'Brics law': an Oxymoron, or from Cooeration, via con Solidation, to Codification?

• Author: R. Neuwirth
• Position: University of Macau (Macau, China)
• Pages: 6-33

BRICS LAW JOURNAL Volume VI (2019) Issue 4

ARTICLES

“BRICS L Aw”:

An oXYMoRo n, oR FRoM CooP ERATIon, VIA ConSoLI DATIon,

To CoDIFICATIon?

ROSTAM NEUWIRTH,

University of Macau (Macau, China)

https://doi.org/10.21684/2412-2343-2019-6-4-6-33

In the global arena, the cooperation between the BRICS countries – Brazil, Russia, India,

China and South Africa – covers around 42% of the world’s population and some of the

world’s most dynamic emerging economies. Initially, the BRICS cooperation was suggested

as an idea, and it was later welcomed as a new addition to the global governance debate

about the future. The BRICS countries have already held ten consecutive summits of

heads of state plus a large number of meetings at the ministerial level. The cooperation

describes itself as a “cooperation and dialogue” platform, but it has nonetheless signed

a number of binding treaties and, notably, established the New Development Bank (NDB)

as a permanent institution headquartered in Shanghai (China).

The cooperation has also met with resistance, criticism and problems caused by the

overall complexity of global aairs in a rapidly changing world. The diversity and remote

locations of the BRICS countries have also been thought of as an obstacle to their successful

cooperation and their ability to play an active par t in global governance in the twenty-

rst century. The main challenge thus lies in their ability to overcome their dierences and

to make a dierence in designing the future global political and economic world order.

Against the backdrop of the global governance debate, the present paper therefore asks

whether the BRICS cooperation constitutes a novel model of regionalism with multilateral

aspirations, and what role law and, notably, the “rule of law” can play in this important

task. The paper includes a discussion of the extent to which the BRICS cooperation needs

to be upgraded in legal and institutional terms, and possibly to proceed from cooperation

via consolidation to the codication of its most important sources of global law.

ROSTAM NEUWIRTH 7

Keywords: BRICS cooperation; BRICS law; BRICS secretariat; global governance; international

rule of law; legal certainty; sources of international law; comparative law; oxymora.

Recommended citation: Rostam Neuwirth, “BRICS Law”: An Oxymoron, or from

Cooperation, via Consolidation, to Codication?, 6(4) BRICS Law Journal 6–33 (2019).

Table of Contents

Introduction

1. The Rule of Law in a Time of Linguistic and Cognitive Change

2. BRICS Cooperation: A Short Anthology and Contextual Analysis

3. BRICS Consolidation: Lex Lata and Lex Ferenda

4. BRICS Codication: Towards a “BRICS Law”?

Conclusion

Introduction

[T]he law can provide the “mortar” for an entire

edifice to be built by individual bric(k)s, to use

a metaphor for the challenge of creating a new

global legal order for the twenty-rst century.1

The cooperation between the so-called “BRICS countries,” Brazil, Russia, India,

China and South Africa, was largely born as an economic idea, and later emerged

as a concept that was discussed in international relations circles. As in the global

governance debate in general, the role of law is often under-represented. However,

paradoxically, in most legal systems the problems of over-regulation are also

deplored,2 as over-regulation often leads to fragmentation, a lack of coherence and

even conicts of norms.3

1 Rostam J. Neuwirth, The Enantiosis of BRICS: BRICS La(w)yers and the Dierence That They Can Make

in The BRICS-Lawyers’ Guide to Global Cooperation 8, 20–21 (R.J. Neuwirth et al. (eds.), Cambridge:

Cambridge University Press, 2017).

2 See, e.g., John H. Barton, Behind the Legal Explosion, 27(3) Stanford Law Review 567 (1975); Bruno

Oppetit, Les tendances régressives dans l’évolution du droit contemporain [Regressive Trends in the

Evolution of Contemporary Law] in Mélanges dédiés à Dominique Holleaux [Essays in Honour of Dominique

Holleaux] 317, 317 (J.-F. Pillebout (ed.), Paris: Litec, 1990), and Andreas Heldrich, The Deluge of Norms,

6(2) Boston College International and Comparative Law Review 377 (1983).

3 On “fragmentation,” see, e.g., Pierre-Marie Dupuy, The Danger of Fragmentation or Unication of the

International Legal System and the International Court of Justice, 31(4) New York University Journal of

International Law and Politics 791 (1999); see also The Prospects of International Trade Regulation: From

Fragmentation to Coherence (T. Cottier & P. Delimatsis (eds.), Cambridge: Cambridge University Press,