[CHALLENGE] Administrative Compliance Act

[Bananaistan]

Proposal thread

Administrative Compliance Act
Furtherment of Democracy | Strong
By: Separatist Peoples | Coauthored by: Imperium Anglorum

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Understanding that many nations deliberately contravene international laws to gain an unfair advantage over their neighbours;

Noting that others do so to oppress their citizens, extract revenues from governmental institutions and operations, discredit their opponents, and secure their tenuous bases of power;

Haunted by the suffering bred by noncompliance;

Resolute to succor its victims and hold their oppressors to account;

Observing that the World Assembly has already taken steps in combatting these transgressions against international law by passing GAR#390, ‘Compliance Commission’; and

Giving credence to the body of damning evidence assembled by the WACC;

Hereby enacts the following:

Article I. Independent Adjudicative Office

1. The World Assembly creates the Independent Adjudicative Office (“IAO”) and directs it to:

1. Hold fair and independent evidentiary hearings for claims brought by the WACC, overseen by a panel of independent adjudicators;
   
2. Decide on the merits of the claims and arguments as to whether a fine is appropriate;
   
3. Coordinate with the WA General Accounting Office ("GAO") to assess and levy a fine and schedule calculated proportionately to the violation but in no case less than what will reasonably coerce compliance from member states;
   
4. The assessments must be based on:
   
   
   1. the severity of the noncompliance,
   2. the state’s objective intent to commit noncompliance or the actions proximate to a violation,
   3. the good faith nature of the state’s actions proximate to a violation,
   4. the state’s history of noncompliance,
   5. force majeure preventing the state from fulfilling its obligations, and
   6. other mitigating or aggravating circumstances;

2. Remain entirely independent from the WACC and any subcommittees, except for essential coordination to ensure procedural due process for all involved parties;

3. Ensure no ex parte communications occur between itself and any involved parties, and to enforce appropriate remedies if such communications do occur;

4. Promulgate and follow procedure for hearings in a manner consistent with the principles of justice, fairness, and due process;

5. Record and make publicly available all hearing records, excepting those involving privileged individual information, proprietary commercial data, or material necessary for national security.

Article II. Compliance Commission

1. The World Assembly establishes the World Assembly Solicitor’s Office (“WASO”) as a subset of the WA Compliance Commission (“WACC”), and directs it to:

1. Review investigations regarding member noncompliance;
   
2. Accept reports of noncompliance from both member states and individual and sub-national entities, subject to WASO discretion;
   
3. File a complaint, containing evidence and all applicable law, to the Independent Adjudicative Office and accordingly prosecute that complaint;
   
4. Communicate with those member states which are the subject of the complaint and inform them of any available steps that might prevent filing of a complaint;
   
5. Maintain discretion over which compliance violations to pursue.

Article III. General Accounting Office

1. The World Assembly tasks the GAO with collecting all IAO fines and crediting them against the required contribution amount due from members found compliant during the same assessment period.

Article IV. Member State Rights and Duties

1. Every inhabitant of a member state is entitled to an effective remedy against their state for all injuries to their person, property, or character by having recourse in law or equity for any right, made explicitly or implicitly by a restriction on member states, created by World Assembly law.

2. Member states may not prevent or discourage individuals or entities from cooperating with the WASO, nor from asserting any other right in this resolution, subject only to reasonable justiciability restrictions.

3. Member states may have a representative and legal counsel present at IAO hearings to act in their defense.

4. Member states must enforce the strongest sanctions available against those member states that refuse to pay IAO fines, subject only to the limitations of extant law, until the fines are paid or the issue becomes moot.

5. Member states must cooperate fully with, and not restrict or frustrate the actions of, all World Assembly committees referenced in this resolution.

Article V. World Assembly Limitations

1. The World Assembly may not restrict or frustrate IAO fine assessment or collection, nor impose limits on the extent or duration of member state obligations under this resolution.

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Challenge thread

RULE BROKEN: Strength Rule
EXPLANATION: A resolution that affects "a very broad area of policy in a dramatic way" falls into the Strong subcategory. This proposal legislates on the narrow area of compliance, and based on the category choice of Human Rights, focuses on an even narrower area of compliance with human rights mandates.

Compliance is already mandatory by the nature of the World Assembly, and the Compliance Commission already investigates instances of noncompliance and compiles information about noncompliance. With these factors to consider, the proposal "Administrative Compliance Act" simply does not have a dramatic enough effect. The Enforcement Sub-Commission duplicates the Compliance Commission within itself, and the rest of the resolution provides for hearings and fines for noncompliance. These effects are more incremental than dramatic.

Considering that this proposal neither acts on a broad area of policy, nor does so in a dramatic way, the resolution belongs in the Significant subcategory.

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I vote that we hear this challenge. The author has refrained from submission in anticipation of a ruling.

[Bears Armed]

I also vote that we hear this challenge.

[Sierra Lyricalia]

Yea, but with the proviso that unless we wrap within the next two days, I'll be unable to contribute substantially to discussion.

I'll post as in-depth as I can tonight or tomorrow.

[Christian Democrats]

Yes, there's a strength violation. This is basically a procedural proposal. It would have no substantive effect on civil or political rights.

[Bears Armed]

And there's the frequency with which it would actually be used to consider, as well: Do we really think that the average WA member nation's government would be so non-compliant that the average effects on those nations of introducing this extra committee would be "strong"? I don't...

[Bananaistan]

I'm leaning towards legal. Coercing member states to comply with international by means of financial penalties backed up by "the strongest sanctions" seems sufficiently strong IMO and is certainly more than merely procedural.

Whether the average national government would be so non-compliant, is less certain but RL EU would suggest that even with the best will in the world, countries often fail to live up to their international. In 2014 the EU had 1347 live cases against 28 member states for breaches of the treaties etc (linky).

OTOH even if the average national government is fully compliant, they must enforce "the strongest sanctions" against the non-compliant minority. This also points to strong IMO.

[Christian Democrats]

I'm leaning towards legal. Coercing member states to comply with international by means of financial penalties backed up by "the strongest sanctions" seems sufficiently strong IMO and is certainly more than merely procedural.

Who coerces member states to impose sanctions?

[Sierra Lyricalia]

Despite the lack of updates to the challenge thread OP, I'm assuming Wallenburg isn't still claiming that the Committee Rule is being violated here. Even under the old rule, this would still be legal on that score IMO and I won't address that question. Only the strength is at issue here. And on that question I still think the proposal is legal.

Article IV, §1 provides inhabitants of member states a judicial right that is unprecedented in World Assembly history as far as I know. Not only are member states required to carry out the ordinary course of mandatory compliance with resolutions, but each and every oppressed or injured individual is entitled to recompense if they don't.

As far as the magical compliance issue goes, we've pretty soundly disposed of it. To put it in precedential terms, we have (by allowing the WACC to be formed in the first place) rejected the argument that "There is no genocide to try because genocide has been banned by the WA and compliance is mandatory." Member states, even those with pure intentions and adequate enforcement budgets, may still falter and fail occasionally, and I doubt anyone wants to assert that member states' government officials have somehow become both perfectly incorruptible and totally competent at their jobs. Therefore even the squeaky-cleanliest of member states may sometimes violate international law. Now per this proposal, when they do so, the victims now have a clearly asserted right to be made whole. That is entirely new and "affects a very broad area of policy in a dramatic way."

The proposal is therefore legal as to strength.

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As mentioned previously, I'll be largely unavailable for ten or so days starting tomorrow. I will be able to pop in to affix my name/support to a ruling, but won't be able to draft one myself.

[Bananaistan]

I'm leaning towards legal. Coercing member states to comply with international by means of financial penalties backed up by "the strongest sanctions" seems sufficiently strong IMO and is certainly more than merely procedural.

Who coerces member states to impose sanctions?

Well, I didn't say that anyone is coerced to impose sanctions. But nonetheless you'd expect a significant proportion (or even a large majority) of member states to follow this in good faith and impose the sanctions. The appalling vista if this is not true is that all international law is voluntary and no resolution could ever be significant or strong.

[Christian Democrats]

Who coerces member states to impose sanctions?

Well, I didn't say that anyone is coerced to impose sanctions. But nonetheless you'd expect a significant proportion (or even a large majority) of member states to follow this in good faith and impose the sanctions. The appalling vista if this is not true is that all international law is voluntary and no resolution could ever be significant or strong.

The proposal tries to have it both ways. (1) Member states don't follow international law, so we need an international tribunal to fine them. (2) Member states follow international law, so they will sanction other member states that fail to pay fines.

If it's true that member states don't follow international law, then this proposal cannot be Strong because it will not bring about any changes in their practices. If it's true that member states follow international law, then this proposal cannot be Strong because the tribunal that it establishes will not have member states to fine.

[Bears Armed]

Well, I didn't say that anyone is coerced to impose sanctions. But nonetheless you'd expect a significant proportion (or even a large majority) of member states to follow this in good faith and impose the sanctions. The appalling vista if this is not true is that all international law is voluntary and no resolution could ever be significant or strong.

The proposal tries to have it both ways. (1) Member states don't follow international law, so we need an international tribunal to fine them. (2) Member states follow international law, so they will sanction other member states that fail to pay fines.

If it's true that member states don't follow international law, then this proposal cannot be Strong because it will not bring about any changes in their practices. If it's true that member states follow international law, then this proposal cannot be Strong because the tribunal that it establishes will not have member states to fine.

I'll sign on to this opinion.

[Sciongrad]

Well, I didn't say that anyone is coerced to impose sanctions. But nonetheless you'd expect a significant proportion (or even a large majority) of member states to follow this in good faith and impose the sanctions. The appalling vista if this is not true is that all international law is voluntary and no resolution could ever be significant or strong.

The proposal tries to have it both ways. (1) Member states don't follow international law, so we need an international tribunal to fine them. (2) Member states follow international law, so they will sanction other member states that fail to pay fines.

That's reductive. I don't really understand why it needs to be the case that either everyone follows international law or no one does. Could it not also be true that a majority of nations follow international law in good faith and are willing to pressure other member nations that don't? This is particularly likely in the context of the WA, where many resolutions would disadvantage states that voluntarily implement them if there are some other states that don't. In this case, member states that do voluntarily choose to obey international law would have an incentive to pressure non-compliant states anyway. This proposal merely channels that incentive structure to minimize non-compliance where it happens.

I rule this is legal, considering the sweeping implications of this resolution on both non-compliant states and the states that would be responsible for holding them accountable. By my count, that's 3-2. Any finals thoughts before we get a ruling out?

[Bananaistan]

I confirm that I vote legal. As Scion has stated, that's 3-2 legal. I'll post to this effect in the public thread.

[Sierra Lyricalia]

Does anyone have a thought about this which they would like to fashion into an opinion? If not, I suppose my post here can serve as the base of one (everything from "Article IV..." to "...legal as to strength."

Anyone have anything better or shall I get to editing?"

[Sierra Lyricalia]

Draft opinion

We are asked to judge the legality of "Administrative Compliance Act." The Committee Rule was updated before we seriously considered the challenge; however, even if we applied the old rule, this would still be a legal use of a committee, and we will not address that question at any length. Only the strength is at issue here, and on that question we judge that the proposal is legal.

The challenge asserts that, given the existing Compliance Commission, a mere penalty structure does not materially affect member states on its own. Further refinement of this thesis adds that anything the Compliance Commission does can affect member states only through the aggregate effects of other resolutions. Therefore "Strong" is far too potent a strength classification. After all, many nations are already nominally compliant, so the effects should be more modest.

We reject this reasoning. Article IV, §1 provides inhabitants of member states a judicial right that is unprecedented in World Assembly history. Not only are member states required to carry out the ordinary course of mandatory compliance with resolutions, but each and every oppressed or injured individual is entitled to recompense if they don't.

As far as the magical compliance issue goes, we have soundly disposed of it. The General Assembly has, by forming the WACC in the first place, rejected the old argument that "There is no genocide to try because genocide has been banned by the WA and compliance is mandatory." Member states, even those with pure intentions and adequate enforcement budgets, may still falter and fail occasionally. We strongly doubt anyone wants to assert that member states' government officials have somehow become both perfectly incorruptible and totally competent at their jobs. Therefore even the squeaky-cleanliest of member states may sometimes violate international law - whether the reason is government malice, individual malfeasance, lack of funding, regulatory capture, negligence, earnest incompetence, acts of God, etc. Now under the terms of this resolution, when they do so, the victims now have a clearly asserted right to be made whole. That is entirely new and affects "a very broad area of policy in a dramatic way."

The proposal is therefore legal as to strength.

Coda: After GenSec voted 3-2 (Separatist Peoples recused as author) that Strong was a legal strength, the proposal was submitted as Significant, and the two dissenters joined the majority in agreeing that the proposal as submitted was legal. Since the original challenge claimed that Significant was the proper strength in the first place, the rationale for the challenge has vanished. Had the proposal been submitted as Strong, however, this ruling would have been Exhibit 1 presented when others questioned its legality, and the ruling remains relevant for precedential purposes.

[Bananaistan]

Perfect. I sign.

[Bears Armed]

Okay.

[Christian Democrats]

In my opinion, we should publish only a one-liner:

"The challenge is dismissed as improvidently granted."

[Sierra Lyricalia]

In my opinion, we should publish only a one-liner:

"The challenge is dismissed as improvidently granted."

We notified the community that Strong was an appropriate strength several days before the proposal was submitted as Significant, if I'm reading the posting dates right. Could someone who was actually here that week please confirm?

If so, I don't see how we can retroactively declare that ruling null and void. It happened, and we informed the community. We can't now pretend that just because the authors changed their minds, we didn't actually rule.

So I'll mark you down as dissenting, then?

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@Sciongrad, if you could either sign off (as a member of the original 3-person majority) or mark any changes you feel are needed, we can get this out. Thanks!

[Sciongrad]

I sign (better late than never).