International Economic Law Symposium: An Introduction

[Helmut Philipp Aust is a Professor of Law at the Freie Universität Berlin.]

For the last few years, the world has been enthralled by the gradual withdrawal of the United States from its previous role as a key actor shaping the global economic order through multilateral institutions and based on rules of international law. Probably the trademark of the Trump administration, its slogan “America first” easily translated into different forms of protectionism, combined with the deliberate weakening of the dispute settlement mechanism of the World Trade Organization (WTO). Plans for ambitious mega-regionals were shelved, NAFTA was put in jeopardy and finally re-negotiated. In general the Trump administration adopted a solipsistic, some would say myopic view on the benefits that international cooperation in the field of economic governance could yield for the United States. It remains to be seen how the incoming administration of President Joe Biden Jr. will recalibrate the position of the United States towards world trade law and the global economic order as such. It might very well be difficult to catch up with the normative developments that have taken place throughout the world in the time of the Trump administration. The European Union (EU) finds itself weakened too. Brexit and a generally weak capacity to project its economic power onto the global level make it unlikely that the future of the global economic order will be shaped by the EU and its member states.

Not least this state of affairs on both sides of the Atlantic has opened up avenues for other actors – and maybe rightly so, some readers may think, who might hold the view that the United States and “Europe” have dictated the terms of the global economy for too long. Set against this context, “Emerging Powers, Global Justice and International Economic Law” is a timely book, based on a doctoral dissertation which Andreas Buser defended at the Department of Law of Freie Universität Berlin and which he wrote under the supervision of Professor Heike Krieger and in the context of the Berlin-Potsdam Research Group on “The International Rule of Law – Rise or Decline?”

Andreas Buser examines the potential contribution of four emerging powers. He focuses on four states: China, India, South Africa and Brazil. Together with Russia, these are the so-called “BRICS”. Russia, however, was not included in the series of states examined for good reasons, as it is certainly not an “emerging power” but rather might be said to be re-emerging or transitioning. In any case, its unquestionable importance as a great power is owed neither to economic factors nor to particular concepts for reform of the global economic order.

For the four states under analysis, it is very plausible to regard them as “emerging powers” that also increasingly try to bring their normative ideas to bear in the (further) development of rules of international law. The differences in power and political as well as economic outlook between the four states are of course wide and apparent. But their cooperation in the framework of BRICS and the fact that they have all brought new approaches and challenges to the field of international economic law certainly warrant to analyze them together in one book and from a comparative angle. In this respect, the work indirectly represents a contribution to the developing field of “comparative international law” (Anthea Roberts), which examines the shaping of international law by different legal traditions and political cultures and has also recently shifted towards analyzing the “geoeconomics” of the international order.

For the field of international economic law it holds particularly true what is often remarked for international law in general: it is a field which has been shaped primarily by Western/Northern powers. Especially in the light of the great discrepancies in wealth and wellbeing across the planet, its legitimacy is particularly challenged. To many, the ethos of international economic law is tainted by a neoliberal spirit. It is hence especially relevant to examine how non-Western powers conceptualize a just international economic order and which impulses they have so far brought to the table.

The findings of Andreas Buser are nuanced and well-informed by the current discourses in international (economic) law as well as political science and macro-economic studies. In my view, this is a particular appeal of the book: It is written on the firm basis of a positivist methodology and outlook towards international law, but successfully integrates insights from other disciplines into its frame of analysis. This openness for the debates in other disciplines is not l’art pour l’art in this case. Quite to the contrary, it would not have been possible to write a book about this topic and with its particular combination of angles from a purely legal-positivist standpoint.

To the dismay of some, Andreas Buser does not find much ground to hope for a renaissance of a broad push towards a “New International Economic Order” (NIEO). Rather, it seems that the BRICS powers are arguing primarily for incremental changes. They make their voices heard on specific positions where they might diverge from Western and Northern powers, but none of the four states under analysis argues for a complete overhaul of the global economic order. In particular, the book shows that there is little common ground between the four powers, formally united under the guise of BRICS, which might not be entirely surprising given how different the actors of, say, China and South Africa, are. Accordingly, the impact that this grouping may have on the future of international economic law may very well be limited.

The book is replete with interesting findings and insights, however. It provides a lot of nuance and texture to the practice of the four states under analysis. I found particularly revealing the changing and increasingly assertive role of India towards the field of international investment protection. And the analysis of the participation of China in forms of international dispute settlement put to rest popular clichés on cultural reservations of China towards this form of engagement on the international level.

The book provides for much food for thought – both with respect to the analysis of the practice of the four powers under analysis as well as with respect to its more general analytical framework. Here, I am looking forward in particular to exchanges on Andreas Buser’s conceptualization of power – a notoriously difficult notion for international lawyers – as well as his understanding of global justice, a framework which he conceives mostly through the prism of international human rights law. In the light of recent debates about the limits of international human rights law, with a most prominent claim that it is simply “not enough” (Samuel Moyn), this understanding of global justice can prove to be controversial. Regardless of whether or not one believes that human rights offer the appropriate framework for claims of global justice with respect to the global economic order, it is indispensable to think through these issues also in the terms of international human rights law, if only for the reason to interpret international economic law not in “clinical isolation” but with due regard to the principle of systemic integration under Article 31(3)(c) of the Vienna Convention on the Law of Treaties.

In the coming days, a distinguished group of commentators will participate in this book debate. The commentators have been approached with a view to ensuring that also scholars and practitioners from the four emerging powers under analysis will engage with the work of Andreas Buser. Accordingly, Professor Mohsen al Attar (University of the West Indies), Professor Congyan Cai (Fudan University), Henrique Choer-Moraes (Brazilian Ministry of Foreign Affairs), Anna Hankings-Evans (Associate with Alexander&Partner, Berlin), Professor James Nedumpara (Jindal Global Law School and Centre for Trade and Investment Law, Delhi) as well as Professor Engela Schlemmer (University of Witwatersrand) will offer comments on the book. Finally, Andreas Buser will wrap up the debate with a reply to the commentators. Let the debate begin!