Customary International Law CP

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Overview

The customary international law counterplan (also referred to as the Courts counterplan or simply CIL counterplan) is a type of agent counterplan where the actor of the plan (usually the United States or US federal government) is changed to the federal judiciary. The Supreme Court creates a ruling that not doing the plan is a violation of customary international law. As a result of this decision, the US is bound to follow CIL on other issues, which resolves multiple existential threats.

Going for CIL

What is customary international law?

If there is a general consensus that a certain practice ought to be adopted internationally, it becomes part of customary international law. As opposed to binding obligations written into treaties or conventions, customary international law refers to rules in which states may feel a legal obligation to obey.

1NC

Like all counterplans, your 1NC should include 1) a counterplan text, 2) solvency advocate, 3) net benefit. A majority of CIL debates will boil down to whether or not the counterplan competes with the aff, making it important to put competition definitions in the 1NC as well.

The counterplan text should mandate that the US Supreme Court or federal judiciary rule not doing the plan violates customary international law.There is a high likelihood that this counterplan text will be textually-plan plus.

The solvency advocate should establish that doing the plan is, in fact, mandated by customary international law. This could look like evidence of other states implementing the aff because of obligations in their constitutions.

The net benefit to this CP is any reason why binding adherence to CIL is good! Usually, this comes in the form of evidence explaining the laundry list of existential crises that can be addressed if CIL were applied (see Nagan 14: “The Crisis of the Existing Global Paradigm of Governance and Political Economy”).

It is also important to include evidence that ruling on CIL to do the plan (i.e. what the counterplan mandates) is sufficient to create binding adherence to customary law in the future. This is the internal link that allows you to access whatever net benefit you read, because the court has to be able to rule over CIL when needed to solve existential threats.

Preempts

Some 1AR arguments are best answered with cards -- if that’s the case, put those cards in the 1NC instead of the 2NR (since judges tend to be unresponsive to 2NR cards). Since the most threatening arguments against CIL are perms, it is recommended that you preempt perm do both and perm do the counterplan in the 1NC.

As explained above, CIL usually competes solely off of the function of the plan. If the plan defends ‘the United States’ or ‘the United States federal government,’ it is important that the debater reading CIL makes the distinction between the actor of the plan and the Supreme Court (the actor of the counterplan). For example, defining ‘the’ as ‘all’ would mean that the aff has to defend all parts of the US/USFG in doing the aff. Alternatively, a definition of ‘resolved’ meaning ‘something determined by legislation’ would mean that the aff must defend action by Congress. All of these definitions would be answers/preempts to perm do the counterplan.

The answer to perm do both consists of any reason why it would be redundant/ineffective to have SCOTUS do the plan on top of the actor of the aff. For example, Congress passing the plan and SCOTUS ruling on the plan at the same time would make the ruling advisory, since there is no dispute for the Court to actually settle (Congress has already decided the plan is a good idea). Advisory opinions are not binding, which means perm do both would not be able to access the net benefit (courts would not be able to use CIL to justify their decisions in the future).

2NR

Like all counterplan 2NRs, you’ll want to start out with an overview of what the counterplan does, how it solves the case, and what the net benefit is. In addition, you should weigh the net benefit versus the impacts of the aff in case there is a solvency deficit.

In general, it is not strategic to warrant judge kick when reading CIL insofar as the net benefit is internal to the counterplan (if you kick the counterplan, you no longer have offense).

The rest of your 2NR should answer the 1AR’s arguments against the counterplan, spending relatively more time on those that are more threatening (in the case of CIL, it is recommended that you spend the most time explaining how it competes with the plan, especially if the 1AR decided to read a large number of permutations).

Your 2NR should spend most of the time extending and explaining CIL, especially since you don’t need to win substantial amounts of case defense. The amount of time you spend on case should be roughly proportional to the risk of a solvency deficit to the counterplan (i.e. if the aff doesn’t make a deficit, the counterplan is assumed to solve 100% of the case and you may not even need to extend case defense).

Strategic value

Before discussing the strategic value of CIL, there are certain instances where the customary international law counterplan can and (probably) cannot be read.

First, the actor of the plan should be the US, USFG, etc. In US law, there exists a presumption against extraterritoriality, meaning federal laws and statutes don’t apply to other countries (with a few exceptions designated by Congress). On international topics (or resolutions that don’t involve the US), it would therefore be difficult for the US Supreme Court to require a certain policy be implemented.

Second, there must be a precedent for the plan existing in customary international law (see “What is customary international law?” for what that may look like). It is absolutely necessary that you have a solvency advocate specific to the topic in order to win that the counterplan can result in the aff.

Should those two conditions be met, congratulations! You’ve found a generic position that can be read against any topical affirmative! Regardless of whether the plan specifies a subset of the resolution, this is still an effective counterplan.

While it may not change your decision to read the counterplan, it is important to note that the net benefit is indeed quite silly. Judges are often unpersuaded by the idea that the US will adopt “binding adherence” to international norms, and it is unlikely that following those norms would solve a “laundry list” of existential threats. Luckily, since the counterplan usually solves 100% of the case, even a 0.1% chance that the counterplan does something good is sufficient to negate.

Answering CIL

Solvency Deficits

In general, it is difficult to win that the counterplan does not result in the implementation of the affirmative. However, there are a few effective arguments that can be made.

Timeframe deficit - a timeframe deficit establishes a reason why a court ruling would happen too slowly. Affs that can win their impacts are happening soon are able to leverage this against CIL, since the courts would not be able to solve the aff in time.

No test case - since the Supreme Court makes rulings after reviewing court cases, it’s impossible for them to rule over customary international law unless a certain case raises the question of whether it should be implemented. In debate, this case is referred to as a test case. If the affirmative is able to win that there is no existing or potential test case that could result in the aff being implemented, it is impossible for the counterplan to happen in the first place. Arguments about the lack of a test case can be paired with a (short) theory argument explaining why fiating a test case (i.e. pretending a test case exists for the sake of winning the counterplan solves) is a voting issue.

Occasionally, affs will make arguments as to why CIL fails/binding adherence to customary international law doesn’t solve existential threats. These responses are not very effective because they grant the counterplan the ability to solve all of the aff and even the slightest risk that CIL is good would be sufficient for the judge to vote negative.

Permutations

Permutations are (probably) the most effective arguments to read and go for against the CIL counterplan. The most common and strategic perms are described below, though this is not an extensive list:

Perm do both - perm do both tests whether there is a benefit of the courts carrying out the plan alone. This is a good place for you to leverage “Congress is key” warrants in the affirmative -- winning Congress is key to do the plan would probably outweigh any disadvantage to having both courts and Congress do the aff. On the flip side, there are a variety of ‘links to the net benefit’ arguments that can be made explaining why the permutation fails, including but not limited to regulatory overlap is bad, Congress overriding the Courts is bad, and Congress turns the court decision into an advising (rather than binding) opinion (this last one was explained in the Preempts section).

Perm do the counterplan - this perm is most effective with definitions of “the,” “United States,” and/or “United States federal government.” If the aff argues that SCOTUS ruling over the plan is a way the aff could be done without severing out of definitions of the US, perm do the counterplan is a viable option.

Other issues perm - the ‘other issues permutation’ is a strategic permutation against any counterplan where the net benefit is not specific to the policy of the affirmative. In the context of CIL, there are many areas in which customary law is established, making it possible for SCOTUS to rule on any of these other issues in order to create a binding precedent of CIL. One of the most common responses to this permutation is that it is intrinsic since it adds the action of ruling on a separate issue (intrinsic perms are unpredictable, don’t prove the desirability of the aff, etc.). However, debaters can get ‘bonus points’ if they word the other issues perm in a way that makes the permutation textually non-intrinsic. This means the other issue being ruled on is already part of the plan text and no words are added to the perm. For example, the courts could rule on “weapons” instead of “lethal autonomous weapons” or “healthcare” instead of “single payer universal healthcare.” Both of these examples would create functionally intrinsic, textually non-intrinsic permutations that create limits on the predictability of intrinsic perms in general (hence why they can be called limited intrinsic perms).

Timeframe perm - if the CIL counterplan were passed, it is assumed that the plan will be implemented after the Supreme Court’s ruling. Since the Supreme Court can’t generally implement plans like single-payer healthcare by itself, the timeframe perm would suggest that Congress can do the plan after the ruling as enforcement. This, of course, is an intrinsic perm that allows the aff to delay itself in order to avoid negative positions and thus could be seen as theoretically illegitimate.

Theory

A number of 1AR shells can apply to CIL, including agent process counterplans bad (competing solely off the actor of the plan), delay counterplans bad (competing off timeframe is bad--the courts take longer than Congress to pass the plan), PICs bad (the CP mandates only one branch of the USFG taking action, whereas the plan necessitates action by all three branches, making this a plan-inclusive counterplan) and CIL bad (any unique theoretical reason why this specific agent counterplan is bad).