This Article is submitted by –
- Shreyashi Tiwari
Abstract
BRICS, stands for Brazil, Russia, India, China and South Africa, is an association or coalition of nations who have come together in the pursuit of similar objectives (mainly economic) and achieve a common goal. It has constantly been attributed a separate status in forums like UNESCO’s World Heritage Convention where BRICS is mentioned as a geo-political alliance, also referred to as a politico-economic coalition formed between the States which commands a formidable voting power. [1] The term BRICs was coined by Jim O’Neill who argued for the major and eclipsing role played by the economies of these five ‘developing’ nations due to their similar stage of newly advanced economic development and the resulting shift in the global power.[2]
However, since the Goldman Sachs theory doesn’t attribute it a status of political union (like European Union etc.) rather only a potential to become an economic bloc, and in the absence of any formal agreement entered into by the State Parties of BRICs, the ascription of international legal personality on it would not only be far-fetched but also a blunder.
Hence, it is the remark to the question that BRICS doesn’t have an international legal personality which will be substantiated further.
Introduction
The concept of International Legal Personality of an International Organization (closed or open ; regional or global; quasi or hybrid) is of crucial importance because of the rising number of non-state actors which are attributed international legal personality for few purposes but not for all, or are recognized as one for some actors (only member states) and not for others. Thus, in the present case, BRICS is an association of nations which might be considered a forum or association for the members states in advancing their own purposes, sometimes members amongst themselves, (Shanghai Cooperation Agreement between Russia and China, where India is an observer), present a question to be decided in accordance with the principles and characteristics of International Legal Personality, also called challenge of personality fragmentation.[3] While there exists no authority of law which designates international legal personality[4], different degree of criteria are required by different authorities such as some only require capacity to enjoy international rights and obligations[5], some require specific capacities such as the ability to make international claims, enter into international agreements etc[6].
Correlation with the capacity to bring a claim
Amidst all the confusion and various international organizations whereby different outcomes have come and ordained by the members states, the only real test to determine the international legal personality is to determine if the organization has the capacity to bring a claim to enforce its right independent of its member states. The Reparation Case[7] discussed the same as follows: –
- Nature of the Organization:- The intention of the forming of the organization is clearly visible in the constituent agreement which attribute it the nature. In the case of UN, the Charter provided that the objective of UN is to act as a centre for harmonising inter-state relations and define them, which was only possible if the Organization already possessed a large measure of international legal personality and the capacity to operate on an international plane.
- Functions of the Organization:- The ICJ further emphasised that the functions of the International Organisation must and shall exceed to the extent of necessary implication when such exercise of power is necessary to the performance of duties of the Organisation even when not provided for in the constituent agreement.
- Powers under the UN Charter: – The fact that there exists no particular provision giving right to UN to enter into agreements however Article 43, Charter provides for security Council to be party to the agreements concerning the availability of armed forces. Thus, there evolution of legal provisions as is necessary and requisite.[8] Thus, in the present case not only do the BRICS lack a proper constituent agreement identifying the true purpose of its formation and what it seeks to achieve in decisive terms but also, a functional approach to the BRICS would leave an ambit so wide for their actions and claims that it would be difficult to determine its limits. Thus, the lack of a clear expression of intention would question the actual capacity to bring claims by BRICS under International Law.
International Legal Personality for BRICS for Non-Member States
It can also be considered as recognition of International Organization’s legal personality in the member states or certain States’ national jurisdiction. Though on then non-international plane, yet it is of extreme importance because these principles work and derive the legal personality on the basis of international legal personality of these organizations mostly and hence it becomes important to consider the BRICS under this head for once as well.
Principle of Conflict of Laws
For the non-members states, a number of ways to recognize the international legal personality of the international, even regional, organizations exist such as the headquarter agreement[9] (with the non-member state) , the unequivocal statements stating recognition (by the non-member state) or the principle of conflict of laws. The last principle states that a state, even though not a signatory to the constituent agreement, might still recognize the International Legal Personality of an organization. This was upheld in the case of Arab Monetary Fund v Hashim[10] that when sovereign states enter into an agreement through a treaty so as to provide and recognize the organization as international legal person, the same must be attributed to it even by non-member states. Applying the principle of Conflict of Laws in case of BRICS, no international legal personality can be conferred upon BRICS for there doesn’t exist a BRICS Agreement per se rather two subsidiary agreements in the form of Treaty for the Establishment of a BRICS Contingent Reserve Arrangement and Agreement on National Development Bank, signed at Fortaleza Brazil on 15 July 2014. The mechanisms provided under these two agreements recognize the organs of National Development Bank and Contingent Reserve which can make claims in case of defaults or fraud. Thus, BRICS cannot be attributed an International Legal Personality as an organization.
Principle of Comity of Nations
International comity requires courts to balance competing public and private interests in a manner that takes into account any conflict between the public policies of the domestic and foreign sovereigns. For the decisions and policies which the BRICS come up as an association seldom lead to the creation of cooperation system of an international character. For instance, in the BRICS countries tend to treat competition law and policy as matters of domestic norm and hence create an impression where though they are willing to share the experiences but not an international cooperation mechanism suitable or that can be followed by other countries.[11]
Universality Principle
One of the major factors that is generally mistaken by the readers is the fact and that it has also been mentioned in the Reparation Case by the International Court of Justice that hat the ‘vast majority’ of States in the international community enjoyed membership in the UN.[12]
However, this assertion was not directed at the question of determining the international legal personality. This is because the size of membership of an organization does not lead to any influence in deciding as to whether it has an international legal personality or not. The case in point here is the International Tin Council v Amalgamet Inc.,[13] where the US Courts went ahead and recognized the International Legal Personality of the Tin Council without being a member state and even though the former was a closed organization. Similarly, the Swiss Court also recognized its International Legal Personality in the case of Award in Westland Helicopters Arbitration.[14]
Conclusion
Whether the State parties to a treaty have the ability to exercise certain implying powers is something completely unrelated to the question of attribution of legal personality for the difference arises with respect to the fact that whether such powers are vested in the organization as a legal person or in the member states collectively.
In the case of BRICS, the most important question that remains unanswered in the absence of a constituent agreement is the objective of the formation of the association which leads to the difficulty of determining the legitimacy of the association itself. For instance, to take into consideration the question of BRICS stand on human rights. While the Sanya Decalation adopted in 2011 New Delhi Submit by the five nations does not mention a word about it, yet, disapproves of the use of force and calls for respect for the sovereignty and territorial integrity of nation-states. This is in complete contradiction to the Bandung Declaration entered into by the Third World Countries which was committed to the UDHR approach. Similarly, BRICS has no particular stand over the rights of indigenous African people’s right to livelihood being affected as a result of vast investment in land by India and China.[15]
Thus, BRICS as an association of States cannot be attributed an International Legal Personality because not only it fails due to lack of a constituent agreement but also due to lack of a developed evolutionary practice and functions undertaken which could guarantee it such a status.
Reference
[1] Hoggart, R. 2011. An idea and its servants: UNESCO from within. Piscataway, NJ: Transaction.
[2] O’Neill, J. (2001) Building Better Global Economic BRICs, New York : The Goldman Sachs Group
[3] William Thomas Worster, Relative International Legal Personality of Non-State Actors, 42 Brook. J. Int’l L. 207, 274 (2016)
[4] Roland Portmann, Legal Personality in International Law, 42-79 (2010)
[5] Hersch Lauterpacht, ‘The Subjects of Law of Nations in International Law’, The Collected Papers of Hersch Lauterpacht 494 (1970)
[6]David Feldman, International Personality, in 191 Collected Courses of the Hague Academy of International Law 345, 358-59 (1985).
[7] Reparation for Injuries Suffered in Service of the United Nations, 1949 I.C.J. at 179.
[8] Department of State Publication 2349, Conference Series 71 at pp. 157–8.
[9] Re Poncet [1948], 15 ILR p. 346.
[10] 6 Arab L.Q. 90 1991
[11] Alexandr Svetlicinii, ‘Competition Law Enforcement in Contracting Parties of the Energy Community: Current Challenges and Future Perspectives’, in Dirk Bustle and Kim Talus (eds.), The Energy Community: A New Energy Governance System: Cambridge: Intersentia, 2015), pp. 111-137
[12] 1949 ICJ Reports at p. 185.
[13] 524 NYS 2d [1988] p.971
[14] [1989] 28 ILM (1989) at p. 691,
[15] Balakrishman Rajagopal, International Law and Its Discontents: Rethinking the Global South, 106 Am. Soc’y Int’l L. Proc. 176, 182 (2012)
