[Separatist Peoples]

Quote: Administrative Compliance Act
Human Rights | Strong
By: Separatist Peoples | Coauthored by: Imperium Anglorum

Understanding that many nations purposefully contravene international laws to gain an unfair advantage over their neighbors;

Noting that many 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, and resolutely determined to succor its victims and hold their oppressors to account;

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

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

Hereby the following:

Article I. Compliance Commission

The Enforcement Sub-Commission (ES), a subset of the WA Compliance Commission (WACC), is created and directed to:
Review WACC investigations regarding member noncompliance;
Accept reports of noncompliance from both member states and individual and sub-national entities, subject to appropriate screening;
File a complaint, containing evidence and all applicable law, to the Independent Adjudicative Office and accordingly prosecute that complaint;
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.
Maintain discretion over which compliance violations to pursue;

Article II. Independent Adjudicative Office

The Independent Adjudicative Office (IAO) is created and directed to:
Hold fair and independent evidentiary hearings for claims brought by the WACC, overseen by a panel of independent adjudicators;
Decide on the merits of the claims and arguments as to whether a fine is appropriate;
Coordinate with the WA General Accounting Office (GAO) to assess and levy a fine and schedule calculated as no more than what will reasonably coerce compliance from member states. The assessments must be based on:
a.the veracity and severity of the actions,
b.the state?s history of noncompliance,
c.whether the state has committed wilful negligence in noncompliance,
d.force majeure preventing the state from fulfilling its obligations, and
e.other mitigating circumstances;
Remain entirely independent from the WACC and any subparts, except for essential coordination to ensure procedural due process for all involved parties;
Ensure no ex parte communications occur between itself and any involved parties, and to promulgate appropriate remedies if such communications do occur;
Promulgate and follow procedure for hearings in a manner consistent with the principals of justice, fairness, and due process;
Record and make publicly available all hearing records, excepting those involving privileged individual information, proprietary commercial data, or material necessary for national security.

Art. III WA General Accounting Office

The GAO is tasked to ensure that all collected fines are collected and applied to reduce the contribution amount from members found compliant during that assessment period.

Art. IV. Member State Rights and Duties

Member states may not prevent or discourage individuals or entities from cooperating with the ES.

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

Member states are obligated to enforce the strongest measures of economic sanction available against those member states which refuse to pay IAO fines, subject to the limitations of extant law.[/quote]

I figured I'd put it up for a test run here.

[Laeral]

Wow- based on my (limited) GA experience, this seems really drastic. I'd very much support it, though. One question- why 'human rights' as the category?

[Separatist Peoples]

I actually just discussed this with Sanct on Discord. Based on a new view on how the stats will work, I'm thinking FoD is appropriate.

[Bears Armed]

You already know my opinion about the WA officially acknowledging the possibility of deliberate non-compliance, right?

[Separatist Peoples]

Bears ArmedOct 23 2017, 06:48:41 PMYou already know my opinion about the WA officially acknowledging the possibility of deliberate non-compliance, right? [/quote]I'm aware, but the cat's out of the bag. IA's Compliance Commission already does it.

[Railana]

Some comments based on a first reading. I will probably have some more later.

Quote: The Independent Adjudicative Office (IAO) is created and directed to:
Hold fair and independent evidentiary hearings for claims brought by the WACC, overseen by a panel of independent adjudicators;[/quote]
Who has standing to raise an IAO complaint? Just the Compliance Commission? Can individual member states do so as well?

Quote: Coordinate with the WA General Accounting Office (GAO) to assess and levy a fine and schedule calculated as no more than what will reasonably coerce compliance from member states[/quote]
This clause should also require that the fine be proportionate to the violation. This should remain so even if the only proportionate fine is likely insufficient to coerce compliance. Such is the nature of punishment.

Quote: Promulgate and follow procedure for hearings in a manner consistent with the principals of justice, fairness, and due process;[/quote]
Is there any right to appeal an IAO decision?

Quote: Member states are obligated to enforce the strongest measures of economic sanction available against those member states which refuse to pay IAO fines, subject to the limitations of extant law.[/quote]
This is perhaps the most important clause in the proposal because realistically this is the sole mechanism that the IAO has to enforce compliance.

I note that the clause requires the application of the "strongest possible" economic sanctions in response to any refusal to pay an IAO fine, regardless of the seriousness of the underlying violation of international law. However, as with the fine clause, inducement of compliance cannot be our only concern. There must be a clear proportionality requirement.

You also have to consider how this clause interacts with existing World Assembly resolutions requiring the elimination of trade barriers between member states. Such resolutions generally do not make exceptions for enforcement of non-compliance penalties, so the actual remedies available under this clause might be quite limited.

[Separatist Peoples]

Quote: Who has standing to raise an IAO complaint? Just the Compliance Commission? Can individual member states do so as well?[/quote]
Just IAO, but members and individuals can report violations to the IAO. Do I have that in there? I should add that in there to be sure.

Quote: 
This clause should also require that the fine be proportionate to the violation. This should remain so even if the only proportionate fine is likely insufficient to coerce compliance. Such is the nature of punishment.[/quote]
The fine is not a punishment. It is an incentive. That's where most of these trip up, they try to apply a universal standard of justice. This way, the GA's legislation can pursue justice, and the agency merely needs to pursue compliance.
Quote: 
Is there any right to appeal an IAO decision?[/quote]
Not currently. Would it matter if there was? The gnomes are presumptively infallible so as to avoid any need for excessive legislation on WA anti-corruption. It's not a magic wand wave but a tool so authors needn't address structural issues at the cost of substantive ones in resolutions. Even if there was, is there any expectation that the result is different? You'd still be appealing to the WA, probably as an agency.

Quote: 
This is perhaps the most important clause in the proposal because realistically this is the sole mechanism that the IAO has to enforce compliance.

I note that the clause requires the application of the "strongest possible" economic sanctions in response to any refusal to pay an IAO fine, regardless of the seriousness of the underlying violation of international law. However, as with the fine clause, inducement of compliance cannot be our only concern. There must be a clear proportionality requirement.[/quote]
Nope. The whole point of this is inducement of compliance. Justice is for the legislators in this case.

Quote: You also have to consider how this clause interacts with existing World Assembly resolutions requiring the elimination of trade barriers between member states. Such resolutions generally do not make exceptions for enforcement of non-compliance penalties, so the actual remedies available under this clause might be quite limited.[/quote]
I looked at current free-trade resolutions, and I didn't see that any of them prevented the use of coercive sanctions or embargoes. I've looked at a few of those, and I don't think that this kind of enforcement interferes with general free-trade requirements.

[Railana]

On the question of whether this violates On Universal Jurisdiction: I think the answer is no because it is targeted at member state compliance rather than individual compliance.

As I said in EP's international court thread, On Universal Jurisdiction states that the World Assembly cannot try and impose penalties on individuals for violating WA law when the universal jurisdiction of member states applies, whether in an original or appellate context. But the the World Assembly could still conceivably try and impose penalties on individuals where universal jurisdiction is not recognized.

In addition, the World Assembly retains complete freedom to go after member states for violations of WA law. You can't imprison a member state, obviously, but you can certainly impose fines and economic sanctions. This is precisely what this proposal does.

[Railana]

Quote: Just IAO, but members and individuals can report violations to the IAO. Do I have that in there? I should add that in there to be sure.[/quote]
I think it would be a good idea to clarify that only the WACC has standing to raise a complaint to be heard by the IAO, if that is your intent.

I'm not sure this is actually a good idea, though. Some World Assembly legislation (e.g. the various human rights resolutions) is analogous to criminal law, so I would agree that is more appropriate for the WACC rather than individual member states to prosecute violations thereof, since they are an offence against all member states and their citizens.

On the other hand, other World Assembly legislation (e.g. free trade resolutions) is more analogous to civil law. It is more appropriate for individual member states as opposed to the WACC to seek redress in such cases, since they primarily have to do with injustices done against particular member states rather than the international community as a whole.

Quote: The fine is not a punishment. It is an incentive. That's where most of these trip up, they try to apply a universal standard of justice. This way, the GA's legislation can pursue justice, and the agency merely needs to pursue compliance.[/quote]
Quote: Nope. The whole point of this is inducement of compliance. Justice is for the legislators in this case.[/quote]
I do not understand the distinction you are making. This may be because I do not believe that states have a general right to use whatever incentives they wish to induce compliance with the law in any context. The inducement of compliance must itself be just. States are only permitted to use negative "incentives" for compliance, such as fines, when using them as penalties in the context of punishment. A fine that is not a punishment is simply unjust, for the same reason that the state deliberately harming anyone who has done nothing wrong is unjust.

Accordingly, any time that a state employs a negative "incentive" for compliance, that incentive must be proportionate to the extent of the non-compliance. This is true even when the incentive is insufficient to facilitate compliance. For example, a member state may not execute petty thieves because execution as a penalty is grossly disproportionate to the crime of petty theft. This prohibition holds even in cases where a thief's rate of recidivism is extremely high.

In much the same way, the World Assembly may not demand half of a member state's GDP for failing to recognize foreign copyrights for a full twenty years, for example, because such a punishment is grossly disproportionate relative to the violation. This is true even when a nation feels so strongly about not recognizing foreign copyrights for twenty years that they would rather pay whatever proportionate fine is assessed than comply with Foreign Copyright Recognition.

Quote: Not currently. Would it matter if there was? The gnomes are presumptively infallible so as to avoid any need for excessive legislation on WA anti-corruption. It's not a magic wand wave but a tool so authors needn't address structural issues at the cost of substantive ones in resolutions. Even if there was, is there any expectation that the result is different? You'd still be appealing to the WA, probably as an agency. [/quote]
I don't accept the assumption that the "gnomes" are infalliable because I don't think we should be free to ignore due process concerns in a World Assembly context. If we deal with them in a member state context, we should deal with them in a World Assembly context; otherwise we're being inconsistent about the nature of the world that the GA inhabits.

Yes, an appeal would probably go to another World Assembly body, but that's not a problem. The point is to give the World Assembly an opportunity to correct its mistakes, not necessarily to provide oversight external to the World Assembly per se -- though that also might not be a bad idea.

Quote: I looked at current free-trade resolutions, and I didn't see that any of them prevented the use of coercive sanctions or embargoes. I've looked at a few of those, and I don't think that this kind of enforcement interferes with general free-trade requirements. [/quote]
The main one I was thinking of is World Assembly Trade Rights, but it explicitly permits WA regulation, so I think you're fine there. I would also check Sciongrad's trade and labour proposals as well.

[Railana]

Apology for the third post in a row, but there is one other issue I'd like to address. As I said in my post above, I don't think you can really separate justice and compliance. Accordingly, I think this proposal should at least acknowledge the legitimacy in principle of non-compliance with the IAO's rulings when the law or resolution being enforced is unjust in an objective sense.

For example, if the World Assembly were to pass a resolution tomorrow mandating racial segregation in member states, I think we can all agree that such a law would be unjust. It does not matter if a majority of member states believe it is just -- morality is not democratic. Accordingly, any organization responsible for enforcing compliance, like the IAO in this proposal, should not have the right -- at least in principle -- to enforce such a law through fines or economic sanctions.

[Separatist Peoples]

Quote: 
I think it would be a good idea to clarify that only the WACC has standing to raise a complaint to be heard by the IAO, if that is your intent.

I'm not sure this is actually a good idea, though. Some World Assembly legislation (e.g. the various human rights resolutions) is analogous to criminal law, so I would agree that is more appropriate for the WACC rather than individual member states to prosecute violations thereof, since they are an offence against all member states and their citizens.

On the other hand, other World Assembly legislation (e.g. free trade resolutions) is more analogous to civil law. It is more appropriate for individual member states as opposed to the WACC to seek redress in such cases, since they primarily have to do with injustices done against particular member states rather than the international community as a whole.[/quote]

I thought that first, too, but I quickly realized that standing and representation was incredibly complicated and sucked up a huge portion of my characters. By requiring the WA do all of the investigation and charging, so to speak, it lets the WA prioritize matters and filter out frivolous claims.

Additionally, since the issue here is just one of determining compliance, and literally nothing else, so I'd rather keep it all in-house.

Quote: 
I do not understand the distinction you are making. This may be because I do not believe that states have a general right to use whatever incentives they wish to induce compliance with the law in any context. The inducement of compliance must itself be just. States are only permitted to use negative "incentives" for compliance, such as fines, when using them as penalties in the context of punishment. A fine that is not a punishment is simply unjust, for the same reason that the state deliberately harming anyone who has done nothing wrong is unjust.

Accordingly, any time that a state employs a negative "incentive" for compliance, that incentive must be proportionate to the extent of the non-compliance. This is true even when the incentive is insufficient to facilitate compliance. For example, a member state may not execute petty thieves because execution as a penalty is grossly disproportionate to the crime of petty theft. This prohibition holds even in cases where a thief's rate of recidivism is extremely high.

In much the same way, the World Assembly may not demand half of a member state's GDP for failing to recognize foreign copyrights for a full twenty years, for example, because such a punishment is grossly disproportionate relative to the violation. This is true even when a nation feels so strongly about not recognizing foreign copyrights for twenty years that they would rather pay whatever proportionate fine is assessed than comply with Foreign Copyright Recognition.[/quote]

So, I agree, but I have an issue with the results, and I'll use something that I think motivates a lot of your resistance ICly: Abortion. The penalty for barring abortions is relatively low: it's not like banning it in contravention of WA law is on par with genocide. But what's the actual point of ensuring compliance if a state can just pay a fee to continue it's actions? An important aspect of the WA is that there's no point if the consequences can be shrugged off.

I am provisionally willing to add a proportionality aspect of this, because you are correct that this isn't entirely just, but it needs to be balanced with the institutional need for compliance.

Quote: I don't accept the assumption that the "gnomes" are infalliable because I don't think we should be free to ignore due process concerns in a World Assembly context. If we deal with them in a member state context, we should deal with them in a World Assembly context; otherwise we're being inconsistent about the nature of the world that the GA inhabits.

Yes, an appeal would probably go to another World Assembly body, but that's not a problem. The point is to give the World Assembly an opportunity to correct its mistakes, not necessarily to provide oversight external to the World Assembly per se -- though that also might not be a bad idea.[/quote]
I could potentially add an opportunity for a re-hearing based on new information, but that's as far as I think I can go without getting too complicated. Part of the issue here is that I'm drawing really heavily on US Administrative Law for this project, since it's a lot more streamlined and analogous to WA committees.

Quote: Apology for the third post in a row, but there is one other issue I'd like to address. As I said in my post above, I don't think you can really separate justice and compliance. Accordingly, I think this proposal should at least acknowledge the legitimacy in principle of non-compliance with the IAO's rulings when the law or resolution being enforced is unjust in an objective sense.

For example, if the World Assembly were to pass a resolution tomorrow mandating racial segregation in member states, I think we can all agree that such a law would be unjust. It does not matter if a majority of member states believe it is just -- morality is not democratic. Accordingly, any organization responsible for enforcing compliance, like the IAO in this proposal, should not have the right -- at least in principle -- to enforce such a law through fines or economic sanctions.[/quote]

I don't mind.

I think that doesn't eliminate subjectivity in the way that I wanted to eliminate it here. So, part of the GA is that the players, acting as nations, are collectively making a decision regarding the justice of a resolution when they vote on it. Additionally, since the WACC has discretion over the docket, and the IAO has discretion over the punishment. That leaves a lot of room for blatantly unjust rules not being enforced the same way. You're right that majority isn't morality but in the WA, majority makes policy. I think that, between creative compliance and WA Missions, committee discretion, and the pretty accessible repeal opportunities, immoral resolutions can be addressed.

Ultimately, the game gets more activity if we incentivize legislative changes over mere noncompliance, and I see that as an OOC value of the draft, too.

[Railana]

It occurs to me that we need to consider how this proposal interacts with non-member states.

If a member state subject to fines and sanctions ceases to be a member of the World Assembly, what happens? Do the sanctions imposed by other member states still apply? Are the fines and sanctions automatically re-imposed if and when the member state rejoins?

I wonder if you could effectively enforce WA law on non-member states (or perhaps just former WA member states) in compliance with the OOC ruleset by requiring that member states simply sanction non-member states that do not comply with WA law as judged by the IAC. I think this would only be morally acceptable insofar as the law being enforced coincides with a clear objective moral norm, as is the case for most international human rights law.

[Separatist Peoples]

RailanaOct 25 2017, 02:30:23 AMIt occurs to me that we need to consider how this proposal interacts with non-member states.

If a member state subject to fines and sanctions ceases to be a member of the World Assembly, what happens? Do the sanctions imposed by other member states still apply? Are the fines and sanctions automatically re-imposed if and when the member state rejoins?

I wonder if you could effectively enforce WA law on non-member states (or perhaps just former WA member states) in compliance with the OOC ruleset by requiring that member states simply sanction non-member states that do not comply with WA law as judged by the IAC. I think this would only be morally acceptable insofar as the law being enforced coincides with a clear objective moral norm, as is the case for most international human rights law.[/quote]While I think it is possible that the WA could indirectly direct members to coerce nonmembers into compliance, I don't think that here, the IAO could appreciably extend it's mandate to pursue fines from nations that resign. ICly, that's too derived from it's statutory authority, and OOCly, that interpretation would probably be illegal. Since the member state sanction aspect of this is contingent on IAO's failure to pursue a fine, I think this issue is avoided.

As for re-joining, I would say that discretion is up to the WACC: If there is sufficient delay in rejoining such that the later noncompliance (I assume the state in question in no way changes it's law in between) such that the specific facts change, a new trial likely needs to begin. If nothing materially changes and the timeframe is short enough, I don't see why the WACC can't pick up and start again. More importantly, I don't see it being a big problem for the WA either way. This allows some creativity for nations to deal with WACC investigations while preventing any "nope, not complying" responses.