INTERNATIONAL LEGAL PERSONALITY OF BRICS

-TUSHAR CHORDIA1

BRICS : INTERNATIONAL ORGANISATION

BRICS is an international intergovernmental compromise of five countries – Brazil, Russia,

India, China and South Africa. BRICS account for more than 40 present of world population
and around 25 present of world GDP in 20102. BRICS already is a platform for dialogue and
cooperation amongst the member countries. However, unlike most of the international
organisations, BRICS is a body does not based on constituent treaty, does not have any type
of headquarters and secretariat or budget, etc. An international organization, defined by the
International Law Commission, is an 'organization established by a treaty or other instrument
governed by international law and possessing its own international legal personality'.
International intergovernmental organizations are full-fledged subjects of international law
that can enter into treaties and bear responsibility under international and national law also, to
bind member states by majority vote also, by concluding treaties and to interact and acquire
rights and duties towards non members.
Organizations that do not have all features of an international intergovernmental organization,
but make a great contribution to the development of international relations and international
law.5 Such International forums that do not have all the features of an international
intergovernmental organization are usually referred as international quasi-organizations6.
Quasi-organizations are characterized by constancy and regularity of work, permanent and
usually clearly limited membership; often, but not necessarily, they do have headquarters.
They are fundamentally different from international organizations by the fact that they are not
legally vested with legal capacity, although they operate with a certain composition

1 Tushar Chordia, Semester VII, Roll Number 416

2 BRICS first own expert report (2012, ix)
3 Cogan, J. K. (eds.), (et. al.), The Oxford Handbook of International Organizations, Oxford, Oxford
University Press, 2016.
4 Kopylov MN, Solntsev AM. The G8 contribution to sustainable development. International Law.
2009; 3(39):102–10.
of members, but usually without the constituent instruments. They have neither a formalized
organizational structure, nor the right to make legally binding decisions. An international
quasi-organization can be defined as an association that is similar to an international
organization, but is not one, and has no corporate and law-making properties and clear
institutional features.

INTERNATIONAL LEGAL PERSONALITY

‘International legal personality’ a dynamic concept that is when an entity has international legal
personality, the implications vary from one entity to another. Therefore, the determination of
whether or not an entity posses an international legal personality should not be strictly limited to
the definition but rather should go beyond and analyse the practicalities that attribute the
international legal personality to an entity such as a n international organisation. However, the
lack of fixed content in a determination as such, does not imply that there is no anchor to reach to
a result, at all. It can be said that international legal personality is possessed by an entity if it is
capable of possessing international rights and duties and [has] the capacity to maintain its rights
7 8
by bringing international claims . However, this definition is narrow and circular in nature ,
because the question of what kind of entity is capable of possessing international rights and duties
9
would be the next one to answer .
The important aspect is that they possess international rights and duties in their own name, as
opposed to in the name of the member States. When they are capable of this, they are said to
possess international legal personality. Each legal order, including the international one,
determines its own legal persons and the extent of their legal personality. Among the various
theories employed for this determination, there are two competing theories that emerged in the
10
ICJs classical ruling . According to the ‘will theory,’ the international legal personality of
intergovernmental organizations is rooted in the will of their state creators. The ‘ objective theory’
implies that personality can be objectively discovered from an assessment of the powers exercised
by the intergovernmental organization

7 Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: ICJ Reports
1949, p.
179.

8 Brownlie p. 57.
9 J. E. Nijman The Concept of International Legal Personality, An Inquiry into the History and
Theory of International Law . The Hague: T. M. C. Asser Press, 2004. Pp. 494.
10 Simon Chesterman, Does ASEAN Exist? The Association of Southeast Asian Nations as an
International Legal Person, 12 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW 203 (2008).
concerned.
the Brownlie of
legal personality called for a number of objective criteria in the process of determining
organizations:
(1) a permanent association of states

(2) with lawful objects

(3) equipped with organs

(4) a separation of powers and purposes between the organization and member states, and

(5) exercised legal powers in the international arena11.

Therefore, doubts arises over the need for an provision in intergovernmental organizational
12
constitutions to ascertain the existence of international legal personality . To conclude, it can be
said that legal personality is a question of degree and how many rights and duties states have
conferred on an organization.
The will of states becomes clearer when constituent instruments explicitly mention the issue of
international legal personality. The concept of international legal personality in the non-state
context carries a variety of historically contingent norms and ideas related to the external
dimensions of intergovernmental organizations.
However, legal theorists, such as positivist jurisprudents, are more inclined to emphasize the
juridical aspect of personality based on state consent, a cornerstone of public international law.
Thus, their disagreements are not genuine because they are arguing on different levels.

LEGAL STATUS OF BRICS

BRICS has been a tool for mutual benefit cooperation among emerging and developing
economies since the mechanism was established in 2006. The member countries have managed to
have say in major international financial institutions and have been steadily boosting the reform
of those institutions.

11 Ian Brownlie, Priciples Of Public Interantional law 649 (6th ed. 2003)
12 Chittaranjan Amerasinghe, Principle Of The International Law94 (2005)
13 Supra Note
 14
Withbethe
can changing times
characterized as a and the evolution ofwith
quasi-organization BRICS as a challenge
an increasing to the existing
institutional world
building . order, it
BRICS has seen to have emerged as a rather powerful organisation with substantial capacity to
influence political and economic relations in the world. Though not based on a treaty and lacks
the components as defined in the widely accepted definition of an International Organisation, in a
strict practical sense it is seen to be capable of asserting rights and claims. In a simple sense, if
we look at BRICS it can be seen as a combination of sovereign states, the first and primary
subjects of international law, possessing international legal personality.
Therefore, it can be rightly concluded that the BRICS have a derived legal personality implied not
by any treaty, per se but the acknowledgement by the member-states and its’ effective functioning
over the years. Legal personality must have been intended; otherwise the BRICS would not be
able to carry out its purposes as intended by its founding members also, BRICS regularly act
uniformly in their interactions with third countries and international organization.
The legal competence of non-State entities was governed by the ‘principle of speciality’,
15
meaning that the States can award them with powers limited to their function .Hence, whilst
states have original personality allowing them a general competence and equal capacity under
international law, non-state entities only have personality to the degree necessary for the
achievement of their roles within the international legal system. Thus, the approach taken in
relation to legal personality of BRICS is functional rather than territorial or strictly based on
definition and also BRICS cooperation seeks to strengthen an alternative foundation of values for
the international legal order focussing on human development.

14 Legal Status of BRICS and Some Trends of International Cooperation Aslan Abashidze , Alexandr
Solntsev and Ekaterina Kiseleva
15 Advisory Opinion concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict
I.C.J. Rep. 1996.