By Lucia Scaffardi Abstract The paper analyzes the phenomenon of the BRICS group and its transformation into BRICs. From the ...
By Lucia Scaffardi
Abstract
The paper
analyzes the phenomenon of the BRICS group and its transformation into BRICs.
From the first Summit, whose final declarations were mainly centered on
economic, financial and commercial themes, the group attention has broadened
its horizons, as to encompass health, agriculture, environment, international
relations. The BRICS working method seems to suggest a new pattern of
inter-state relations, based on peer-to-peer cooperation, experiences sharing
and “soft” policy transfer. Given the difficult classification of this new “entity”,
the author suggests considering it more as a network, where there is not a
singular hegemony power, but where the relevance of the different countries
varies according to the issue discussed in the Summit.
Keywords: BRICS, Legal Network, Comparative Public Law, Constitutional Borrowing, Policy
Transfer
1. Introduction
Understanding
the BRICS1 phenomenon from the legal angle is crucial. It is a subject rarely
covered. Whilst in economic terms we are seeing an increase in the amount of
work done (O’Neill, 2011; Jones, 2012; Nadkarni & Noonan, 2012; Inks, 2012;
Goldstein, 2011; Borodina & Shvyrkov, 2010; Kobayashi-Hillary, 2010; Moore,
2010; Marr, 2010; Cassolato & Vitorino, 2009); the legal aspects of this
new and unclear process cannot be neglected.
There is a
strong link between the current economic situation and the decision that
prompted Brazil, Russia, India, China and South Africa to establish closer
ties. By the same token, the “freefall” of many advanced economies in recent
years (Kupchan, 2012) and the emergence of major flaws in global financial
institutions have accentuated the rise of these five nations (Huotari &
Hanemann, 2014; Di Plinio, 2011), the wealth of which has soared (in 2012 it
was put at 20% of the global GDP). Yet saying this phenomenon is down to mere
“parallel interests”, it is an oversimplification. Their cooperation proves the
desire to make the voice of this important part of the world (the BRICS
countries represent over 40% of the world’s population) (EUROSTAT, 2012).
Therefore the paper will discuss the evolution of the BRICS phenomenon, showing
how what once was an aspiration of “emerging economies” is now creating a
“legal network”.
2. BRICs: From
Acronym to Joint Action in the Inter-State Area
The BRICs
acronym was introduced by Jim O’Neill (O’Neill, 2001), who far-sightedly
predicted the economic potential of what were then four countries. In doing so,
he suggested the path for the creation of this theoretical “consortium”.
Accordingly, for some time BRIC only referred to an economic name. The lack of
interest by some scholars lay in the perceived diversity of the group; it was
felt that its members would never manage to fully cooperate. It was a view also
held by those involved at the outset. “Between the BRIC countries, there is
really little in common. Each of them has its own destiny, its own special
character, and it will be much more difficult for them to agree among
themselves than separately with Western countries” (Levy, 2009).
Contrary to
predictions, and thanks to the collapse of the Euro-Atlantic paradigms, the
reality of the BRICS is highly impressive in many respects:
“All four of the
BRIC countries have exceeded the expectations I had of them back in 2001.
Looking back, those earliest predictions, shocking to some at the time, now
seem rather conservative. The aggregate GDP of the BRIC countries has close to
quadrupled since 2001, from around 3$ trillion to between $11 and $12 trillion.
The world economy has doubled in size since 2001, and a third of that growth
has come from the BRICs. Their combined GDP increase was more than twice that
of the United States and it was equivalent to the creation of another new Japan
plus one Germany, or five United Kingdom, in the space of a single decade”
(O’Neill, 2011).
Since 2006, the
year in which the Foreign Ministers of the BRICs founder countries (Brazil,
Russia, India and China) first met alongside a session of the UN General
Assembly, this new entity has grown considerably both in terms of its role and
how it is viewed worldwide.
This group made
its official appearance on 16 June 2009, at the first Summit of BRICs countries
in Russia, at Yekaterinburg (Joint Statement of the BRIC Countries’ Leaders,
Yekaterinburg, 2009). It was only an initial step, but the desire to provide a
strong counterpoint (in a certain sense, almost a challenge) to the dominant
role played by the USA and the dollar, was clear since the very beginning. “We
are committed to advance the reform of international financial institutions, so
as to reflect changes in the global economy. The emerging and developing
economies must have greater voice and representation in international financial
institutions, whose heads and executives 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” (Joint Statement of the BRIC Countries’ Leaders,
Yekaterinburg, 2009).
Since then, the
four countries have been meeting regularly once a year. They took turns to play
host, and their first series of meetings drew to a close in Durban.
The interesting
decision-making processes adopted by the BRICS countries to converge run in two
main directions. The first involves the “coordination” between heads of State
within the Summits themselves; the second operates at inter-ministerial level.
The official
statements issued at the end of the Summits are not just the product of the
talks held during the Summits themselves, but they are supported by heavy
preparatory work carried out by groups with representatives from each of the
ministries involved that take place before the Summit.
The work of the
BRICS “sherpa” has increased considerably to the point that it now resembles a
periodic consultation. The wide range of subjects tackled in these meetings
promotes and indeed legitimises cooperation. This has the knock-on effect of
reinforcing links between the partners, particularly with regard to trade links
and financial and economic issues (Ahdieh, Lee, Ragavan, Noonan, & Francis,
2007).
Whilst these
aspects are foreseeable, others are new and unexpected. They include technical
and scientific sectors, from technological innovation to agricultural
development and health (Martini & Sanches Wünsch, 2014) and environment
protection. Accordingly, cooperation is actually strengthened in many sectors,
sharing skills to promote development. Adopting a multitasking and circular
approach, the varied nature of the states involved makes for a positive exchange
of experiences. As the BRICS countries are very different from several
perspective (economic structure, socio-political background, culture and
traditions, etc.), the exchange of experiences gains in terms of richness of
solutions, strategies and final outcomes.
An example of
common public policies and coordinated actions can be the agricultural and food
safety sector’s policy. Since 2009 and following the joint statement on food
safety adopted at the Yekaterinburg’s (Russia) Summit, the BRICs countries have
stated to exchange experiences, at both Heads of State and Ministers of
Agriculture and Ministry’s representatives levels. The development of specific
agricultural policies had been defined during several meetings and in 2011 the
first joint action plan was approved. One of the most interesting action has
been the creation of a database on agricultural policies, concerning data on
the production/commerce of products and agricultural technologies, which lays
the basis for further cooperation and allows for a tighter “technical”
exchanges (Sandrey, Vink, & Jensen, 2013; Brink, Orden, & Dattz, 2013).
The cooperation
between ministries differs greatly from the inter-State work done at the top:
where the last one attempts to influence global dynamics or governance reform,
the former panders to the economic, political and cultural integration of BRICS
countries. These interactions are still “under construction”; yet the output is
significant:
“The BRICS
countries have a remarkable opportunity to coordinate their economic policies
and diplomatic strategies not only to enhance their position as a grouping in
the international economic and financial system, but also to be a stabilization
factor for the world economy as a whole. The BRICS should increasingly harmonize
and coordinate their policies with a view to sustaining their growth momentum
and capacity to weather global turbulence. The benefits of cooperation are
immense not only for the BRICS but also for the global economy” (BRICS Report,
2012).
In the field of
health protection and promotion, with BRICS countries facing similar
challenges, the group decided to formalise Health Ministers meetings. After the
first meeting in Beijing (July 2011), a second was held in New Delhi in January
2013 to define policies based on experiences within BRICS countries (GHsi,
2012). The issues involved access to public services, including medical
technology and drugs, and cutting rising healthcare costs, particularly with
reference to communicable diseases. Tackling these challenges in a more
convenient, fair and sustainable way will promote economic development, as well
as better healthcare and a stronger social cohesion.
“Most of BRICS
countries face a number of similar public health challenges, including
universal access to health services, access to health technologies, including
medicines, increasing costs and the growing burden of both communicable and
non-communicable diseases. We direct that the BRICS Health Ministers meetings,
of which the first was held in Beijing in July 2011, should henceforth be
institutionalized in order to address these common challenges in the most
cost-effective, equitable and sustainable manner” (Delhi Declaration, 2012).
This goal coincides with the Health Ministers decision to tackle non-communicable
diseases (NCDs), given that 80% of deaths caused by these diseases occur in
countries with a low-to-average income (BRICS Health Ministers’ Communiqué,
2013).
So, if in Europe
health is increasingly viewed as a cost to be kept under control, the BRICS
countries are investing in global health as a source of further development and
research. “From 2005 to 2010, Brazil’s assistance spending grew each year by
around 20.4%, India’s by around 10.8%, China’s by around 23.9%, and South
Africa’s by around 8%. Russia’s assistance increased substantially early in the
same period, before stabilizing at around US dollars 450 million per year”
(GHsi, 2012). Needless to say, one could say these strategies may be perceived
as “utilitarian” and aiming to promote each country’s individual experiences
and interests. Yet the increasingly important role these States are seeking to
adopt is evident in the extent of their research and investment in global
healthcare (GHsi, 2012).
The dynamic
process started by Brazil, Russia, India, China and South Africa to establish
common interests and measures (Yu, 2008) is absolutly different from the
European integration process and from the USA Federal system (Matovska,
Trajkoska, & Siljanovska, 2014). In the BRICS group the five nation States
are the key-actors, whereas in the European context there is an ever-increasing
“divestiture” (Auby, 2008) of the State in favour of the European Union
(Rodhes, 1994), pushing the EU economy firmly towards the free market and
restricting national intervention or protectionism policies.
So, how to
define the BRICS phenomenon? It is no longer a Summit series, nor is it already
an international organisation. It seems clear that the BRICS countries have
relatively stable “legal flows” implemented through policy transferor (on
occasion) fully-fledged constitutional borrowing (Friedman & Saunders,
2003; Tebbe & Tsai, 2010; Perju, 2012). BRICS countries are accordingly
consolidating shared action models and public policies, and imitating solutions
or constitutional instruments. Their relationships need to be analysed and made
public, making it possible to define a network which is evolving and
increasingly resembling a fully-fledged legal network.
Convergence on
common problems (such as sustainability, the environment, exploitation of raw
materials etc.) needs to be analysed against the backdrop of the political
background of each member state. This convergence does not involve each state
aligning itself with the most developed economic model. Instead it is a
flexible meeting point that fosters contact and comparison between independent
political and juridical frameworks (Cooper & Farooq, 2013).
3. S for South
Africa: The Turning Point for the Legal Network Construction
Thanks to this
process of intense exchange, BRICS Heads of state and government share common
positions in their Summits, which in turn set the course for the BRICS. This
guarantees planning limited to certain fields only, but it has proven capable
of affecting global governance.
In the first two
Summits held in Russia and Brazil “many subjects were tackled over the course
of the meetings, but few proposals were received, and still fewer decisions
were actually taken”, whereas in the Summits in Sanya and Durban the approach
was different, “anticipating perhaps a shift of a political nature” (Quercia,
2011). This is due to two crucial points. The first is outlined in the Final
Declarations, with positions that go far beyond the
economic-financial-commercial level, or avoiding use of the dollar as the
currency for intra-BRICS transactions. New issues concerning international
security (terrorism, wars in Libya and Syria, health and the environment
protection), which previously had only been addressed in general terms, became
strategic points (BRIC Summit of Heads of State and Government—Joint Statement,
Brasília, 2010).
The second is
the fully-fledged entry of South Africa as a new member of the BRICS (Sekine,
2011).
In 2010, just a
few months after the close of the Summit in Brasilia, the foreign ministers who
met in New York approved the proposal to extend an invitation to South Africa
to join the BRICs group. The result was a new acronym strengthened with an
upper-case S (Das, 2010; Nayyar, 2008).
Why did Brazil,
Russia, India and China choose South Africa as the fifth country of the
network? Other emerging African countries (such as Nigeria) could have provided
greater economic potential but not the same political stability and definitely
not the same geopolitical appeal (O’Neill, 2011;Deegan, 2011).
The role played
by South Africa in global geopolitics, both in relations between the North and
South of the world and those within the Southern hemisphere, is increasingly
important (Modi, 2011). Its GDP accounts for over one third of all Sub-Saharan
Africa, in spite of the fact that its territory covers just 4% of the
continent. Approximately four-fifths of the African continent’s businesses are
South African. On a regional level, South Africa’s hegemony is even more
pronounced: 80% of Southern Africa’s GDP is produced in South Africa, and it is
the leading importer and exporter to and from neighbouring countries. The
Johannesburg stock exchange is the continent’s top financial marketplace, and
ranks thirteenth worldwide (DBSA, 2012). This aspect undoubtedly counted a
great deal, given the financial developments we will be looking at shortly.
South Africa is also a member of the WTO and the European Union is the
country’s most important trade partner, as approximately 40% of imports and
exports come from or are headed for Europe. While not perfectly balanced yet,
in 2010 trade relations between the EU and South Africa have been far less
one-sided than those of any other Africa, Caribbean and Pacific country
(Fioramonti, 2010).
From the
geopolitical angle, South Africa importance is well known. A founder member of
the United Nations in 1945, in 1974 it was suspended from the General Assembly
due to its policy of apartheid, it then fully reinstated in 1994 after the
democratic transition. Between 2007 and 2008, a proposal made by the African
Union resulted in South Africa becoming a non-permanent member of the United
Nations Security Council, and in 2011 it was re-elected. Having re-entered the
Commonwealth, which it had abandoned in 1961, during the democratic transition
South Africa then formally joined the Non-Aligned Movement in 1994, of which it
was coordinator from 1998 to 2003 (Worden, 2007). It belongs to the Cairns
Group defending the interests of exporting agricultural goods economies. Since
the fifth WTO ministerial meeting of Cancun, it has played a steering role in
the G-20, representing developing African countries. Thus, the entrance of
South Africa in the group is not a simple “enlargement”. It represents a step
ahead in the evolution of the BRIC experiment. It might well continue in a
political direction largely dictated by Beijing, of which the other three main
emerging powers are commodity suppliers (Russia and India also have a sizeable
trade deficit). The opening up to Africa, a continent with which China has
established important political and energy-related interests in recent years
and which also offers room for development to India and Brazil, might represent
a geopolitical reference point. It might also provide the practical means by which
the BRICS countries can move from being indistinct to constructing concrete
agendas, not just regarding global governance but also African issues.
What we argue,
is that the “enlargement” has changed the nature of the initial alliance,
firstly largely characterized by economic and commercial themes, and
progressively assuming a stronger political perspective and this transformation
has prompted the group to take “political” decisions. South Africa it is an
economically small country (compared with the other BRICs countries), but it is
a door into Africa is ensured, with the added value of “guaranteeing the BRICS
clan a more planetary dimension, encompassing the African continent” (Orrù,
2012).
The recent
Durban Summit underscored an interesting example of a proposal for global
reform of the international monetary system to counter the hegemony of the
West. No definitive agreement was reached, but the possibility of a new
development Bank based in the BRICS, as an alternative to the International
Monetary Fund (IMF) (Hagan, 2010; Carreau & Juillard, 2010) in Washington
was discussed. The most interesting aspect of this proposal lies in the fact
that it voices the malcontent of many States (far more than just the BRICS
ones) lamenting their lack of influence in various contexts. In the past States
used to accept common goals by submitting to obligations. At present they are
often subjected to assessment procedures and potential penalties, issued by
entities that lack democratic legitimisation, and even by private entities. The
“rating agencies” (Bussani, 2010; Pianesi, 2011; Nori, 2012; Pinelli, 2012) are
the most clear example of this. For the BRICS countries then, the possibility
of creating a new international monetary system no longer based on the International
Monetary Fund, with its distinctly American trait, responds to another of the
major issues opened by the global rights framework under construction and is an
important issue in their agenda in both economic and financial terms, and in
geopolitical and strategic one.
This would give
the network the chance to finance member countries’ long-term economic
projects, investments that the private sector might find difficult to back. In
short, a BRICS bank might provide a constant flow of capital for long-term
infrastructural projects, particularly amongst the group’s countries, and
perhaps even to support further initiatives to consolidate commercial and
financial relations. In this respect, South Africa might again come to play a
key role owing to its sizeable capacity in terms of trade, financial and
economic policies, and the ability to construct infrastructures both inside and
outside its borders.
4. Comparative
Analysis and the BRICS Countries
The five BRICS
countries have very different political set-ups. In the attempt to an initial
classification, we identify two countries as authoritarian regimes (China and
Russia) and the remaining three (Brazil, India and South Africa) as nations in
transition towards consolidated forms of democracy. Yet such a classification
seems too simplistic. A recent study (Ferrari, 2010), whose roots date back to
the late ‘90s (Mattei 1997; Mattei, Monateri, 1997; Husa, 2004), suggests to
identify three macro-families: Rule of Professional law, Rule of political law
and Rule of traditional law. Following this approach,Brazil and Russia would
belong to the Rule of political law family, withIndia and South Africa to the
Rule of professional law family, but with political hegemony and tradition
still featuring heavily, and China would be in between political and
traditional rule families. Thus, the distance in legal terms between these
systems is considerable, although not vast, but there are several common
elements.
The BRICS case
shows how planetary geopolitical relationships are changing, and it highlights
the need to reflect on how we analyse the phenomena involved, as we have to
adopt critical approaches taking economic (Di Plinio, 2011), institutional and
social considerations into account (Fukuyama, 2012). The need for such an
inclusive and multidisciplinary approach becomes even clearer when the analysis
focuses on the legal sphere of BRICS countries. Two are the approaches research
has adopted up to present: the market-focused (Reitz, 2009; Milhaupt, 2009)
and/or the rights-focused (Glenn, 2010) one. The first binds the legal system
and market rules together in a way that favours economic objectives using legal
transplant (Watson, 1974; Watson, 1993; Edwards, 2007); the second adopts
policy transfer logic which—along with the market—does not overlook social
interests. These two approaches, however, end up overlapping; they are embedded
in a “Western” vision which can dangerously blur the panorama, whilst the“The aspect of
the BRICS phenomenon as a self-standing legal system not based on
constitutional identities or common legal tradition, nor on express legal
forms, is totally neglected; in fact, it is supported by ‘legal flows’ and
mutual interactions of policy transfer and constitutional borrowing, that allow
it to be a possible alternative to the models of regionalization tested in the
western world” (Carducci & Bruno, 2014).
Attempting to
analyse the BRICS using the method of analogies and differences alone is
therefore insufficient (Monateri, 2012; Nicita & Benedettini, 2012). By the
same token, it would be a mistake to overlook the “inconsistencies”, almost
forgetting important parts of a situation that remains mobile, hindered and
unresolved.
Following the rights
based analytical approach, in each of the BRICS countries, basic rights, even
when included in their Constitutions, are protected with blatant inconsistency.
In these immense geopolitical entities, basic victories in terms of rights
enforcement are a long way off from being fully implemented. Just to mention
the case of education, where very high illiteracy rates are still a plea in
several BRICS countries, or healthcare, where the fragile nature of health
entitlement results in high child mortality rates, not to mention employment
protection and in some cases the complete absence of any regulations to protect
workers. Even in liberal first generation rights, one of the basic modern
victories such as the freedom of thought is not fully and completely guaranteed.
Civil freedom and political rights are therefore still partly denied in some of
these countries. The Freedom House charts 2013 show impressive differences in
exercising political rights (PR) and civil liberties (CL) among BRICS.
If we analyse poverty
in Brazil, Russia, India and China, in spite of the brilliant economic
performance, “676 million poor constitute more than half of poor people
worldwide” (Goldstein, 2011); and adding the South African case the picture
will definitely not improve.
There is,
however, a grounded hope that the processes engendered within the BRICS group,
ensuring policy transfers/trigger processes that improve life quality, thanks
to food safety programmes, health policies (Sun, Boing, Silveira, Bertoldi,
Ziganshina, Khaziakhmetovaand, Khamidulina, Chokshi, McGee, & Suleman,
2014) and environmental sustainability, will produce a significant poverty
reduction in the countries involved.
The force with
which events are occurring within the BRICS is probably the result of the
approach adopted. It has not set up a radical group whose goal is to
revolutionise or overturn global governance; instead a legal network has been
created. Having identified a need for reform, it tackles the status quo in a
gradual way and on several fronts. The process has been sketched out from a
virtuous angle, although the distances to be covered to achieve progressive
implementation targets remain considerable.
But can these
distances be ever bridged? “The BRICS can play an increasingly important role
in helping to improve the health and well-being of the world’s poorest
countries” (GHsi, 2012).
The strategy is
based on the implementation of suitable government policies. The Rostow model
(Rostow, 1960) based on an optimistic vision of capitalism and the free market
has been abandoned, and the issue now is to decide whether, it is better to
have a weak executive open to pluralist motions, or a strong one “with an iron
fist” capable of leading the economic change caused by globalisation.
5. Concluding
Remarks
The five BRICS
countries have given a different, albeit still shapeless form to the new
century. They are doing so reforming not just trade and economics, but even the
law. Acknowledging this fact does not mean that we are glorifying the process
underway, but it is necessary to understand the possible evolutions in terms of
State law, in countries that differ greatly in geographical and legislative
terms. The BRICS countries are beginning to share objectives, but do not
necessarily want to use the same instruments.
As already
mentioned, there are convergences that affect each country legal system. But,
if the EU requires new member states to strongly review their constitutional
and legal systems, the BRICs group has been using what may be described as soft
policy transfer.
This form of
“dialogue” between the BRICS countries today involves “legal flows”, the
results of which cannot be termed “transplants” but are instead a form of
“legal borrowing” (Scheppele, 2003;Frankenberg, 2010). They are the result of
the decisions taken in the inter-governmental sessions. From the transposition
of models there is a shift towards procedures, with a direct, and positive,
impact on the overall legal system. In this way, the foundations for solid
legal “bridges” between different systems are laid (Tebbe & Tsai, 2010;
Tsai & Tebbe, 2011).
This is the
reason why research largely focuses on studying the models of these legislative
systems and examining the “legal flows” (Tebbe & Tsai, 2010) that represent
globalisation, encompassing the need for comparison and relations between
systems, even in the case where these legal systems are strongly different. It
is a new vision in an increasingly global world, where, paradoxically there is
an increasing importance of nationStates and State-centred policies.
Individually speaking, the BRICS countries willingly forego their exclusiveness
(and separateness) by sharing common policies. The EU member states are moving
from the modern to post-modern era, owing to the paring down of State law
(Auby, 2008) in favor of new players located outside the States themselves. It
involves empowering new organisations that are not always inter-State in
nature. They include multinational companies, NGOs, public-private hybrid
institutions, or global extra-national systems that have gained independence
from the States themselves and remain outside suitable forms of transparency
and control (even with regard to decision-making processes) and side-step
accountability criteria (Grant & Kehoane, 2005). This is not the case of
the BRICS group.
Within the BRICS
countries, in fact, the State intervenes in economics, and it “is legitimised
by the Constitutions of the individual States themselves, (and) guarantees
diversified ‘State capitalism’ which controls the internal markets and pursues
cohesion governed ‘from above’” (Carducci, 2013). If the process we are
witnessing in the BRICS countries continues as outlined, the legal system will
have to embark on two-directional engagement with globalisation of Anglo-Saxon
or Western origins, and a different version of Asian inspiration (Mundell,
2007).
More research
will tell us whether we are facing a new concept of a multi-centre inter-State
order. In particular, working on the legal and constitutional frame of this legal
network seems fascinating and promising. And it will contribute to
understanding if the BRICS are a mirage or reality (Armijo, 2007).
Acknowledgements
The paper was
presented in a preliminary draft at XXII Biennial Conference of Italian
Association of Comparative Law, University of Salerno, 30-31 May-1st June 2013.
L.S. is grateful to the participants in these events, in particular to
Professors Tommaso Frosini, Lucio Pegoraro and Alessandro Somma for their
inspiring remarks, and to Professor Gianluigi Palombella for comments on
previous drafts of the article.
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NOTES
In this paper,
we use Jim O’Neill’s acronym “BRICs” to refer to Brasil, Russia, India and
China. After South Africa joined the group of countries in 2011, the acronym
changed to “BRICS”, which we also use in this paper.
Publication Details:
Beijing Law
Review
Vol.5
No.2(2014), Article ID:47127,9 pages DOI:10.4236/blr.2014.52013
BRICS, aMulti-Centre “Legal Network”? Lucia Scaffardi
BRICS, aMulti-Centre “Legal Network”? Lucia Scaffardi
Law Department,
University of Parma, Parma, ItalyEmail: lucia.scaffardi@unipr.it,
Copyright © Scientific Research Publishing Inc.
This work has been licensed by original publisher
under Creative Commons 4.0 International under Open Access.
