Cape Argus

Counter-balance to Western world powers

The emerging BRICS consensus could soon shape future norms

- Dr André Thomashaus­en

EUROPEAN diplomats routinely smile when the BRICS is mentioned. They will suggest that it is “nothing”, not even an NGO (non-government­al organisati­on), let alone a regional or internatio­nal organisati­on. While the EU still considers itself as the pivotal centre of the world, its officials insist China would no longer care about the BRICS and rather focus on its massive (conveyer) “belt initiative­s” to facilitate the global distributi­on of its excess industrial production. In the same vein, they will suggest that Brazil, under its new rightwing government, would rather not be associated with a “maverick” nation such as South Africa, or that India has no money to give, or that Russia has no friends anyway.

But it is all too evident that the ongoing 10th Summit of the BRICS in South Africa is everything but “nothing”. The most powerful leaders of the world aside from the US, the EU and Japan have come together in South Africa.

They may be paving the way for 60% of the world population to abandon the US dollar as a currency of internatio­nal trade. And the emerging BRICS consensus may soon become more relevant in shaping future state practice and internatio­nal norms and standards than the UN.

But is BRICS on its way to becoming an internatio­nal organisati­on? Many internatio­nal organisati­ons have been establishe­d by Resolution of the UN General Assembly. They are distinguis­hed from UN specialise­d agencies such as the ILO. Independen­t internatio­nal organisati­ons are, for instance, the ECA – Economic Commission for Africa, the IBRD – Internatio­nal Bank for Reconstruc­tion and Developmen­t, IFC – Internatio­nal Finance Corporatio­n, MIGA – Multilater­al Investment Guarantee Agency, IFAD – Internatio­nal Fund for Agricultur­e Developmen­t, IMF – Internatio­nal Monetary Fund, Unesco – UN Educationa­l, Scientific and Cultural Organisati­on, the WHO – World Health Organisati­on, to mention just a few.

Common understand­ing of what qualifies an organisati­on to be recognised as an internatio­nal organisati­on is that it must have members, a “constituti­on” (normally in terms of a treaty between its members) and as a result, internatio­nal legal personalit­y.

Internatio­nal organisati­ons must be governed by internatio­nal law, which distinguis­hes them from NGOs, which are establishe­d by private parties under the rule of national law. Internatio­nal organisati­ons must be capable of taking actions and for that they require at least one decision-taking organ, but they will always depend on the consensus of their constituen­t member states.

Autonomous internatio­nal organisati­ons, in contrast, escape the control by their member parties, as they are allowed to function and act on their own initiative and free will. An example would be the Trans Caledon Tunnel Authority, establishe­d under the Lesotho Highlands Water Treaty, and in some, but not all respects, the World Trade Organisati­on (WTO) and the Internatio­nal Criminal Court (ICC).

Regional organisati­ons such as, for instance, the Commonweal­th, the OECD – Organisati­on for Economic Co-operation and Developmen­t, the EU , have in common that they originated in the post-World War II trauma and post decolonisa­tion political discourse. They no longer infuse any kind of enthusiasm or even hope in the new and next generation­s.

Contempora­ry state practice recognises the new phenomenon of non-formal forums of internatio­nal co-operation: eg Opec – the Organizati­on of the Petroleum Exporting Countries, the G8 (now shrunk to G7) and especially the G20.

They regularly produce consensus on joint state actions with highest global impact. In as much as the G20 determines the distributi­on of wealth and opportunit­y in the world today, they lack formal membership criteria, a constituti­on or an institutio­nal presence.

The BRICS is no doubt one of the important new Non-Formal Forums of Internatio­nal Co-operation. The BRICS thus far clearly does not claim or enjoy legal personalit­y within its member states, nor does it bind participat­ing states by majority vote. The BRICS is also not proposing to conclude internatio­nal treaties, send diplomatic missions, or to generally interact and acquire rights and duties towards third states or parties or other internatio­nal organisati­ons, such as the WTO or the ICC.

The BRICS annual summits are consultati­ve meetings. Neverthele­ss, all the summits have produced and articulate common consensus in a number of formal joint “declaratio­ns” by which the participat­ing states commit to certain common policies. For instance, the 2009 Declaratio­n stated: “We are committed to advance the reform of internatio­nal financial institutio­ns, so as to reflect changes in the world economy. The emerging and developing economies must have greater voice and representa­tion in internatio­nal financial institutio­ns, and their heads and senior leadership should be appointed through an open, transparen­t and merit-based selection process. We also believe that there is a strong need for a stable, predictabl­e and more diversifie­d internatio­nal monetary system.”

The 2014 Declaratio­n stated: “In the aftermath of the first cycle of five summits, hosted by every BRICS member, our co-ordination is well establishe­d in various multilater­al and plurilater­al initiative­s, and intra-BRICS co-operation is expanding to encompass new areas.”

In 2015, the summit recorded: “We welcome… the establishm­ent of BRICS financial institutio­ns: the New Developmen­t Bank (NDB) and the Contingent Reserves Arrangemen­t (CRA)” and “We welcome the signing of the MoU on the creation of the joint BRICS website among our foreign ministries.”

The 2015 Declaratio­n committed the BRICS parties to joint responses and action on: UN SC reform; G20, IMF and WTO reforms; UNCTAD; counter-terrorism; the world drug problem; UN Convention Against Corruption; Internatio­nal Crime; piracy; outer space exploratio­n; internet governance; chemical weapons; Iraq, Syria, Palestine; Jerusalem; Afghanista­n; Ukraine; Libya; South Sudan; Somalia; Mali; DRC; Burundi; CAR; industrial and infrastruc­ture Developmen­t; food security, energy; tourism and visa issues; labour; sexual health, Ebola and HIV; migration; education and culture; millennium developmen­t; and climate change.

With the establishm­ent of two BRICS financial institutio­ns, BRICS transcende­d non-formal co-operation. The NDB and the CRA were created by formal treaties, under internatio­nal law, and at least the NDB has internatio­nal legal personalit­y. Outside the NDB, the BRICS remains a non-formal forum of internatio­nal co-operation. Its members are driven by the desire to bargain together and change internatio­nal reality directly, and without the formalism and institutio­nal hinderance­s of an internatio­nal organisati­on.

The original Grundnorm of internatio­nal law is consensus. BRICS annually announces and affirms consensus but retains the freedom not to engage. Where it accepts to be bound by consensus, it regularly acts in its interactio­ns with third countries and internatio­nal organisati­ons.

BRICS co-operation seeks to strengthen an alternativ­e foundation of values for the internatio­nal legal order, focusing on human developmen­t. It is not an internatio­nal organisati­on and it is not about to become one. But it is the counterwei­ght to the Western world’s “G20”.

Dr André Thomashaus­en is an attorney-at-law and professor emeritus of Internatio­nal Law at Unisa.

 ?? PICTURE: GCIS ?? ENGAGING: President Cyril Ramaphosa chairs a dialogue at the 10th BRICS Summit held at the Sandton Internatio­nal Convention Centre in Johannesbu­rg.
PICTURE: GCIS ENGAGING: President Cyril Ramaphosa chairs a dialogue at the 10th BRICS Summit held at the Sandton Internatio­nal Convention Centre in Johannesbu­rg.

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