International Economic Law Symposium: Andreas Buser’s “Emerging Powers, Global Justice and International Economic Law”

[Anna Hankings-Evans is a German-Ghanaian attorney with focus on foreign investments into Sub-Saharan Africa.]

It was a pleasure reading Andreas Buser’s book on the development and potential transformation of International Economic Law through the engagement of Emerging Powers. The book carefully weighs the perspectives of powerful and less powerful States to dissect and challenge what has been conventionally understood as the truth. Power is indeed a factor significantly shaping International Law. Yet, it has rarely gained prominence in academic literature beyond its alleged dichotomy and the disruptive and revolutionary conceptualization that critical legal scholarship offered, particularly through the lens of Third World Approaches to International Law (TWAIL). Buser utilizes a human rights approach to global justice, which he rightfully considers to be more broadly accepted.

In his introduction, Buser outlines the urgency of a closer look at what seems to be a transformative shift in power onto States associated with the Global South and the influence of such a momentum on normative processes. Particularly, the heightened criticism voiced against investment rules’ alleged bias and asymmetries that curtail regulatory power in capital-receiving states has been categorized as such an uproar of developing States against economic liberalization, thus allegedly contributing to what has been described as a “legitimacy crisis” of international investment law and arbitration. This momentum motivated several States from the Global South to signify their distrust in the regime, resulting in a few States going as far as withdrawing from International Investment Agreements (IIAs). South Africa is a notable case as it terminated many of its first-generation bilateral investment treaties (BITs) with predominately European states in 2012, and is consistently cited in legal scholarship when referring to international investment law’s “legitimacy crisis”.

Apart from South Africa, who has a distinctly different historical narrative that necessitates economic and affirmative action policies up until today (whoever visited South Africa in recent years is aware of the economic inequalities between white and Black South Africans), no other African state has signified their distrust in the system of international investment protection. Rather, as has been emphasized in numerous publications, African States where instrumental in the establishment of today’s investment-state-dispute-resolution system, particularly the entry into force of the International Convention of International Investment Disputes (ICSID Convention) (see here). The argument of an uproar against international investment law and its dispute settlement mechanism led by the Global South – at least when it comes to African states, seems somewhat flawed. Unlike in other spheres of International Law, African states engage actively, enthusiastically, and reformatively in the rulemaking of international investment law by reforming and innovating IIAs in order to attract much needed capital while securing regulatory space. This may also be due to a distinctly different (op)positioning to international customary norms and international minimum standards when compared to Latin American states.

Buser’s book systematically outlines the many ways in which power may influences law. It, however, misconstrues critical legal scholarship as an extreme to a seemingly “moderate opinion”, when the critique voiced by many TWAILers does not target “power” as such, but the continuance of said (colonial) power as a perpetuation of old legal concepts that deemed what is today acknowledged as illegitimate exercise of power, legitimate. Newly independent states were released into a world that already knew solidified structures, rules, and legal opinions. Old powers maintained their position in better influencing the formation, adjudication, and enforcement of international law. Until today, “power” remains a fact whose content can be fathomed in different ways and which manifests in different institutional settings and forms of supremacy. It does not constitute “opinion” but rather affects the dominance/ hierarchy/ prevalence thereof. And it continues to manifest, in varies forms and legal phrasing, as the author rightfully points out in his analysis.

The author’s intention is thereby not to provide an in-depth analysis of the evolution of today’s power structures. Buser rather focuses on the small number of States, namely the so-called BRICS, an acronym coined to associate the five major emerging economies Brazil, Russia, India, China, and South Africa, that succeeded in extending their power and are accordingly empowered to potentially reshape a perceived unequal and unjust order. The book rightfully emphasizes that the assumed threat to the current legal order must be considered an oversimplification of a variety of actions and initiatives undertaken by Emerging Powers. The approaches vary and some approaches even indicate extreme ambivalence (such as in the case of China). The South African approach in this regard has been described by Buser as rather progressive, particularly when it comes to its investment approach. The preamble of the South African Protection of Investment Act, for instance, accepts in principle that investment is important in “job creation, economic growth, sustainable development, and the well-being of the people of South Africa”. This wording is thereby in line with approaches taken by other African states amid the COVID-19 pandemic but also prior to the current economic hardship experienced as a result of the ongoing pandemic.

What could have been highlighted is the question of how powerful States evolved into powerful States in the first place – when/ where did power take its course? If we turn to the two components “power” and “State”, the age of decolonization must be regarded as the historical caesura as it not only resulted in an enlarged number of actors in the international sphere by releasing States into independence, but it also essentially challenged the global distribution of power in an unprecedented way. In reality, post-colonial power has never undergone a real shift and/or reorganization but was rather leveraged to uphold prefabricated structure to which new States had to adapt and agree (e.g. through legal concepts and doctrines such as the doctrine of acquired rights). Therefore, the question cannot be ignored in its entirety when analyzing power’s influence on law.

Indeed, power can be embodied militarily, economically, and softly. But where power essentially shapes laws is in its institutional settings, in organizations, agreements and customs that were established without the participation of less powerful states and with a distinctly Eurocentric take on the role of International Law. The establishment of said order did not foresee the emancipation – and more importantly the empowerment of a ‘Third World’. The UN Security Council is the epitome of asymmetric power constrain, but similarly international economic agreements, specifically in international investment and financial regulation, appear to constrain the full exercise of sovereign power. Postcolonial constrain of power essentially continues to affect the rule of opinion (= law) and enforceability thereof. Indeed, all powers are States but only some States were able to maintain or extend prepossessed and precolonial power. Considering the efforts made by less powerful States in international bodies that allowed for their collective actions such as the UN General Assembly, it was mostly institutional and ‘undemocratic’ barriers that halted the quest for a New International Economic Order in the 1970s.

A “rise” of the Global South as such is not in sight. What can, nevertheless, be witnessed is increased confidence of less powerful actors and an overall proactive approach to work within the system, rather than to contest it. If one closely studies critical legal opinion, it becomes obvious that what is under attack in today’s globalized world is not necessarily the power discrepancies and inequalities between States of the Global North and South, but the continuance of precolonial power in a postcolonial world, and the globalization of economic inequalities resulting in a supremacy of classes, thereby defying all state borders.

It would be ill-informed to assume that the sole rise of a few Emerging Powers could significantly influence normative processes and contribute to global redistribution and justice when a simultaneous increase in private ownership and control facilitates the emergence of elites within these States. Similarly, Western States are noticing an increase in regional and internal economic inequalities and more tension is to be expected, particularly in the aftermath of the COVID-19 pandemic. The increased visibility of a “ultra-elite, super rich class”, as Antony Anghie refers to it (see e.g. here), will most likely continue to challenge the pursuit of global justice in the future.

Transformation necessitates the translation of power into a set of rules that stimulate sustainable development, the protection of human rights and the environment, thus benefits the people of the Global South as a whole. Particularly, human rights are an important indicator for such a transformational process. Yet, in light of the strong emphasis on individualism in human rights doctrines and lack of private corporate accountability, it remains to be seen if the harmonization of human rights and economic legislation will serve mankind as a whole. Overall, Buser’s contribution will certainly enrich the discourse on power and justice in International Economic law and the question whether we are experiencing a time of crisis and/or the renegotiation of an international economic order that is anticipated to deliver the promises made to the peoples of the Global South – it remains a question of perspective.