A New Age of Globalization: BRICS and the Challenge of Creating a Fair International Legal Order

Gabriel Dourado Rocha, Federative Republic of Brazil, participant of the VI BRICS International School – special for InfoBRICS

Initially, the so-called BRIC – Brazil, Russia, India and China – was coined in 2001, when it was predicted that the share of Brazil, Russia, India and China in the world’s GDP would grow and that this would raise questions about the impact of these countries on economic policies. In this context, international organizations should be reformed, and in particular, the G7 should be reorganized to incorporate BRIC countries.

In September 2006, at the margins of the General debate of the sixty-first session of the United Nations General Assembly (UNGA), the foreign ministers of Brazil, Russia, India and China met and began a series of high-level meetings, which resulted in the integration of the group at the first BRIC Summit of Heads of States in Yekaterinburg, Russia (2009). In 2014, the New Development Bank (NDB), as well as the BRICS Contingent Reserve

Agreement (CRA), is created, intended as alternatives to the World Bank (WB) and International Monetary Fund (IMF). At the Ufa Summit (2015), the BRICS announced that the NDB would be lending in local currency, and expressed their disappointment with the prolonged failure by the United States to ratify the IMF 2010 reform package, which continues to undermine the credibility, legitimacy, and effectiveness of the IMF, which does not reflect the international arena anymore.

Nowadays, the BRICS countries expanded their cooperation in the most different fields and represent close to a third of global output. The group also became an important player of International Relations, doing an important role in supporting the authority of the UN as the main organization responsible for maintaining International Peace and Security, but at the same time pushing the need to reform the UN and to strengthen the international legal framework, to make it more effective and capable of meeting global challenges.

Although the BRICS has become a trend topic in academic publications, the analyses of the group from the field of Public International Law are often under-represented. In this connection, research about such a BRICS perspective is pertinent not only due to the few analyses related to this topic but also because the levels of cooperation within or through the group are gradually increasing.

For this purpose, as I will present below, I see that the development of the BRICS in the international arena has to coordinate efforts in the area of Economics, Law and International Relations so that there is effective cooperation between the national development of BRICS countries and an equally prosperous international order.

After fourteen years of successful BRICS summits of Heads of State held between 2009 and 2022, with many achievements from BRICS Legal Cooperation, it also has been challenging to strengthen the respect for fundamental principles of International Law, such as the Principle of Nonuse of Force.

Rostam Neuwirth points that the BRICS legal cooperation has already steps that had been taken in several distinct areas ranging from international trade, investment, arbitration and contract law to intellectual property, outer space, culture and education. As the metaphorical reference pointed out by Rostam Neuwirth indicates, there’s an element of cognitive level, more comprehensive and more deeply rooted that holds all of these “bricks” or building blocks of a future global legal order together. According to him, BRICS cooperation exemplifies important questions about the relevance of the rule of law for the BRICS in an era of change, and the rule of law can be an agent of change in the contemporary global governance.

Since 2009, the BRICS has produced a profusion of documents, such as declarations, statements and plans of action issued by the BRICS Summits of Heads of States. The diversity of the BRICS countries was not an insurmountable obstacle to legal cooperation, although an exact and exhaustive legal qualification of these documents is not easy. In this respect, the identification of similarities and differences in the legal consciousness of BRICS societies becomes one of the elements in analyzing the BRICS perspective on International Law.

This perspective was already present in 2003 in the formalization of the IBSA Dialogue Forum (India, Brazil and South Africa), an international group for promoting cooperation among these countries launched through the approval of the "Brasilia Declaration”. These countries gave special consideration to the importance of respecting the rule of International Law, based on respect for the sovereignty of States, strengthening the UN and emphasizing the exercise of diplomacy as a mechanism to maintain International Peace and Security. They affirmed the need to combat threats to International Peace and Security by following the UN Charter. It’s interesting to note that India and Brazil are both founding members of BRIC (2009) and IBSA (2003).

According to Brazilian Ambassador Maria Edileuza Fontenele Reis, in comparing BRICS and IBSA, we see that the meetings between the Heads of State and Government of the three countries drove the process with endogenous dynamics. In this sense, Maria indicates that IBSA inspired the BRICS, because BRICS resulted from Minister Celso Amorim’s vision, inspired by the construction of IBSA.

As well as within the scope of cooperation within the IBSA, the diversity of the BRICS countries has not been an insuperable obstacle to increasing the levels of institutionalization and cooperation within or through the group is increasing each year.

It has been asserted that the prohibition of the use of force or threat of force in article 2, paragraph 4, of the UN Charter is a jus cogens norm, a peremptory norm of International Law from which no derogation is permitted. In the Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the ICJ has noted that the prohibition in article 2, paragraph 4, of the UN Charter is not only a principle, but also a principle of Customary International Law.

However, while in the context of military interventions there is more certainty of the interdiction of the threat or the use of force, in the field of economic measures its questionable if article 2, paragraph 4, extends that far. During the drafting of the UN Charter, there was a proposal made by Brazil to specifically prohibit the use of economic measures, but the proposal was rejected, although the reasons for that rejection were unclear.

Nevertheless, certain forms of political pressure or economic coercion might be against the Prohibition of Intervention in Internal Affairs of States, according to the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (UNGA Resolution 2625).

From this perspective, the BRICS approaches related to the field of International Economic Law focuses its action on the fully supporting of the Principle of Non-intervention, standing against the unilateral imposition of coercive measures in violation of the principles of International Law outlined in the UN Charter, as well as the principles of the multilateral trading system, and in the necessity to reform the international system’s financial/economic architecture, mainly in the bodies of the IMF, World Trade Organization (WTO) and WB. At the Durban Summit in 2013, for example, BRICS indicated that the WTO requires a new leader capable of working multilaterally and better representing developing countries, what seems to have influenced the election of Roberto Azevedo as Director-General of the WTO, the first representative of a BRICS country to be at the front of the organism since its foundation in 1995.

Moreover, the components that make up the financial architecture of BRICS, the NDB and the CRA, were signed into treaty in 2014 and became active in 2015. This year, at the Ufa summit, BRICS expressed their disappointment with the prolonged failure by the United States to ratify the IMF 2010 reform package, which continues to undermine the credibility, legitimacy and effectiveness of the IMF. It must be emphasized that the BRICS does not present itself as a rival to the Bretton Woods system and does not seek to replace it, even though it no longer reflects the reality of the contemporary international system, but articulates an alternative to the policies of the Westerndominated financial institutions, in other words, an effort to overcome the bonds imposed by the hegemonic structures contrary to developing countries and emerging markets such as BRICS.

In this sense, the BRICS NDB and CRA were created to be alternatives to the policy of unilateral imposition of IMF and WB regimes that do not serve the interests of the vast majority of States, although NDB and CRA raised critical for being fruitless, for lacking palpable achievements to meet the expectation of massive infrastructure needs in many countries around the globe, especially its founding members, that have been left unattended by the traditional institutions. Furthermore, despite the NDB's initial capital being constituted in US dollar, it could be advisable for the BRICS countries to set up investment funds with local currencies, for instance operated by the NDB, and to allow the bank to concentrate loans in currencies of BRICS countries. Besides, the bilateral trade between the BRICS members is also increasingly being conducted in national currencies.

An interesting initiative is the implementation, albeit slow, of BRICS pay, an international payment system, offering to the participating banks and other financial institutions Internet and Mobile banking platform in a cloud format.

According to the Digital Bank BRICS website, the BRICS PAY payment service will simplify, accelerate and reduce the cost of cross-border transfers and the process of paying for goods and services for holders of national digital currencies. Despite being a still incipient instrument, some experts even believe that in the long-term BRICS Pay can become a full-fledged alternative to European and American payment systems (in particular, The Society for Worldwide Interbank Financial Telecommunication, SWIFT).

At the group's last summit, held in June 2022, BRICS supported the NDB’s goals of attaining the highest possible credit rating and institutional development. As mentioned earlier, the recent strengthening of the BRICS is related to the correct position taken by the group to resolve conflicts through dialogue and reiterating commitment to multilateralism through upholding International Law, including the purposes and principles enshrined in the UN Charter as its indispensable cornerstone, and to the central role of the UN in an international system in which sovereign States cooperate on the basis of International Law.

At the XIV BRICS Summit, the group reaffirmed support for an open, transparent, inclusive, non-discriminatory and rules-based multilateral trading system, as embodied in the WTO, which needs to be reformed to improve its role for setting global trade rules and governance, promoting the rights and interests of its members, including developing members and least developed countries. BRICS recognized that special and differential treatment as established in WTO rules is a tool to facilitate the achievement of WTO objectives with respect to economic growth and development and called upon all WTO members to avoid unilateral and protectionist measures that run counter to the spirit and rules of the organization. BRICS also emphasized the top priority and urgency of launching the selection process of the Appellate Body members to restore the binding two-tier multilateral dispute settlement mechanism and that the Appellate Body crisis should be resolved without further delay and should not be linked with other issues.

This position contrasts with the unipolar world led by the US that emerged after the end of the Cold War, which even engulfed the International Law. The BRICS was created as an alternative to the unilateral policies of the IMF and the WB, that is, not as a contrast to Western institutions, but to seek alternatives that allow International Economic Law to be a mechanism to regulate and promote development that serves to the vast majority of States and generate achievements to meet the expectation of massive infrastructure needs in many countries around the globe. In this sense, the strengthening of International Law remains a necessary task for the BRICS to advance sustainable development, ensure the promotion and protection of democracy, Human Rights and fundamental freedoms for all, and promoting cooperation based on the spirit of mutual respect, justice and equality.

The emergence of BRICS, initially seen as a group of countries in an economic forecast of Jim O’Neill, nowadays is actively involved in global governance institutions, primarily in the bodies of the IMF, WB, WTO, and UN. Taking this into account, this paper focused on the BRICS ability to construct the future global political and economic world order based on International Law and overcome their differences and problems caused by the overall complexity of global affairs in a rapidly changing world. The format of an article hardly permits to exhaust the entire range of problematic issues typical of BRICS and the features of modern International Law. Since its emergence, one of the main tasks of which are enhancing efficiency to the principle of renunciation of the threat of force or its use in International Relations, eliminating the dangers of new armed conflicts between States, by ensuring turning internationally from confrontation to peaceful relations and cooperation and other appropriate measures strengthening international peace and security. Therefore, it is necessary to consider International Law as the Law of peace.

Meanwhile, in the past decade, violently, with rude violations of the UN Charter and its collective security system, legitimate governments are overthrown in neighbouring countries (Egypt, Libya, Tunisia, Yemen). And shortly before that, the use of military force destroyed Iraq, on whose territory ISIS terrorists continue to engage in atrocities.

In Syria, where the BRICS countries have not supported international interference and rejected the approval of the Resolution S/2011/612, which includes measures under Article 41 of the UN Charter, the group showed that it is possible to fight for the effectiveness of International Law. The US is not able to solve global problems alone. Only rejection of a dead-end a unipolar model of globalization imposed by the west may contribute to the revitalization of International Law. The return of the former authority of the UN is impossible without respect for multipolarity. International Law is urgently needed to the normal functioning of the international system. Therefore, there is no alternative to increasing the effectiveness of International Law.

On the subject of multilateralism, at the 2022 summit, BRICS they reiterated the call for reforms of the principal organs of the United Nations and recommitted to instill new life in the discussions on reform of the UN Security Council and continue the work to revitalize the General Assembly and strengthen the Economic and Social Council.

Although the BRICS seeks not to compete with Western powers, but to build a fairer world, the conflict between Russia and Ukraine has increased conflicts, mainly due to sanctions applied to Russia.

As indicated in the last summit, BRICS is committed to respect the sovereignty and territorial integrity of all States, stress commitment to the peaceful resolution of differences and disputes between countries through dialogue and support all efforts conducive to the peaceful settlement of crises.

This is not possible without abolishing the racist division of the world into a group of exceptional States that a priori have the right to do everything they want and all other countries that must follow in the wake of the Golden Billion and cater to its interests, as said by the Russian Foreign Minister, Sergei Lavrov addressing to participants in the 5th Global Forum of Young Diplomats.

The non-use of military force or threat of force remains invariable principle of the UN Charter, it is of a peremptory nature and cannot be easily changed or cancelled due to even numerous violations or based on a legal position that only one adheres to or several States, whatever military and economic power they have.

In this subject, despite the complex scenario that BRICS countries are evolved, wherein Brazil is shaken by a political crisis, India is evolved in a complicated situation of latent ethno-religious conflict, and the sanctions pressure that Russia has been subject to since the Crimean crisis, intensified in 2022 due to the conflict with Ukraine, BRICS exists and advocates for the development of multipolar world order based on International Law.

Source: InfoBrics