There is a lot to unpack with this ruling, so I'm going to take it piece by piece. The Court's position on standing, regional interest, and the statement of facts are standard and not at issue, so I will begin with the definition of treaties.
The Court was correct here - reading any agreement between TNP and foreign powers as a treaty would be absurd...which is why it's a shame they go on to do just this. Treaties take a very particular kind of form, and have a very particular effect - we can see precisely what that looks like from the various treaties we have established over the years. No one would mistake that for some other form of agreement, and we have a handy historical list of treaties to consult.
This is interesting. The Court contemplated all of our case law on treaties for our current constitutional period and concluded it was insufficient for them to make a determination, so they consulted the historical record. This is not inherently problematic, although I would contend that any legally binding conclusion they come to as it relates to our current constitution should not be held up by old laws that are no longer controlling on the region.
Thankfully, the Court crafted criteria that are consistent with treaties we have today as well as those we had in the past. It is reasonable for them to apply these characteristics in determining if something may be considered a treaty. I do not know how I feel about the Court defining a treaty in any official way, but as they said, the RA can nip this particular problem in the bud and choose whatever definition we wish if we're not good with letting the Court legislate from the bench. We will have to keep note of that criteria, however, because it is not actually properly considered when the Court makes its conclusion. As for their definition, it is conveniently broad and muddies the waters between executive commitments which are binding on the Delegate making them and any subsequent Delegate who chooses to honor those commitments, and permanent commitments in the form of actual treaties. This definition also leaves out the fourth criteria, regarding legal methods of signatories. I would interpret this to mean that a treaty...has to follow the process the treaty is mandated to follow in the law. But that isn't important in the Court's definition - they draw a line around every single type of agreement conceivable, including the distinction I took pains to make.
The Court said it was unreasonable to treat every single agreement between TNP and a foreign government as being a treaty, and then defined treaties to include every type of agreement between TNP and a foreign government! At this point, why even bother going point by point with the criteria? I guess if we make specific time limits those are the only ones that aren't treaties...but what happens if we renew the agreement again? At what point does it become indefinite? Does it have to have an expiration date and then just end? I guess that's the only kind of agreement the Delegate is empowered to make now without it being considered a treaty.
The Brotherhood of Malice is already sanctioned by the RA, such as its existing sanctions allow, by virtue of being exempted from use of force restrictions. Note that the Court observes these are punitive against foreign regions, because that is key.
The Court is asked to evaluate if the formal list of sanctions our government signed on to is a treaty, and concludes that it meets their first criteria for a treaty because the MGC is a treaty, and I mentioned that these sanctions were discussed by the regions in the MGC. I don't follow this logic. You have before you a document, and you are asked to identify if it is a treaty or not. One way to tell if something is a treaty is if the document contains within it recognition of lawful governments. All of our proper treaties passed by the RA do this. The MGC sanctions do not. This is clearly evident from looking at the document. The fact they were crafted by regions who signed on to an actual treaty, and that said treaty establishes recognition of government, cannot magically be transferred to this sanctions document. The Court misapplied the first of its four criteria for treaties. But again, given its definition of a treaty, that really isn't even relevant.
I suppose any formal document that lists terms would meet the second criteria of the treaty. This seems kind of obvious. It is good that they pointed out there are no penalties for non-compliance though, because the Court's one sentence definition of a treaty specifically emphasizes that the agreement must be binding, and a lack of penalties for failing to comply with the document certainly calls that into question. The fact that they again reference the MGC, while important for their ultimate conclusion, again has no bearing on whether this specific document can be considered a treaty. The MGC is indisputably a treaty. So what?
Correct, a treaty requires ratification, and if I were writing up a treaty I would present it to the RA. I wrote up a list of sanctions, which is clearly not a treaty. The Delegate makes decisions, and even formalizes directives, that are binding on the executive government. These last as long as the Delegate allows them to. They are not permanent and they are not inherently binding on future delegates. This is the same principle at work in executive orders in the real world. The Court acknowledges that I made this argument, and then makes one of the dumbest pronouncements I have seen so far in this decision by saying that the Delegate should clearly state in the document's text that it is non-binding on the government and can be revoked at any time. Newsflash: every single signatory of those sanctions already knows that. If we didn't want that to be the case, guess what? We would have made it a treaty!
I know the Court read my brief because they quoted from it, but they clearly did not actually take anything it said to heart, because evidently they do not actually grasp the distinction between an executive agreement or directive and a treaty. The MGC regions made a binding commitment to each other in the MGC treaty. We made a commitment to each other in the sanctions. Notice the missing word. Any one region can simply stop enforcing the sanctions or, more realistically, inconsistently enforce them. This is not how proper treaties work, which is why people handle them so particularly, and why treaties carry the weight they do. This is such an elementary point it was bad enough I had to write a brief on it, but it's even worse that the brief I wrote was completely disregarded. I have to explicitly write on our agreements with other regions, including ones we publish to the world and expect to have a significant impact, that they don't really count? Who would sign such a stupid document? I haven't seen the court disrespect and interfere this outrageously with the Delegate's ability to engage in foreign affairs, I think ever. This truly is a new low, and quite sad to see from people playing a political simulator game.
Ultimately it turned out to be a good thing that the Court kept looking at the MGC treaty, because out of left field, it does a complete 180 and says actually, the sanctions aren't a treaty because they're this other thing instead. To be clear, this is a fine example of reaching the right result for the wrong reason. As a former Chief Justice of the Court, I am alarmed how close this Court came to making the absurd ruling that the sanctions document was a treaty. They basically did say it was one though, even as they changed their course at the end here, which is still plenty bad. This conclusion does not fully contextualize the entire treaty definition that the Court provided earlier - where is the bit about binding obligations here? That would rule it out too right? For another, wasn't the whole indefinitely effective thing important? Which definition exactly are we actually applying in this moment? The Court's ultimate conclusion was that this was basically a treaty, but it actually wasn't because it was enforcing a different treaty. I take that to mean the Court does see nuance in agreements between TNP and other regions, despite what that earlier definition says that we must all abide by - except apparently the Court in the same ruling where it invented that definition.
To be honest, I thought the first question the Court considered was a slam dunk and super obvious, but they proved me wrong. It's no wonder things went so wrong with the second question given everything leading up to it.
This right here already does not bode well. While the Court's comment about examining a government's actions when it is imposing an extrajudicial punishment on a resident is absolutely correct, the fact they mentioned this here is concerning, because the sanctions are not an extrajudicial punishment. But the Court is simply expressing the importance of vigilance - a ruling that goes on to explain how that's not going on here would conceivably have such a phrase in it, and it is not necessarily making an accusation of the government. But this Court...yeah you already know they're going to do that.
This is an interesting direction this Court chose to go in. Here it is establishing that being a fascist falls under the Bill of Right's protection for assembly, by virtue of protecting association with a group, but they contend that the Reject Fascism Act nevertheless is okay because it met the criteria they created in this ruling. Fine. I disagree with the Bill of rights assembly protection being used in this way - the context of that right is crucial to understanding what is being protected. "Each Nation has the right to assemble, and to petition the governmental authorities of the region, including the WA Delegate, for the redress of grievances." This is separated from the other rights, and included in the section for redress of grievances. The Court has decided assembly means something else, and then further extends it to association. The Court is just inventing new rights whole cloth at this point.
But more concerning to me are the criteria used to salvage the Reject Fascism Act. These criteria are reasonable and clearly apply to laws. The sanctions are not a law. They are executive policy and they target foreign groups. Recall that the Court itself pointed this out. Now see how they examine the sanctions on this particular question.
Clearly the Court and I fundamentally disagree on this point. Have you read the sanctions? That's literally prior notice! Well, not in the legal sense, but who cares - the Court is not using that correctly either. The very fact this was challenged in Court is because everyone was given notice of the government's new policy, otherwise how would they even know they had to challenge it? Again, this is pretty obvious stuff guys. What was the prior notice (again, used the way the Court is, and not how it is typically used) in the Reject Fascism Act, reading the law? If so, it's the same principle. Because if the person is expected to be warned ahead of time in some nebulous past, that's definitely not happening when the Vice Delegate rejects a fascist from citizenship.
The Court then cites the Bill of Rights about answering to crimes in a manner not prescribed by the Constitution or Legal Code. This is strange because there's no crime...oh the Court then says the sanctions impose a crime. Sorry, that is not how sanctions work. I cannot unilaterally make things crimes in this region. Any resident who may be impacted by these sanctions will not have a criminal record, and is clearly not violating a crime. Sanctions are things we will do in relation to members of the targeted hostile regions. To take this seriously, one would have to accept that I am somehow charging and executing a sentence on people who are not in TNP for violating TNP law. That would be absurd in any scenario, let alone this one. The Court is now reinventing the definitions of words. The Court then overcomplicates what is honestly a rather simple read, if you read the actual sanctions. People who are members of the organization are impacted. If you're not a member, you are not impacted. If you RMB post is made through an embassy, you are not a member. If you're an ambassador to them you are by definition not a member. These are all obvious with a quick read of the sanctions, which I note were not listed in the things the Court actually considered, which would be very odd right? Again, the sanction document is the notice. I hesitate to add this, but duh. What is the level of association that triggers the sanctions? Being a member of the organization. It's in black and white. I told them the reason, in the document. That's why we're here.
And nothing they are doing is being "punished." We are, as the Court knows and acknowledged, targeting foreign groups. Residents are impacted only so far as they maintain both residency in TNP and membership in the sanctioned organizations. We have no issue with them as members of TNP's community, and they are breaking no law and certainly not being punished for doing so. The nature of NS is such that people can be of multiple regions. Residents hit by these sanctions are collateral damage.
Why would there be a trial if no law was broken? Due process dos not apply here, that isn't how that works either. I'm surprised the Court doesn't know that, but then again, it thinks I am charging Souls and Venico with violating TNP law because I pledged to exclude them from balls and parties and to vote against their WA proposals, so maybe this isn't surprising. and then the Court says I created a no fly list for TNP, and one that somehow the Court still thinks people won't know they're on. I don't need to repeat myself here do I? And cannot be removed? Have you considered...not being in BoM? That would take you off "the list." But it should be noted "the list" is the targeted organizations, not individuals. The Court is doing a lot of rhetorical work with this section of the ruling. Good drama but embarrassing law.
By all accounts, it is entirely true, not to an extent. The worst thing about this conclusion is that somehow, attending a festival is now being held to a stricter standard than obtaining citizenship in this region. We have spent countless cases on the importance of citizenship and we all know it is jealously guarded and protected and any attempt to limit it or make it more susceptible to removal is carefully scrutinized. And yet the Court still held that its new right of being a member of whatever group you want can be curtailed by the law that bars citizenship for people who are fascists. But if TNP holds a neighborhood barbeque, it is a huge violation of our residents' constitutional rights if we tell them they can't come. And really, as I said before, we're not telling Gladio the TNP citizen he's not allowed, we're telling Gladio the BoM assassin, who rides with the people who repeatedly invaded our treaty allies, that he and his BoM friends can't come to our BBQ. It is the nature of NS that he can be both people at the same time. To create this sacred constitutional right, the Court had to redefine assembly from redressing grievances with government to joining any groups, including groups hostile to our region, and to create the right of association, and then assert that somehow showing up to our party is an act of political speech that I am violating if I tell them they can't come.
I don't disagree with these residents. I mean, maybe I do, but this is not a political disagreement or a difference in opinion. This is TNP taking a stand against aggressive actors who have wronged our friends and responding to them in the strongest terms we have. They were never designed to be deployed against TNP residents for being TNP residents or for their own personal beliefs or actions. They are caught in the crossfire. The Court really should have explored the question of duality, and paid closer attention to the aspects of my brief talking about the Delegate's foreign policy authority, because those were key issues that were completely ignored for the sake of legislating from the bench and making some of the strangest, non-legally sound conclusions I have seen from this Court in years. I think the only one worse is the one that set off the infamous nesting doll r4r.
Sanctions are punitive, yes. They are targeted at foreign organizations, and they do not assert any laws that are being broken. They are not extrajudicial, because that is not being used correctly here, and I am not making something a crime by fiat. This is junk law. No one is questioning the RA's ability to make law, though by inventing a brand new constitutional right, you have constrained their ability to legislate on this matter as well.
I am sorely disappointed in this result, largely as a result of the serious and concerning blunders in judgment and application of law that it involved. The Court was inconsistent with our understanding of the Bill of Rights, but more egregiously, with its own conclusions and criteria, creating a shifting mess of justification and analysis that are sure to befuddle us in the future. I thank you for you doing your job and spending the great amount of time you did to give the region an answer, but respectfully, I do not thank you for the ruling you actually delivered.
The Court was correct here - reading any agreement between TNP and foreign powers as a treaty would be absurd...which is why it's a shame they go on to do just this. Treaties take a very particular kind of form, and have a very particular effect - we can see precisely what that looks like from the various treaties we have established over the years. No one would mistake that for some other form of agreement, and we have a handy historical list of treaties to consult.
This is interesting. The Court contemplated all of our case law on treaties for our current constitutional period and concluded it was insufficient for them to make a determination, so they consulted the historical record. This is not inherently problematic, although I would contend that any legally binding conclusion they come to as it relates to our current constitution should not be held up by old laws that are no longer controlling on the region.
Thankfully, the Court crafted criteria that are consistent with treaties we have today as well as those we had in the past. It is reasonable for them to apply these characteristics in determining if something may be considered a treaty. I do not know how I feel about the Court defining a treaty in any official way, but as they said, the RA can nip this particular problem in the bud and choose whatever definition we wish if we're not good with letting the Court legislate from the bench. We will have to keep note of that criteria, however, because it is not actually properly considered when the Court makes its conclusion. As for their definition, it is conveniently broad and muddies the waters between executive commitments which are binding on the Delegate making them and any subsequent Delegate who chooses to honor those commitments, and permanent commitments in the form of actual treaties. This definition also leaves out the fourth criteria, regarding legal methods of signatories. I would interpret this to mean that a treaty...has to follow the process the treaty is mandated to follow in the law. But that isn't important in the Court's definition - they draw a line around every single type of agreement conceivable, including the distinction I took pains to make.
The Court said it was unreasonable to treat every single agreement between TNP and a foreign government as being a treaty, and then defined treaties to include every type of agreement between TNP and a foreign government! At this point, why even bother going point by point with the criteria? I guess if we make specific time limits those are the only ones that aren't treaties...but what happens if we renew the agreement again? At what point does it become indefinite? Does it have to have an expiration date and then just end? I guess that's the only kind of agreement the Delegate is empowered to make now without it being considered a treaty.
The Brotherhood of Malice is already sanctioned by the RA, such as its existing sanctions allow, by virtue of being exempted from use of force restrictions. Note that the Court observes these are punitive against foreign regions, because that is key.
The Court is asked to evaluate if the formal list of sanctions our government signed on to is a treaty, and concludes that it meets their first criteria for a treaty because the MGC is a treaty, and I mentioned that these sanctions were discussed by the regions in the MGC. I don't follow this logic. You have before you a document, and you are asked to identify if it is a treaty or not. One way to tell if something is a treaty is if the document contains within it recognition of lawful governments. All of our proper treaties passed by the RA do this. The MGC sanctions do not. This is clearly evident from looking at the document. The fact they were crafted by regions who signed on to an actual treaty, and that said treaty establishes recognition of government, cannot magically be transferred to this sanctions document. The Court misapplied the first of its four criteria for treaties. But again, given its definition of a treaty, that really isn't even relevant.
I suppose any formal document that lists terms would meet the second criteria of the treaty. This seems kind of obvious. It is good that they pointed out there are no penalties for non-compliance though, because the Court's one sentence definition of a treaty specifically emphasizes that the agreement must be binding, and a lack of penalties for failing to comply with the document certainly calls that into question. The fact that they again reference the MGC, while important for their ultimate conclusion, again has no bearing on whether this specific document can be considered a treaty. The MGC is indisputably a treaty. So what?
Correct, a treaty requires ratification, and if I were writing up a treaty I would present it to the RA. I wrote up a list of sanctions, which is clearly not a treaty. The Delegate makes decisions, and even formalizes directives, that are binding on the executive government. These last as long as the Delegate allows them to. They are not permanent and they are not inherently binding on future delegates. This is the same principle at work in executive orders in the real world. The Court acknowledges that I made this argument, and then makes one of the dumbest pronouncements I have seen so far in this decision by saying that the Delegate should clearly state in the document's text that it is non-binding on the government and can be revoked at any time. Newsflash: every single signatory of those sanctions already knows that. If we didn't want that to be the case, guess what? We would have made it a treaty!
I know the Court read my brief because they quoted from it, but they clearly did not actually take anything it said to heart, because evidently they do not actually grasp the distinction between an executive agreement or directive and a treaty. The MGC regions made a binding commitment to each other in the MGC treaty. We made a commitment to each other in the sanctions. Notice the missing word. Any one region can simply stop enforcing the sanctions or, more realistically, inconsistently enforce them. This is not how proper treaties work, which is why people handle them so particularly, and why treaties carry the weight they do. This is such an elementary point it was bad enough I had to write a brief on it, but it's even worse that the brief I wrote was completely disregarded. I have to explicitly write on our agreements with other regions, including ones we publish to the world and expect to have a significant impact, that they don't really count? Who would sign such a stupid document? I haven't seen the court disrespect and interfere this outrageously with the Delegate's ability to engage in foreign affairs, I think ever. This truly is a new low, and quite sad to see from people playing a political simulator game.
Ultimately it turned out to be a good thing that the Court kept looking at the MGC treaty, because out of left field, it does a complete 180 and says actually, the sanctions aren't a treaty because they're this other thing instead. To be clear, this is a fine example of reaching the right result for the wrong reason. As a former Chief Justice of the Court, I am alarmed how close this Court came to making the absurd ruling that the sanctions document was a treaty. They basically did say it was one though, even as they changed their course at the end here, which is still plenty bad. This conclusion does not fully contextualize the entire treaty definition that the Court provided earlier - where is the bit about binding obligations here? That would rule it out too right? For another, wasn't the whole indefinitely effective thing important? Which definition exactly are we actually applying in this moment? The Court's ultimate conclusion was that this was basically a treaty, but it actually wasn't because it was enforcing a different treaty. I take that to mean the Court does see nuance in agreements between TNP and other regions, despite what that earlier definition says that we must all abide by - except apparently the Court in the same ruling where it invented that definition.
To be honest, I thought the first question the Court considered was a slam dunk and super obvious, but they proved me wrong. It's no wonder things went so wrong with the second question given everything leading up to it.
This right here already does not bode well. While the Court's comment about examining a government's actions when it is imposing an extrajudicial punishment on a resident is absolutely correct, the fact they mentioned this here is concerning, because the sanctions are not an extrajudicial punishment. But the Court is simply expressing the importance of vigilance - a ruling that goes on to explain how that's not going on here would conceivably have such a phrase in it, and it is not necessarily making an accusation of the government. But this Court...yeah you already know they're going to do that.
This is an interesting direction this Court chose to go in. Here it is establishing that being a fascist falls under the Bill of Right's protection for assembly, by virtue of protecting association with a group, but they contend that the Reject Fascism Act nevertheless is okay because it met the criteria they created in this ruling. Fine. I disagree with the Bill of rights assembly protection being used in this way - the context of that right is crucial to understanding what is being protected. "Each Nation has the right to assemble, and to petition the governmental authorities of the region, including the WA Delegate, for the redress of grievances." This is separated from the other rights, and included in the section for redress of grievances. The Court has decided assembly means something else, and then further extends it to association. The Court is just inventing new rights whole cloth at this point.
But more concerning to me are the criteria used to salvage the Reject Fascism Act. These criteria are reasonable and clearly apply to laws. The sanctions are not a law. They are executive policy and they target foreign groups. Recall that the Court itself pointed this out. Now see how they examine the sanctions on this particular question.
Clearly the Court and I fundamentally disagree on this point. Have you read the sanctions? That's literally prior notice! Well, not in the legal sense, but who cares - the Court is not using that correctly either. The very fact this was challenged in Court is because everyone was given notice of the government's new policy, otherwise how would they even know they had to challenge it? Again, this is pretty obvious stuff guys. What was the prior notice (again, used the way the Court is, and not how it is typically used) in the Reject Fascism Act, reading the law? If so, it's the same principle. Because if the person is expected to be warned ahead of time in some nebulous past, that's definitely not happening when the Vice Delegate rejects a fascist from citizenship.
The Court then cites the Bill of Rights about answering to crimes in a manner not prescribed by the Constitution or Legal Code. This is strange because there's no crime...oh the Court then says the sanctions impose a crime. Sorry, that is not how sanctions work. I cannot unilaterally make things crimes in this region. Any resident who may be impacted by these sanctions will not have a criminal record, and is clearly not violating a crime. Sanctions are things we will do in relation to members of the targeted hostile regions. To take this seriously, one would have to accept that I am somehow charging and executing a sentence on people who are not in TNP for violating TNP law. That would be absurd in any scenario, let alone this one. The Court is now reinventing the definitions of words. The Court then overcomplicates what is honestly a rather simple read, if you read the actual sanctions. People who are members of the organization are impacted. If you're not a member, you are not impacted. If you RMB post is made through an embassy, you are not a member. If you're an ambassador to them you are by definition not a member. These are all obvious with a quick read of the sanctions, which I note were not listed in the things the Court actually considered, which would be very odd right? Again, the sanction document is the notice. I hesitate to add this, but duh. What is the level of association that triggers the sanctions? Being a member of the organization. It's in black and white. I told them the reason, in the document. That's why we're here.
And nothing they are doing is being "punished." We are, as the Court knows and acknowledged, targeting foreign groups. Residents are impacted only so far as they maintain both residency in TNP and membership in the sanctioned organizations. We have no issue with them as members of TNP's community, and they are breaking no law and certainly not being punished for doing so. The nature of NS is such that people can be of multiple regions. Residents hit by these sanctions are collateral damage.
Why would there be a trial if no law was broken? Due process dos not apply here, that isn't how that works either. I'm surprised the Court doesn't know that, but then again, it thinks I am charging Souls and Venico with violating TNP law because I pledged to exclude them from balls and parties and to vote against their WA proposals, so maybe this isn't surprising. and then the Court says I created a no fly list for TNP, and one that somehow the Court still thinks people won't know they're on. I don't need to repeat myself here do I? And cannot be removed? Have you considered...not being in BoM? That would take you off "the list." But it should be noted "the list" is the targeted organizations, not individuals. The Court is doing a lot of rhetorical work with this section of the ruling. Good drama but embarrassing law.
By all accounts, it is entirely true, not to an extent. The worst thing about this conclusion is that somehow, attending a festival is now being held to a stricter standard than obtaining citizenship in this region. We have spent countless cases on the importance of citizenship and we all know it is jealously guarded and protected and any attempt to limit it or make it more susceptible to removal is carefully scrutinized. And yet the Court still held that its new right of being a member of whatever group you want can be curtailed by the law that bars citizenship for people who are fascists. But if TNP holds a neighborhood barbeque, it is a huge violation of our residents' constitutional rights if we tell them they can't come. And really, as I said before, we're not telling Gladio the TNP citizen he's not allowed, we're telling Gladio the BoM assassin, who rides with the people who repeatedly invaded our treaty allies, that he and his BoM friends can't come to our BBQ. It is the nature of NS that he can be both people at the same time. To create this sacred constitutional right, the Court had to redefine assembly from redressing grievances with government to joining any groups, including groups hostile to our region, and to create the right of association, and then assert that somehow showing up to our party is an act of political speech that I am violating if I tell them they can't come.
I don't disagree with these residents. I mean, maybe I do, but this is not a political disagreement or a difference in opinion. This is TNP taking a stand against aggressive actors who have wronged our friends and responding to them in the strongest terms we have. They were never designed to be deployed against TNP residents for being TNP residents or for their own personal beliefs or actions. They are caught in the crossfire. The Court really should have explored the question of duality, and paid closer attention to the aspects of my brief talking about the Delegate's foreign policy authority, because those were key issues that were completely ignored for the sake of legislating from the bench and making some of the strangest, non-legally sound conclusions I have seen from this Court in years. I think the only one worse is the one that set off the infamous nesting doll r4r.
Sanctions are punitive, yes. They are targeted at foreign organizations, and they do not assert any laws that are being broken. They are not extrajudicial, because that is not being used correctly here, and I am not making something a crime by fiat. This is junk law. No one is questioning the RA's ability to make law, though by inventing a brand new constitutional right, you have constrained their ability to legislate on this matter as well.
I am sorely disappointed in this result, largely as a result of the serious and concerning blunders in judgment and application of law that it involved. The Court was inconsistent with our understanding of the Bill of Rights, but more egregiously, with its own conclusions and criteria, creating a shifting mess of justification and analysis that are sure to befuddle us in the future. I thank you for you doing your job and spending the great amount of time you did to give the region an answer, but respectfully, I do not thank you for the ruling you actually delivered.
It's not like the Bill of Rights is easy to amend.
