ENGAGING: President Cyril Ramaphosa chairs a dialogue at the 10th BRICS Summit held at the Sandton International Convention Centre in Johannesburg. Picture: GCIS
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 right-wing 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 de- colonisation 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 pluri- lateral 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.

** The views expressed here are not necessarily those of Independent Media.

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