the Turkish bases in Incirlik, Izmir and
Ankara. The DOD base network in Asia is also under stress. South Korea and the
U.S. have been engaged in a tiff over foreign criminal jurisdiction over U.S. service
persons and, recently, South Korea's criticism of U.S. reconnaissance flights off the
North Korean coastline. 109 As with Germany, the current president of South Korea,
Roh Moo Hyun, ran a campaign that had anti-American elements. There has also
been a rise in violence against U.S. servicepersons in South Korea, 110 prompting
Secretary Rumsfeld to state that the U.S. would reevaluate its continued presence in
South Korea. Longstanding issues over U.S. bases in Okinawa continue because of
some terrible criminal incidents involving U.S. Marines and local citizens, and
commercial real estate encroachment around the base. Local calls for a reduction in
the footprint of the III Marine Expeditionary Force in Okinawa are likely to continue
despite the strong support that the Japanese government provided to the U.S. in
Operations Enduring Freedom and Iraqi Freedom. Virtually every case against a U.S.
entity for what it does or sells overseas, or against a foreign government for
supporting U.S. actions overseas, will entail significant financial costs in legal fees
and investigation to all of the defendants. For foreign governments and corporate
defendants, there is added cost in hyperbolic adverse publicity. Because of the
relative ease of using the ATS to harass U.S. actors, or their foreign allies, it could
become a form of harassment used by hostile foreign governments, or their
intelligence services, peer competitors (France), or NGOs. Depending on how
effectively the ATS is able to disrupt foreign [*661] operations of U.S. military
activities abroad, it could undermine the support that U.S. forces are now receiving
from many foreign governments either overtly or covertly. That last point bears
repeating because many foreign governments, especially in the Middle East, follow
a "don't ask, don't tell" approach with respect to U.S. military activities from their
territory. The U.S. relationship in Saudi Arabia is a perfect example where the U.S.

and Saudi leaders had to walk a political tightrope for many years because of the
political repercussions of appearing to be too supportive of the United States. Critics
of that longstanding relationship will assert that the impending loss of base access
in Saudi Arabia is no real "loss" because the United States should not align itself
with undemocratic regimes and because of the number of 9-11 terrorists that were
Saudi citizens. Yet, for military planners and logistics planners, the loss of access to
Prince Sultan airbase is a major blow because those facilities provided a unique
military advantage and because of the huge cost of replicating the infrastructure.
Litigation would obviously bring other discreet foreign assistance programs into the
sunshine. There is a false perception in some policy circles that America can simply
promise a protective defense umbrella and an infusion of cash to buy overseas
access. In fact, history shows that the US hold on foreign bases is precarious and
that anti-U.S. movements can tip the balance. 111 In the 1990's the United States
sought to extend its rights to base troops in the Philippines and Panama; in both
cases public opinion (despite the economic benefits the U.S. bases conferred in
those lesser developed countries) overwhelmingly favored disestablishing U.S.
bases. On May Day 1990, 25,000 Hondurans, with united labor support,
demonstrated on the streets of the capital city of Tegucigalpa demanding that U.S.
troops and bases get out of their country. The U.S. Navy recently stopped using
Vieques Island in Puerto Rico as a live-fire range because of continuing protests.
Puerto Rico's Governor Sila Maria Calderon ran on an anti-Vieques platform knowing
that evicting the U.S. Navy would cost the local economies between $ 200 million
and $ 1 billion per annum if DOD went forward with plans to sharply cut back its
footprint in Puerto Rico 112 if Vieques was lost. [*662] Another potential source of
disruption could be suits by NGOs or local interest groups against the foreign
nationals that are either employees of the U.S. government, its contractors, or the
host nation and are involved in providing security for a U.S. installation. Almost all
agreements governing U.S. access abroad 113 specify that it is a host nation's
responsibility to provide perimeter security of U.S. bases and installations. There are
two basic reasons for this arrangement: first, under most foreign laws, only local
nationals can be credentialed by the host nation to use force or arrest persons
trying to breach the perimeter of a U.S. base or facility. Second, most host nations,
for reasons of sovereignty, make the rights of the U.S. forces subordinate to the
rights of the host nation to control activities around the base perimeter. Legal action
against these foreign nationals involved in protecting U.S. bases might be
predicated on an "excessive use of force" theory involving dissidents or protestors.
Action may also be predicated on some vague theory that the perimeter guards are
"aiding and abetting" the U.S. military to use the foreign base as a staging area for
an illegal police or military action abroad. ATS suits against foreign officials
protecting U.S. personnel and facilities abroad would create major problems
because there is no legal authority for the United States to intervene, have those
suits dismissed, and substitute itself as the defendant. Nor is there authority under
existing principles of federal appropriations law for the United States to pay any
judgments that might get rendered against foreign security workers. If judgments
against foreign security officials or hyperbolic press coverage resulted, intervention
by U.S. military forces to provide permanent perimeter security is not an option
because it would offend host nation sovereignty and invite foreign suits/criminal
charges against U.S. forces. The only recourse is withdrawal. There are obvious
conclusions from this discussion: the U.S. military needs foreign access for wartime
and peacetime operations. Access is difficult to secure and maintain. Threatened

loss of revenues from base employment and spending by U.S. forces in the
economy has not won the day in past disputes over U.S. basing rights. ATS suits
against foreign workers or officials for providing "illegal" assistance to U.S. forces
could cause enough political, legal, and economic turbulence that some states
might further restrict or deny the U.S. continued access.
ATS kills soft power
ATS suits will destroy foreign relations with other governments
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
Can U.S. Courts be the World's Courts?
When President Bush signed the TVPA in 1992, he expressed concern about the
danger:
That U.S. courts may become embroiled in difficult and sensitive disputes in other
countries, and possibly ill founded or politically motivated suits, which have nothing
to do with the United States and which offer little prospect of successful recovery.
Such potential abuse of this statute undoubtedly would give rise to serious frictions
in international relations and would also be a waste of our own limited and already
overburdened judicial resources. 50 He was right. The ATS naturally challenges the
traditional doctrine of forum non conveniens that allows a court to refuse to exercise
jurisdiction over a controversy because another forum is better suited to decide the
case. In Wiwa v. Royal Dutch Petroleum Co., for example, the Second Circuit held
that a group of Nigerian citizens could sue a Dutch company in the U.S. for human
rights abuses - without showing that courts in the Netherlands would not give the
plaintiffs a fair hearing. 51 U.S. judges seem be following a principle that human
rights cases "must be heard" no matter how remote the interest to the United
States or the difficulties of trial. [*638] This trend of finding jurisdiction over cases
with remote connections to the United States draws into question the issue of
whether U.S. courts are giving proper deference to foreign legal systems. Foreign
plaintiffs claim that they will be subject to retaliation for pursuing legal avenues in
their host country (as have hundreds of thousands of asylum claimants in the U.S.)
and U.S. courts tend to accept that assertion. There is already evidence that U.S.
court dockets are seeing an increased number of these cases, and almost every one
presents enormous logistical and evidentiary reliability risks. Rapid expansion of
ATS litigation is also an insult to foreign legislatures, courts and judges. In fact, U.S.
judicial intrusions into areas perceived by other governments as infringing on
sovereignty can - and have - provoked strong negative reaction, including that of
South African President Thabo Mbeki, who said of current U.S. litigation: We consider
it completely unacceptable that matters that are central to the future of our country
should be adjudicated in foreign courts which bear no responsibility for the wellbeing of our country and the observance of the perspective contained in our
constitution of the promotion of national reconciliation. 52
ats suits destroy the possibility of coalition building

Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
Joseph Nye, an Assistant Secretary of Defense in the Clinton Administration, argues
that anti-Americanism thrives on the perception that America does not care how the
rest of the world feels about anything. 66 Many European analysts say that
"arrogance" was the reason that two U.S. embassies, the U.S.S. Cole, the World
Trade Center and the Pentagon were [*644] attacked by Al-Qaeda terrorists,
jealous of American wealth and might. 67
U.S. security policies and attitudes towards multinational treaty obligations are
another major source of friction today between the U.S. and its traditional allies.
International lawyers, scholars and diplomats openly criticize President Bush's new
national security strategy of "preemptive action" as outlined at West Point on June
1, 2002. 68 United States policies towards Israel are viewed as one-sided by an
increasing number of western countries that have growing Muslim populations.
Finally, there has been a significant diplomatic backlash from America's rejection of
a number of treaties that had broad international support. 69 The failure of the
United States to assemble a politically significant coalition for Operation Iraqi
Freedom is evidence that the United States no longer enjoys the same level of
pluralistic political support it once had. 70 Given this, will the new risks of ATS
litigation make it more difficult for the U.S. to get help from foreign officials if there
is a concern that the individuals, or perhaps their government, will become
defendants in ATS [*645] litigation in U.S. courts? As long as federal judges are
perceived as free to dabble in the sensitive internal affairs of other nations and
substitute their judgment for that of a foreign court or legislature, international
cooperation will be jeopardized at some level.

ATS = ATCA
the ats and atca are the same
Coliver et al, 05 (Sandra, Executive Direct of the Center for Justice & Accountability,
19 Emory Int'l L. Rev. 169, Spring, lexis)
n1. The ATS has often been called the Alien Tort Claims Act ("ATCA"). We use the
term Alien Tort Statute in this Article because the Supreme Court referred to the
statute as such in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004).
at: key to check corporations
Empirically falseATS cases can be brought against corporations now
Slaughter and Bosco, 01 (Anne-Marie and David, Alternative Justice,
http://www.globalpolicy.org/intljustice/atca/2001/altjust.htm)
To the surprise of some observers, however, the Supreme Court has declined to
actually overturn the Filartiga precedent. And recent developments like those in
New York indicate that it remains a potent weapon for human rights groups. The

New York-based Center for Constitutional Rights, which helped bring the Li Peng
suit, has been particularly active in pursing Alien Tort claims. The Center organized
the case against Radovan Karadzic and has recently helped bring cases against
multinational corporations for violations of labor, environmental and human rights.
To date, the impact of these cases has probably been greater in theory than in
practice. The ruling opened U.S. courts to a very small group of foreign plaintiffs:
those victims able to identify and serve process on violators of human rights not
protected by sovereign immunity, yet capable of committing a violation of
international law. Filartiga and its progeny have thus created an opening too narrow
to fit lawsuits against those most responsible for human rights violations abroad.
Nor is it clear that plaintiffs who win judgments will ever see the money. Most of the
judgments that have been entered remain unpaid. One of the few cases in which
plaintiffs have collected was against Cuba, for the shooting down of two civilian
planes. Some in Congress have supported relaxing the rules so that plaintiffs may
more easily seize foreign assets, but the Clinton Administration resisted moves in
that direction, which it feared would undermine the safety of U.S. assets abroad.
The Bush administration has yet to indicate its policy on this question but seems
likely to support the rights of plaintiffs to collect, particularly against states that
support terrorism.
Corporations arent liable any more
Bainbridge 9/17/2010 (Professor of Law at UCLA, 2008 Professor of the Year No
Corporate Liability under Alien Tort Statute? 9/17/10
http://www.professorbainbridge.com/professorbainbridgecom/2010/09/no-corporateliability-under-alien-tort-statute-contrast-citizens-united.html)
The question of corporate liability thus has always been two distinct issues the
question of whether there is such a thing as civil liability in international law (or at
least for non-state actors) and whether there is liability of any kind for corporate or
private entity actors, as opposed to individual persons for whom there is sometimes
individual criminal liability. The court seems, on my first read, to have rejected each
of those propositions. As far as I'm concerned, of course, it is the second proposition
that is especially interesting; i.e., that there is no corporate law liability under
international law. The Second Circuit decision acknowledges the corporation's status
as a juridical person, but states that customary international law imposes liability
only on natural persons. This is significant, among other reasons, because of the
recent debate in the USA over corporate personhood occasioned by the Citizens
United case. Just as US law recognizes juridical persons as "persons" for certain
purposes, so does international law. It seems to me that this strengthens the
position of those of us who supported the majority view in Citizens United.
Still lawsuits now
WSJ 10/2/10 (Alien Tort Victory
http://online.wsj.com/article/SB10001424052748703989304575503703623437096.
html 10/2/10)
Not that activists haven't tried. Caterpillar was sued for selling bulldozers to Israel
on the grounds that those bulldozers were later used to tear down Palestinian
housing. Ford, IBM and GM were sued for their alleged role in aiding apartheid by

investing in South Africa. Yahoo was sued for providing the Chinese government
with information on a dissident that was later used against him.
Lawsuits against corporations wont accomplish anything anyways
WSJ 10/2/10 (Alien Tort Victory
http://online.wsj.com/article/SB10001424052748703989304575503703623437096.
html 10/2/10)
Legal adventurers may need some extra sedatives after a federal court late last
month severed their relationship with trial lawyers eager to sue big business. In a 21 decision, a three-judge panel of the Second Circuit Court of Appeals held that
corporations may not be held liable for human rights violations under international
law. Brought by the families of seven Nigerians who were executed by the Nigerian
government for protesting oil exploration in the country, Kiobel v. Royal Dutch
Petroleum came to the U.S. courts through an archaic provision of the Alien Tort
Statute. Written in 1789, the law was created to give federal courts jurisdiction over
civil complaints by aliens. In the past 15 years, it has been rediscovered as a tool of
plaintiffs attorneys seeking an avenue to target deep pocketed companies operating
overseas. In a broad decision for the Second Circuit majority, Judge Jose Cabranes
wrote that while "a legal culture long accustomed to imposing liability on
corporations may, at first blush, assume that corporations must be subject to tort
liability" under the Alien Tort Statute, "no corporation has ever been subject to any
form of liability . . . under the customary international law of human rights." Not that
activists haven't tried. Caterpillar was sued for selling bulldozers to Israel on the
grounds that those bulldozers were later used to tear down Palestinian housing.
Ford, IBM and GM were sued for their alleged role in aiding apartheid by investing in
South Africa. Yahoo was sued for providing the Chinese government with
information on a dissident that was later used against him. While the Alien Tort
Statute appealed to American activists as a progressive way to target dreaded
multinationals, the legal theory was less celebrated overseas. As Judge Cabranes
notes in his opinion, sources of international law have "explicitly rejected" the idea
of corporate liability, preferring to focus responsibility not on "abstract entities" but
on the individuals who perpetrate a given crime. When, at the 1998 Rome
Conference, the possibility of granting jurisdiction over corporations to the
International Criminal Court was considered, it was dismissed.
ATS suits are filed against corporations now
Kochan, 05 (Donald, assistant professor of law at Chapman University, 8 Chap. L.
Rev. 103, Spring, lexis)
The evolution of ATS litigation began in 1980 when the ATS was raised from
dormancy, and a federal appeals court found that suits based on customary
international law for human rights abuses could be entertained under the ATS. 14 It
expanded most notably again in 1995 when a federal appeals court held that quasipublic and even private actors might be bound by customary international law for
certain egregious violations. 15 It evolved further in 1997 when a federal district
court held that a private corporation was subject to ATS jurisdiction for alleged
human rights abuses abroad. 16 Since then, dozens of lawsuits against private
actors - principally corporations - have been filed. Since the U.S. Supreme Court
finally addressed the ATS in part in 2004, the continued evolution and the form that

evolution will take is now in flux awaiting future applications in light of the Supreme
Court's limited guidance provided by its interpretation of the ATS in Sosa v. AlvarezMachain. 17

at: key to environment


Environmental ATS cases are not governed in international law courts wont rule
anything
Jaeger 10 (Kathleen, LL.M. Humboldt U of Berlin, The Alien Tort Statute: Comments
on Current Issues: A. Jurisdiction and Justiciability: Environmental Claims Under the
Alien Tort Statute Berkeley Journal of International Law, Lexis)
Applying the Sosa standard to international environmental law norms it seems clear
that they do not yet pass the test of universal recognition comparable to 18th
century norms; for now they cannot support an environmental ATS claim under the
"law of nations" prong. 114 Principles contained in declarations such as the
Stockholm and Rio Declaration are not legally binding and their status and content
as CIL is in dispute. Among the soft law of declarations it is Principle 21 of the
Stockholm Declaration and Principle 2 of the Rio Declaration that are most
frequently [*535] granted the status of customary law. Laying out a state's right to
exploit its own resources pursuant to its own environmental policies they only speak
of states as duty bearers and not private actors, at the outset they do not cover
corporate conduct. The same can be said for the proximity principle and the
precautionary principle but - despite what the court found in Beanal - not so easily
for the polluter pays principle which allocates the responsibility for bearing the cost
of pollution to the "person responsible for causing the pollution." 115 It is
noteworthy that international environmental law in general is much aware of the
fact that damage to the environment is almost always caused by private actors. 116
Yet in past cases plaintiffs in an environmental case did not face less difficulty in
showing that it is indeed the defendant as a non-state actor that is bound by the
alleged norms.
All ATS cases regarding the environment have failed
Jaeger 10 (Kathleen, LL.M. Humboldt U of Berlin, The Alien Tort Statute: Comments
on Current Issues: A. Jurisdiction and Justiciability: Environmental Claims Under the
Alien Tort Statute Berkeley Journal of International Law, Lexis)
Transnational companies operating in developing countries have in a number of
instances caused large scale environmental harm where they operate. A
combination of lax environmental laws and weak enforcement meant corporate
environmental accountability was non-existent. This situation changed somewhat
with the landmark case Filartiga v. Pena-Irala. 3 In this case the Alien Tort Statute
(ATS) was first utilized - the statute provides that "the district courts shall have
original jurisdiction of any civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United States." 4 Filartiga opened up
U.S. courts to address human rights abuses that [*520] occurred abroad and the
same seemed possible for cases of environmental harm. Over the last two decades
a number of suits have been brought in U.S. courts against large corporations to
hold them accountable for environmental harm, yet so far none have been

successful. In a concise manner, this Article seeks to comment and give some
background on the present state of environmental litigation under the ATS by
looking at how environmental claims have been received by the courts and how
these claims can be classified doctrinally. While I briefly introduce the salient
procedural and substantive law issues characteristic of an ATS case, this Article is
not intended as an advocates' guide for litigating environmental claims under the
ATS 5 nor is it a manifesto of how a broad range of environmental torts should be
recognized under the ATS. 6 Part II briefly explains what characterizes an
environmental ATS claim and how these claims can be brought either utilizing an
international environmental law approach or a human rights based approach. Part III
provides an inventory of the existing case law. Part IV assesses the range of
environmental ATS claims that have been put forward in litigation or literature to
determine which of these are likely to withstand the scrutiny of the courts. I
conclude that under the current reading employed by the Supreme Court Sosa v.
Alvarez-Machain, 7 environmental law norms are not yet part of "the law of nations"
and presently environmental harm may only be addressed in an ATS case where
human rights abuses and environmental wrongs overlap.
at: key to free speech
customary international law prohibits the use of free speechusing the ats to
advance it creates legal confusion and destroys business confidence
Rosen, 04 (Mark, Judge Advocate Generals Corp, U.S. Navy, also a widely published
defense and homeland security analyst who has prepared analytic studies and
commentary for Intellibridge's Homeland Security Monitor, Sea Power magazine and
CNA Corporation's Center for Naval Analyses, 16 St. Thomas L. Rev. 627, Summer,
lexis)
Moreover, the First Amendment to the U.S. Constitution allows misguided individuals
to make bigoted statements towards racial or ethnic groups. Such slurs would
probably be regarded as illegal under CIL, since most societies are far less tolerant
of dissenting speech than the United States. These disparities will seriously
complicate the choice of law duties facing judges who have to hear ATS cases and
create fertile opportunities for error and disparate outcomes. The choice of law
concern will be a tremendous burden on corporate compliance activities since,
inevitably, there will be cases where the proper standard is not being applied.
Finally, if U.S. laws are applied in derogation of foreign law in a case involving
foreign nationals, this creates a real risk (if the case is sufficiently publicized) that
the government which was the site of the tortious activity will take offense at the
notion that U.S. federal judges cannot be bothered to apply their laws in suits
involving their citizens. If U.S. courts are perceived of not according "comity" to
foreign courts and legislatures, one can image that foreign governments may
become much less protective of rights of foreign investors.

at: key to human rights


ATS lawsuits exacerbate human rights - prevent investing and diplomacy in
authoritarian nations

McGinnis and Somin 10 (John, Professor of Law, Northwestern, Ilya, Associate


Professor of Law at George Mason U The Political Economy of Customary
International Law and The Alien Public Policy Roundtable the Alien Tort Statute and
U.S. Enforcement of Foreign Judgments)
As a result, the ATS poses peculiar problems of political economy. American courts
are called upon to adjudicate events that happen far from the United States under a
law that is not their own and hardly their typical fare. The most important rules of
decision for such claims are customary international law (CIL) rulesrules that are
largely unfamiliar to judges and not written down in any canonical text. The risk is
that courts will develop flawed rules because they lack the institutional mechanisms
to ensure that the rules they generate are likely to have beneficial consequences.
This risk is exacerbated because American courts lack local knowledge about the
effects that application of such rules will generate in foreign countries. Some
theories of CIL are likely to permit low quality norms to be applied, because the
norms themselves do not reflect democratic judgments nor are grounded in any
other process likely to generate beneficial rules. Unelected publicists and
international courts, for instance, sometimes play a substantial role in determining
the content of CIL. While publicists and international courts infer these principles
from a wide variety of international legal materials, these materials are themselves
produced in a manner that is unlikely to generate good policy. Authoritarian nations
can influence their content. Some of the norms are examples of cheap talk
because nations do not apply the principles in the document in their domestic legal
system. Finally, the content of international law is not transparent to ordinary
citizens; interest groups have incentives to shape it. The result is a democracy
deficit where interest groups have substantial power to influence the content of CIL
for their own objectives. More specifically, the lack of a lawmaking process likely to
ensure that these rules will take account of the public interest may lead to two kinds
of perverse effects. Liability imposed on multinational corporations may discourage
them from operating in parts of the developing world and improving the lot of the
least well off. Second, imposing liability on rulers and officials of authoritarian
regimes may make it harder to negotiate agreements by which dictators leave
power peacefully, thereby saving lives and reducing suffering.
ATS suits prevent more effective diplomatic pressure
Slaughter and Bosco, 01 (Anne-Marie and David, Alternative Justice,
http://www.globalpolicy.org/intljustice/atca/2001/altjust.htm)
It is unlikely that civil litigation in U.S. courts will, in the long run, represent an
effective means of deterring or punishing massive human rights abuses. Nor is the
phenomenon free of danger. For U.S. courts adjudicating disputes about violations
abroad, there is the danger of politicization. For U.S. diplomats, lawsuits may
hamper and complicate the negotiations and diplomatic initiatives that arguably
hold out the best hope for long-term change. Finally, a growing international role for
U.S. courts may generate a backlash abroadeven among U.S. alliesthat would not
be helpful to the cause of human rights. Through skeptical eyes, it appears that the
U.S. is eager to haul foreign defendants into its own courts, while at the same time
opposing any initiative, like an International Criminal Court, that poses even a
minimal danger to American citizens.

ats suits kill foreign investmentthis is critical to human rights promotion


Kochan, 05 (Donald, assistant professor of law at Chapman University, 8 Chap. L.
Rev. 103, Spring, lexis)
The final principal objection involves the concept of economic development and its
concomitant contribution to the advancement of human rights and democracy. 130
If corporate investment is chilled because of potential international "law" liability,
one of the major contributions to economic development, democracy, and the
enhancement of human rights is chilled as well. As private companies increasingly
become subject to ATS suits, such suits threaten to discourage the very overseas
investment and development that helps expand individual liberty, human rights,
and democracy abroad. Discouraging foreign investment by advancing new
liabilities may actually hinder the advancement of human rights in developing
countries.
***OTHER IMPACT TURNS
2nc iraq turn
Turn Iraq: The plan would force U.S. courts to redress past human rights violations
Saito 02, Law Professor at Georgia State, 2 (Natsu Taylor, MID-ATLANTIC PEOPLE OF
COLOR LEGAL SCHOLARSHIP CONFERENCE: The Plenary Power Doctrine: Subverting
Human Rights in the Name of Sovereignty, Catholic University Law Review,
Summer, 51 Cath. U.L. Rev. 1115)
Compliance with international law would, in addition, require that federal courts
acknowledge claims for redress for past violations of fundamental human rights. As
Karen Parker and Jennifer Chew stated, "the right to redress an international wrong
is recognized by scholars as a fundamental principle of customary law. Recognition
of this right clearly pre-dates World War II, and it has been incorporated into both
treaties and international legal opinions." n337 In light of redress programs that
have been instituted following the horrors of World War II, a considerable body of
international law is evolving in this field. These laws would have to be taken
seriously if international law were [*1168] incorporated into U.S.
jurisprudence. n338 Thus far, the United States has a poor record of complying with
international law when other sovereigns have stepped forward to protect the rights
of their citizens. n339 If the United States wants to claim a prerogative based on its
own sovereignty, it can do so only to the extent that it complies with international
law, and it cannot do so by relying on the plenary power doctrine.
That would allow U.S. citizens to win redress against Iraq for human rights violations
committed by the Hussein regime Not allowing it would be in violation of I-Law.
Aceves 09, Counsel of Record for the Center for Justice & Accountability, 3-359 (William, Brief of Amicus Curiae Center for Justice & Accountability In Support of
Respondents, On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit, In the Supreme Court of the United States, Republic of
Iraq Et Al Petitioner v. Robert Simon Et Al Respondents, Case Number 08-539)

As recognized by the D.C. Circuit in Simon v. Republic of Iraq, 529 F.3d 1187 (D.C.
Cir. 2008), the Republic of Iraq does not possess sovereign immunity in this case.
The Respondents, who were subjected to torture by the Republic of Iraq, therefore,
have the right to bring their lawsuit pursuant to the state sponsor- of-terrorism
provision of the Foreign Sovereign Immunities Act.
SUMMARY OF ARGUMENT
In 1996, Congress adopted legislation amending the Foreign Sovereign Immunities
Act (FSIA) to allow claims against countries that are designated state sponsors of
terrorism. 28 U.S.C. 1605(a)(7). The FSIA eliminated state immunity for several
actstorture, extrajudicial killing, hostage taking, and aircraft sabotagethat are
specifically prohibited under international law. In 2003, when this lawsuit was filed,
the Republic of Iraq was a designated state sponsor of terrorism. As such, it was
subject to the Section 1605(a)(7) waiver of immunity.
In 2008, Congress amended the FSIA through the adoption of the National Defense
Authorization Act for Fiscal Year 2008 (NDAA), Pub. L. No. 110-181, 122 Stat. 3.
Section 1083 of the NDAA replaced 28 U.S.C. 1605(a)(7) with more detailed
provisions but reiterated the key provision that a foreign state designated as a
state sponsor of terrorism at the time an act of torture, extrajudicial killing,
hostage taking, or aircraft sabotage occurred shall not be immune from a suit for
damages in the federal courts. See 28 U.S.C. 1605A.
The NDAA also included a provision authorizing the President to waive any provision
of Section 1083 of the NDAA with respect to Iraq if he made certain determinations.
President Bush subsequently invoked this power by waiving all provisions of
section 1083 with respect to Iraq, and all agencies and instrumentalities thereof.
Presidential Determination No. 2008-9, 73 Fed. Reg. 6,571, 6,571 (Jan. 28, 2008).
The Republic of Iraq has asserted that the NDAA and the Presidents invocation of
Section 1083 authority require the dismissal of this case. The decision of the Court
of Appeals below, however, that neither the NDAA nor the Presidents invocation of
Section 1083 authority with respect to Iraq deprives the courts of jurisdiction was a
straightforward application of statutory-construction principles that should be
affirmed.
Principles of statutory construction compel a similar finding with respect to the
Emergency Wartime Supplemental Appropriations Act (EWSAA), Pub. L. No. 108-11,
117 Stat. 559, 579 (2003). The Republic of Iraq has also argued that the EWSAA
made the state sponsor- of-terrorism exception to the FSIA inapplicable to Iraq. In
Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), the D.C. Circuit disagreed,
holding that Section 1503 of the EWSAA did not apply to the FSIA terrorism
exception. As that court held, the EWSAA was designed to provide economic
assistance to Iraq and was not meant to address the jurisdiction of the federal
courts. Although these decisions of the Court of Appeals were correctly decided on
their own terms, there is an additional reason why they should be affirmed: the
venerable doctrine of statutory construction that federal law must not be
interpreted in a manner that conflicts with international law if any other
construction is fairly possible. See Murray v. Schooner Charming Betsy, 6 U.S. (2
Cranch) 64 (1804). Under international law, victims of torture have a right to seek
redress for their injuries. The D.C. Circuits decisions, which construe the NDAA and
EWSAA as continuing to allow victims of torture to seek such redress in the federal
courts, are consistent with these principles of international law.
A contrary interpretation of these statutes would bring the United States into
conflict with international law. Like the Court of Appeals, this Court should construe

the NDAA and EWSAA in a manner that renders them consistent with international
law and, accordingly, affirm the decisions below.
That destroys Iraqi reconstruction, democracy, and stability
Franklin 09, Counsel of Record for the Petitioner, 9 (Jonathan, Republic of Iraq,
Petitioner, v. Jordan Beaty, et al, Respondents, Petition for a Writ of Certiorari to the
United States Court of Appeals for the District of Columbia Circuit, Petition for a Writ
of Certiorari, Nos. 07-1090 and 08-539)
The national and international importance of this case is undeniable. The
United States is presently engaged in an ongoing military operation with the
purpose of supporting and strengthening the new democratic government of Iraq
and the reconstruction of its country. In the view of both Iraq mad United
States, subjecting the sovereign nation of Iraq to lawsuits based on the misdeeds of
its prior regime would severely hinder that foreign policy goal and threaten the
critical U.S.-Iraqi alliance. The issue of Iraqs sovereign immunity for the misdeeds
of the deposed Saddam Hussein regime is of great importance to the Republic of
Iraq because it threatens Iraqs fundamental sovereignty and potentially impacts at
least sevenother pending cases against Iraq involving well over $1 billion
in asserted liability.6 The issue will also have a continuing impact far into the future.
Iraq was not delisted as a state sponsor of terrorism until October 2004. Because
there is a generous ten-year statute of limitations for cases brought under former
Section 1605(a)(7), see 28 U.S.C. 1605(f), if Iraq remains subject to the jurisdiction
of United States courts pursuant to that provision it will be vulnerable to claims
through at least October 2014, ten years after that delisting. This would include
claims involving actions by the Saddam Hussein regime d~ring and after the 2003
coalition invasion. The issue is also of exceptional importance to the United States,
as the Acree ruling has compromised what may be the most important U.S. foreign
policy goal today: U.S. support for the reconstruction of Iraq and its new democratic
government.7 A,,~ noted, the United States stated below that the Determination
invalidated in Acree seeks to remove "a serious threat to the crucial foreign policy
goal of promptly rebuilding Iraq into a democratic, selfsustaining nation." U.S.
Statement of Interesl~ 12. More recently, the President underscored the enormous
importance of these issues when he took the extraordinary step of vetoing a
massive omnibus defense appropriations bill solely because of the deleterious
foreign policy consequences one provision would have had on this and similar
lawsuit, s, and then subsequently waived new Section 1605A as to Iraq. Just last
month, the President determined that "exposing Iraq or its agencies or
instrumentalities to liability in United States courts and * * * entangling their assets
in litigation" would "undermine the national security and foreign policy interests of
the United States," would have "serious implications for U.S. troops in the field," will
"hurt the interests of the United States by unacceptably interfering with political
and economic progress in Iraq that is critically important to bringing U.S. troops
:home," would "redirect financial resources from the continued reconstruction of
Iraq and would harm Iraqs stability, contrary to the interests of the United
States," and would threaten "[t]he economic security and successful reconstruction
of Iraq." 73 Fed. Reg. 6571, 6571-74 (Feb. 5, 2008). U.S. foreign policy is thus
undermined by the specter of imposing "crushing liability," Acree, 370 F.3d at 61
(Roberts, J.), on an allied nation the United States is actively seeking to rebuild and
support. But the diplomatic harms go beyond that.s Iraq is aware of no other

friendly U.S. ally that has ever been subjected to liability in U.S. courts for the
alleged misdeeds of a formerly hostile prior regime. Indeed, similar attempts to
subject Germany and Japan to lawsuits for their World War II actions have uniformly
been rejected. 9 Iraq should be treated no differently than those formerly hostile
and now allied nations
Multiple scenarios for nuclear war.
Thomson 06 [John R. Thomson, frequent commentator on geopolitical and security
matters, Withdrawal pleas: Courting cataclysm, The Washington Times, April 5,
2006, Pg. A16]
The negative ramifications of dropping the Iraq enterprise - and with it the Bush
initiative to encourage free market democracy throughout the Middle East - would
be enormous. Imagine the terrorist recruiting bonanza and their reinvigorated
efforts to topple other regional regimes; envision Saudi oil and Pakistani nuclear
arms in extremist hands. Then, think of the United States, with its porous borders
and millions of illegal aliens, thousands among them Muslims. U.S. withdrawal from
Iraq - and, thence, the region - would put 35-45 percent of the world's oil supply
(Saudi Arabia, Iran, Iraq, plus Kuwait, Oman, Qatar, United Arab Emirates) at the
whim of West-hating fanatics and leave the region exposed to Pakistani nuclear
attack. Goaded by maniacal Iranian mullahs, attacks in the U.S. would follow.
Whatever one's pre-invasion view of the liberation of Iraq, the cost to freedom
worldwide is simply too great to envision. This is especially true, as the Iraqis are on
the cusp of creating a functioning government. Iraq is close to civil war, but not
there yet. Virtually every Shia and Sunni leader has spoken in genuine outrage at
the unrest since the Samarra mosque attack in February, calling on their flocks to
resist the Ba'athist sucker game, which seeks finally to drive the Shia majority to
full-fledged war. When Shia firebrand leader Muqtada al-Sadr speaks feelingly about
reaching out to Sunnis, including worshipping together with them, it is clear even he
understands hopes for peace are on the brink of disappearing, with civil war the
disastrous result. Iraq is not Vietnam, but withdrawal can make it worse. America's
no-win, defensive Vietnam strategy foreordained the humiliating outcome. In Iraq,
we won the main Iraq military campaign, trained a core military, guided a series of
interim governments, constitution-writing and elections, and are encouraging final
talks to form a permanent government. However, if we leave Iraq now, our efforts
will collapse, rendering the Vietnam debacle a minor negative moment. In short,
this is precisely not the time for the United States to accept defeat, to cut and run.
Bloody, costly and frustrating as it has been, Iraq is successfully rebuilding. To leave
now - or at any time before we have fully supported reconstruction of the
government, infrastructure and security forces - would be more than craven.
Throughout the Middle East, America would be seen as defeated by the terrorists we
pledged to eliminate; U.S. respect from London, Berlin and Moscow to Beijing, Tokyo
and Sydney would be decimated. Besides completely losing credibility with foe and
friend alike, the United States and the entire world would be at grave risk. The
battle in Iraq is not lost. However, if we depart, the country, the region and very
probably the world will be. Afghanistan will be next, then Bahrain, Kuwait, Oman,
Qatar, UAE and - the biggest prizes - Saudi Arabia and Pakistan. What then? The
terrorist enemy will have emotional and nearly total political dominion over 1.2
billion Muslims, at which point, it will be extraordinarily difficult to avoid - not just
civil war in Iraq - the bloodiest cultural-religious conflict the world has seen.

2nc taiwan turn


Turn Taiwan: The plan would force us to recognize them as independent
Saito 02, Law Professor at Georgia State, 2 (Natsu Taylor, MID-ATLANTIC PEOPLE OF
COLOR LEGAL SCHOLARSHIP CONFERENCE: The Plenary Power Doctrine: Subverting
Human Rights in the Name of Sovereignty, Catholic University Law Review,
Summer, 51 Cath. U.L. Rev. 1115)
Again, the only legal remedies appear to be international. Enforcing international
law in this context would mean complying with all of the basic instruments designed
to ensure the civil, political, economic, social, and cultural rights of all
persons. n272 These are the protections the United States claims are adequately
guaranteed by the U.S. Constitution. However, such domestic law remedies, thanks
to the plenary power doctrine, are unenforceable in U.S. courts.
Compliance with international law mandates the recognition of such civilian political
rights as well as U.S. recognition of the sovereignty of these territories. In 1960, a
United Nations General Assembly Resolution entitled the Declaration on the
Granting of Independence to Colonial Countries and Peoples noted that "all peoples
have an inalienable right to complete freedom, the exercise of their sovereignty and
the integrity of their national territory" and proclaimed the "necessity of bringing to
a speedy and unconditional end colonialism in all its forms and
manifestations." n273 Among other things, the General Assembly declared that
"immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all
other territories which have not yet attained independence, to transfer all powers to
the peoples of those territories, without any conditions or reservations." n274
That would force us to have to fully recognize Taiwans independence
Lee 96, Law Professor at the Taiwan Theological Seminary & Chair of the Taiwan Bar
Association Commission on Human Rights, 96 (Stephen, AMERICAN POLICY
TOWARD TAIWAN: THE ISSUE OF THE DE FACTO AND DE JURE STATUS OF TAIWAN
AND SOVEREIGNTY, Buffalo Journal of International Law, Winter, 1995 / 1996)
[*323] With its twenty-one million people, 36,000 square kilometers (about 11,000
square miles) of territory, and centralized government, it is an undeniable fact that
Taiwan is an independent political entity. This entity ruled by the nationalist party
(or KMT), under the national title of Republic of China (ROC), is generally referred to
as "Taiwan" in the international community. Thus, according to international law,
Taiwan has fulfilled all the requirements of an independent nation.
Nonetheless, since the People's Republic of China (PRC) replaced the Republic of
China (ROC) as the only legitimate representative of China to the United Nations in
1971, n1 Taiwan has lost its membership in the United Nations and its de
jure statehood has been obscured. However, the most serious impact on the status
of Taiwan is the U.S. government's policies toward it.
On January 1, 1979, the Carter administration established formal diplomatic
relations with the PRC and disconnected official U.S. ties with the ROC. n2 This US
policy was made official by issuance of a joint communique stating: "the
Government of the United States of America acknowledges the Chinese position
that there is but one China and Taiwan is part of China." n3 Meanwhile, the Taiwan
Relations Act of 1979 was enacted to maintain "the [*324] continuation of

commercial, cultural, and other relations between the people of the United States
and the people of Taiwan" in the absence of diplomatic relations. n4 Since then, the
American government has maintained its "One China" policy by conducting official
relations with the PRC, and merely unofficial relations with Taiwan. Moreover, the
American government has repeatedly pointed out that its position on the ChinaTaiwan problem is that the U.S. will only intervene or involve itself in the ChinaTaiwan problem on the condition that it be resolved in a peaceful way. n5
There are contradictions in this American policy in at least in three different
respects elaborated as follows:
1. The U.S. took note of the PRCs claim that "One China" includes Taiwan as a part
of China by using the term "acknowledge," but it did not "accept" or "recognize" the
PRC policy. n6 As a matter of fact, the PRC, acting as the legitimate representative
of China, has never governed or occupied Taiwan. The presumption of including
Taiwan in a "One China" policy is contrary to the reality that Taiwan has been a
sovereign state since even before the PRC took over China.
2. There is an official relationship between the U.S. and China demonstrated by
each country's maintainance of an embassy in the other's national capital, however,
the U.S. maintains the "American Institution in Taiwan" in Taiwan and Taiwan
maintains the "Taipei Economic and Culture Offices" in the United States. Even
though the U.S. and Taiwan define these organizations as unofficial, the heads and
staff of both these organizations are provided with official functions, diplomatic
privileges, and immunities. n7
If the American government treated Taiwan as part of China, there would not be the
need to set up any diplomatic offices in [*325] Taiwan. The contradiction is very
apparent when the U.S. government stresses a "One China" policy and official
relations with the PRC, but practically maintains unofficial diplomatic relations with
Taiwan as if Taiwan were a sovereign nation.
As stated by Winston Lord, Assistant Secretary of State for East Asian and Pacific
Affairs before a Senate hearing on September 27, 1994; "relations with the PRC are
official and diplomatic, with Taiwan they are unofficial but strong." n8 He
emphasized that this is "a carefully balanced approach." n9 Evidently it is a
contradiction designed and executed by the American government to appease both
China and Taiwan.
3. The U.S. government applies the Taiwan Relations Act so that it can sell defense
weapons to Taiwan. n10 This serves the purpose of defending Taiwan against a
possible invasion by China. This practice pragmatically violates the American "One
China" policy and affects America's official relations with China. It proves that the
U.S. government actually, but not officially, regards Taiwan as a political entity
independent from China.
Nonetheless, the U.S. government only supports Taiwan's entrance into international
organizations where there is no issue of statehood raised so as not to override the
limitations of the American "One-China" policy. n11 In this respect, the American
government is still reluctant to defer to Taiwan as a de jure independent state.
In view of the foregoing, there is no doubt that American policy toward Taiwan, in
practice, is contradictory to the American "One China" theory. The above stated
arguments also illustrate that the U.S. government accepts the de facto status of
Taiwan's sovereignty, but does not recognize Taiwan's de jure status.
As the most powerful nation in the world, the United States is well known and
respected in its role of "international policeman" when promoting human rights and
justice in the world. Therefore, [*326] American policy toward Taiwan should be

reviewed and readdressed toward protecting the human rights of the 21 million
people in Taiwan and toward achieving the treatment of treating China and Taiwan
on an equal basis.
In this author's opinion, the solution to the contradiction between U.S. policy and
practice should be carried out in the following steps:
First, the "One China" policy needs to be correctly interpreted to accurately
illustrate the present relationship between China and Taiwan. A "One China" policy
is correct if the PRC, not Taiwan, is regarded as the only China. Since Taiwan has
never been ruled by the PRC, or became a part of China nominally or factually, it is
right to say that Taiwan should not be included in a "One China" policy. Just as outer
Mongolia no longer belongs to China, Taiwan is also independent of China.
Furthermore, Taiwan is different from Hong Kong and Macao which will be returned
to the PRC in 1997 and 1999. Hong Kong and Macao have been colonies under
foreign rule and have never been sovereign states. The U.S. government should
settle the contradiction of its "One China" policy by firming up the distinction
between China and Taiwan. Quite simply, it must formally recognize that China and
Taiwan are different and independent of each other.
Nuclear war
Bandow 2000, Senior Fellow at Cato, 4-22-2K (Doug, Going to War for
Taiwan, http://www.cato.org/dailys/03-02-00.html)
Unfortunately, although Republican critics of administration policy are more
consistent, they are also more dangerous. GOP congressmen are pushing the Taiwan
Security Enhancement Act, which would enhance the military relationship between
Taiwan and the United States. Some conservative activists want to formally
recognize Taiwan as the Republic of China. They would threaten to use force if
Beijing acted against Taipei.
The risks of such an approach are many. China would likely sever diplomatic
relations with the United States and, despite its modest military, could not easily
ignore an American decision to recognize Taipei, let alone a Taiwanese declaration
of independence. A measured Chinese response - seizing some essentially
indefensible Taiwanese offshore islands, for instance - would force Washington to
choose between humiliating retreat and dangerous escalation. In neither case could
the United States count on the support of its East Asian allies. Japan, South Korea,
and the Philippines have all emphasized that their "mutual" defense treaties with
the United States do not cover contingencies in the Taiwan Strait.
The United States should adopt a new policy of conflict avoidance. Taiwan's future
should be up to Taiwan's people, not the Communist rulers in Beijing. However,
responsibility for defense, like the decision on independence, should be left with
Taipei.
Washington should make clear that Taiwan will pay the price for miscalculating any
move toward independence. The capitalist and democratic island is a valuable
friend, but America has at stake no interests that justify risking war with the
nuclear-armed PRC. Washington should, however, sell Taipei the weapons that would
allow it to defend itself.
Obviously, the PRC would be foolish to confront the United States militarily. But
nationalism sometimes causes nations to do stupid things, and Beijing rationally
believes Washington has less at stake in Taiwan than does China.

Although the Clinton administration has proved sadly ready to go to war, so far its
adversaries have been pitiful. Conflict involving the PRC would be vastly different.
Washington needs to extricate itself from potential conflict before war erupts in the
Taiwan Strait.
2nc india deal impact
Incorporating i-law would invalidate the India Deal
Wable 2008 - J.D., Brooklyn Law School, 2008 (Kesav Murthy Wable, B.A., Haverford
College (2002); J.D., Brooklyn Law School (expected 2008) The U.S.-India Strategic
Nuclear Partnership: A Debilitating Blow To The Non-Proliferation Regime, 33
Brooklyn J. Int'l L. 719, Lexis)
The U.S.-India nuclear cooperation initiative is essentially being undertaken without
the blessing of the multilateral non-proliferation regime. What this means for the
future of the regime can be ascertained through an analysis of Thomas M. Franck's
theory of legitimacy and traditional models. n80 On the one hand, the initiative can
be construed as a defection by the United States from the principles of the nonproliferation regime that ultimately derogates from the regime's capacity to
obligate.n81 On the other hand, if the United States argues that this initiative is
consistent with the goals of the non-proliferation regime (which it fervently
has) n82 then the regime's legitimacy is nevertheless dealt a blow, this time by an
undermining of its determinacy. n83 In other words, this would signal to the
remaining states, especially those with considerable access to nuclear technologies,
that reaching similar arrangements with non-NPT signatories would be acceptable
behavior under the non-proliferation regime. In either case, the consequences are
the same: states will be induced into behavior that threatens to increase the
likelihood of nuclear weapons proliferation.
In order to proceed with this line of analysis, it is first necessary to establish that the
non-proliferation regime embodies rules that govern state practice. It is a basic
tenet of international law that a practice generally followed by states out of a sense
of legal obligation gives rise to customary international law, which is binding on all
states. n84 The term "practice" contemplates diplomatic acts, statements of policy,
or even inaction of a state in the face of outside-state behavior that may affect its
legal rights. n85 Therefore, the signing of international instruments itself can
contribute to the crystallization of customary rules of international
law. n86 [*738] In this vein, it is a testament to the existence of a customary law
that 187 countries have ratified the NPT, making it the most widely accepted arms
limiting or disarmament instrument in history. n87
Second, the existence of nuclear weapons-free zones, test bans, and other nonproliferation treaties, virtually all of which are codified in multilateral instruments,
further buttresses the proposition that there exists an obligation to pursue nonproliferation methods consistent with the existing regime's practice under
customary international law. n88 Third, the legitimacy of the regime is underscored
when one examines the nuclear weapons control issue as a classic example of the
prisoner's dilemma ("PD"). In this game theory model, the players are confronted
with a collective action problem in which no player can be sure what course of
action the other players will take and unilateral defection from the collective
purpose can produce the greatest individual benefits. Arms control presents
precisely such a predicament.n89 However, despite the strong pull of non-

compliance in this context, 182 non-nuclear weapons states have signed the NPT
and those with nuclear programs have submitted to full-scope safeguards
on all their nuclear energy facilities. n90 This fact alone illustrates the degree of
legitimacy the non-proliferation regime has attained notwithstanding its
aforementioned shortcomings. When states forgo short-term strategic advantages
while paying deference to long-term "communitarian interests," it evinces a
collective desire to see the regime's rules reinforced. n91 A corollary of this principle
is that a defecting state will be regarded a threat to the long-term interests of other
states. n92
Obama marks a turning point in US-India relations--the civilian nuclear deal is the
litmus test of cooperation
Curtis 2009 Senior Research Fellow at The Heritage Foundation, 2009 (Lisa Curtis
is a Senior Research Fellow at The Heritage Foundation, focusing on analyzing
America's economic, security, and political relationships with India, Pakistan,
Afghanistan, Sri Lanka, Bangladesh and Nepal, Building a Strategic Partnership:
U.S.-India Relations in the Wake of Mumbai, Testimony before Foreign Affairs
Committee Subcommittee on the Middle East and South Asia United States House of
Representatives, 226, http://www.heritage.org/Research/Asiaandthepacific/tst022609a.cfm)
The U.S.-India relationship has improved dramatically over the last decade.
Relations started to improve in the early 1990s following India's economic reforms,
but lingering mutual suspicion from the Cold War era, India-Pakistan tensions (which
resulted in three major military crises between 1990 and 2002), and the 1998
nuclear tests stalled genuine strategic engagement. Former President Clinton's
famous 2000 visit to India created mutual good feelings and was a catalyst for
improved relations, but it wasn't until President George W. Bush entered office with
a broader vision for the relationship that we witnessed a substantive shift in the ties
between India and the United States. The centerpiece of this paradigm shift in
relations was the completion of the civil nuclear deal last fall, an historic agreement
that has removed a major irritant in U.S.-India relations.
During the Bush Administration, U.S. officials broke the habit of viewing India solely
through the India-Pakistan lens. Washington developed a greater appreciation for
the Indian democratic miracle and viewed our shared democratic principles as the
bedrock for a broader strategic partnership. Washington began to view India's
growth in power as a positive development for the balance of power in Asia. India is
now broadening its engagement throughout Asia through closer relations and trade
links with China, strengthened political and economic ties to the Southeast Asian
states, and a budding security partnership with fellow democracy Japan. India's
increased economic and political involvement throughout the Asian continent will
help to ensure that one country does not dominate the continent, and will
encourage stability in a region that accounts for a quarter of U.S. trade and
investment and almost half of the world's population.
There is some uncertainty over whether the new Obama Administration will
maintain the current momentum in improving U.S.-India ties. Mr. Obama's
statements during last year's presidential campaign linking the resolution of the
Kashmir conflict to the stabilization of Afghanistan have raised concerns in New
Delhi that the new Administration might revert back to policies that view India

narrowly through the South Asia prism rather than as the emerging global power it
has become. Indian concerns were somewhat assuaged by the late-January
announcement that Richard Holbrooke, special representative to Afghanistan and
Pakistan, would focus on those two countries, not on India or Jammu and Kashmir.
US-India relations are key to regional stability
Bajpai 2001 teaches at the School of International Studies at Jawaharlal Nehru
University, in New Delhi, 2001(Kanti, Add five 'E's to make a partnership,
Washington Quarterly, Summer)
An Indian-U.S. partnership would be a force for stability in world politics. Global
stability will depend on peace and cooperation in Asia and a growing net of
constructive interactions among the major powers of this superregion. The United
States is the linchpin here. India, on the other hand, is an emerging power with
capabilities that extend to the Asia-Pacific region. Both countries have vital interests
in Asia, from the Persian Gulf to East Asia and throughout the Indian Ocean. These
common interests relate to oil supplies, proliferation, ethnic disaffection,
fundamentalism, terrorism, narcotics trafficking, freedom of the seas, safety of sea
lanes, peaceful resolution of territorial disputes, and a balance of power. A fullfledged strategic partnership between the United States and India, however, is
some time away. In the interim, New Delhi and Washington must build
understanding, links, and a foundation of military and nonmilitary cooperation that
will move them toward deeper engagement. As the more powerful country, the
United States, ideally, would initiate this more thoroughgoing relationship.
Over the last few years, the United States has created the basis for a long-term
partnership between the two countries. President Bill Clinton's visit to India in March
2000 and the Indian prime minister's return visit to the United States in September
dramatized the new relationship. The Bush administration has the opportunity in
five issue areas to go beyond mere visits: a strategic entente; economics; energy;
ecology; and epidemics. The "vision statement" signed in New Delhi in March 2000
and affirmed in September conceives of an architecture built largely around these
five "E"s.[ 1] The United States should now boldly do what no administration has
done previously with India and put real bricks and mortar into the relationship.
Nuke war
Dibb 2001 head of the Strategic and Defense Studies Centre in the Research
School of Pacific and Asian Studies for The Australian National University, former
Deputy Secretary for Strategic Policy and Intelligence in the Australian Department
of Defense and director of the Joint Intelligence Organisation (Paul, Naval War
College Review, "Strategic trends: Asia at a crossroads", 54:1, ProQuest, WEA)
The areas of maximum danger and instability in the world today are in Asia,
followed by the Middle East and parts of the former Soviet Union. The strategic
situation in Asia is more uncertain and potentially threatening than anywhere in
Europe. Unlike in Europe, it is possible to envisage war in Asia involving the major
powers: remnants of Cold War ideological confrontation still exist across the Taiwan
Straits and on the Korean Peninsula; India and Pakistan have nuclear weapons and
ballistic missiles, and these two countries are more confrontational than at any time
since the early 1970s; in Southeast Asia, Indonesia-which is the world's fourth-

largest country-faces a highly uncertain future that could lead to its breakup. The
Asia-Pacific region spends more on defense (about $150 billion a year) than any
other part of the world except the United States and Nato Europe. China and Japan
are amongst the top four or five global military spenders. Asia also has more
nuclear powers than any other region of the world.
Asia's security is at a crossroads: the region could go in the direction of peace and
cooperation, or it could slide into confrontation and military conflict. There are
positive tendencies, including the resurgence of economic growth and the spread of
democracy, which would encourage an optimistic view. But there are a number of
negative tendencies that must be of serious concern. There are deep-seated
historical, territorial, ideological, and religious differences in Asia. Also, the region
has no history of successful multilateral security cooperation or arms control. Such
multilateral institutions as the Association of Southeast Asian Nations and the
ASEAN Regional Forum have shown themselves to be ineffective when confronted
with major crises.
2nc georgia-russia impact
Incorporation gives Russia a green light to manipulate the language of international
law to re-absorb Georgia into its sphere of influence
Borgen 2008 Associate Professor of International Law at St. John's, 2008
(Christopher J. Borgen is an Associate Professor of Law, Harvard College (A.B., cum
laude, 1991) and of New York University School of Law (J.D., 1995), Associate
Professor of Law at St. John's University School of Law, where he teaches
International Law, National Security and the Law, and Contracts, International Law,
Power Politics, and Russian Intervention in
Georgia,http://opiniojuris.org/2008/08/09/international-law-power-politics-andrussian-intervention-in-georgia/)
Russias intervention in Georgia is the latest, and most obvious, example of the
peculiar role that Russia plays in the various so-called frozen conflicts in former
republics of the USSR. As international security expert Dov Lynch has put it, Russia
can be thought of as a mediator-cum-supporter-cum-combatant. Why has Russia
undertaken such a foreign policy in Georgia and what, if anything, does
international law have to say about the situation?
Ill start with the legal issues. South Ossetia and Abkhazia are secessionist enclaves.
They are unrecognized by any other state and, as such, are considered to still be
part of Georgia. More generally, international law treats secessionist conflicts as
matters of domestic law and politics.
However, international law is implicated by certain aspects of secessionist conflicts,
including the protection of human rights, threats to international peace and
security, and the activities of third-party states. In cases of secession, a thirdparty state is any other state (besides the state in which the secessionist conflict is
occuring) that somehow becomes involved in the conflict. Such involvement can
range from being a mediator to try to end the conflict, to economic support, to
military support, or to actual military intervention. Russia has at various points (and
sometimes simultaneously) played all of these roles in the Georgian conflicts. More
on that in a moment.
As for the law, the rights and duties of third-party states regarding domestic
conflicts is an issue that is rooted in the concept of sovereignty: states have a basic

duty not to intervene or otherwise interfere with the resolution of the conflict by the
recognized government of the state. A more complete restatement of the principle
is found in the Declaration on Principles of International Law Concerning Friendly
Relations and Co-operation Among States in Accordance with the Charter of the
United Nations (GA Res 2625, The Friendly Relations Declaration, avaliable here),
a General Assembly Resolution passed by member states of the UN in 1970.
Although, as a General Assembly Resolution, the Friendly Relations Declaration is
not legally binding upon the member states, it is nonetheless of significant
persuasive weight as to the state of customary international law.
The relevant substance of the Friendly Relations Declaration, and of the nonintervention norm, can summarized in a couple of clauses:
Recalling the duty of States to refrain in their international relations from military,
political, economic, or any other form of coercion aimed against the political
independence or territorial integrity of any State
No State or group of States has the right to intervene, directly or indirectly, for any
reason whatever, in the internal or external affairs of any other State.
In regards to military intervention, the Declaration further states that armed
intervention and all other forms of interference or attempted threats against the
personality of the State or against its political, economic, and cultural elements, are
in violation of international law.
So, how can one assess Russias actions?
To start, we should keep in mind Russias arguments mentioned in my previous
post: (1) we are not intervening first but rather responding to bad acts by the
Georgain government; and, (2) we have a right to defend our co-nationals.
This first argument is probably trying to call to mind NATO actions regarding
Kosovo. Russia is technically a peacekeeper in South Ossetia. But there are a few
problems with this analogy.
First, the Russians maintained that NATOs intervention in Kosovo was illegal; it is
difficult for them to use it to now claim legality of their actions here.
Second, the facts on the ground are quite different while it seems that Georgian
forces did move first in South Ossetia, there is no evidence that they were
undertaking any kind of ethnic cleansing. As for whether Russia, as a peacekeeper,
is authorized to undertake bombing throughout Georgia, that is also an open
question. I would, in part, need to see the terms in the peacekeeping agreement
but I doubt it gives Russia such leeway for activity.
Third, to the other extreme, calling to mind that secessionist conflicts are internal
conflicts and that third-party states need to respect the sovereignty of the state
attempting to resolve its internal conflict, there is a rather strong argument that
Russia acted precipitously and well beyond what could be expected under the
circumstances.
Fourth, even though Russia is technically both a mediator in these conflicts and also
a peacekeeper, it has nonetheless consistently supported the separatists in South
Ossetia and Abkhazia since about 1994. Russia has supplied separatists in South
Ossetia and Abkhazia with military equipment and at times supported them with
actual military action, such as the recent Russian shoot-down of a Georgian
surveillance drone. This assistance and diplomatic support has increased
dramatically since Kosovos declaration of independence. As a formal matter,
though, Russia still has not recognized either South Ossetia or Abkhazia.
Russias second justification for its military intervention is that it is in defense of conationals. However, this argument is based in large part on the wide-spread

passportization of the populations on South Ossetia and Abkhazia. While Russia


has had economic interests in these regions (moreso in Abkhazia) and there are
many ethnic Russians in these regions, it is the handing out of passports to people
living in these enclaves that has given Russia the fig-leaf of claiming that it is acting
in support of Russian nationals. Not very persuasive.
In sum, Russias intervention is fraught with problems as a matter of international
law. So why did they do it? And why now? The Georgian action in South Ossetia
was probably the tripwire, but Vladimir Socor of the Jamestown Foundation also
observes that:
Russia usually stages military incidents in Georgia in August, while European
officials take their vacations. This year, however, the operations are systematic,
lengthier, and considerably higher on the ladder of escalation than in previous
years. After concentrating supplementary forces in Abkhazia during the spring and
expanding its military infrastructure there in early summer, Moscow switched on the
escalation process in South Ossetia.
As for why Russia would intervene in South Ossetia, Socor downplays Moscows
contention that it was to protect Russian passport holders (he claims this is a
trumped-up war scare) and that instead Russia has more strategic interests. He
argues:
The goals behind Moscows operation are threefold, each with its own time frame.
The immediate goal is to re-establish the authority of Russian-controlled negotiating
and peacekeeping formats. By firing on Georgian positions unremittingly and
escalating the intensity of the fire with every passing day, Moscow hopes to force
Georgia to turn to those same Russian-controlled formats to relieve the pressure
Moscows next goal, on a timeframe overlapping with the first, is to capture
Georgian-controlled villages in South Ossetia
The strategic political goal is to dissuade NATO from approving a membership action
plan (MAP) for Georgia at the alliances December 2008 or April 2009 meetings.
More immediately, Moscow seeks to derail the North Atlantic Councils assessment
visit to Georgia, scheduled for September, or at least to influence the visits
assessment about Georgias eligibility for a MAP. Since NATOs Russia-Firsters
insist that unresolved conflicts disqualify Georgia from a MAP, Russia seeks to
demonstrate that those conflicts are indeed unresolved. NATOs hesitations on the
Georgian MAP at the April 2008 summit emboldened Russia to escalate military
operations against Georgia.
Failure to check Russia leads to re-imposition of the USSR
Cohen 2009 - Ph.D., Senior Research Fellow in Russian Studies at the Heritage
Foundation, 2009 (Ariel Cohen, Ph.D., is Senior Research Fellow in Russian and
Eurasian Studies and International Energy Security in the Douglas and Sarah Allison
Center for Foreign Policy Studies, a division of the Kathryn and Shelby Cullom Davis
Institute for International Studies, at The Heritage Foundation, How the Obama
Administration Should Deal with Russia's Revisionist Foreign Policy,3-12,
http://www.heritage.org/Research /RussiaandEurasia/bg2246.cfm)
While an improvement in U.S.Russian relations is certainly desirable, haste is ill
advised for the Obama Administration, which has not yet announced its key officials
concerning Russia, nor conducted a comprehensive assessment of U.S.Russian
relations. Such an improvement cannot come at the expense of defending the U.S.
and our allies from the threat of Iranian missiles; the independence and sovereignty

of countries in the region; or the acceptance of a purported Russian sphere of


influence. Foremost, the Obama Administration must not allow Moscow to rewrite
the geopolitical map of Europe or to pocket the gains that it has recently made in
Georgia, including expanding and building military bases on Georgian territory and
evicting the U.S. from Kyrgyzstan. Privileged Sphere of Influence Since the
watershed war with Georgia last August, Russia has been on the offensive across
Eurasia and has been seeking to re-impose itself over much of the post-Soviet
space. The Kremlin is so concerned with the expansion of its exclusive sphere of
influence that even the severe economic crisiswhich has sent the ruble plunging
50 percent against the dollar and dropped Moscow stock market capitalization 80
percenthas not slowed Russias push into the near abroad.
Currently, Russia has a number of military bases in Europe and Eurasia. The Russian
military recently announced the establishment of three military bases in the
secessionist Abkhazia and is building two more in South Ossetia: a naval base in
Ochamchire; the Bombora air base near Gudauta; an alpine Special Forces base in
the Kodori Gorge; and the two bases in South Ossetia: in Java; and in the capital
Tskhinvali.10 Not only do these deployments violate the spirit and the letter of the
cease-fire11 negotiated by French President Nicolas Sarkozy after the 2008 Russo
Georgian war, but they extend Russias power projection capabilities into the
Southern Caucasus, threatening the already precarious strategic position of Georgia
and the EastWest energy and transportation corridor of oil and gas pipelines and
railroads from the Caspian Sea to Turkey and Europe.12
More recently, Washington received an eviction notice for the U.S. military from
Kurmanbek Bakiyev, president of Kyrgyzstan. With Russian President Dmitry
Medvedev at his side, Bakiyev announced in Moscow last month that he wants the
U.S. to leave Manas Air Base, a key military cargo hub at the airport of the Kyrgyz
capital Bishkek that has been used by NATO and U.S. troops in Afghanistan since
2001.13 With this move, the Kremlin signaled the West that to gain access to
Central Asia, Western countries must first request permission from Moscow and pay
the Kremlin for transit.
NATOs desire to cooperate with Moscow is understandable in view of whats going
on with Afghanistan and Iran. However, part of the problem was Made in
Moscow: After the Yankee Go Home announcement by the Kyrgyz, Moscow
offered to use its cargo planes and air space to resupply Afghanistan. And it is
refusing to compromise on Iran. This is Tony Soprano geopolitics: Use my trucks
and my garbage dumpsor you cant do business on my turf. Closing Manas Air
Base for the U.S. military will complicate efforts to send up to 30,000 more troops to
Afghanistana key objective of the Obama Administration. Russias pressure on the
Kyrgyz government to evict the U.S. from this base raises questions about long-term
strategic intentions of the Moscow leadership, and its willingness to foster a NATO
defeat in Afghanistan. Russia may mistakenly believe that, together with China and
Iran, it would be able to pick up the pieces in Afghanistan and prevent the Taliban
from extending their influence over allies in Central Asia and the Caucasus.
However, radical Islamistsnot Americaare the long-term systemic threat toward
the soft underbelly of Russia's southa threat for which Moscow lacks answers.
Russia has taken additional steps to secure its clout from Poland to the Pacific. It
initiated a joint air-and-missile defense system with Belarus, which may cost billions,
and initiated a Collective Security Treaty Organizations (CSTO) Rapid Reaction Force
(RRF), intended to match the forces of NATOs Rapid Response Force. The CSTOs
RRF not only could be used to fight external enemies, but is likely to be available to

put down velvet revolutions and quell popular unrest.14 Russia also announced
the creation of a $10 billion stabilization fund for the seven countries which are the
members of the Eurasian Economic Community (EEC), most of which ($7.5 billion)
Moscow will front.15 The reason for the spending spree is simple: Money and
weapons consolidate control over allies. Russias effort to secure a zone of
privileged interests is consistent with policies formulated almost two decades
ago by Yevgeny M. Primakov, leader of the Eurasianist school of foreign policy, Boris
Yeltsins spy chief, later a foreign minister, and then prime minister. In 1994, under
Primakovs direction, the Russian Foreign Intelligence Service published a report
calling for Russian domination of the near abroadreferring to the newly
independent states that emerged from the rubble of the collapsed Soviet empire.
Russian adventurism causes global nuclear conflicts
Cohen, 1996 Heritage Foundation (Ariel, The New "Great Game": Oil Politics in the
Caucasus and Central Asia, 1/25,
http://www.heritage.org/Research/RussiaandEurasia/BG1065.cfm)
Much is at stake in Eurasia for the U.S. and its allies. Attempts to restore its empire
will doom Russia's transition to a democracy and free-market economy. The ongoing
war in Chechnya alone has cost Russia $6 billion to date (equal to Russia's IMF and
World Bank loans for 1995). Moreover, it has extracted a tremendous price from
Russian society. The wars which would be required to restore the Russian empire
would prove much more costly not just for Russia and the region, but for peace,
world stability, and security. As the former Soviet arsenals are spread throughout
the NIS, these conflicts may escalate to include the use of weapons of mass
destruction. Scenarios including unauthorized missile launches are especially
threatening. Moreover, if successful, a reconstituted Russian empire would become
a major destabilizing influence both in Eurasia and throughout the world. It would
endanger not only Russia's neighbors, but also the U.S. and its allies in Europe and
the Middle East. And, of course, a neo-imperialist Russia could imperil the oil
reserves of the Persian Gulf.15 Domination of the Caucasus would bring Russia
closer to the Balkans, the Mediterranean Sea, and the Middle East. Russian
imperialists, such as radical nationalist Vladimir Zhirinovsky, have resurrected the
old dream of obtaining a warm port on the Indian Ocean. If Russia succeeds in
establishing its domination in the south, the threat to Ukraine, Turkey, Iran, and
Afganistan will increase. The independence of pro-Western Georgia and Azerbaijan
already has been undermined by pressures from the Russian armed forces and
covert actions by the intelligence and security services, in addition to which Russian
hegemony would make Western political and economic efforts to stave off Islamic
militancy more difficult.

2nc abortion turn


Incorporating international law in Court decisionmaking leads to banning abortion
Sanchez 2005 ASIL member and law clerk at the U.S. Court of Federal Claims in
Washington D.C., J.D., University of Pennsylvania (Ernesto J., December 2005,
Connecticut Law Review, 38 Conn. L. Rev. 185, p. 223-224)

Assume, for the sake of argument, that the Court once again faces the same issue it
faced in Roe v. Wade -- whether the scope of the concept of personal liberty
guaranteed by the Fourteenth Amendment's Due Process Clause guarantees a
woman's right to abort a pregnancy in the first trimester of pregnancy. n198 The
Court could have faced this same matter again when Norma McCorvey, the original
"Jane Roe" who has become a prominent pro-life activist, filed a Rule 60
motion n199 to overturn the initial ruling two years ago. n200 A Houston federal
district court dismissed the motion last year and held that Roe "was certainly final in
this litigation" and that it was "simply too late now, thirty years after the fact, for
McCorvey to revisit that judgment." n201 The Fifth Circuit refused to hear oral
arguments in the case on February 23, 2004 and considered the appeal based on
McCorvey's brief alone, a document that included more than 1,000 pages of
affidavits by women who claimed that their abortions had emotionally harmed them
in a manner that the original ruling did not consider possible. n202 On September
14, 2004, the court dismissed the appeal -- because Texas had repealed the statutes
declared unconstitutional in Roe, McCorvey's motion was moot. n203 The Supreme
Court subsequently denied certiorari. n204
But how could the Court have reviewed this decision had it chosen
to [*224] disregard the Fifth Circuit's conclusion on the mootness issue? Setting
aside the issue of whether McCorvey filed her motion in a "reasonable time," the
case stemmed from two very convincing, yet diametrically opposite, perspectives.
On one end, in addition to repeating the original legal reasoning underlying Roe, the
Court could have simply defended the decision on stare decisis grounds n205 since
so much of its reproductive rights jurisprudence over the past thirty-two years has
simply stemmed from the assumption that the Constitution protects first trimester
abortion rights.n206
But the Court might also have followed the same line of reasoning it applied
in Lawrence to outline the case for overturning Roe. In the Lawrence opinion, the
Court held that stare decisis did not constitute an "inexorable command," but a
"principle of policy" that did not mandate the use of a "mechanical formula of
adherence to the latest decision." n207 So the discovery of compelling reasons to
overrule a precedent certainly justified doing so, namely in the form of concluding
that world opinion helped show how bans on sodomy "demeaned" the lives of
homosexual persons. n208 Perhaps thirty-two years of new evidence, then, could
have highlighted how abortion emotionally harmed women.
How could the Court have used foreign legal perspectives to choose either side of
the question of whether it should overrule Roe? In Lawrence, the Court cited the
ECHR opinion to show that a growing international consensus against bans on
homosexual sodomy had developed and that this overwhelming world opinion on
the subject helped demonstrate that such laws demeaned the lives of homosexual
persons, thereby providing a compelling interest to overturn Bowers. n209 Likewise,
the Court could have referred to how the fact that 141 out of the world's 201
independent countries, in another estimate, still outlaw abortion on demand
strengthens the contention that abortion harms women. n210 After all, 141
countries out of 201 certainly would have illustrated a broad international
consensus in favor of outlawing abortion. n211 In contrast, the Court could have
simply referred to how most countries in western Europe have legalized
abortion n212 in order to claim that the evidence McCorvey presented was not
convincing enough on account of how "developed" countries, or countries with

whom the United States shares a common cultural heritage, have come to favor
abortion rights.
Outlawing abortion causes extinction
Cote 2007 Rev. Robert E. Cote, Outreach Director for The Life Center, 2004,
online: http://www.truth101.org/vs-overpopulation.html, accessed February 19, 2007
Human overpopulation is aggravating and amplifying every major problem facing
humanity today - - problems such as: Global Climate Change
Poverty
Starvation
Child abuse
Overcrowding
Crime
Drug abuse
Gang violence
Social unrest
Political violence
Wars
Global Terrorism,
Groundwater (aquifer) depletion
Rainforest depletion
Environmental destruction
Ozone depletion
Air pollution
Water pollution
Natural resource depletion
Glacial and polar Ice caps melting
Topsoil destruction
Global warming
Species extinction
Religious Fanaticism
Environmental Disaster
Human overpopulation is causing a global environmental disaster of proportions not
seen since the demise of the dinosaurs.
We have cut a huge contiguous ecosystem into little blocks with roads cities, farms,
ranches and the like and think that we do no harm.
We have destroyed over ninety-seven percent of our virgin forests and think there in
no price for that destruction.
Each time we alter our ecosystem, we decrease its stability and and make the
probability of a death-dealing disaster more likely.
We have destroyed vital top soil that is literally irreplaceable. We are destroying
our planet's ability to sustain human life.
We have polluted almost every waterway on the entire planet and ignore
the massive deaths from the resultant diseases.
Acid rain is killing our forests, but quarterly corporate profits take precedent
of stopping the dumping of poisonous mercury into our environment.
We have wantonly murdered entire species of large predatory animals and
think such destruction does not alter the environment.

We have over-fished the oceans to the point that ninety percent of all large fish are
simply gone.
Human overpopulation has already caused the extinction of more species than at
any single time period other that the demise of the dinosaurs and few give this
carnage any thought. The rate of extinction is still growing and there is no end in
site to this trend.
We have set into motion environmental changes the consequences of which we are
completely ignorant. We have interfered with every environmental system on the
entire planet and think such actions are without cost or that someone else will pay
the price.
Our great grand children, if there are any, are going to think of us with anger and
disbelief and ask, were they really that stupid?
Forced Motherhood
By their support of anti-choice laws, such as restrictions on foreign
aid, (http://www.pro-truth.net/30-references.html#gag). and by their opposition to
certain practices, the forced motherhood leaders deny sex education, birth control,
and abortion to millions in third-world countries while the impoverished
overpopulation in these countries is busy cutting down whats left of the rain forests
to feed still more unwanted children. The rain forests are not only the homes for
most life forms on this planet, these forests are also an essential requirement for a
stable global environment.
In the developed countries, to accommodate the increasing population, people are
busy building still more factories and cars which produce even more pollution.
Pollution has already begun to produce an irreversible, environmental disaster of asyet unimaginable proportions.
Forcing unwilling women to produce still more unwanted babies is like playing a
variation of Russian roulette where it's your turn until the gun goes off.
2nc death penalty good impact
I-law kills death penalty (no pun intended)
The News 2008 [Liberia; Amnesty International Urges Repeal of Death Penalty
Law. July 28. Lexus]
Monrovia Amnesty International last Friday appealed to Liberian government to
repeal a law calling for the death penalty for anyone convicted of armed robbery,
terrorism or hijacking offences if these crimes result in death.
The human rights watchdog said that the law directly violated Liberia's obligations
under the Second Optional Protocol to the International Covenant on Civil and
Political Rights (ICCPR), which Liberia joined in September 2005 and which abolishes
the death penalty.
Liberian law already included the possibility of the death penalty, but in 2005, the
country should have incorporated into law the Second Optional Protocol, thereby
abolishing the death penalty for all crimes.
Under customary international law, as reflected in Article 27 of the Vienna
Convention on the Law of Treaties, which Liberia ratified in August 1985, a state
"may not invoke the provisions of its internal law as a justification for its failure to
perform a treaty", Amnesty said.
Seven of Africa's 53 countries are known to have carried out executions last year.
According to Amnesty International's information, 14 countries in Africa are
abolitionist in law and a further 21 in practice.

Thats key to nuclear deterrence.


Tung 2003 Associate Professor, University of Iowa College of Law, J.D., from
Berkeley, BS from Cal Tech (Yin, Associate Prof. Law U. Iowa College of Law,
Alabama Law Review, Disposable Deontology: The Death Penalty and Nuclear
Deterrence, 55 Ala. L. Rev. 111, Fall, L/N)
As an aside, notice that the United States' bloodlust for the death penalty may have
the curious side effect of bolstering the credibility of the threat of American nuclear
deterrence. Given that the death penalty has not been demonstrated to have a
deterrent effect, it obviously has no meaningful rehabilitative potential, and it costs
more to implement than life imprisonment, n175 what emerges is that Americans
are willing to pay a premium to exact retribution. If that is so, then any nuclear
adversary of the United States must take into account the retributive character of
Americans in deciding whether American nuclear deterrence is just a "bluff."
Deterrence is key to prevent global war and nuclear proliferation.
Schneider 2008 (Mark, Senior Analyst National Institute for Public Policy, Ph.D.
History USC, Former Senior Officer in Positions relating to Arms Control and
Nuclear Weapons Policy DOD, Comparative Strategy, The Future of the U.S.
Nuclear Deterrent, 27:4, Ebsco)
According to the Pentagon's Quadrennial Defense Review, the United States must
maintain a robust nuclear deterrent, which remains a keystone of U.S. national
power.98 The reason should be self evidentwithout a nuclear deterrent the
United States could be destroyed as an industrial civilization and our conventional
forces could be defeated by a state with grossly inferior conventional capability but
powerful WMD. We cannot afford to ignore existing and growing threats to the very
existence of the United States as a national entity. Missile defenses and
conventional strike capabilities, while critically important elements of deterrence
and national power, simply can't substitute for nuclear deterrence. In light of the
emerging strategic partnership between Russia and China and their emphasis on
nuclear weapons it would be foolish indeed to size U.S. strategic nuclear forces as if
the only threat we face is that of rogue states and discard the requirement that the
U.S. nuclear deterrent be second to none. Ignoring the PRC nuclear threat
because of Chinese no first use propaganda is just as irresponsible. Absent a
nuclear deterrent to their WMD use, rogue states could defeat our forces by the
combination of few nuclear EMP weapons and large chemical and biological attacks.
The situation would be much worse if they build a more extensive nuclear strike
capability as has been reported. Freezing U.S. nuclear forces at the technical level of
the Reagan administration will assure that, within two decades, Russia, China, India,
and probably others will be technically superior and U.S. deterrence ability against
CBW attack will be reduced. United States nuclear forces must be modernized and
tailored to enhance deterrence and damage limitation against the rogue WMD
threat. WMD capabilities have given otherwise inconsequential states the ability to
kill millions of people. The right combination of missile defense and conventional
and nuclear strike capabilities provide the best deterrent and damage limiting
capability against the rogue state threat. We must not ignore the requirement to
provide extended deterrence to our allies. British and French nuclear forces are not
large enough, and these nations are not perceived as tough enough, to provide a

deterrent for NATO Europe against Russia. In the Far East, there is literally no
nuclear deterrent capability against China other than that provided by the United
States. Failure to provide a credible deterrent will result in a wave of nuclear
proliferation with serious national security implications. When dealing with the
rogue states, the issue is not the size of the U.S. nuclear deterrent but the credibility
of its use in response to chemical or biological weapons use and its ability to
conduct low collateral damage nuclear attacks against WMD capabilities and
delivery systems including very hard underground facilities for purposes of damage
limitation. We must also have the capability to respond promptly. The United States
nuclear guarantee is a major deterrent to proliferation. If we do not honor that
guarantee, or devalue it, many more nations will obtain nuclear weapons. If arms
control really becomes a substitute for nuclear deterrence and defense, it may very
well precipitate the most destructive war in history. Effective verification is
essentially impossible, and verification is not a substitute for compliance. Today,
arms control has become part of the problem rather than a solution to the problem.
The abolition of the in-kind deterrent to CBW usewhich deterred CBW use in World
War IIis making the world more unsafe almost on a daily basis. The START and
Intermediate-Range Nuclear Forces (INF) Treaties prevent or inhibit the development
of conventional strike capabilities with enhanced ability to counter WMD. The
demise of the ABM Treaty, while very useful, does not completely address the
problem of legacy arms control and its constraints upon U.S. conventional
capabilities.

2nc constitution impact


Judicial expansion of international law is unconstitutional
Weisburd, 88 (Arther, professor of law at the University of North Carolina, 41 Vand.
L. Rev. 1205, The Executive Branch and International Law, November, lexis)
The foregoing argument stresses that separation of powers principles foreclose the
courts' interference with the President's legislative duties on the international plane.
Aside from this international legislative aspect of the question, however, the
President clearly has the authority to create legal effects within the domestic legal
system of the United States on a wide variety of matters without regard to the
strictures of customary international law. In some cases, the courts have held that
the President's decisions create a rule of decision that the courts are obliged to
follow without regard to international law. In others, the courts have held that
domestic law gives the President a discretion on certain subjects that the courts
may not control and that these subjects include matters regulated by international
law. In both categories of cases, however, it is abundantly clear that the courts
simply have not seen customary international law as a basis for judicial limitation of
presidential discretion.
Strict adherence to constitiutional construction is critical to human survival
Henkin, 02 (Louis, professor of law at Columbia, The Constitution and National
Security, ed: Shuman and Thomas, p. 275)

Lawyers, even constitutional lawyers, argue technically with references to text


and principles of construction, drawing lines, insisting on sharp distinctions. Such
discussion sometimes seems ludicrous when it addresses issues of life and death
and Armageddon. But behind the words of the Constitution and the technicalities of
constitutional construction lie the basic values of the United Stateslimited
government even at the cost of some inefficiency, safeguards against autarchy and
oligarchy, democratic values represented differently in the Presidency and in
Congress and in the intelligent participation and consent of the governed. In the
nuclear age, the technicalities of constitutionalism and of constitutional
jurisprudence safeguard also the values and concerns of all civilized people
committed to human survival.

xt i-law unconstitutional
Judicial incorporation of international law creates a slippery slope for American
jurisprudence that puts at risks central constitutional rights such as freedom of
speech, freedom from unreasonable search and seizures, and the right to a trial by
jury
Sanchez 05 (Ernesto, J.D. University of Pennsylvania, 2004, ASIL member and law
clerk at the U.S. Court of Federal Claims, December, 38 Conn. L. Rev. 185, lexis)
The contention Roper implied by acknowledging the retired diplomats' amicus briefs
-- that American courts should pay attention to foreign opinion on purely domestic
American legal issues for healthy foreign relations' sake 248 -- creates a "slippery
slope" for American jurisprudence. If the United States is to worry about how other
countries would address its own constitutional issues, why not reevaluate other
provisions of American law to see if other countries recognize them or not? The
likelihood that a future Supreme Court may take this kind of approach remains slim,
thereby meriting only minimal study. But the question is itself a logical result of
what occurred in Lawrence and Roper.
The fact that foreign opinion and laws stem from different cultural contexts, as
previously discussed, would certainly make few Americans want the courts to
embark upon such a trend. Many foreign legal systems in other democracies, for
example, do not recognize rights that Americans take for granted. 249 One could
argue that the United States allows more freedom of speech than France or
Germany given those two countries' prohibitions on "hate" or racist speech or
similar activities. 250 While most Americans would probably (and hopefully) find the
ideas underlying such speech or activities abhorrent, the right to say whatever one
wants without bringing about physical harm to innocent parties and to believe in
whatever ideology one wishes constitutes a central tenet of the American legal
psyche. 251
Speech regulations are not the only area where the United States differs [*234]
from several foreign states. The First Amendment prohibits the establishment of any
religion. 252 But England has established the Anglican church as the official state
church, which receives government preferences that other denominations cannot
obtain. The concept that one is innocent until proven guilty is a fundamental tenet
of the American criminal justice system, leading to an elaborate array of protection

for criminal suspects such as preclusions on unreasonable searches and seizures


and the privilege against self-incrimination. 253 Yet in most other countries,
especially those adhering to a civil law system, the rejection of the exclusionary rule
demonstrates how a more inquisitorial philosophy pervades criminal justice
systems. 254 And in spite of the jury system's "deep roots" in Great Britain, criminal
trial by jury is nowhere near as common there as it is here. 255 The right to criminal
or civil trial by jury is also not as common in the civil law states of Europe as it is in
common law ones. 256 And again, these differences only involve nations that
otherwise qualify as democracies which bear a degree of cultural similarity to the
United States.
If courts are to assume that United States law should assume a certain approach to
an issue because other states take the same approach, would the next step not
consist of reevaluating some of the rights and guarantees of the United States
Constitution to make them consistent with the laws of other nations? Again, the
chance that a future Supreme Court will undertake such an extensive review of
American law is not great. But having a foreign law guide the American approach to
a given constitutional issue to even a small extent, when American law is
nonetheless available or when a case raises no non-United States law implications,
certainly appears to pose this danger.
2nc sop turn
Judicial incorporation of international law violates separation of powers
Kochan 2006 Donald J., Assistant Professor of Law, Chapman University School of
Law, February 2006, Fordham International Law Journal, 29 Fordham Int'l L.J. 507, p.
539
There is a fundamental constitutional objection to the use of international and
foreign law in U.S. judicial decisionmaking. Except for a few discrete categories
recognized in Article III, there is no general constitutional grant for U.S. courts to
apply or even recognize foreign or international law. n143 The judiciary is a branch
of limited jurisdiction and authority utilize international law - defined by Article III.
Moreover, attempts by Article III courts to do so necessarily interfere with the
constitutional prerogatives of the elected branches (the Executive and Congress)
and thereby raises serious separation of powers issues.
Nuke war
Redish 1991 Martin H., Northwestern Law (Professor Of Law And Public Policy,
Northwestern University), and Elizabeth J. Cisar, Law Clerk to United States Court of
Appeals, Seventh Circuit, Duke Law Journal, December, 1991, 41 Duke L.J. 449, p.
472-474
In any event, the political history of which the Framers were aware tends to confirm
that quite often concentration of political power ultimately leads to the loss of
liberty. Indeed, if we have begun to take the value of separation of powers for
granted, we need only look to modern American history to remind ourselves about
both the general vulnerability of representative government, and the direct
correlation between the concentration of political power and the threat to individual
liberty. The widespread violations of individual rights that took place when President
Lincoln assumed an inordinate level of power, for example, are well documented.

Arguably as egregious were the threats to basic freedoms that arose during the
Nixon administration, when the power of the executive branch reached what are
widely deemed to have been intolerable levels. Although in neither instance did the
executive's usurpations of power ultimately degenerate into complete and
irreversible tyranny, the reason for that may well have been the resilience of our
political traditions, among the most important of which is separation of powers
itself. In any event, it would be political folly to be overly smug about the security of
either representative government or individual liberty. Although it would be all but
impossible to create an empirical proof to demonstrate that our constitutional
tradition of separation of powers has been an essential catalyst in the avoidance of
tyranny, common sense should tell us that the simultaneous division of power and
the creation of interbranch checking play important roles toward that end. To
underscore the point, one need imagine only a limited modification of the actual
scenario surrounding the recent Persian Gulf War. In actuality, the war was an
extremely popular endeavor, thought by many to be a politically and morally
justified exercise. But imagine a situation in which a President, concerned about his
failure to resolve significant social and economic problems at home, has callously
decided to engage the nation in war, simply to defer public attention from his
domestic failures. To be sure, the President was presumably elected by a majority of
the electorate, and may have to stand for reelection in the future. However, at this
particular point in time, but for the system established by separation of powers, his
authority as Commander in Chief to engage the nation in war would be effectively
dictatorial. Because the Constitution reserves to the arguably even more
representative and accountable Congress the authority to declare war, the
Constitution has attempted to prevent such misuses of power by the executive. It
remains unproven whether any governmental structure other than one based on a
system of separation of powers could avoid such harmful results. In summary, no
defender of separation of powers can prove with certitude that, but for the
existence of separation of powers, tyranny would be the inevitable outcome. But the
question is whether we wish to take that risk, given the obvious severity of the harm
that might result. Given both the relatively limited cost imposed by use of
separation of powers and the great severity of the harm sought to be avoided, one
should not demand a great showing of the likelihood that the feared harm would
result. For just as in the case of the threat of nuclear war, no one wants to be forced
into the position of saying, "I told you so."
2nc prez pwrs bad impact
Expanding international law would effectively destroy the legislature by elevating
the executives interpretive ability to supercede all legislative acts
Trimble, 86 (Phillip, professor of law at UCLA, 33 UCLA L. Rev. 665, A REVISIONIST
VIEW OF CUSTOMARY INTERNATIONAL LAW, February, lexis)
Elevating customary international law to the status of treaties entails a significant
redistribution of political power and law-making authority, both domestically and
internationally. This new status could significantly undermine the stability [*679] of
established legal regimes because of the unusual way in which customary
international law might emerge. Customary international law "results from a
general and consistent practice of states followed by them from a sense of legal
obligation." 56 The state practice involved need only be general, not universal. 57

Moreover, a state's "practice" is not limited to its own acts; practice can consist of
acquiescence to the acts of other states. 58 In theory, a rule might emerge when a
state acquiesced, for whatever reasons, in the practices of other states, so long as
there were a sufficient number of other states involved to qualify the practices as
"general practice." While this may be unlikely because the scope of treaty law has
expanded so much in the last twenty-five years, plausible hypotheticals can be
imagined -- states might be bound by customary law of the sea growing out of the
United [*680] Nations Law of the Sea negotiations, and they might be bound by
"emerging" human rights law. Although the Draft Restatement concedes that a state
cannot be bound by a rule if the state indicates its disagreement when that rule is
"still in the process of development," 59 a state might still be bound by a rule it had
no direct part in making. Some commentators have stretched the limits of
customary international law even further. They would have votes in the General
Assembly qualify as practice. 60 Others would include [*681] treaties made by
other states. 61 Conceivably, a state could be bound by the norms contained in
General Assembly resolutions and in treaties concluded by other states unless that
state were able to conclude treaties embodying a different rule. In this way, the
President and Congress might become bound by rules of law created wholly outside
the domestic political process, and United States courts, following the Draft
Restatement approach, might apply these rules. 62 This might be true even without
the novel processes of law formation advanced by aggressive commentators,
although the problem, as a practical matter, would be much less extensive if the
General Assembly were not treated as a law-making body. The consequences of
according legal significance to customary international law are considerable. At the
international level, the Draft Restatement view would hold that emerging customary
norms could supercede an earlier treaty. 63 The result might create uncertainty
about whether any specific treaty remains binding. 64 In any case, it would transfer
the authority to modify a treaty from its signatories [*682] to an amorphous group
of states whose practice could prescribe customary international law. According
legal significance to customary international law might produce a similar
redistribution of effective power, with similar uncertainties, in the domestic sphere.
The law-making power of Congress might shift to the President, in light of the
Executive's primacy in foreign affairs, 65 or to the judiciary, armed with the power
to declare customary international law. 66 Legislative power could even pass
completely out of the government structure. The United States could be bound by a
rule formed by the general practice of other states. 67 For example, assume that in
1970 Congress passed a law criminalizing possession of certain drugs on board
foreign-flag, but United States-owned, vessels on the high seas. In the next ten
years a number of international conferences are held on the subject of national
jurisdiction on the high seas. On the basis of positions expressed at those
conferences, municipal laws adopted by a large number of other states, and a draft
treaty approved by consensus, a rule of customary law emerges that only the flag
state can exercise jurisdiction over its vessels on the high seas. The President issues
a proclamation declaring that the United States accepts the relevant provisions as
customary international law but declines to sign the treaty for unrelated reasons. 68
[*683] Under the Draft Restatement view, this hypothetical rule of customary
international law could take precedence over the hypothetical act of Congress
(particularly in view of the Presidential proclamation). Of course, Congress could
repass the criminal law. The courts, and even the Draft Restatement, would then
apply the repassed rule. 69 We may only be worrying [*684] about where the

burden of overcoming inertia should rest. Suppose, however, that a number of


years pass, all the other countries of the world join in the agreement, Congress pays
no further attention to the question, and the Executive does not enforce the
repassed law (for whatever reasons). Under the Draft Restatement approach, an
activist court could find that the rule of customary law favoring exclusive flag state
jurisdiction had reemerged, stronger than ever. Once again the act of Congress
would be limited. This "bouncing ball" effect could go on indefinitely. If the courts
become capable of applying customary international law in this manner, the
judiciary will acquire another tool with which to strike down or limit acts of
Congress. Customary international law will become equivalent to constitutional
common law, embodying a judicial function as novel as that recently advocated by
Dean Calabresi, who suggests that courts applying common law should be free to
modify statutes that are out of tune with the contemporary legal landscape. 70
With these developments, the vengeance of the international lawyers is complete,
and the realists are destroyed. Customary international law not only embodies the
restraint function much emphasized in the realist view, but also is applied in courts,
on the initiative of mere individuals. Even the Congress must bow (at least
temporarily) to its force.
Wrecking Congressional oversight risks extinction
Adler, 1996 (David, professor of political science at Idaho State, The Constitution
and Conduct of American Foreign Policy, p. 23-25)
The structure of shared powers in foreign relations serves to deter the abuse of
power, misguided policies, irrational action, and unaccountable behavior. As a
fundamental structural matter, the emphasis on joint policymaking permits the
airing of sundry political, social, and economic values and concerns. In any event,
the structure wisely ensures that the ultimate policies will not reflect merely the
private preferences or the short-term political interests of the president. Of course
this arrangement has come under fire in the postwar period on a number of policy
grounds. Some critics have argued, for example, that fundamental political and
technological changes in the character of international relations and the position of
the United States in the world have rendered obsolete an eighteenth-century
document designed for a peripheral, small state in the European system of
diplomatic relations. Moreover, it has been asserted that quick action and a single,
authoritative voice are necessary to deal with an increasingly complex,
interdependent, and technologically linked world capable of massive destruction in
a very short period of time. Extollers of presidential dominance have also
contended that only the president has the qualitative information, the expertise,
and the capacity to act with the necessary dispatch to conduct U.S. foreign policy.
These policy arguments have been reviewed, and discredited, elsewhere; space
limitations here permit only a brief commentary. Above all else, the implications of
U.S. power and action in the twentieth century have brought about an even greater
need for institutional accountability and collective judgement that existed 200 years
ago. The devastating, incomprehensible destruction of nuclear war and the possible
extermination of the human race demonstrate the need for joint participation, as
opposed to the opinion of one person, in the decision to initiate war. Moreover,
most of the disputes at stake between the exective and legislative branches in
foreign affairs, including the issues discussed in this chapter, have virtually nothing
to do with the need for rapid response to crisis. Rather, they are concerned only

with routine policy formulation and execution, a classic example of the authority
exercised under the separation of powers doctrine. But these functions have been
fused by the executive branch and have become increasingly unilateral, secretive,
insulated from public debate, and hence unaccountable. In the wake of Vietnam,
Watergate, and the Iran-Contra scandal, unilateral executive behavior has become
even more difficult to defend. Scholarly appraisals have exploded arguments about
intrinsic executive expertise and wisdom on foreign affairs and the alleged
superiority of information available to the president. Moreover, the
inattententiveness of presidents to important details and the effects of groupthink that have dramatized and exacerbated the relative inexperience of various
presidents in international relations have also devalued the extollers arguments.
Finally, foreign policies, like domestic policies, are a reflection of values. Against the
strength of democratic principles, recent occupants of the White House have failed
to demonstrate the superiority of their values in comparison to those of the
American people and their representatives in Congress.
xt prez pwrs bad
turnisolationism
a. executive power kills public support for military action
Paul, 1998 [Joel R., Professor at University of Connecticut School of Law, The
Geopolitical Constitution: Executive Expediency and Executive Agreements,
California Law Review, 86 Calif. L. Rev. 671, July, lexis]
Second, the growth of executive power has created a bias in favor of
internationalism that has often led to failure. Possessing a virtual monopoly power
over foreign relations has tempted presidents to send troops abroad or to make
foreign commitments. Time and again the executive has stumbled into foreign
conflicts, like Bosnia, Lebanon, Iran and Somalia, with tragic results. 32 At a
minimum, congressional [*680] participation might have slowed decision-making,
leaving time for public deliberation. 33 Third, the absence of congressional debate
has often accounted for the lack of public support for foreign commitments. When
U.S. forces have suffered casualties, such as in Somalia or Beirut, public opinion
turned against the executive. Without the popular will to stay the course, presidents
have withdrawn U.S. forces in some cases. As a result, U.S. policy has often lacked
coherence. Though Congress was blamed for this inconsistency in many cases, one
reason members of Congress so readily changed their minds was that they were not
politically invested in the policy.
b. this will cause isolationism, turning the internal link to their impact
Robert Tucker, Professor of American Diplomacy, Johns Hopkins University, Summer
2003 (Europe Challenged National Interest) p. lexis
Too great a swing in terms of an over-commitment that goes badly could prompt an
exaggerated swing in the opposite direction. Then, too, isolationism could be the
result of an America that is increasingly disliked by the world, with all that this
implies in terms of political opposition, criticism, obstructionism and general
disaffection. For a nation as desirous as ever to be liked, how long would the United
States be willing to go on playing an unpopular role, one that would perhaps have to

depend more and more on naked power? Prospects not to be dismissed, they should
give pause to an administration hell-bent on having its way.
Unchecked presidential power risks nuclear war
Forrester, 1989 [Ray, Professor at Hastings College of the Law at University of
California and Former dean of law schools at Vanderbilt, Tulane, and Cornell,
Presidential wars in the nuclear age: an unresolved problem, George Washington
Law Review, August]
It is this claim of executive discretion in circumstances when time is of the essence
that is particularly unacceptable and hazardous to world destiny in the age of
nuclear missiles. One might be willing, along with the Supreme Court in the Prize
Cases, to take a chance on the judgment of President Lincoln at the opening of the
Civil War in [*1641] his personal decision to enter into hostilities in a narrow and
confined military engagement far removed from public safety in general, and yet be
entirely unwilling to trust a president in the nuclear age with the discretion to cast
the first missile. The consequences are grossly different, so different in fact, that
consideration should be given to amending the Constitution to make it clear that no
one human henceforward should be entrusted with such authority. If there is any
practical way in which to check the President in order to avoid the possibility of
mistaken action, it should be adopted and written into the Constitution. High
emotions, misinformation, wrong headed decisions, and even unrecognized mental
incapacity are not only possible but perhaps likely in times of international crisis.

xt pwr is abused
Extend our Adler evidencehistory is replete with examples of executive abusesit
was the lack of an effective check that was responsible for policies like Vietnam and
Iran-Contra. The president and advisors are subject to group-think where they
can only see one course of action that is frequently disasterous, this risks foreign
policy conflicts and nuclear war
and, it turns the internal link to their impact, which assumes that the president will
always make the right decision in foreign policy, which is foolish to always trust the
judgement of one person.
And, falibility and mistakes are inevitablethey cant access their impact
David G. Alder, Professor of Political Science @ Idaho State U, 2002 (The Presidency
and the Law: The Clinton Legacy edited by David G. Alder and Michael A. Genovese)
p. 181-182
A considerable literature urges executive supremacy and extols the supposed
virtues of presidential assertion, domination and control; yet this body of work often
ignores the dimensions of executive flaws, foibles, and frailties. The electoral
process is not infallible; an elected president may lack the wisdom, temperament,
and judgement, not to mention perception, expertise, and emotional intelligence to
produce success in foreign and domestic affairs. Those qualities, which, to be sure,
are attributes of the occupant and not of the office, cannnot be conferred by

election. Moreover, power and responsibility entail consequences. The duties and
demands of the office are sure to produce stress, tension, and fatigue, which may
lead to exhaustion, misperception, and impaired judgement. Theodore Sorensons
observation is illuminating: I saw firsthand, during the long days and nights of the
Cuban Missile Crisis, how brutally physical and mental fatigue can numb the good
sense as well as the senses of normally articulate men. Stress and strain may lead
to an erosion of mental and physical health, which may distort perception and
judgement. The tragic, final chapter of President Wilsons career is illustrative:
isolation, obstinancy, mental deterioration, and distorted judgement impaired the
pursuit of some of his objectives, including foreign policy goals. President Dwight
Eisenhower suffered a stroke and a heart attack while in office. He worried about
his ability to meet the duties of the office and arranged to be replaced by the vice
president in the case of complete disability. President Reagans gradual mental
deterioration may have preceded the Iran-Contra Affair. Whether or not Richard
Nixons judgment and mental state were affected by prescriptions allegedly taken in
response to depression, the fact that concerns about his mental state led Secretary
of Defense James R. Schlesinger to take the extraordinary step of reminding all
military units to ignore orders from the White House unless they were cleared by
him or the secretary of state illustrates the grave potential of executive
unilateralism. The central flaw of unilateralism remains: the most solmn and fateful
decisions may be the result of the perceptions and misperceptions of a single
person. Essentially, presidential practice across two centuries confirms the wisdom
of an institutionalized presidency, confined by the Constitution; the theory of
executive unilateralism, as well as its traditional, underlying arguments, was
exploded in the tragedy of the Vietnam War.
xt prez pwrs nuclear war
Extend our Forrester evidenceconcentrating power in the executive increases the
costs of mistakes, and means that Presidents like Bush that suffer from mental
incapacity increase the risk of nuclear use
and, this is inevitable with any president--unfettered presidential power creates a
psychology of paranoia that increase the risk of extinctionhistory proves the
psychological effect of absolute power
Forrester, 1989 [Ray, Professor at Hastings College of the Law at University of
California and Former dean of law schools at Vanderbilt, Tulane, and Cornell,
Presidential wars in the nuclear age: an unresolved problem, George Washington
Law Review, August]
But in the meantime the spectre of single-minded power persists, fraught with all of
the frailties of human nature that each human possesses, including the President.
World history is filled with tragic examples. Even if the Court assumed its
responsibility to tell us whether the Constitution gives Congress the necessary
power to check the President, the War Powers Resolution itself is unclear. Does the
Resolution require the President to consult with Congress before launching a nuclear
attack? It has been asserted that "introducing United States Armed Forces into
hostilities" refers only to military personnel and does not include the launching of
nuclear missiles alone. In support of this interpretation, it has been argued that

Congress was concerned about the human losses in Vietnam and in other
presidential wars, rather than about the weaponry. Congress, of course, can amend
the Resolution to state explicitly that "the introduction of Armed Forces" includes
missiles as well as personnel. However, the President could continue to act without
prior consultation by renewing the claim first made by President [*1639] Nixon that
the Resolution is an unconstitutional invasion of the executive power. Therefore, the
real solution, in the absence of a Supreme Court decision, would appear to be a
constitutional amendment. All must obey a clear rule in the Constitution. The
adoption of an amendment is very difficult. Wisely, Article V requires that an
amendment may be proposed only by the vote of two-thirds of both houses of
Congress or by the application of the legislatures of two-thirds of the states, and the
proposal must be ratified by the legislatures or conventions of three-fourths of the
states. Despite the difficulty, the Constitution has been amended twenty-six times.
Amendment can be done when a problem is so important that it arouses the
attention and concern of a preponderant majority of the American people. But the
people must be made aware of the problem. It is hardly necessary to belabor the
relative importance of the control of nuclear warfare. A constitutional amendment
may be, indeed, the appropriate method. But the most difficult issue remains. What
should the amendment provide? How can the problem be solved specifically? The
Constitution in section 8 of Article I stipulates that "[t]he Congress shall have
power . . . To declare War. . . ." The idea seems to be that only these many
representatives of the people, reflecting the public will, should possess the power to
commit the lives and the fortunes of the nation to warfare. This approach makes
much more sense in a democratic republic than entrusting the decision to one
person, even though he may be designated the "Commander in Chief" of the
military forces. His power is to command the war after the people, through their
representatives, have made the basic choice to submit themselves and their
children to war. There is a recurring relevation of a paranoia of power throughout
human history that has impelled one leader after another to draw their people into
wars which, in hindsight, were foolish, unnecessary, and, in some instances,
downright insane. Whatever may be the psychological influences that drive the
single decisionmaker to these irrational commitments of the lives and fortunes of
others, the fact remains that the behavior is a predictable one in any government
that does not provide an effective check and balance against uncontrolled power in
the hands of one human. We, naturally, like to think that our leaders are above
such irrational behavior. Eventually, however, human nature, with all its weakness,
asserts itself whatever the setting. At least that is the evidence that experience and
history give us, even in our own relatively benign society, where the Executive is
subject to the rule of law. [*1640] Vietnam and other more recent engagements
show that it can happen and has happened here. But the "nuclear football"--the
ominous "black bag" --remains in the sole possession of the President. And, most
important, his decision to launch a nuclear missile would be, in fact if not in law, a
declaration of nuclear war, one which the nation and, indeed, humanity in general,
probably would be unable to survive.
Nuclear war will result from the executive branch taking to much power away from
the courts.
BALL 87 professor of political science and former dean of arts and sciences at the
University of Vermont [://weberstudies.weber.edu/archive/archive%20A%20%20Vol.
%201-10.3/Vol.%204.2/4.2ball.htm]

The late Professor Wormuth and Professor Firmage, two distinguished scholars of
American constitutional law, have crafted a scholarly review of the employment, by
Congress and the President, of the War Power. They have focused on the
constitutional, that is, legitimate uses of power to initiate war, including
constitutionally questionable presidential initiatives and the limits of congressional
delegation of the war power to the President. The theme, clearly spun out in the
book through a meshing of political theory, public law, and public policy concepts, is
an exceptionally important one in 1987. The Constitution, embodying the twin
concepts of checks and balances and the separation of powers, clearly separates
the power to initiate war (Congressional) from the power to conduct war
(Executive). However, since 1950, the President has claimed for himself the power
to initiate and conduct war without the consent of Congress--witness Korea,
Indochina, the Mideast, Latin America, and Irangate. Firmage and Wormuth are
greatly concerned about this inexorable movement away from a political system of
separate institutions sharing power to one in which the Chief Executive as the
nation's Chief Steward, in the age of nuclear war, has claimed the right to move
unilaterally in the name of national security. Left unchecked by voices arguing for
constitutional balance between the Chief Executive and the Congress, this tendency
toward presidential domination, given a "conjunction of circumstances, the office
and the man may produce" another "Mussolini, Hitler, Franco, Stalin"--other Chief
Executives who had "faithfully fulfilled the promises of power." Powerful, frightening
words from these two scholars! The "Constitution," they conclude, "offers the nation
and the world some protection from the potential of such a conjuction, through the
dispensation of the power to declare and make war, but that protection is only as
strong as the will of the legislative and judicial branches to invoke and enforce it."
The theme is clear and shocking: The U.S. Constitution is a prescription for the
legitimate use of power by political branches of government. Separated
constitutional institutions share power and check and balance each other's use of
power, thus preventing the unadulterated, unconstitutional use of power--called
tyranny by James Madison in the Federalist Papers. Article I, Section 8 grants to
Congress the "power to declare war." Article II clearly labels the President the
Commander-In-Chief of the Armed Forces. The legislature initiates war while the
executive, as the "highest officer in a chain of command," is charged with
successfully waging the war. The Constitution, since the advent of the nuclear age,
has not been followed in the area of war-making. Congress has not initiated war
since 1941. Presidential actions, left largely unchecked by other political agencies,
have functionally voided the very essence of the Constitution as a document that
was established to constrain the untrammeled use of power by one of the branches
of government. Presidential and Executive branch intrigues (Irangate being only the
latest in a series of such clandestine and unconstitutional activities by members of
the Executive branch), are uncovered by accident and, generally, after the damage
has been done. And worse, this tendency to set aside the Constitution has been
heralded by some academics and politicians as the right way for our system to go.
Finally, if left unchecked, this unconstitutional dominance of the President in the
area of war-making may very well involve America in a calamitous, nuclear war.
Misc
US Abusing I-Law Good

US abusing and instrumentalising international law actually sustains it


Rwengabo 2k11 (Sabastiano, department of political science at National University
of Singapore, Online, http://www.academicjournals.org/JLCR/PDF/pdf
%202011/Oct/RWENGABO.pdf)
The triple role of international law - institutionalisation of international political
behaviour; restraining the behaviour of international actors under anarchy; and
dispensation of justice in the international realm - allows for a predictable,
monitorable and regularised international political environment. The interplay
between law and politics implies that each accounts for the other, leading to a high
level of interdependence between the legal and the political. Thus the role of law
need not be limited to realist, institutionalist, or constructivist explanations. Instead,
it shapes our experiences and analytical categories that straddle theoretical
confines. Indeed while it is arguable that international law institutionalises
international affairs (akin to institutionalism), US dominance is seen as overriding
legalisation of inequality in world politics for selfish interests (akin to realism).
Although by subjecting itself to some aspects of international law, the US does
respect the law, it avoids those aspects of international law that would plunge its
interests in jeopardy, or threaten its own citizens who violate the law in pursuing US
interests, such as during war. The US dominates institutions, internationalises its
domestic legal provisions and practices, and avoids other international legal
obligations meanwhile using other informal mechanisms to still benefit from legal
obligations it tries to avoid. But all these are also couched within a legal framework,
or justified in some sense, making one wonder whether it is a legal or political
game. What seems to erode sovereign equality - US dominance - eludes our
judgement as other weak states can also violate the law to the same degree and
what the implications of such violations would be for international relations theory
and practice. Consequently, the US does not erode nor erase international law. In
fact it maintains, exploits and instrumentalises international law. Impliedly the
United States dominance does not threaten, but sustains, international law by
which its dominant position is maintained. This is a clear indication that
international law is an instrument of world politics. It is created and used to serve
state interests, avoided under the guise of sovereignty, and instrumentalised under
the same guises. Some states may be capable of and prepared to manipulate
and/or elude international law, and this the US does under the guise of protecting
their constitution, national independence and popular sovereignty. But states
sustain the semblance of universal legality in such a manner that legality remains to
serve future purposes of international politics.