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International Law in Context

International Law in Context

Reparation Case, Xi’s Elevation and FATF Grey List

Introduction

This part of the Debates will present three issues: first is the Reparation Case of 1949 that was specifically asked in international law paper for CSS 2018; second is a brief comment on the amendment to the constitutional law of China with respect to Chinese leader Xi Jinping; and the third issue is FATF in the context of international law. Each issue is stated separately.

I. Reparation for Injuries in the Service of the United Nations Case (1949)

A. Factual Résumé

The United Nations General Assembly (UNGA), through its Resolution 181, approved a Partition Plan for the Mandatory Palestine on 29th November 1947. The Plan was not received well and resulted into the Palestinian War of 1948. To deal with the situation, the UNGA through another Resolution i.e. 186 of 14th May 1948) appointed Folke Bernadotte as the first Mediator of the UN. He was assassinated on 17th September 1948 by a Jewish extremist group ‘Lehi’. He was shot at point-blank range and the occurrence took place in the area under the control of the Jews. The international community condemned the act. Despite efforts, the assassins were never caught. On 3rd December 1948, the UNGA adopted a Resolution wherein it solicited the advisory opinion of the International Court of Justice (ICJ) on the legal capacity of the UN as an organization to bring an ‘international claim’ against the responsible government. The ICJ’s Advisory Opinion was in affirmative.

B. Reasoning

The UNGA had asked two questions to the ICJ, which were:

1. Whether the UN, as an organization, was legally capable to bring a claim against a government for reparation due to damage caused to it or to a victim ‘entitled through’ it?
2. If yes, then, how would the legal claim so brought by the UN affect the claim of the state whose national was the victim?

As stated above, the opinion rendered by the ICJ was in positive and forms the legal basis for treating the UN as a legal person in the international law. It may be noted here that the questions were generic in nature and not even the name of the victim (i.e., Bernadotte) was mentioned in the Resolution. The original Opinion is brief. Quintessentially, it held that the UN was an international organization.

In response to the second question, the Court held that the two claims, one by an international organization and the other by the state whose national was the victim, were not mutually exclusive.

The nub of the reasoning in the ‘opinion’ is that the UN was an ‘agent’ of its members and its functions and rights as conferred on it by its constituent instruments were such that it necessarily ‘implied the attribution of international personality’. With an established significance of the ‘opinion’ in the development of international law, there are, however, some analytical questions that beg discussion. The first question is: what is the definition of an international organization? Secondly, how an international organization is to be identified? Thirdly, who is responsible for the acts of an international organization? Fourthly, how an international organization is different from a multinational corporation that has international presence? Likewise, what are the responsibilities of international organizations? Another question is what constitutes an international organization? Is it treaty law or a charter granted by a state?

The answers to these questions are not straight, and many an academic has attempted to address the questions. Defining an international organization, G. Fitzmaurice states that it is ‘a collectivity of state established by treaty, with a constitution and common organs, having a personality distinct from that of its member states, and being a subject of international law with treaty-making capacity’. The definition is not universally accepted, though. One attack on this is that how power to confer consent of a state for binding itself can be delegated to some other body? The question is particularly tricky in case of democratic governments. With these questions at the heart of the very concept of an international organization, the international relations view on the subject may be divided. While realists would insist on the primacy of state over the international organizations, the liberals would argue that the international organizations transcend state jurisdictions. From another perspective, international organizations are non-state actors. All these dimensions of the international organizations do not find answers in the Reparation for Injuries Case.

II. Amendment to the Constitution of China

The current Chinese Constitution was written and adopted in 1982. It has witnessed four amendments so far – in the years 1988, 1993, 1999 and 2004. The fifth amendment to the Chinese Constitution has been approved on 5th March 2018. Its characteristic points are:

1. Previously, the role of leadership was only recognized in the preamble to the constitution; this has changed through the new amendment, and a new article has been added to the constitution, which reads:

“The socialist system is the fundamental system of the People’s Republic of China. The leadership of the Chinese Communist Party is the most essential feature of socialism with Chinese characteristics.”

In this respect, the amendment is reminiscent of the debate on the Objectives Resolution in the Constitution of Pakistan, 1973, wherein the religiosity of the state was codified into the basic law, which was later, through Eighth Amendment, was internalized ‘substantially’ into the corpus of the constitution of Pakistan.

2. The second important feature of the amendment is that it proposes to establish a new powerful organization ‘the National Supervision Commission’, which will comprise members of the communist party, government, police and judiciary. The body, it is believed, will unify the government and the party at one place, diminishing the two established ladders of authority in China.

The amendment is expected to instil the ‘Xi Jinping Thought’ in China. The outcome of the amendment is yet to be seen, but the West is already viewing it caustically. The Western criticism is based in the following assertions:

First, the amendment is being seen as a negation of the thesis of Francis Fukuyama who had predicted an end of history of politics and had predicted that after adopting the economic system of the West, all societies will organize themselves to have democratic system; this did not happen in case of China, despite huge economic success.

Secondly, the West sees the amendment as a step from authoritarianism to dictatorship.

On a different note, from the Islamic Law viewpoint, the ages-old constitutional question of succession of power can be traced in the genesis of the amendment. More than anything else, the amendment underlines the fact that constitutional law is a force that the supreme Chinese leader had to reckon with, notwithstanding the non-democratic credentials of China.

III. FATF and the International Law

Placing – or otherwise – Pakistan on the grey list maintained by the Financial Action Task Force (FATF) occupied much of the discourse on mainstream media within the country. The pivotal question of the legal basis of FATF and Pakistan’s obligations towards it were not fully explored, though. Here, the issue is briefly discussed.

The FATF was established at a G-7 Summit held in Paris, France in 1989. At that time, money laundering was being discussed in the context of trafficking of drugs and their proceeds internationally. The process started when G-7 established FATF in 1989 and delegated it a mandate to develop and implement the international money laundering standards across the world. The delegation part of the authority is considered to be immersed into the soft international law. Later, after 9/11, the money laundering and counter-terrorist financing (CFT) grew side by side. The soft and the hard international law elements started ‘cohabiting’ and treaty law provisions were added to the legal framework of the FATF, making the compliance more consequential for the non-complying countries. Besides, a purely rules-based system started adding risk-based approach to its compliance system, which was dependent on FATF recommendations. The obligation to implement the United Nations Security Council Regulations 1373 and 1267 through FATF Recommendations fortified the system. The Palermo UN Convention on Organized Crime, 2000, and the United Nations International Convention for the Suppression of the Financing of Terrorism, 1999, added to the treaty law part of the FATF. The web of institutional framework further complicated when regional bodies were established as Associate Members and FATF Styled Regional Bodies (FSRBs). Thus, there have been soft and hard international law obligations that Pakistan had been indirectly binding itself for years. The intent of Pakistan in doing so can be seen as evidence of its bona fide to be part of the international system; the politicization of the international system is likely to harm the system itself, in the long run, than the individual countries like Pakistan.

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