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[Legality Challenge] Requiring Promulgation Of National Laws

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[Legality Challenge] Requiring Promulgation Of National Laws

Postby Kranostav » Wed May 13, 2020 11:12 pm

Hopefully Ive got this to you with enough time before vote, however Ive just now had time to look over this proposal.

Proposal Thread: viewtopic.php?f=9&t=482334
Link to Queued Proposal: https://www.nationstates.net/page=UN_vi ... 1588715153

Rule(s) broken: Contradiction (GAR2), Game Mechanics

Clause(s) in question:
§ 3. All legislation following on its promulgation has to undergo vacatio legis, during which it is not in force. Legislation may come to force without vacatio legis if it is passed in a national emergency. This section does not apply to legislation that came into force prior to this resolution being passed by the World Assembly.


Reasoning:
GAR #2: Rights And Duties Of WA States explicitly states in Section III, Article 9 that:
Every WA Member State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, including this World Assembly, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.

The clause in question from RPoN mandates that all member nations must not comply with passed WA legislation due to its requirement for "vacatio legis". This directly contradicts the requirement laid out in GAR 2 that nations must carry out obligations arising from international law, in this case being passed WA legislation. GAR 2 Section III, Article 9 explicitly prevents the creation of any law within a member nation to not perform the required duties spelled out in passed WA resolutions (amoung other items). This proposal attempts to create such a law to force member nations to not comply.

While one might notice that plenty of resolutions currently possess "phase in" periods that allow member nations time before the passed legislation takes affect, this is fundamentally different. Those resolutions that possess "phase in" periods do so by themselves and for themselves, and because those "phase in" periods exist within the text and are explicitly created for that resoltion, non-compliance does not occur. In this case regarding RPoN, it is forcing all member nations to undergo "vacatio legis", during which the passed WA Resolution "is not in force". This is inducing illegal non-compliance because it is attempting to apply a "phase in" period to a resolution that did not internally allow one. In doing so, this proposal contradicts GAR #2's requirement as shown above.

Game Mechanics Rule (viewtopic.php?f=9&t=159348):
Game Mechanics: Proposals can not affect any aspect of how the game works. This includes and is not limited to mandating ejection of member nations for non-compliance. Suggestions for improving or modifying gameplay can be posted in the Technical forum.


Furthermore, I would assert that it is a Game Mechanics violation for a proposal to attempt to force all other passed WA legislation to under-go a period of time before it is applied to member nations. Following similar reasoning above, this proposal would require passed WA legislation to act in a way that that it did not specify in its own text. This proposal forces WA legislation to not take effect upon passage when such passed legislation takes effect immediately in the current state of the game unless otherwise stated within any individual resolution.

Allowing a resolution the power to arbitrarily prevent the application of all passed WA legislation for an unspecific amount of time appears to be in no way compatible with the current GA rule-set as shown above.

Edit: In addressing the argument of "the proposal only addresses domestic laws, not international ones such at the WA". The proposal explicitly states how it applies to all laws (later refered to as 'legislation' in the text) which reasonably includes WA legislation in this context. So I do not see any reasonable way that one could argue this. But if they did.... This does not matter because the WA acts through domestic laws being passed in each member nation in order to become compliant and because of this, those specific laws are under the same protections inherently given to WA legislation. Impacting those domestic laws that are a direct result of passed WA legislation would create a significant amount of noncompliance no matter the interpretation, therefore still contradicting GAR #2.
Last edited by Kranostav on Thu May 14, 2020 1:30 am, edited 8 times in total.
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Postby Slaughter None » Wed May 13, 2020 11:19 pm

It is probably not going to pass anyway.

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Postby Sancta Romana Ecclesia » Thu May 14, 2020 2:45 am

As an author of the challenged proposal, I would like to respond to this challenge. First I should note that all proposals enjoy assumption of legality, i.e. they are legal until proven otherwise. I don't think the above "proves otherwise" enough.

Below is a detailed response to the raised arguments.

1. The proposal does not require the promulgation or any grace period for the WA law
Cited clause does not influence the force of WA legislation, as was pointed out on WA Discord. Section 2 of the proposal states
§ 2. All laws of the member nations require for their validity to be promulgated in an official outlet.
No such requirement is made for WA legislation. Section 2 is the only one in this proposal that deals with what the "promulgation" is (other sections deal with the consequences of said promulgation) and it requires only the promulgation of "laws of the member nations". International law doesn't apply here, only the national one does. "Laws of the member nations" may be interpreted in another way than that, but given that one interpretation makes the proposal illegal and another does not, that one which makes it legal must be followed. The preamble and the title also supply one with the goals of this resolution, which do not include resolving some concern about the unavailability of the WA law. In fact, the opposite is stated in the preamble, namely that the question of WA law being public is already resolved by an existing resolution. This should also resolve any ambiguities the phrase "laws of the member nations" may pose.

That being established, there is an argument to be made that the WA law isn't subject to the promulgation at all. Of course, it is published (cf. GAR#442), but no resolution states it to be "promulgated". "Publication" and "promulgation" are very similar words, but I would like to point out that there is a substantial difference between them, at least in my eyes - "promulgation" means publication with a formal legal effect. You don't hear that an article in newspaper is promulgated, but of course it is published. Well, the publication and circulation of the WA law has as much effect as publishing an article in a newspaper. The WA law is not made binding via its publication, but passing. To give an example of what I mean from my own proposal, in its section 5 it states:
"the member nation is required to publish in its official outlet the consolidated text of the law"
Note that the verb "publish", not "promulgate" is used, as consolidated text has no significance for the laws' coming to force, it is of purely informational value.

Therefore requiring some time to pass between law's promulgation and it's coming to force does not influence the WA law, as this law is not promulgated.


2. If member nations must pass some legislation to enforce the WA law, required grace period for the national laws does not violate their compliance in good faith.
Member nations are required by GAR#2 to comply with resolutions in good faith. Concept of complying in "good faith" is opposed to complying according to the strict letter of the law, in the latter case compliance is achieved by adhering to the painful literal meaning of the law. For example, GAR#430 has an active clause 2:
Asserts the right of all individuals in World Assembly member-states to hold any religious belief, including a lack of religious beliefs, without fear of state punishment, reprisal, or persecution
Interpretation of this according to the strict letter would mean that state needs to undertake measure for its citizens to don't fear persecution (i.e., have a subjective feeling about it), but that the persecution may be present. This was raised in a repeal draft and replied to by a GenSec member, with a point that such an interpretation is not made in good faith.

Most of the time compliance in good faith is cited to disallow peculiar interpretations of the law. Compliance in good faith also means that the nation in question does not have to comply, if it is impossible to comply. A primitive nation, lacking the necessary technology and having no way to acquire such technology, would not be in non-compliance with a WA resolution that requires its members to give parts for building of an international space station. Compliance in good faith, imo, means doing what a reasonable nation willing to comply would do.

Having established that, it is not clear how exactly giving legislation implementing the WA law a grace period, is by itself an action of bad faith. Reasonable parliamentary procedure requires some time to pass from the bill being written to its adoption by the chamber, otherwise there may be no debate and the resulting Act may be seriously flawed. Perhaps rushing it makes the Act fail to enforce the WA regulations at all. Similarly, giving the state organs the time to adapt to a new law, is not an action of bad faith either - it is in bad faith if such a period is excessively long and unjustified. If we use rl world logic here, national legislation that comes into force immediately after its promulgation is not going to be followed by the organs anyway (especially if it deals with a complex issue), since they won't know what they are supposed to follow.


Noteworthy, the above argument applies if we go by the rl world rules and addresses the claim that this proposal contradicts GAR#2, but since this is a game rl logic may not apply to the situations stipulated by the game mechanics.

3. It is not clear that the WA members have to pass any national legislation to comply.
Nowhere is it said that the legislation implementing the WA laws must come from the nations themselves, although I had the idea that it has to in the proposal thread. I admit that I was wrong.

It's clear that the WA resolutions aren't self-enforceable, they lack some important provisions to do that. But who's to say that the wise and hardworking gnomes don't draft and pass secondary legislation, necessary for the resolution's implementation, in some committee? This legislation would be tailored to the needs of each and every particular state and bring them into the compliance immediately, if only the states allow this. Such legislation would be drafted and passed, for example, when a proposal is in the queue and at vote, with a commencement clause saying that it comes into force immediately after the resolution at vote passes in the GA (if it passes). This fits with the game mechanics and keeps the magical element (stuff passing overnight and immediately being in force, without any negative effect on its quality) away from the nations themselves and contained in the whimsical hallowed halls of the WA.

It should be also noted that the writers are expressly forbidden from having provisions on who may staff the committee, etc., so it is at least implied that such regulations are passed in some WA laws that are not resolutions.

Such gnome-written legislation would classify as the WA law and as such, the rules for promulgation and vacatio legis would not apply, as said above.


tl;dr
WA laws aren't covered by "laws of the member nations" description and aren't promulgated, so they don't have to obey the vacatio legis rules for the stuff that is promulgated; if we use rl logic, requiring a vacatio legis for national legislation implementing WA legislation isn't an action in bad faith per se; if we follow the game logic more closely, gnomes write the legislation implementing the WA resolutions, such legislation is a part of the WA law and what has been said already about the resolutions applies to it.
Last edited by Sancta Romana Ecclesia on Thu May 14, 2020 3:20 am, edited 1 time in total.
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Postby Separatist Peoples » Thu May 14, 2020 4:01 am

I'm not seeing contradiction. I don't think its bad faith to wait to enact a law for a reasonable time to ensure that your legislative alterations roll out carefully. That timeperiod would, of course, vary: It would take much less time to legalize same-sex marriage than it would to roll out new laws guaranteeing free healthcare. But it isn't bad faith to take a reasoned delay to my view.

As for game mechanics, I always thought that the instantaneous nature of the stat change was mostly a question of effective game management and not a reflection on how real governments would operate. Much like how the game says you're in compliance when you can be IC and OOCly noncompliant with a law, there's room for roleplay to differ from the game's technical requirements. So I'm not seeing a reason to apply this interpretation of the game's mechanic rigorously.

Further, it wouldn't be a game mechanics violation for a resolution to apply embargoes on certain nations that then do not see a corresponding statistical change. So clearly the question of Game Mechanics needs to address, affirmatively, the nature of how the game is structured and not how the game is roleplayed in between. If the proposal said that no statistical effects must take place during this vacatio legis, I might disagree.

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Postby Kranostav » Thu May 14, 2020 9:30 am

Separatist Peoples wrote:I'm not seeing contradiction. I don't think its bad faith to wait to enact a law for a reasonable time to ensure that your legislative alterations roll out carefully. That timeperiod would, of course, vary: It would take much less time to legalize same-sex marriage than it would to roll out new laws guaranteeing free healthcare. But it isn't bad faith to take a reasoned delay to my view.

As for game mechanics, I always thought that the instantaneous nature of the stat change was mostly a question of effective game management and not a reflection on how real governments would operate. Much like how the game says you're in compliance when you can be IC and OOCly noncompliant with a law, there's room for roleplay to differ from the game's technical requirements. So I'm not seeing a reason to apply this interpretation of the game's mechanic rigorously.

Further, it wouldn't be a game mechanics violation for a resolution to apply embargoes on certain nations that then do not see a corresponding statistical change. So clearly the question of Game Mechanics needs to address, affirmatively, the nature of how the game is structured and not how the game is roleplayed in between. If the proposal said that no statistical effects must take place during this vacatio legis, I might disagree.

I would argue that requiring an arbitrary amount of time for something to be enforced after passing isn't necessarily acting in good faith. Its forcing a nation to be IC non-compliant for an unspecific period of time by requiring them to extend the period beyond which it would normally take the government to pass such legislation domestically. That alone violates "it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty." imo.

Regarding the game mechanics, I don't believe a proposal can require temporary IC non-compliance on a grand scale beyond what is reasonably expected for such legislation to pass. Allowing this would mean that if someone wants to not comply, they could just throw any legislation into a state of vacatio legis forever and never actually have to follow it. (this could just be an argument against the resolution tho) I am confused as to where GenSec draws the line in interpreting game function how the game actually presents it how people RP it. I would appreciate a confirmation as to one or the other.
Last edited by Kranostav on Thu May 14, 2020 9:41 am, edited 1 time in total.
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Postby Heavens Reach » Thu May 14, 2020 9:37 am

We disagree with this challenge. We do not find that a phase-in period is inconsistent with the enforcement of a resolution. And, frankly, expecting instantaneous enforcement, in any practical sense, is impossible anyway.
Last edited by Heavens Reach on Thu May 14, 2020 9:37 am, edited 1 time in total.

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Postby Wallenburg » Thu May 14, 2020 10:14 am

Separatist Peoples wrote:I'm not seeing contradiction. I don't think its bad faith to wait to enact a law for a reasonable time to ensure that your legislative alterations roll out carefully. That timeperiod would, of course, vary: It would take much less time to legalize same-sex marriage than it would to roll out new laws guaranteeing free healthcare. But it isn't bad faith to take a reasoned delay to my view.

That's not how vacatio legis works in this resolution. The period of noncompliance is not to ensure national laws properly and beneficially comply with WA law. The period begins after those laws are passed, and given the requirement for the average "concerned person" to adapt to them (which would at a minimum require that the person read the text), the period would last months or even years. I don't think it's good faith compliance not to enforce WA law for years.
As for game mechanics, I always thought that the instantaneous nature of the stat change was mostly a question of effective game management and not a reflection on how real governments would operate. Much like how the game says you're in compliance when you can be IC and OOCly noncompliant with a law, there's room for roleplay to differ from the game's technical requirements. So I'm not seeing a reason to apply this interpretation of the game's mechanic rigorously.

Anything other than your member state taking immediate action to put WA law through the governmental process of becoming national law is not good faith compliance. Again, even if you somehow think that member states ignoring passed WA law for significant periods of time before enacting national laws to comply is "good faith compliance", the period of vacatio legis requires an outrageously long period of noncompliance.
Further, it wouldn't be a game mechanics violation for a resolution to apply embargoes on certain nations that then do not see a corresponding statistical change. So clearly the question of Game Mechanics needs to address, affirmatively, the nature of how the game is structured and not how the game is roleplayed in between. If the proposal said that no statistical effects must take place during this vacatio legis, I might disagree.

The game provides bounds within which the WA may reasonably be roleplayed. For instance, committees are only staffed by gnomes. Member states can't RP that they preside over WA votes. Member states cannot be denied their voting rights. By the clear language in the WA TG, member states enact WA law through national law. This has been commonly understood for years. Breaking with these and other limitations on RP is normally considered a Game Mechanics violation, when in the context of a proposal.
Last edited by Wallenburg on Thu May 14, 2020 10:15 am, edited 1 time in total.
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Postby Sancta Romana Ecclesia » Thu May 14, 2020 10:23 am

Wallenburg wrote:The period of noncompliance is not to ensure national laws properly and beneficially comply with WA law. The period begins after those laws are passed, and given the requirement for the average "concerned person" to adapt to them (which would at a minimum require that the person read the text), the period would last months or even years.

Okay, I will respond just to this bit. How did you get an "average" in there? Concerned person is that who will have his duties or rights modified by the law. It may not be an average person at all, but a judge who has to follow the new procedure for example. Moreover it's not necessary to read the text of the law, it's enough to be sufficiently informed about its contents by a government media campaign, or a memo (in case of public officials). These actions drastically reduce the required time.
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Postby Wallenburg » Thu May 14, 2020 10:40 am

Sancta Romana Ecclesia wrote:
Wallenburg wrote:The period of noncompliance is not to ensure national laws properly and beneficially comply with WA law. The period begins after those laws are passed, and given the requirement for the average "concerned person" to adapt to them (which would at a minimum require that the person read the text), the period would last months or even years.

Okay, I will respond just to this bit. How did you get an "average" in there? Concerned person is that who will have his duties or rights modified by the law. It may not be an average person at all, but a judge who has to follow the new procedure for example. Moreover it's not necessary to read the text of the law, it's enough to be sufficiently informed about its contents by a government media campaign, or a memo (in case of public officials). These actions drastically reduce the required time.

Nowhere are member states required to go on media campaigns for every law they pass. Most will not. This is an irrelevant argument.
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Postby Sancta Romana Ecclesia » Thu May 14, 2020 10:53 am

Wallenburg wrote:Nowhere are member states required to go on media campaigns for every law they pass. Most will not. This is an irrelevant argument.

If you're arguing that the members are obliged to ensure that their national laws implementing the WA laws come to force as quickly as possible, then they are required to speed up the process in ways that are available to them. Besides you're forgetting that not every law impacts every citizen, sometimes they would just need to ensure that the business owners had the time to adapt.

Also, an important thing to note is that you don't need to "adapt" to having a new right. If you have a new right, it's a great situation for you. Same when you have less duties than before. So legislation that improves the citizen's status would come into force much quicker than that which make it worse, either by introducing a new duty or restricting an old right.

You are greatly overstating how lengthy would those periods be.
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Postby Heavens Reach » Thu May 14, 2020 11:53 am

The period begins after those laws are passed


When else would it apply? Laws are never enforced before they pass.

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Postby Kranostav » Thu May 14, 2020 2:08 pm

Heavens Reach wrote:
The period begins after those laws are passed


When else would it apply? Laws are never enforced before they pass.

The issue is stemming from the fact that there is a delay between when the laws are passed by the legislature and when they actually become enforceable
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Postby Heavens Reach » Thu May 14, 2020 2:55 pm

The issue is stemming from the fact that there is a delay between when the laws are passed by the legislature and when they actually become enforceable


That's not the issue; that's the stated intention

Edit: also, it's our point that there being a delay is the only logical alternative, since laws aren't ever enforced before they're laws
Last edited by Heavens Reach on Thu May 14, 2020 2:59 pm, edited 1 time in total.

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Postby Sciongrad » Fri May 15, 2020 12:47 pm

Contradiction

In my view, the challenged resolution does not violate the contradiction rule and the challenger's argument relies on a flawed understanding of how the contradiction rule works. GA 2 § 9 requires member nations to carry out in good faith their obligations arising under WA law and they cannot use their domestic laws as an excuse for failure to do so. This clause has two legal effects: 1. It requires member nations to execute WA mandates in good faith and 2. it resolves all conflicts between domestic and WA law in favor of WA law. It does not create a bright line rule about when a resolution must be enforced.

In fact, it is not obvious to me that WA law currently prohibits member nations from unilaterally providing for vacatio legis, as long as it falls within the range of good faith compliance contemplated by § 9. The challenger attempts to distinguish between the challenged resolution, which supposedly creates an unlawful delay under GA 2 § 9, and other resolutions that create unique phase-ins. The distinction doesn't hold up to basic scrutiny. Apparently, a specific phase-in within the text of a resolution does not encourage non-compliance with GA 2, but a categorical phase-in does. The challenger argues that this distinction rests on whether the phase-in is external or internal to a given resolution. This distinction is not only formalistic but meaningless. The challenger does not provide any argument explaining why this distinction bears on the question of whether a phase-in violates GA 2.

It is not a contradiction argument to assert that a resolution creates or makes more likely the possibility of bad-faith compliance. Any resolution that gives member nations weak discretion (e.g., member nations shall do X to the extent feasible/reasonable/possible) gives member nations that opportunity to abuse that discretion. The resolution does not contradict GA 2, though. It merely creates the possibility of non-compliance with an extant resolution. It is not contradiction for a resolution to create tension with extant resolutions; it is not a contradiction for a resolution to depart from the regulatory or political scheme established by prior resolutions; it is not contradiction for a resolution to create roleplaying opportunities for players to undermine international law in bad faith. A resolution only triggers the contradiction rule when some part of it cannot be reconciled with an extant resolution — that is, a reasonable nation adopting a reasonable interpretation of the resolutions could not comply with both. That is not the case here.

Game Mechanics

This is not a game mechanics violation. Automated TGs have zero probative value for the purposes of the GA rules.
Last edited by Sciongrad on Fri May 15, 2020 12:53 pm, edited 6 times in total.
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