[LEGALITY CHALLENGE] Agricultural Invasive Species

[Separatist Peoples]

A quick note: We are looking at this. I'm writing up a short opinion, pending approval from my fellow members. We aren't ignoring this or too inactive to notice.

[A Bright Future]

By definition the regulation introduces import discrimination as the species are by definition from foreign ecosystems.

This is not true. WATR bans discrimination on the basis of country of origin. Whether a species is "invasive" for the purpose of AIS has nothing to do with its country of origin.

For example, let's say we have a species A and two countries X and Y. Species A is considered to be invasive in region Q of country X.

WATR would prohibit country X from placing restrictions on the transport of species A in region Q that only apply to instances of species A imported from country Y, but not instances from other regions in country X. This is discrimination on the basis of country of origin and a violation of national treatment.

But this is not what AIS requires. AIS requires that country X place restrictions on the transport of species A in region Q that apply to any instance of species A, even if it came from other regions in country X.

The regulation stipulated in AIS does not concern itself with the quality of the good itself only the containment of invasive species.

Whether a good is infested with invasive species is an aspect of the quality of the good, though I grant that this wouldn't apply if the good itself is the invasive species.

I contend and have sought to show that in its current language AIS is opposed to promoting free trade in so far as the customs and regulatory regime required by its provisions will act as a barrier to free trade.

I think the impact on free trade is minimal and necessary to prevent environmental degradation in member states, which is in turn necessary for sustainable development.

If not consistent with goals of WATR, would AIS urging for tariffs against non-complying states not be introducing less favourable trade preference (i.e. tarffis) on non-complying members? Yes of course.

Such tariffs would clearly be permitted by the quality control provisions of WATR, since that clause describes the goods as "harbor[ing]" and being "infest[ed]" with invasive species.

I accept that the quality control provision would make AIS tariffs consistent with WATR goals.

I think WATR would care about type of good T.
Where there are:
two species A and B which are both of the same type of good T,
and instances of A can only be found in nation Y,
but instances of B can be found in X and are not considered invasive,
Wouldn't AIS regulation of a species A constitute discriminatory treatment against A? So where completely foreign invasive species and domestic non-invasive species are of the same type of good.

Regarding the impact on free trade, I see no provision in AIS seeking to minimize trade impacts and only strong provisions putting up stringent barriers. The spirit and text of AIS does not reflect any attempt at minimizing trade impacts.

[Separatist Peoples]

*** GENERAL ASSEMBLY SECRETARIAT RULING ***
Challenged Proposal: "Agricultural Invasive Species Act"
Date of Decision: June 3, 2018
Decision: Proposal is legal, 4-0
Rules Applied: Contradiction

The proposal is legal in light of Contradiction challenges. Separatist Peoples wrote the opinion, joined by Bananaistan, Bears Armed, and Sierra Lyricalia.

The challenge argues that the Agricultural Invasive Species Act (AISA) does not show an extreme hazard to national populations, and thus is an unlawful restriction on general commerce in contradiction of NEF. NEF allows general restrictions on commerce only where an enterprise causes an extreme hazard to national populations. GenSec is unwilling to make factual policy findings as to what objectively constitutes an extreme hazard. We are willing to extend some common-sense restrictions: we would strike down a proposal that banned pointy desk corners as an extreme hazard to populations. At this point, we are unwilling to interject a counter-majoritarian decision on policy when we can let voters decide.

Here, AISA does not argue explicitly that the enterprise causes an extreme hazard to national populations, but the preamble notes the importance of agriculture and goes onto define invasive species as those that “significantly imperil the health . . . of those agricultural ecosystems.” This toes the textual minimum that NEF requires, but nonetheless signals the extreme hazard of invasive species. One could argue, as some have, that the restriction on invasive species does not generally restrict the sale of goods, or even of those invasive species, but merely imposes regulations on how members handle those goods. Having no reason to discard the proposal, we leave the policy decision to the democratic process.

The challenge also argues that AISA contradicts WATR by creating a discriminatory importation scheme. WATR 1.b states, in summary, that nations have the right for a universal regulatory or tax treatment of goods regardless of national origin.

Here, AISA applies a universal regulatory scheme on all goods. That some nations might have greater difficulty under this scheme is irrelevant. One could as easily argue that nations that use child labor would have some greater difficulty obeying child labor restrictions than those without. That is not discriminatory, but the purpose of regulation, and we are not convinced. WATR 2.d allows reasonable and appropriate trade resolutions consistent with the resolution’s goals. AISA is within this ambit.

AISA is legal.

Christian Democrats concurs in the judgment with respect to NEF, and he joins the opinion with respect to WATR.

[A Bright Future]

Thank you GenSec for your time and ruling! Really appreciate it!

Congratulations to Wallenburg also for a robust proposal.

[Wallenburg]

As a little note, the resolution isn't called AIS. The title is "Agricultural Invasive Species Act", which would be abbreviated as AISA.

[Separatist Peoples]

As a little note, the resolution isn't called AIS. The title is "Agricultural Invasive Species Act", which would be abbreviated as AISA.

I'll correct it.

[Christian Democrats]

I've asked SP to add this note to the bottom of the opinion:

Christian Democrats concurs in the judgment with respect to NEF, and he joins the opinion with respect to WATR.