Emerging Powers, Global Justice and International Economic Law: Reformers of an Unjust Order?

Description

The book assesses emerging powers’ influence on international economic law and analyses whether their rhetoric of reforming this ‘unjust’ order translates into concrete reforms. The questions at the heart of the book surround the extent to which Brazil, Russia, India, China, and South Africa individually and as a bloc (BRICS) provide alternative regulatory ideas to those of ‘Western’ States and whether they are able to convert their increased power into influence on global regulation. To do so, the book investigates two broader case studies, namely, the reform of international investment agreements and WTO reform negotiations since the start of the Doha Development Round. As a general outcome, it finds that emerging powers do not radically challenge established law. ‘Third World’ rhetoric mostly does not translate into practice and rather serves to veil economic interests. Still, emerging powers provide for some alternative regulatory ideas, already leading to a diversification of international economic law. As a general rule, they tend to support norms that allow host States much policy space which could be used to protect and fulfil socio-economic human rights, especially – but not only – in the Global South. Acknowledgements Contents Abbreviations Table of Cases Chapter 1: Introduction: The Crisis of International Law and the Role of Emerging Powers References Chapter 2: Emerging Powers and the International Order: Outline 2.1 Emerging Powers and the International Order 2.1.1 International Relations: The Broad Picture 2.1.1.1 The Realist Perspective: Hegemonic Stability in Decline? 2.1.1.2 Liberal Institutionalists 2.1.1.3 Critical Theory 2.1.2 Approaches by International Lawyers 2.1.2.1 Historical Departure: Europe and the United States as (Former) Hegemons 2.1.2.2 Relevant New Actors 2.1.2.3 Structure: Concert of Asia, Parallel Orders, International Anarchy, Regionalism, and/or a Multi-Hub System? 2.1.2.4 Substance: Rejection, the Return of the State or Substantive Pluralism? 2.1.3 Evaluation: Power Is Shifting But Many Questions Remain Open 2.2 Outline of the Book 2.2.1 Who Are the Relevant Actors? 2.2.2 A Common Legal Agenda? Why a Comparative Study of Rising Powers´ Legal Positions Is Valuable 2.2.3 Emerging Powers as Promoters of Global Justice in International Economic Law? Self-Qualification and Scholarly Assumptio... 2.3 Terminology and Methodology 2.3.1 Rule Makers, Rule Takers, Norm-Entrepreneurs, and Norm-Antipreneurs 2.3.2 Institutions, Rules, Principles and Paradigms 2.3.3 Rising Powers as Loyalists, Reformers or Revolutionaries 2.4 Conclusion References Chapter 3: Hegemony, Power and International Law 3.1 (Western) Great Powers and International Law 3.1.1 Working Definitions: Power, Hegemony and Great Powers 3.1.2 A Dichotomy Between Power and Law? 3.1.3 How to Convert Power into International Law 3.1.3.1 Three `Faces´ of Power 3.1.3.2 Legal and Factual Restraints? 3.1.3.3 Power and International Customary Law 3.1.3.4 Power Differentials and the Conclusion of Treaties Unequal Bargaining Power Power and the Content of Treaties Why Do Weak States Sign Treaties That Hurt Them? `Divide and Conquer Tactics´ in International Treaty Making 3.1.3.5 Power and Judicial Dispute Settlement International Investment Arbitration The WTO Dispute Settlement System: From the Rule of Power to the Rule of Law? 3.1.4 Evaluation: Rules of Power and the Power of Rules 3.2 The Third World and International (Economic) Law 3.2.1 The Emergence of the Third World: Early Coalitions in the Global South 3.2.1.1 The Third World and the Bandung Conference 3.2.1.2 NAM and G-77 3.2.2 The NIEO: A Radical Vision of New International Economic Law? 3.2.3 Legal Success Despite Lack of Power? 3.2.4 The Abandonment of the NIEO and the Spread of Neoliberalism 3.2.5 Evaluation 3.3 New Great Powers and a New New International Economic Order? 3.3.1 Emerging Powers as New Great Powers? 3.3.1.1 Military Power 3.3.1.2 Economic Power Sources of Economic Power: GDP Manifestations of Economic Power: International Finance, Trade, and Investment Emerging Powers as Emerging Donors? Rising Powers as New Trade Powers? Rising Powers as Rising Foreign Investors? 3.3.1.3 Soft Power 3.3.1.4 Cognitive Factors: Recognition and Willingness to Act Like a Great Power 3.3.2 BRICS´ Legal Agenda: Resurrection of the NIEO? 3.4 Conclusion References Chapter 4: Global Justice and International Economic Law 4.1 Global Justice: A Brief Introduction 4.2 A Human Rights Approach to Global Justice 4.2.1 A Legal Human Rights Approach 4.2.2 Extraterritorial Human Rights Obligations in the Economic Realm: The ICESCR 4.2.2.1 The Work of the CESCR on Extraterritorial Human Rights Obligations 4.2.2.2 The Maastricht Principles on Extraterritorial Obligations of States 4.2.3 Evaluation 4.3 Is International Economic Law Fair to `Impoverished Nations and Peoples´? 4.3.1 The Justice of International Investment Law 4.3.1.1 Core Norms and Institutions 4.3.1.2 International Investment Law in Transition: A Human Rights Critique Respect for Human Rights and the Policy Space Critique The Protection of Human Rights in International Investment Law International Investment Law´s Role in Fulfilling Human Rights Obligations Globally 4.3.1.3 Evaluation 4.3.2 The Justice of International Trade Law 4.3.2.1 Core Norms and Institutions 4.3.2.2 International Trade Law Under Attack: A Human Rights Critique Overview: The Three Dimensions of Human Rights and Trade Rules Does Trade Law Respect States´ Policy Space to Protect Human Rights? Does Trade Law Protect and Fulfil Human Rights? Counter-Arguments The WTO Agreement on Agriculture and Human Rights TRIPS and Human Rights 4.4 Conclusion References Chapter 5: Emerging Powers and International Investment Agreements 5.1 Historical Approaches: Emerging Powers as Rule Takers 5.1.1 China: A Gradual Rule-Taker 5.1.2 India: From Import-Substitution Industrialization to (Coerced) Opening Up 5.1.3 South Africa: From International Isolation to Integration 5.1.4 Brazil: Half-Hearted Embrace of BITs 5.2 Power Change: Emerging Powers as Agents of Reform? 5.2.1 Brazilian Cooperation and Facilitation Investment Agreements: An Alternative IIA? 5.2.2 South Africa as a Norm Anti- and Entrepreneur: A Dualistic Approach 5.2.3 India´s Investment Policy Reform and Its Revised New Model BIT 2016 5.2.4 China´s Ambivalent Approach 5.2.5 Common Approaches in Multilateral Fora? 5.3 Comparative Analysis of (Model) IIAs and Domestic Legal Alternatives 5.3.1 Policy Space and Respect for Human Rights 5.3.1.1 Preamble and Objectives 5.3.1.2 Substantial Scope 5.3.1.3 Non-Discrimination National Treatment Brazil, India, and South Africa: Narrowing NT by Defining `Like Circumstances´ China: From Gradually Enlarging NT to Pre-Established Rights? Most-Favoured-Nation Treatment 5.3.1.4 Fair and Equitable Treatment Brazil, India, and South Africa: From Fair and Equitable- to Fair Administrative Treatment China as a Loyalist Supporter of FET? 5.3.1.5 Expropriation and Compensation Brazil India China South Africa 5.3.1.6 General Exception Clauses General Exception Clauses: Brazil and India China South Africa: A Right to Regulate and A Right to Development in IIAs 5.3.1.7 Dispute Settlement Avoiding ISDS: Brazil and South Africa Seriously Limiting ISDS: The Approach of India China´s Loyalist Stance on ISDS 5.3.2 The Protection of Human Rights: Investor Obligations in Emerging Power IIAs? 5.3.2.1 Brazil 5.3.2.2 India 5.3.2.3 China 5.3.2.4 South Africa 5.3.3 The Fulfilment of Human Rights in Emerging Powers IIAs? 5.3.3.1 Sustainable Development as a Goal in Preambles and/or a Requirement for Protection 5.3.3.2 State Obligations Related to the Fulfilment of Human Rights South Africa and Brazil: Reformist but Not Radical India and China as Traditionalists 5.3.3.3 Performance Requirements 5.3.3.4 Transfer Clauses 5.3.3.5 The Brazilian Focus on Investment Facilitation 5.4 Conclusion References Chapter 6: Emerging Powers and International Trade Law 6.1 Historical Background: Emerging Powers in the International Trade Order 6.1.1 The GATT Years and the Uruguay Round 6.1.2 The Case of China and Its Accession to the WTO 6.1.3 From Uruguay to Doha and Beyond 6.2 Shift in Power: From Developing Countries to Emerging Trade Powers? 6.2.1 Brazil, China and India Enter the Green Room 6.2.2 Why Is China Not More Prominent? 6.2.3 Power Change in WTO Dispute Settlement 6.2.3.1 Brazil and India 6.2.3.2 China 6.2.3.3 South Africa 6.2.4 Evaluation 6.3 Emerging Powers´ Normative Agenda 6.3.1 General Direction: Supporting But Reforming the Rule Based WTO System 6.3.1.1 The DDR: Making WTO Agreements More Just to Developing Countries 6.3.1.2 Supporting a Sinking Ship? Emerging Powers´ Continuing Support for the DDA 6.3.1.3 The Trend Towards Mega-Regionals: The Role of Emerging Powers 6.3.1.4 Evaluation 6.3.2 Common Positions on Agriculture 6.3.2.1 Emerging Powers´ Commitment to Reform the Agreement on Agriculture 6.3.2.2 Fighting Domestic and Export Support in Developed Countries Dispute Settlement: Brazilian Challenges Against EC/U.S. Agricultural Policies Emerging Powers in Doha Negotiations The Problem of Rising Support in Emerging Powers Public Stockholding for Food Security Purposes U.S. Challenge of China´s Domestic Support Programs The Relative Perspective Is Capping Domestic Support Beneficial to the Global South´s Poor? Outlawing Export Subsidies in Agriculture 6.3.2.3 Market Access and the Special Safeguard Mechanism Market Access The Special Safeguard Mechanism The (Persisting) Problem of Import Surges How Would the SSM Work? Deficiencies of Existing Safeguards Negotiation History, Concrete Proposals, and the Role of Emerging Powers Is the SSM Pro-Poor? The SSM As a Challenge to Free Trade? 6.3.2.4 Evaluation 6.3.3 Common Positions on TRIPS 6.3.3.1 Domestic Approaches and Background 6.3.3.2 TRIPS and Public Health The Doha Declaration on TRIPS and Public Health The Decision on the Implementation of Paragraph 6 The Final Amendment and Evaluation 6.3.3.3 Defending TRIPS Flexibilities Defending Free Transit of Generic Drugs (India and Brazil vs. the EU) The Threat: TRIPS Plus Standards in (Mega-)Regional Free Trade Agreements Responses by Emerging Powers IP in Emerging Powers´ Free Trade Agreements 6.3.3.4 Evaluation 6.4 Conclusion References Chapter 7: General Conclusions 7.1 Summary of the Main Findings 7.2 Outlook References