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ABSTRACT
Starting from the first summit, which focused on the economic dimension, the BRICS countries have broadened the group’s horizons to other issues. Contrary to sceptical predictions, the group was able, at that time, to overcome differences and stress common features. Under these premises, this paper will briefly examine the instruments used by BRICS to create a unique form of legal network, based on soft law policies and legal transplant and exchange of best law practices; however, the absence of coherent decisions in the group’s external actions and the lack of implementation of certain internal projects also represent relevant drawbacks. Through the analysis of BRICS’ internal and external activities and forms of cooperation, this work aims at discussing important issues related to the future of the group and its role in the international dimension: will BRICS be able to act as a unified bloc in the global arena? Will these states be able to strengthen their cooperation? In conclusion, the BRICS union is an innovative phenomenon of global cooperation and well worth studying; nonetheless, some critical reflections and developments are required in order to consider the group a successful actor on the international scene.
Acknowledgements
I would like to thank the organisers and participants of the ‘Regional Challenges to Multilateralism’ conference held at the University of Tampere (13–14 September 2018). Having the opportunity to participate in this event, in such an inspiring environment, has helped my professional growth immensely. A special thank you also to Professor Lucia Scaffardi for her invaluable help.
Notes
1. BRIC, ‘Joint Statement of the BRICs Countries’ Leaders’, Yekaterinburg, 16 June 2009, Article 5. More recently, awareness of the BRICS countries’ relevance was underlined by the members themselves in the 2017 Xiamen Summit. https://www.brics2017.org/English/AboutBRICS/BRICS/. Accessed February 21, 2019.
2. Ibid., Article 15. See also BRICS, 10th Summit, ‘Johannesburg Declaration,’ Johannesburg, South Africa, 25–27 July 2018, Article 5.
3. Orrù, L’ordine costituzionale sudafricano post-apartheid, 141.
4. It must be remembered that economists and political scientists tried to identify different components for a new club. See Das, “Another Perspective on Globalization.”
5. The first Joint Statement of 2009 had only 13 points, whereas the last Joint Statement (Johannesburg Declaration, 2018) contains 102 points.
6. ‘From the first stand-alone meeting of the leaders in Yekaterinburg to the end of Russia’s 2015 presidency, 122 meetings took place.’ Quoted in Larionova, The Rise of New Institutions. In order to give a broader idea of the dimensions of BRICS cooperation, we can list the meetings that occurred in 2018.
7. O’Neill, “Building Better Global Economic.”
8. Lanchester, Le trasformazioni geopolitiche; and Kupchan, ‘The Governance Gap.’
9. Borba Casella, BRIC: a l’heure d’un nouvel ordre juridique.
10. It is worth mentioning that the group itself ‘refrains from expressing the real nature of its setup, making any form of classification difficult. Instead, it only proves what it is not: it is no longer a summit, nor merely an international organization.’ Scaffardi, ‘BRICS: A Mirage of Reality’. This is evident also in the speech of Chinese President Xi Jinping at the opening ceremony of the BRICS Business Forum on 3 September 2017: ‘BRICS is not a talking shop, but a task force that gets things done. Our goal is to build a big market of trade and investment, promote smooth flow of currency and finance, improve connectivity of infrastructure and build close bond[s] between the people. In pursuing this goal, our five countries are engaged in practical cooperation across the board, covering several dozen areas, including economy, trade, finance, science, technology, education, culture and health, thus giving concrete expression to the endeavour of building a new type of international relations featuring win-win cooperation.’ In https://www.brics2017.org/English/Headlines/201709/t20170904_1887.html.
11. ‘The first binds the legal system and market rules together in a way that favours economic objectives’, while the second ‘adopts policy transfer logic which – along with the market – does not overlook social interests’. Scaffardi, ‘BRICS, a Multi-Centre “Legal Network”?’.
12. Carducci and Bruno, “BRICS as Constitutional Inhomogenous Dynamics.”
13. For the definition of BRICS as an ‘informal club’, see Cooper and Farooq, “Testing the Club Culture of the BRICS.”
14. John J. Kirton describes nine competing schools of thought on how BRICS could be defined, based on its evolution and performance. See Kirton, “Explaining the Solid, Strengthening Success of the BRICS Summit.”
15. BRICS, ‘Joint Statement of the BRICS Countries’ Leaders’, New Delhi, 29 March 2012.
16. For other definitions see Martins, “The EU and the BRICS.”
17. Emerson, “Do the BRICS Make a Bloc?”
18. De Coning, Mandrup and Odgaard, ‘Conclusion.”
19. ‘The BRICS are now making an impact on global governance. The theme of the fourth Summit “BRICS Partnership for Global Stability, Security and Prosperity”, signalled its strategic intent through an alternative interpretation of interdependence.’ Sanwal, ‘BRICS Now Matter.’
20. Carducci and Bruno, “The BRICS Countries between Justice and Economy.”
21. Since homogeneity is not included in the aims of and logic governing BRICS cooperation, it can be affirmed that ‘the BRICS seems interested in promoting a constitutionally neutral global model of interaction’. Carducci and Bruno, “The BRICS Countries and Democratic Contagion.”
22. Scaffardi, Pensare l’im-possibile: BRICS, tra miraggio e realtà.
23. The Sherpa meetings are fundamental landmarks in the BRICS decision-making and cooperation process. During these meetings, the delegates of the five countries prepare the leaders’ meetings, conduct a review of the progress achieved over the past year and the progress of BRICS’ joint actions, discuss the possible implementation of previous action plans and fix priorities and principles for the next annual summit.
24. The Think-Tank Council, for example, is a working group of intellectuals who prepare documents, studies, analyses, in order to provide data, solutions and ideas useful for BRICS leaders’ or ministers’ decisions. ‘Towards a Long-Term Strategy for BRICS’ is a proposal elaborated and written by the Think-Tank Council for the leaders and ministers of the five countries, making policy recommendations and underlining sensitive areas of cooperation and possible instruments to be used. The projected ‘operative way’ can be considered as a multitasking and circular approach based on cooperation and shared skills to promote development.
25. See CNBC Africa, Brazil, Russia, India, China and South Africa (BRICS) Tuberculosis (TB) Research Network to accelerate research and innovation through collaboration across the BRICS countries, https://www.cnbcafrica.com/apo/2018/07/02/brazil-russia-india-china-and-south-africa-brics-tuberculosis-tb-research-network-to-accelerate-research-and-innovation-through-collaboration-across-the-brics-countries/.
26. The unique and peculiar form of collaboration is also expressed in many other sectors: the BRICS Science, Technology and Innovation Ministerial Meetings and the BRICS Action Plan for Innovation Cooperation, the Strategy for BRICS Economic Partnership or the strengthening of political and security cooperation through the meetings of the BRICS High Representatives for Security Issues and foreign ministers’ meetings, but also the BRICS Think-Tank Council, the Film Festival, the Media Forum, the Friendship Cities and Local Governments Forum, the Youth Forum, Young Diplomats’ Forum and Young Scientists’ Forum, or the Forum of Political Parties, as well as the Seminar on Governance. Other examples of coordinated actions can be found in the education field, from the BRICS education ministers’ meetings (the last one took place in Cape Town, South Africa, on 10 July 2018) to the creation of the BRICS Academic Forum, the BRICS Network University (2015) and the BRICS Summer School Program.
27. Other examples of new initiatives, reported in the Johannesburg Declaration, are a possible BRICS Intergovernmental Agreement on Cooperation in the field of security in the use of information and communications technologies (Article 38), the possible establishment of a BRICS Partnership on New Industrial Revolution (Article 56), the proposal for a BRICS Treaty on Co-Production of Films (Article 93), and the creation of a BRICS Sports Council (Article 98).
28. Stuenkel, “Do the BRICS Possess Soft Power?’; and Cooper and Farooq, “BRICs and the Privileging of Informality.”
29. Dolowitz and Marsh, “Learning from Abroad”; and Evans, “Policy Transfer in Critical Perspective.”
30. We can better talk about constitutional borrowing (consistent with a rights-focused approach) rather than legal transplants, which is a technique used for quick responses to the demands of the market, and linked to a market focused approach and theory. See Tebbe and Tsai, ‘Constitutional Borrowing’; Watson, “Legal Transplants”; and Perju, “Constitutional Transplants.”
31. Zakharova and Przhilenskiy, “Experiences of Legal Integration,” 14.
32. Suker, “Book Review,” 5; and Neuwirth et al, The BRICS-Lawyers’ Guide.
33. Carducci, ‘Il BRICS come “Legal Network”’ [‘The BRICS Union as a “Legal Network”’].
34. See note 20 above.
35. BRICS Think Tank Council, Towards a Long-Term Strategy, 12.
36. NDB, NDB’s General Strategy: 2017–2021.
37. For a deeper analysis, see Rached, ‘BRICS Countries, NDB’, in this Special Issue. See also Cooper and Farooq, “Testing the Club Culture”; Reisen, “Will the BRICS Bank Help?”; Morozkina, “The New Development Bank”; and Leal, Yixiu and Ghatak, “New Perspectives.”
38. Scaffardi, “BRICS, a Multi-Centre “Legal Network”,” 144.
39. Nobel laureate Joseph Stiglitz said in a July 2014 interview, ‘It’s [the BRICS Bank/NDB] very important in many ways. This is adding to the flow of money that will go to finance infrastructure, adaptation to climate change – all the needs that are so evident in the poorest countries. It [also] reflects a fundamental change in global economic and political power. The BRICS countries today are richer than the advanced countries were when the World Bank and the IMF were founded. We’re in a different world – but the old institutions haven’t kept up.’ July 2014, https://www.democracynow.org/2014/7/17/nobel_economist_joseph_stiglitz_hails_new.
40. Contipelli and Piccian, “The Institutional Status.”
41. GHSi, Shifting Paradigm.
42. To make a concrete and substantive contribution ‘to global health governance, the BRICS should elevate the health agenda to the leaders’ level, strengthen decision-making and delivery, and change the pattern of their cooperation with relevant institutions from expressing their collective stance to productive cooperation involving the relevant institutions such as the UN and the WHO in the full chain of global governance functions’. Larionova et al., ‘BRICS: Emergence of Health Agenda’, and also ‘Looking into the Future of the BRICS’. Focusing on another aspect linked to health, the Universal Health Coverage, we have to note that ‘despite several recent political initiatives, the evidence of BRICS’ acting as a political block in relation to UHC remains weak. In fact, supporting the UHC movement, BRICS seems to act more as individual countries rather than as an allied group driven by domestic needs. These findings suggest that BRICS are unlikely to be a unified political block that will transform global health governance.’ Tediosi et al., ‘BRICS Countries’; Harmer, Foloyinka and Conteh, ‘The BRICS’; Acharya et al., ‘BRICS and Global Health’.
43. Freire, “Political Dynamics within the BRICS,” 80.
44. Hooijmaaijers and Keukeleire, “BRICS Countries in the UN”; and Toloraya and Chukov, “BRICS to be Considered?”
45. In the UN, for example, ‘The BRICS has continued to refrain from issuing mandates to international organizations; hence there have been no cases of governing-through model.’ Larionova, “The Rise of New Institutions,” 11; and See also Peitz, ‘The BRICS: Rhetoric or Reality?’
46. We can note that it was only in 2017, for the first time in an international meeting (the High Level Sustainable Development Financing Lab), that the representative of a BRICS country, Chinese Ambassador Liu Jieyi, spoke on behalf of the BRICS group (http://www.china-un.org/eng/hyyfy/t1454723.htm).
47. This is also confirmed by the BRICS countries themselves, even in the last summit declaration (Johannesburg Declaration, 25–27 July 2018, Article 15).
48. Regarding this point, there are still uncertainties among authors, given the problems in finding a definitive and absolute answer to the BRICS’ role in the international arena. See, on this point, Käkönen, ‘BRICS as a New Constellation’ and ‘Has the World Already Forgotten BRICS?’, also ‘Cooperation and Competing Initiatives’.
49. Nayyar, “China, India, Brazil and South Africa”; and The Stratfor Global Intelligence, For China, BRICS Is a Means.
50. See Pant, “The BRICS Fallacy,” for a very critical analysis of this group; for a reconstruction underlining the pros and cons of BRICS and doubts about its functioning, see Weber, “The Rise and Fall”; and Kralikova, “BRICS: Can a Marriage of Convenience Last?”
51. An interesting recent evolution of the BRICS cooperation is represented by the ‘BRICS Plus’ approach, promoted by the Chinese president in 2017, during the Xiamen Summit. Xi Jinping invited some representatives of other emerging markets and developing countries to participate in some BRICS meetings as guests. Even if this invitation was not meant to expand the membership of the BRICS group, as clarified right from the beginning, ‘The rationale behind the BRICS Plus concept is to create a platform for greater interaction and partnerships amongst countries of the Global South to shape the agenda to effect changes in the global economy, notably for (i) development and economic growth through trade and investment integration, and (ii) cooperation in global governance [of] financial, economic and political institutions. In the interest of ensuring maximum synergy between South Africa’s Chairship of BRICS and that of China’s in 2017, South Africa has also elected to consider a BRICS Plus Initiative, under the sub-theme: BRICS Plus: Securing sustainable and inclusive growth for the prosperity of the Global South.’ BRICS Outreach, http://www.brics2018.org.za/brics-outreach.
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Giulia Formici
Giulia Formici is a PhD student in Public, European and International Law at the University of Milan (Italy) since 2017. Her PhD research topic concerns big data and data retention and the need for a balance between security and privacy needs. She graduated in Law at the University of Parma, with a thesis on Public Comparative Law focused on the right to health and the evolution of health systems, with particular attention to the experience of the BRICS countries. She is a lawyer and she hold a Master’s degree in ‘Health, Food and Environment: European Law and Risk Regulation’ from the University of Parma. She is a member of the BRICS Parma Research Group. Her works and publications focus on the impact of new technologies on fundamental rights, privacy and data protection, data flows, the use of biometric data and also novel food legislation and the regulation of orphan drugs.