Soft law, big stick: o papel do Grupo de Ação Financeira no combate ao terrorismo

Abstract

There are a host of international norms destined to combat terrorism: international treaties, decisions by international organizations, such as the Security Council, and soft law, such as the Financial Action Task Force s Recommendations. These norms have a varying degree of efficacy, which does not, however, follow the expectations set by Classical International Law. On the contrary, soft law related to the fight against terrorism are more effective than hard law adopted with that same goal. FATF Recommendations are more precise than other hard law because they are more precise and have a more efficient monitoring mechanism to ensure their implementation. A comparative analysis will detail this difference and it will show how it has significant impacts on how countries implement these regimes. It is with that goal that the Brazilian case will be further studied. Brazil adopted, in 2015 and 2016, important legislation on terrorism the Antiterrorism Law and a law regulating implementation of UNSC s sanctions. Interviews with people directly involved with said legislation, a careful look at the legislative process that originated them and an analysis of their content, related to corresponding international norms, will all prove that these initiatives were closely related to FATF s actions. To ensure Brazil s case is not the exception, but the rule, similar processes in Argentina, México and Turkey will also be examined. If FATF s Recommendations are more effective than several international treaties, the impacts of this must be carefully examined taking into account how these norms were formed. Important questions, thus, arise on the distinction between lex lata and lex ferenda, the erosion of consent as the basis of International Law and the deepening of the inequality among States in a highly hierarchized international society. These elements must be considered, alongside soft law s superior efficacy, when considering alternatives to regulate the international fight against terrorism and other issues which demand attention at the international level.