European diplomats routinely smile when the BRICS are mentioned. They will suggest that the “BRICS” are “nothing”, not even an NGO (non-governmental organisation), let alone a Regional or International Organisation.
Whilst the EU still considers itself as the pivotal centre of the World, it’s 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 the US, the EU and Japan, have come together in South Africa.
They may be paving the way for 60% of the World population abandoning the US Dollar as a currency of international trade. And the emerging BRICS consensus may soon become more relevant in the shaping future state practice and international norms and standards than the United Nations. But are the BRICS on the way to becoming an international organisation?
Many international organisations have been established by Resolution of the United Nations General Assembly. They are distinguished from United Nations 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 Organization, 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 Non-Governmental Organisations (NGOs) which are established by private parties under the rule of national law or a chosen national legal system.
International Organisations must be capable of forming an own will and taking own 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 e xample 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 - European Union, 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.
Current and actual contemporary state practice recognises the new phenomenon of Non-Formal Forums of International Co-operation: eg. OPEC, the Organisation 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 today determine the distribution of wealth and opportunity in World today, they lack formal membership criteria, a constitution, or an institutional presence.
The BRICS are no doubt an important new Non-Formal Forums of International Co-operation. The BRICS thus far clearly do not claim or enjoy legal personality within its member states (domestic legal personality), nor do they bind participating States by majority vote.
The BRICS are also not proposing to conclude international treaties, to 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 coordination is well established in various multilateral and plurilateral initiatives and intra-BRICS cooperation is expanding to encompass new areas.”
In 2015, the Summit recorded: “We welcome the substantive progress that was made since the Fortaleza Summit on 15 July 2014 during the Brazilian BRICS Chairship, especially 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 …. We will explore the possibility of developing the BRICS Website as a virtual secretariat.”
The 2015 Declaration committed the BRICS Parties to joint responses and action on virtually every then current international law issue, in particular: UN SC reform; G20, IMF and WTO reforms; UNCTAD; Counter-Terrorism; 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; Climate Change.
With the establishment of 2 BRICS financial institutions that are fully empowered with legal personality and status, the BRICS transcended the real of Non-Formal Cooperation. The NDB and the CRA were created by formal treaties, under international law, and at least the NDB definitely has international legal personality.
Outside the NDB, the BRICS remain a sui generis or 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 BRICS are clearly still hampered by a lack of historical, traditional, cultural or ideological cohesion. They are a coalition to rise in tandem, rather than a “community to rise together”.
The original Grundnorm of International Law is consensus. The BRICS annually announce and affirm consensus but retain the option of not wishing to be bound, or the freedom not to engage.
Where they accept to be bound by their consensus, the BRICS regularly act uniformly in their interactions with third countries and international organisations.
BRICS cooperation seeks to strengthen an alternative foundation of values for the international legal order, focussing on human development.
The great scholar of international law Vattel˖ wrote over 2 centuries ago: ‘The first general law, which is to be found in the very end of the society of Nations, is that each Nation should contribute as far as it can to the happiness and advancement of other Nations’.
The BRICS recognise a substantive and fundamental norm of conduct in international co-operation and this the most important shared and common aspiration of the BRICS.
The BRICS are not an international organisation and they are not about to become one. But they the counterweight to the Western World “G20”, and they will increasingly challenge the “G20” as the usurpers of World Leadership.
˖Emmerich de Vattel The Law of Nations or the Principles of Natural Law Applied to the Conduct and the Affairs of Nations and of Sovereigns 
* Dr. André Thomashausen, Attorney-at-Law and Professor emeritus of International Law at Unisa.
** The views expressed here are not necessarily those of Independent Media.