International Economic Law Symposium: Response by the Author

[Andreas Buser is a senior research assistant at Freie Universität Berlin and lecturer of international economic law at the Institute of International Law, Intellectual Property and Technology Law at TU Dresden in summer 2021. He is affiliated with the KFG-Research Group “The Rule of International Law – Rise or Decline” and serves as a co-investigator within the Berlin-Glasgow research project on “The Law of Protracted Conflict: Bridging the Humanitarian- Development Divide”.]

Academic fulfilment is at its largest when writing is not an end in itself but encourages others to engage with the subject. Especially if this process is based on the principle of reciprocity. In my case, Cai Congyan’s famous article on “New Great Powers in International Law in the 21^st Century” sparked my own interest for the subject. Starting from this, personal exchanges with the other participants of this symposium and engagement with their writings, including the book project on “BRICS in the New International Legal Order on Investment”, further influenced my ideas on emerging powers and the international economic order. Therefore, I was already deeply indebted to the participants when the idea for this symposium materialized. Adding to this dept, commentators provided excellent reviews over the last week. In the following I seek to address some of their arguments being aware that exchange will continue beyond the symposium.

Why are Emerging Powers not more radical?

I am very grateful for Cai Congyan‘s remark that in his opinion my perspective departs from that of many Western scholars and instead of focusing on the threat emerging powers – and particularly China – may pose for a value-based international order, I am focusing on positive reforms which may come from these States. This however is not to say that I am unaware of the threats posed my emerging powers for international economic law and human rights. Only some weeks ago China has imposed massive trade sanctions against Australia inter alia to silence Australia’s calls for an independent investigation into the origins of Covid-19 and criticism against Chinese human rights violations in Xinjiang against ethnical minorities (see: here).

At the same time however, as highlighted by Cai, one may not lose sight of the positive initiatives emerging powers bring to international economic law. A recent example being the proposal launched by India and South Africa in the TRIPS Council to waive several TRIPS obligations in order to ensure access to affordable medicines in times of the global pandemic.

Cai further raises an important question regarding my argument that stances by emerging powers on international economic law are often reformative (sometimes also loyal) but not really radical (for an explanation of terms see: here and here). The question is why are emerging powers not more radical? Although this is not a main research question of my book, I suspect that the answer lies somewhere between the poles Cai provides as possible answers: Not enough power compared to established great powers and approval of given rules and integration into the system. In the case of investment law, emerging powers are sensitive of protecting and enlarging their own (developmental) policy space, but at the same they have increased their investment stocks abroad and increasingly feel the need to protect those. In trade, emerging powers are dependent upon (open) markets of Western States. Further, appearing too radical may entail negative repercussions for emerging powers. Being branded as “the revolutionary” may appear not very attractive for States seeking international recognition still to be granted by established powers. In that view the whole process of gaining voice, power, and recognition in international forums deradicalized emerging powers approaches, just as it did with the NIEO some centuries back.

A TWAIL Perspective on Emerging Powers

As foreseen in the excellent introduction by Helmut Aust, the question of perspective and the choice of approach to global justice attracted some criticism by commentators.

While Mohsen al-Attar argues that my book is both theoretically and methodically valuable for TWAIL, he also sees several shortcomings in particular with regard to its “Eurocentric tendencies” on approaches to global justice. Among the many important points raised, I limit myself to reflecting on two issues: My use of TWAIL and how it advanced my scholarship (as asked for explicitly by Mohsen) and the perceived neglect of post-colonial and distributional critiques of international economic law.

TWAIL strongly informed my scholarship particularly at its earliest stage. Grappling with TWAIL, I deeply dived into the history of international law and how international law could be decolonised and address historical injustices. Based on this research I fully acknowledge the imperial and colonial origins of international law and persisting inequalities. Which is why I do not solely apply a human rights critique in my book (chapter 4) but also am conscious of the influence of power on law, hegemony, and the historical struggles for a New International Economic Order (all in chapter 3).

The choice of a human rights approach as a normative benchmark, instead of let us say an anti-colonial/imperial perspective, has other reasons. Most notably I think that taking a TWAIL perspective is not only a question of picking a method or theory but also a question of identity. As a white German academic from a working class/farmer family (the first to receive higher education) I might use a “class approach” to international law, but adopting a TWAIL perspective myself would feel odd. In addition to that, I sought to use a ‘normative language’ of justice that is based in positive law and importantly is also spoken by emerging powers (at least at times, see e.g.: here). Further, with its basis in positive law it appeared to be more suitable and practically manageable than other approaches focusing on distribution (or as argued for by Mohsen, on exploitation).

This said I am fully aware that the ‘invisible’ or ‘divisible’ ‘college of international lawyers’ still has a diversity problem. To address this I gave my best to read and receive a plethora of non-Western scholars, including (aside of those affiliated with TWAIL mentioned by Mohsen) many scholars from emerging powers, some of whom participated in this symposium.

Finally, the dichotomy between “justice based-norms” and “power-based norms” proposed by some TWAILers appeared to me to be too simplistic and at the same time too pessimistic. If we accept that some (soft) power is needed to create an international norm than “justice based norms” could never become a reality, as in the moment of their creation such norms would turn to “power based norms”. On that issue, Anna Hankings-Evans argues that TWAIL does not challenge power as such, but the “continuance of precolonial power in a postcolonial world, and the globalization of economic inequalities”. I acknowledge that citing one article as proof of “the TWAIL perspective” on the subject matter might be a little unfair, as TWAIL is clearly more diverse. Be that is it may, for the given reasons I still think that the human rights approach makes more sense for the subject matter of the book. As explained in chapter 4 (p. 143):

“the usage of a limited human rights approach here does not argue against the strive for stricter or ‘thicker’ concepts of justice de lege ferenda. For this book this means that if emerging powers would pursue other higher standards of justice, those attempts would also be acknowledged.”

My findings are clear here: Emerging powers do not pursue a project of further decolonising international law, nor do they argue for material equality or redistribution (except when it comes to voting power in some, but not their own, major international fora). These findings do not blame the victims (as suggested by Mohsen), as this would indicate that governments of emerging powers are the victims – which they are clearly not. Instead, I even highlight that on some issue areas positive reform has come from emerging powers, for example with regard to States policy space to pursue legitimate goals (such as human rights; but also redistribution for colonial wrongs e.g. in South Africa) and efforts to increase affordability of healthcare under the TRIPS regime. While on other issues their ‘Third-World rhetoric’ is hypocritical and masks economic interests of own corporate sectors.

Adding to this, Anna rightly highlights that justice and power are not solely a matter between States and that the rise of some States may not contribute to global redistribution and justice when at the same time “a simultaneous increase in private ownership and control facilitates the emergence of elites within these States”. While I tend to avoid the term “elites”, which is often misused for populistic purposes, I fully acknowledge Anna’s point. In the end the findings of my book largely bolster Anna’s reservations. Still, as mentioned earlier one should not lose sight of the numerous positive reform proposals coming from emerging powers.

The Turn to Geoeconomics: Burying the Concept of Emerging Powers?

Henrique Choer-Moraes delivers the perfect epilogue for my book and this symposium. Henrique is certainly right when arguing that the “China question” has migrated to the centre of discussions about the future course of international economic order and law (see also e.g.: here and here). Indeed, China is today seen by many Western politicians as a strategic rival not only in the economic but also in the security sphere – if these domains can be separated at all anymore – and Henrique aptly sums up the signs that are illustrative of the emergence of a new “geoeconomic” order, with States actively seeking to constrain markets in pursuit of strategic economic and security goals (whether this is all so new remains debatable). I contend, however, that academics should not abandon research on other emerging powers. China has always been the most credible rival to the United States and aggressive U.S. policies seem to have only strengthened China’s willingness to act as such (an important point touched upon in Cai’s post). Yet, this does not argue against the increased importance of Brazil and India. Strengthening this point is the fact that the Portuguese EU Council presidency that started on 1 January 2021 is going to focus on the EU-India relationship, whereas the previous German presidency focused on China (inter alia leading to the new EU-China Comprehensive Agreement on Investment).

As I understand it, the term “emerging powers” must also be conceptualized as an abstract phenomenon popping up at numerous junctures of history rather than a term intrinsically linked to B(R)ICS. Moreover, the term emerging power should not only be seen as a concept describing a group of States but also to contain meaning for characterising individual States. In the context of divisions among BRICS (as highlighted by my book), with divisions arguably rising in times of a global pandemic, the importance of this coalition may fade. Still, I continue to observe issue specific coalitions among its members often on a bilateral basis, exemplified by the India-South Africa TRIPS/Covid-19 proposal mentioned above, or the Brazil-India Investment Cooperation and Facilitation Treaty (2020), drawing from both States’ Model Investment Treaties.

Finally, while the emergence of a “geoeconomic” order is certainly a phenomenon to look at closely in further research – so far I have not seen many law-making efforts of securitising international economic rules as such – I am not so sure about Henriques conclusion that this requires a rethinking of categories such as rule-makers/rule-takers and the usage of the categories “loyalists”, “reformers”, “revolutionaries” and “undecideds” to simplify descriptions of positions taken by States on norms, rules and paradigms of international economic law (James Nedumpara seems to agree with me here). In my view these terms are not meant to make predictions about the future – a loyalist might become a reformer and the other way round – but rather serve classification purposes to describe and explain historic and present-day developments. This is not l’art pour l’art. For States willing to reform investment treaties it is useful to know who else is a “reformer” to build coalitions in international forums (e.g. UNCITRAL) or to conclude new investment treaties. More generally speaking, classification helps to understand history and thereby learn from it.

In any case, examples provided by Henrique in my opinion are more-or-less in accordance with the book’s finding that China has taken a rather pragmatic, and traditional stance towards rule-making in the WTO and the investment sphere – in line with stances by other great powers in the past. Indeed, several established trade powers now notice that WTO rules are not capable of limiting China’s state intervention and perceived unfair practices (e.g. state-owned enterprises and forced transfer of technology). The same of course is true for the Agreement on Agriculture that many States from the Global South expected to limit state-support in that sector by the EU and US, but from their perspective failed to deliver. It is only with the emergence of excessive state-support in China (Chapter 5 of the book) and other emerging powers that the debate is shifting and established great powers are more willing to regulate agricultural support (e.g. the ban of export subsidies). That China so far resists these proposals shows that it is no rule-taker anymore and takes a loyalist stance (at least with regard to given rules not necessarily their enforcement, which is another story). In that way, the terminology aptly describes approaches taken.

Own Epilogue

A book about such huge topics as global justice and changing power constellations becomes published at some point, but is never finished. Justice is too huge a topic and power constellations are too fluid to ban them into one book. Already in the few months since I finalized the manuscript a number of events happened that could not be fully acknowledged at the stage of book proofing, of which the conclusion of the EU-China Investment Agreement and the election of Joe Biden as president of the United States are only two examples.

With the new administration taking office in the United States there is some hope that great power rivalry between the US and China could be deescalated. Still, great powers fears of loss (Verlustängste) and emerging powers ambitions to establish themselves are a dangerous mix. To the dismay of critics, great power struggles so far have not done away with international economic rules, albeit one of its central institution suffers from severe crisis. The securitisation of (national) economic policies and laws could well lead to a de-legalisation of international economic law (see: here p. 17). For poorer countries, this de-legalisation is not a good sign as imperfect rules may be better than none. However, crisis sometimes also leads to necessary reform. Strengthening the role of the State could lead to a securitisation of international economic law (e.g. the increased usage and enlargement of security clauses) but also to more policy space for States to protect and fulfil human rights. I still hope – perhaps naively – that the clash between old- and new great powers in the long run could lead to further legal limits on the use of power and not the other way round.

With this mixed outlook I close this highly elevating discussion. I sincerely thank all commentators for their valuable feedback. Let the Debate not end here!