3. Hegemony, Power and International Law

See e.g.: Morgenthau (1960), p. 28; Schwarzenberger (1964), p. 14.

Keohane and Nye (2012), p. 10; see also: Boulding (1989), p. 15 et seqq.; see for a rather critical appraisal of that definition: Waltz (1979), p. 191 et seqq.

Byers (2003), p. 5.

Boulding (1989).

See for an in depth analysis of these three forms of power: Nye (2011), pp. 3–112; see also Boulding (1989), who mainly distinguished between “threat power”, “economic power” and “integrative power”.

These are just a few example, part III below focuses in more-depth on the means of how power may become transformed into law or may have other impacts in the legal sphere.

Triepel (1961), p. 138 (“Hegemonie ist Macht”; own translation: “Hegemony is power”).

See e.g. Thürer (2011), MN 1; see for a quite similar definition already: Triepel (1961), p. 125.

Thürer (2011), MN 2; see on the distinction between “Herrschaft” (reign) and “Hegemonie” (hegemony): Triepel (1961), p. 141 et seqq.

Triepel (1961), p. 136; for a more recent account that explicitly leaves open the question whether “legalised hegemony” has had good outcomes for the international legal order: Simpson (2004), p. 17.

See for a short but powerful critique e.g. Sornarajah (2014), p. 291 et seqq.; for a critical more comprehensive appraisal see also: Anghie (2005), Chaps. 5 and 6.

For such critiques see e.g. Salomon (2007) and Joseph (2011).

Salomon (2015).

Kammerhofer (2009), MN 3; see on the origins of the term and its legal significance also: Mosler (1949), p. 14 et seqq. and 22 et seqq.

Kammerhofer (2009), MN 1.

See e.g.: Fukuyama (1992), Nixon (1993) and Brilmayer (1994).

See on the different “epochs” of international law: Grewe (2000).

Kammerhofer (2009). MN 2; among the numerous efforts to find abstract criteria nonetheless, see e.g.: Bull (1977), p. 200 et seqq.

See: Mosler (1949), p. 31 (“Die Fähigkeit, aktiv an der Weltpolitik teilzunehmen: das macht das Wesen der Großmacht aus”; own translation: “The capability to actively participate in world politics: that is what characterizes the essence of a great power”).

For an insightful historical study of the causes of the rise and fall of great powers: Kennedy (1987b).

Dukes (2001), p. 1.

See e.g.: Cai (2013), p. 757 et seq.

Cai (2013), p. 757.

On the importance of recognition by existing great powers already, see: Lawrence (1915), p. 279 (“A State does not become a Great Power because it is strong, though it cannot be a Great Power without being strong. The tacit consent of other States, and the action of those who were Great Powers before, give it that positions.”) in a similar vein, see also: Bull (1977), p. 202 (“Third, great powers are powers recognized by others to have, and conceived by their own leaders and peoples to have, certain special rights and duties.”).

Cai (2013), p. 757.

See also: Cai (2013), p. 758.

For such an assessment see: Mosler (1949), p. 11 (“Die Juristen sträuben sich also, die Verschiedenheit der tatsächlichen Macht zur Kenntnis zu nehmen und daraus Schlüsse für das Völkerrecht zu ziehen. Die politischen Kräfte, die die Rechtsordnung beeinflussen, sind verdächtig, weil sie das System zu sprengen scheinen.”; own translation: “The political forces, that influence the legal order, are suspicious, because they seem to blow up the system.”); see for recent assessments that note a dearth of legal scholarship on the relationship between power and international law, which at the same time make up for the exceptions: Byers (2003), p. 35; Goldsmith and Posner (2005), p. 3; Krisch (2005), p. 372; a further notable exception is: Simpson (2004).

See e.g.: Oppenheim (1912), p. 193 (“a Law of Nations can exist only if there be an equilibrium, a balance of power, between the members of the Family of Nations […] since an overpowerful State will naturally try to act according to discretion and disobey the law.”); Lauterpacht (1977), p. 427 (“[…] a full-fledged federal system between the nations of the world would be more conducive to enhancing the stability of international peace, to the protection of rights of man, and to reducing the evils and abuses of national power.” (emphasis added); among more recent studies, see e.g.: O’Connell (2008).

See for an overview of ‘classicist’ legal thinking in the US: Steinberg and Zasloff (2006), pp. 65–71.

Koskenniemi (2002).

For similar assessments, see: Schachter (1999); Krisch (2005), p. 370.

Byers (2003), p. 35; see in the context of current powershifts: Burke-White (2015), p. 2.

For example, many legal scholars saw the need to defend the relevance of international law against realists like Morgenthau and Schwarzenberger, see e.g.: D’Amato (1984/1985), Boyle (1985) and Brownlie (1988).

Cf. Byers (2003), p. 15 et seqq., 21 et seqq. and 35 et seq.

See Byers (2003), p. 21 et seq.

Speech Delivered at a Joint Session of the US Congress on 8 January 1918, available at: http://​avalon.​law.​yale.​edu/​20th_​century/​wilson14.​asp. Accessed 11 Sept 2020.

See Byers (2003), p. 21, with reference to: Barker (1918), Laurence (1919), Lansing (1921) and Lauterpacht (1933/2011).

Carr (1946) and Morgenthau (1960).

See for an analysis: Byers (2003), p. 21 et seq.

Morgenthau (1960), p. 294 et seq.

See on the reasons on the lack of interdisciplinary discourse between both sciences also: Herdegen (2018), p. 45 et seqq.

See e.g.: Kennedy (1987a).

See e.g.: Koskenniemi (1989).

For early accounts that addressed economic inequality among States and power differentials, see e.g.: Lall (1974) and Bedjaoui (1979).

Further approaches critical of underlying power-structures of international law include feminist legal theory, critical race theory on international law, and LGBT legal theory, but are of minor relevance here. For an overview of the current state of critical thinking in international law, see e.g. the collected papers in: Singh and Mayer (2014).

On that question, see e.g.: Wiegandt (2011).

Cf. Byers (2003), p. 206 (“By doing so it [the study] demonstrated that the influence of powerful States on customary law-making is not always decisive, that the ‘power of rules’ sometimes affects how even the most powerful of States behave, and what they are able to accomplish, when they seek to develop, maintain or change rules of customary international law.”).

Koskenniemi (2005).

Krisch (2005), p. 371; see in a comparable direction also: Herdegen (2018), p. 12 et seqq.

Grewe (2000).

Grewe (2000), p. 23.

See especially: Anghie (2005), p. 13 et seqq.; too some extend also: Simpson (2004), who analysed how the concept of sovereign equality has accommodated “legalized hegemony” and “anti-pluralism” over the centuries; see for earlier (German and Swiss) studies also: Schmitt (1950), pp. 53–109; Fisch (1984).

See e.g. Krisch (2005), p. 383 et seq.; for an in-depth analysis of the respective legal arguments of scholars of the time, see: Anghie (2005), Chaps. 1–3.

Francisco de Vitoria, De indis et De jure belli relectiones (1539), Section III, third proposition, in: Nys (ed) (1995), p. 140 et seqq.

Traces of that distinction can still be found in Article 38 para. 1 c) ICJ Statute.

See generally on the different strategies to disregard the sovereignty of political entities outside Europe: Anghie (2005). On the distinction between the ‘civilized’ and the ‘uncivilized’, see: Obregón (2012).

See e.g. the Treaty of Nanking: ‘Treaty Between Her Majesty and the Emperor of China’, Nanking (29 August 1842), The London Gazette, Issue 20276, p. 3597, published on 7 November 1843; see generally on unequal treaties with further references: Peters (2018); for a Chinese perspective see: Wang (2003).

See on slavery and international law: Allain (2013); Drescher and Finkelman (2012); see connectedly also: Buser (2017).

For the UK, see: Beckles (2013).

See e.g.: Grewe (2000), pp. 554–569.

Indicative of a new interest in power and international law, see e.g.: Byers (2003), Simpson (2004), Krisch (2005) and Steinberg and Zasloff (2006).

On conflicts between economic law and human rights, see e.g.: Salomon (2007), Joseph (2011), De Schutter et al. (2012), Desierto (2015) and Santacroce (2019).

See for a notable exception, e.g. the collection of papers in: Byers and Nolte (2003).

See e.g.: Klein (2003), p. 363.

Klein (2003), p. 363 with reference to: Chaumont (1970), p. 344 (“le droit international classique est, dans son ensemble, la mise en forme des situations de predominance des forts sur les faibles”).

Klein (2003), p. 363; see in a similar vein: Hardt and Negri (2001) who depict the international order built around international organisations like the WTO and the Bretton Woods institutions (which they call “supranational institutions”) as a new form of global empire.

See for a ranking of different States’ military power drawing on these and a number of further indicators: International Institute for Strategic Studies (2018).

Nye (2011), p. 41.

On economic power see: Nye (2011), p. 51 et seqq.

Nye (2011), p. 52.

See for a comprehensive overview of applied sanctions by differing States and their effectiveness: Hufbauer et al. (2007), p. 5 et seqq.; see also: Nye (2011), p. 72 (“Not surprisingly, States with larger markets are better placed to control market access and to apply sanctions.”). An often cited counter example is the OPECs oil embargo in the 1970s, however, it has to be noted that after all the embargo was not very effective in influencing U.S. policy, see for a detailed analysis: Nye (2011), p. 67 et seqq. Similarly, sometimes smaller States may balance the asymmetry in resources with greater attention on the issue, will to succeed, or greater credibility, but this might be regarded as the exception rather than the rule.

See for rather positive assessments: Hufbauer et al. (2007); Nye (2011), p. 73 et seqq.; see for critical assessments, e.g.: Pape (1998) and Early (2015).

See on the signalling power of economic sanctions, e.g.: Lindsay (1986); Nye (2011), p. 74 et seq.

See e.g. Dreher et al. (2008) and Woo and Chung (2017). For an early study that questioned the success of the strategical aid allocation by the United States on UNGA voting patterns: Kegley and Hook (1991).

UNGA Resolutions adopted by consensus can indicate opinio juris of States and States may orient their practice along rules proposed in resolutions. On the role of UNGA resolutions for the deduction of opinion juris see: Legality of the Threat or Use of Nuclear Weapons, ICJ, Advisory Opinion. ICJ Reports 1996, p. 66, para. 70; see for a summary of the role of UNGA Resolutions for customary law: Treves (2006) MN 44 et seqq.

See on China’s development cooperation programs: Brautigam (2009, 2010).

See e.g.: Harding (2009).

See for an insightful study on the question how ‘international’ international legal scholarship is in different countries around the world, finding that international lawyers in many States are strongly influenced by domestic factors and that Western approaches to international law are disproportionally influential: Roberts (2017).

QS World University Rankings by subject for 2017 reveal that among the 10 best law schools, seven are from the United States (Harvard, Yale, Stanford, NYU, Berkeley, Columbia and Chicago) and three from the UK (Oxford, Cambridge and London School of Economics and Political Science); within the top 20, three Asian universities were represented, including the National University of Singapore, the University of Hong Kong, and Peking University. The ranking is available at: https://​www.​topuniversities.​com/​qs-world-university-rankings. Accessed: 11 Sept 2020.

Nye (1990); it is worth pointing out that scholars had earlier accepted a third ‘softer’ form of power next to military and economic coercion; see e.g. Carr (1939) who used three categories of power, namely: military power, economic power, and power over opinion.

Nye (2011), p. 84.

Nye (2011), p. 81.

Krisch (2005), p. 404.

See also Nye (2011), p. 83.

Cf. Krisch (2005), p. 404.

See on these examples: Krisch (2005), p. 404. It has to be noted that both good governance and the neoliberal economic theory were also part of the so-called Washington Consensus which was also pursued by rather coercive means, such as World Bank and IMF loan conditionality.

Nye (2011), p. 52 et seq.

Most notably Article 2 para. 4 UN-Charter; see on the historic evolution of the regulation of the use of force by States: Brownlie (1963), especially part I.

See also: Herdegen (2018), p. 72 et seq.

See on the U.S. Freedom of Navigation Program: Horner (2013). It has to be noted that several other States operate military vessels in foreign EEZs as well, but mostly on a smaller scale. These countries include Russia, Australia, South Africa, the UK, and China, see: Houck and Anderson (2014), p. 445.

For a discussion of BRICS’ positions on the responsibility to protect, see: Stuenkel (2015b), p. 147 et seqq.; see on the Brazilian alternative of a ‘responsibility while protecting’, e.g.: Benner (2012).

See: Articles 51 and 52 VCLT.

On the current and future relevance of military power in international relations, see also: Nye (2011), p. 48.

Zarate (2015).

See e.g.: Blackwill and Harris (2017).

See e.g. Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Slg. 2008, I-6351, European Court of Justice, Judgement (3 September 2008).

For a preliminary legal assessment of additional tariffs on steel from a number of trading partners imposed by the United States and the EU’s response see: Weiler (2018) and Buser (2018). See on the security exception in the context of the Ukraine Conflict, e.g.: Neuwirth and Svetlicinii (2015).

See e.g. Nye (2011), p. 53.

According to latest data published by the U.S. Treasury Department, China by the end of 2017 held U.S. government debt worth of US$ 1.18 trillion.

See e.g. Shane (2018).

See on these points of interdependence also: Nye (2011), p. 56; for a differentiated assessment of the importance of U.S. debt to China, see also: Kiely (2016), pp. 49, 65 and 70 et seqq.

Keohane and Nye (2012), pp. 10 et seqq., 28, 177; see also: Herdegen (2018), p. 81.

See for the most comprehensive study of the subject so far: Byers (2003), pp. 35–40 and 205; see also: Mosler (1949), p. 40; de Visscher (1968), p. 148 et seqq. and 154; Vagts (2001), p. 847; Herdegen (2018), p. 30 et seqq.

de Visscher (1968), p. 149 (“Among the users are always some who mark the soil more deeply with their footprints than others, either because of their weight, which is to say their power in this world, or because their interests bring them more frequently this way.”)

Byers (2003), p. 205.

Schachter (1996), p. 536 et seq.

See on an obligation under ius gentium to receive foreign traders and do them no harm: Francisco de Vitoria, De indis et De jure belli relectiones (1539), Section III, Third Proposition, in: Nys (ed) (1995), 150 et seqq.

In China, Thailand, Japan, and in some parts of the Middle East, unequal treaties established systems of extraterritoriality that ensured that European traders were only subject to the law of their home States in certain enclaves, usually harbour cities, see e.g.: Sornarajah (2010), p. 19.

See on development of diplomatic protection for alien property by capital exporting Western States in the nineteenth and early twentieth century: Miles (2013), pp. 47–70.

Miles (2013), p. 69.

Anghie (2005), pp. 196–244; Miles (2013), p. 71 et seqq.

For an introduction to the legal meaning and historical context of the Calvo Doctrine: Juillard (2007).

See e.g.: UNGA Resolution 1803/17 (14 December 1962) and UNGA Resolution 3171 (XXVIII) (17 December 1973).

Miles (2013), p. 71 et seqq.; see in that context also: Pahuja (2011), p. 95 et seqq.

See for a detailed assessment: Miles (2013), p. 49 et seqq.

Anghie (2005), p. 238.

This is despite the fact that in some special transformative moments the creation of custom might happen faster. See e.g.: Scharf (2013). Still, the notion of so-called ‘instant custom’ might be to far-reaching.

Toope (2003).

See for some exceptions: Klein (2003); to some extent also: Guzman (1998) and the studies cited below.

In that direction: Byers (2003), pp. 37–40; Krisch (2005), p. 378.

See e.g.: Toope (2003), p. 289.

See: Article 31 para. 3 b) Vienna Convention on the Law of Treaties; the fact that treaties are thereby influenced by subsequent state practice also allows parallels to be drawn regarding the influence of power on customary law.

See: Articles 49–52 VCLT. As historical background, it is important to know that developing States tried to enlarge the scope of reasons affecting the validity of treaties, as they sought to address military, political, and economic pressure. However, for matters of legal certainty, Western States objected and ultimately succeeded in limiting the reasons for the invalidity of treaties to those noted, which today are included in section 2 of the VCLT. See for a brief analysis of the negotiating history and competing arguments: Pellet (1989), p. 42. See for the argument that this makes international treaties more open to the exertion of power than domestic ones: Byers (2003), p. 36.

See e.g. Steinberg (2002), p. 341; Joseph (2011), p. 62; see for an analysis of the role of developing countries under GATT: Hudec (2010).

See for the quote and the following arguments: Steinberg (2002), p. 347 with further references.

See: Steinberg (2002), p. 347 and Barton et al. (2010), p. 10, both with numerous further references.

Steinberg (2002), p. 347; Barton et al. (2010), p. 10 et seq.

Steinberg (2002), p. 348.

See from a practitioner’s perspective: Pinto (1983), p. 315.

On these problems see e.g. Busch et al. (2008), p. 5 et seqq. (basing their findings on surveys and interviews with developing country trade representatives). For empirical evidence on African countries, revealing significant improvements between 1995 and 2010, but still relatively low capacity in comparison to other regions: Apecu Laker (2014), p. 13 et seqq. Moreover, it must be noted that some WTO initiatives have sought to address these problems by providing seminars and workshops for developing country staff. For example, the WTO Institute for Training and Technical Cooperation and the WTO’s Advisory Centre on WTO LAW (ACWL) offer legal advice and training opportunities.

See for more information the respective websites of the Permanent Mission of the EU to the WTO: https://​eeas.​europa.​eu/​delegations/​world-trade-organization-wto_​en; and of the U.S. Mission to the WTO: https://​geneva.​usmission.​gov/​us-mission-wto/​. Accessed 11 Sept 2020.

See e.g. the Hong Kong Ministerial meeting where the United States reportedly sent 356 delegates while Burundi send three: Oxfam (2005), p. 5.

See e.g. Joseph (2011), p. 62.

Joseph (2011), p. 63.

Steinberg (2002), p. 342.

Klein (2003), p. 364.

See in more detail on the usage of model texts in investment treaty negotiations: Chap. 4, part B. See on Model BITs generally and for an overview of existing models: Brown (2013).

Klein (2003), p. 365.

Sell (2003), pp. 96–120; see also the collected insights by negotiators in: Watal and Taubman (2015).

Joseph (2011), p. 58; Murphy (2005), p. 30.

See on reservations by the United States to human rights treaties: Redgwell (2003).

Klein (2003), p. 370 et seqq.; on the example of human rights: Redgwell (2003).

Krisch (2005), p. 379.

See on this question: Guzman (1998).

Pellet (1989), p. 43.

Pellet (1989), p. 43 with further references.

Guzman (1998), p. 643.

Guzman (1998), 688.

See for more on economic assessments of the role of investment protection for attracting FDI: Sect. 3.​2.​1.​2.

See for a good summary: Steinberg (2002), p. 359 et seqq.

See: Steinberg (2002), p. 360.

See for a U.S. perspective on the matter: Field (2015), p. 132 et seqq. On how the threat of unilateral action influenced India’s position (from the perspective of a former Indian trade representative in the Uruguay Round), see: Ganesan (2015), p. 219.

See: Article II para. 4 of the Agreement Establishing the World Trade Organization, 15th April 1994, 1867 UNTS I-31874.

It must be noted here that GATT 1947 never formally entered into force but was only applied provisionally based on the Protocol of Provisional Application of the GATT, 30 October 1947, 55 UNTS 308.

Steinberg (2002), p. 360.

Risse (2012), p. 351.

See generally on that phenomenon: Benvenisti and Downs (2010).

See e.g. Benvenisti and Downs (2010) and Benvenisti (2016).

See Article 12 para. 2 a) Rome Statute.

See for an overview of U.S. measures taken against the ICC: Galbraith (2003).

American Servicemembers’ Protection Act, Pub L. No. 107-206, §§2001–2015, 116 Stat. 820 (2002), 22 U.S.C.A. §§7421–7433 (West Supp. 2002) which is directed against ICC activities against U.S. service members and in Section 2008 prohibits U.S. military assistance to States which become parties to the ICC Statute with the exception of its closest allies (NATO members and some others).

See e.g. Black and Jacques (2004), p. 19.

See on such effects, e.g.: Bhala (2014) and Rodriguez Mendoza (2014). See from a democratic perspective: Benvenisti (2016).

See on the idea of a ‘gold standard’ in international investment treaties: Alvarez (2016).

An example is the ‘Siegerjustiz’ (‘victors’ justice’) argument in relation to the Nuremburg tribunals and later international criminal tribunals and courts. See for a comprehensive assessment of the differing legal problems involved at Nuremberg, see: Jung (1992); see also: Minear (1971) and Schabas (2010).

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement. ICJ Reports 1986, p. 14.

Notably the US, Russia, China and India are absent. See on the reasons for the US’s “hostility” to the court: Conso (2005).

South China Sea Arbitration, Republic of the Philippines vs. People’s Republic of China, PCA Case No. 2013-19, Permanent Court of Arbitration, Final Award (12 July 2016).

See e.g.: Baade (2013) and for a comprehensive evaluation of critiques against the European Court of Human Rights: Baade (2017).

For an in-depth analysis of the relationship between Russia and the ECtHR and the role of the Russian Constitutional Court, see the collected papers in: Mälksoo and Benedek (2017).

See e.g. Niang (2017), Clarke et al. (2016) and Kaleck (2012).

Statistics from UNCTAD as of December 2020 (available at http://​investmentpolicy​hub.​unctad.​org/​ISDS/​FilterByCountry) illustrate that for example U.S. investors brought 190 cases against foreign host States while the United States only received 19 cases as a respondent (most of them under NAFTA’s investment chapter). Ten were decided in favour of the US, four were settled, and three were discontinued, but none of them were lost. Germany only received four cases as a respondent, while 71 cases were brought against foreign States by German investors. Of the four cases brought against Germany two were settled and two are still pending (Vattenfall II).

As of December 2020, Argentina had received 62 cases as a respondent, but only five cases were brought against other States by Argentinian investors. Of these cases, foreign investors won 21 cases, but only five were won by Argentina. Other cases are still pending, have been settled, were discontinued, or no information is available. Venezuela had received 53 cases as a respondent and only one case has been brought by a Venezuelan claimant.

Cited in: Franck (2009), p. 436.

This assessment is based on data from UNCTAD’s: available at: http://​investmentpolicy​hub.​unctad.​org/​ISDS/​CountryCases/​24?​partyRole=​2.

‘Notice of denunciation under Article 71 of the ICSID Convention’, 2 May, 2007.

‘Notice of denunciation under Article 71of the ICSID Convention’, 7 January 2010.

‘Notice of denunciation under Article 71 of the ICSID Convention’, January 2012.

See on how investors nonetheless were able to sue Bolivia both under ICSID and other fora in recent years: Rivera and Azuga (2017).

As of January 2021, Bolivia had terminated 16 BITs out of a total of 23 BITs. Venezuela has terminated two BITs (Netherlands and Ecuador) but 28 of its BITs are still in force. Ecuador has terminated 24 of its BITs out of a total of 30 BITs. All information on the status of BITs is taken from UNCTAD’s Investment Policy Hub, available at: www.​investmentpolicy​hub.​unctad.​org.

As of January 2021, South Africa had terminated 11 BITs (Austria, Argentina BLEU, Denmark, France, Germany, Italy, the Netherlands, Spain, Switzerland and the United Kingdom) out of a total of 50 BITs and Indonesia had terminated 30 BITs out of a total of 72 BITs.

Examples are the criticism the Vattenfall arbitrations sparked in Germany, anti-TTIP protests, and U.S. law professors’ opposition to ISDS clauses in trade agreements (‘Letter from Alliance for Justice to U.S. Congressional Officials and U.S. Trade Representative’, 11 March 2015, available at: http://​www.​afj.​org/​wp-content/​uploads/​2015/​03/​ISDS-Letter-3.​11.​pdf) and U.S. President Trump’s opposition to TPP and efforts to renegotiate NAFTA (both of which include investment arbitration clauses).

See in that vein: Bernasconi-Osterwalder (2005), p. 69 (stating that “host States cannot be winners in investment arbitration”).

See e.g.: Food and Water Watch (2007) and Perez et al. (2011).

See e.g.: Sornarajah (2006), p. 32 et seqq.; Sornarajah (1991); Shalakany (2000); Benvenisti (2016), p. 9 (“In the case of the most relevant international adjudication, in trade and investment disputes, the reticence of international judges and arbitrators to decide against influential State parties is clearly evident.”).

See: Franck et al. (2015) who inter alia analysed the diversity of a group of 67 international investment arbitrators and found that the median international arbitrator was a fifty-three year old man who was a national of a developed State. Another case study identified a pool of 145 investment arbitrators from 40 different countries of which 109 arbitrators (75%) were from OECD countries, see: Franck (2009), p. 458.

Franck (2009); see also the later study by the same author: Franck (2014).

Franck (2009), p. 448 et seqq.

Franck (2014), p. 70 et seq.

See on these methodological issues: van Harten (2012) and Gallagher and Shrestha (2011).

See on the importance of that point and the critique that Franck overlooked the significance of the disproportionate number of claims also: Gallagher and Shrestha (2011), pp. 3 and 7 et seqq.

See for one empirical study on the subject (which however argues that more research, especially from disciplines other than law is needed): Tienhaara (2011).

Under GATT 1947 the practice emerged—and was later codified—that the positive consensus of all members was required to establish a panel, allowing defendants to block judicial review, see e.g.: Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance (28 November 1979). In contrast, the WTO’s Dispute Settlement Understanding (Articles 6 para. 1, 16 para. 4 and 17 para. 14) allows the establishment of Panels, review by the Appellate Body, and the adoption of their reports, unless Member States object by consensus (so-called negative consensus). See on the judicialization of the Multilateral Trading System e.g.: Marceau and Azevedo (2015).

See e.g.: Howse (2016).

See e.g. Lacarte-Muró and Gappah (2000), p. 401. See on that perceived change also: Busch and Reinhardt (2003), p. 719.

See Article 22 of the Understanding on Rules and Procedures Governing the Settlement of Disputes.

Article 22 WTO Understanding on Rules and Procedures Governing the Settlement of Disputes.

See e.g.: Stiglitz and Charlton (2005), p. 77; Joseph (2011), p. 67.

Busch et al. (2008), p. 3.

Daku and Pelc (2017), pp. 235 and 246.

Shaffer et al. (2015), p. 601 et seq.

See e.g.: Busch and Reinhardt (2003); Guzman and Simmons (2005); Busch et al. (2008); Daku and Pelc (2017), p. 246.

See e.g.: Busch and Reinhardt (2003), p. 721; see on the problem of complexity also: Shaffer (2006), p. 181 et seq.

See e.g. Busch et al. (2008), p. 4. It must be noted that Panel and AB reports are not legally binding per se. Still, subsequent reports are very likely to follow interpretations and decisions rendered in older reports.

See on these challenges: Shaffer (2006); Busch et al. (2008), p. 4.

See on the work of the Advisory Centre on WTO Law (ACWL): http://​www.​acwl.​ch/​.

For example, most African States have never been respondents or complainants, while the US, the EU and Canada have acquired a bulk of cases both as respondents and claimants, see WTO data available at: https://​www.​wto.​org/​english/​tratop_​e/​dispu_​e/​dispu_​maps_​e.​htm.

See the insightful studies provided by Shaffer et al.: Shaffer et al. (2008), Shaffer and Gao (2018) and Shaffer et al. (2015).

Busch et al. (2008).

Daku and Pelc (2017).

Daku and Pelc (2017), pp. 233 et seqq.; 245 et seqq.

Brutger and Morse (2015).

Brutger and Morse (2015).

Daku and Pelc (2017), p. 236.

Office of the United States Trade Representative 2017 Trade Policy Agenda and 2016 Annual Report of the President of the United States on the Trade Agreements Program (2017). https://​ustr.​gov/​sites/​default/​files/​files/​reports/​2017/​AnnualReport/​AnnualReport2017​.​pdf., p. 2.

See: Hufbauer (2011).

See: Shaffer et al. (2016), p. 271.

Shaffer (2016).

Article 17 para. 1 of the Dispute Settlement Understanding.

Article 16 para. 4 of the Dispute Settlement Understanding.

Burke-White (2015), p. 26 et seqq.

Burke-White (2015), p. 39.

Tourme-Jouannet (2013), p. 21 (with reference to Postel-Vinay 2005, p. 119 et seqq.).

Declaration on the Establishment of a New International Economic Order, UNGA Resolution 3201 (S-VI) (1 May 1974) UN Doc A/Res/S-6/3201, Preamble.

See e.g.: Tourme-Jouannet (2013), p. 25; Salomon (2013); Moyn (2018), p. 118; See for earlier but rather brief assessments of that connection: Khurshid (2013 (first published in 1980)); Nawaz (2013 (first published in 1980)).

See e.g.: Tourme-Jouannet (2013), p. 28 et seqq.; Salomon (2013), p. 46 et seqq.; Sacerdoti (2015), MN 25 et seqq.

See e.g.: Anghie (2005); for ambivalence regarding that thesis and the history of how non-Western States and lawyers were able to use nineteenth century classical international law thinking to bring about new rules (mostly in the twentieth century) such as the abrogation of the standard of civilization and the codification of principles of non-intervention and self-determination, see: Becker Lorca (2014).

See on decolonization, international law, and newly independent States e.g.: Anand (2008).

Cf. Sacerdoti (2015), MN 6.

Henkin (1995), p. 156; Salomon (2013), p. 37.

The term was almost incidentally coined by French demographer Alfred Sauvy in 1952 and later taken up by writers such as Mehdi Ben Barka and Frantz Fanon. See on the evolution of the term e.g.: Tourme-Jouannet (2013), p. 20.

Tourme-Jouannet (2013), p. 20.

Rajagopal (2003), p. 74.

See in more detail on the conference and its importance: McTurnan Kahin (1956); Queuille (1965); Mortimer (1984), p. 6 et seqq.

Bennouna (2007), MN 5.

Mortimer (1984), p. 9; Rajagopal (2003), p. 74.

Final Communiqué of the Asian-African conference of Bandung (Bandung Communiqué) (24 April 1955).

Anghie (2015), p. 146.

Bennouna (2007), MN 8.

Bennouna (2007), MN 13.

See e.g. Bennouna (2007), MN 11.

Bandung Communiqué, para. 1–12.

Mortimer (1984), p. 9; Rajagopal (2003), p. 74.

See in more detail on NAM and its importance for international law: Bedjaoui (1976); Strydom (2007); and for an overview: Bennouna (2011).

See in more detail on the Group of 77 and its importance for international law: Khan (2011).

See: UNGA Resolution 1995 (XIX) of 30 December 1961.

Bennouna (2011), MN 1.

Participating Delegations included: Afghanistan, Algeria, Burma, Cambodia, Ceylon, Congo, Cuba, Cyprus, Ethiopia, Ghana, Guinea, India, Indonesia, Iraq, Lebanon, Mali, Morocco, Nepal, Saudi Arabia, Somalia, Sudan, Tunisia, United Arab Republic, Yemen, and Yugoslavia. Observers included Bolivia, Brazil, and Ecuador. See: NAM 1st Summit Conference of Heads of State or Government of the Non-Aligned Movement, Belgrade, Serbia (6 September 1961). http://​cns.​miis.​edu/​nam/​#&​panel1-2. Accessed 20 Sept 2020.

See: Bennouna (2011), MN 17.

As of 2016 NAM’s membership included 120 States from all over the (developing) world, see: NAM 17th Summit of Heads of State and Government of the Non-Aligned Movement: Final Document, NAM 2016/CoB/DOC.1. Corr. 1, Venezuela (17–18 September 2016), Annex 1 (Member Countries of the Non-Aligned Movement).

This doctrine goes back to the thinking and policies of Jawaharlal Nehru and later taken up by Josip Tito in Yugoslavia and Gamal Nasser in Egypt. These three leaders became the founding fathers and important drivers of NAM, see: Fischer (1973), p. 10; Bennouna (2011), MN 9.

These five criteria were formulated at a preparatory meeting in Cairo in June 1961, see: Bennouna MN 3.

Bennouna (2011), MN 16.

See e.g. Bennouna (2011), MN 15 et seqq.

Cf. Bennouna (2011), MN 12 et seqq.

NAM 1st Summit Conference of Heads of State or Government of the Non-Aligned Movement, Belgrade, Serbia (6 September 1961). http://​cns.​miis.​edu/​nam/​#&​panel1-2. Accessed 12 Sept 2020. para. 13–27.

G-77 Joint Declaration of the Seventy-Seven Developing Countries Made at the Conclusion of the United Nations Conference on Trade and Development, Geneva (14 June 1964). http://​www.​g77.​org. Accessed 12 Sept 2020.

See e.g.: Salomon (2013), p. 33.

See e.g. Rajagopal (2003), p. 83.

See on his conception Prebisch (1950). The same idea was also brought forward by Hans Wolfgang Singer at around the same time and later become known as the Prebisch-Singer hypothesis. See on the origins and the historical interpretation of the thesis e.g.: Toye and Toye (2003).

Prebisch renewed his theory and proposed a preferential legal trade regime in 1964, see: Prebisch (1964).

See also: Tourme-Jouannet (2013), p. 17.

Mortimer (1984), p. 75.

Initial members included Afghanistan, Algeria, Argentina, Bolivia, Brazil, Burma, Burundi, Cambodia, Cameroon, Central African Republic, Ceylon, Chad, Chile, Colombia, Congo (Brazzaville), Congo (Leopoldville), Costa Rica, Cyprus, Dahomey, Dominican Republic, Ecuador, El Salvador, Ethiopia, Gabon, Ghana, Guatemala, Guinea, Haiti, Honduras, India, Indonesia, Iran, Iraq, Jamaica, Jordan, Kenya, Kuwait, Laos, Lebanon, Liberia, Libya, Madagascar, Malaysia, Mali, Mauritania, Mexico, Morocco, Nepal, Nicaragua, Niger, Nigeria, Pakistan, Panama, Paraguay, Peru, Philippines, Republic of Korea, Republic of Viet-Nam, Rwanda, Saudi Arabia, Senegal, Sierra Leone, Somalia, Sudan, Syria, Thailand, Togo, Trinidad and Tobago, Tunisia, Uganda, United Arab Republic, United Republic of Tanganyika and Zanzibar, Upper Volta, Uruguay, Venezuela, Yemen, and Yugoslavia, see: G-77 First Ministerial Meeting of the Group of 77: Charter of Algiers, Algiers (10–25 October 1967). http://​www.​g77.​org. Accessed 12 Sept 2020.

G-77 First Ministerial Meeting of the Group of 77: Charter of Algiers, Algiers (10–25 October 1967). http://​www.​g77.​org.

G-77 First Ministerial Meeting of the Group of 77: Charter of Algiers, Algiers (10–25 October 1967). http://​www.​g77.​org. Programme of Action (section A of the Programme of Action addresses “Commodity Problems and Policies” and sections B, E and F address trade issues).

G-77 First Ministerial Meeting of the Group of 77: Charter of Algiers, Algiers (10–25 October 1967). http://​www.​g77.​org., Programme of Action, point C (“Development Financing”).

See on these differences and challenges to the unity of Third World e.g.: Rajagopal (2003), p. 86 et seqq.

Literature on the NIEO is huge, see the references in: Sacerdoti (2015); For an insightful early assessment of its legal implications, see the UN study prepared by George Abi Saab, Progressive Development of the Principles and Norms of International Law Relating to the New International Economic Order, Report of the Secretary-General, UN Doc. A/39/504/Add. 1) (23 October 1984). For early economic assessments, see contributions in: Bhagwati (1977).

Drafts of the proposals were prepared at the Summit Conference of NAM held in Algiers in September 1973. See e.g. Sacerdoti (2015), MN 5 et seqq.; Tourme-Jouannet (2013), p. 24.

See on these motivations also: Bedjaoui (1991), 24 et seqq.; Kamal (2013 (first published in 1980)); Sacerdoti (2015), MN 5 et seqq.; Salomon (2013), p. 36 et seq.

See e.g. Rajagopal (2003), p. 77 with further references; see on the perspective that the success of OPEC has been overestimated: Nye (2011), p. 67 et seqq.

UNGA Resolution 3201 (S-VI) (1 May 1974) UN Doc A/Res/S-6/3201.

UNGA Resolution 3202 (S-VI) (1 May 1974) UN Doc A/Res/S-6/3202.

UNGA Resolution 1803/17 (14 December 1962); ‘Permanent Sovereignty over Natural Resources’, UNGA Resolution 3171 (XXVIII) (17 December 1973).

UNGA Resolution 3281/29 (12 December 1974) UN Doc A/Res/29/3281.

UNGA Resolution 128/41 (4 December 1986) UN Doc A/Res/41/128.

The focus on equality, as opposed to sufficiency, was possibly the most distinctive feature of the NIEO, see for that argument: Moyn (2018), p. 118.

Kaltenborn (1998), p. 32 (“Diese vor allem im Rahmen der Vereinten Nationen ausgetragene Auseinandersetzung stellt sich heute im Rückblick als der vorläufige Höhepunkt des Nord-Süd-Konflikts dar”.) with further references.

Franck and Munansangu (1982), p. 7. States that made reservations include the US, West Germany, France, Japan, and the United Kingdom, see: Bulajic (1993), p. 271.

UNGA Resolution 3281/29 (12 December 1974) UN Doc A/Res/29/3281, Preamble.

See: Sacerdoti (2015), MN 16; see on the drafting process also: Fortin (2013), MN 26.

UNGA, Twenty-ninth Session, 2315th Plenary Meeting, 12th December 1974, Official Records, p. 1372, para. 99.

This structure goes back to an analytical study prepared by George Abi Saab, see: Progressive Development of the Principles and Norms of International Law Relating to the New International Economic Order, Report of the Secretary-General, UN Doc. A/39/504/Add. 1) (23 October 1984), 40 (para. 33); see also: Sacerdoti (2015), MN 20.

Franck and Munansangu (1982), p. 3, described the NIEO as “seeking revolutionary changes in the world economy”.

In particular, Article 2 para. 1 UN-Charter.

‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’, UNGA Resolution 2625 (XXV) (24 October 1970) UN Doc. A/RES/25/2625.

UNGA Resolution 1803 (XVII) as of 14 December 1962.

Cf. Sacerdoti (2015), MN 17.

See also: Sacerdoti (2015), MN 15.

Most notably, any reference to international law regarding the standard of treatment for investors was missing, suggesting more discretion under national standards existed, see: Subedi (2008), p. 26.

See e.g.: Boon (2013), MN 5.

See: Anghie (2015), p. 212 et seq.

See on the competing arguments between the relevant groups of States, e.g.: Pahuja (2011), p. 149; Salomon (2013), p. 39.

See: Progressive Development of the Principles and Norms of International Law Relating to the New International Economic Order, Report of the Secretary-General, UN Doc. A/39/504/Add. 1) (23 October 1984), 60. In my opinion that requirement can but must not be deducted from the rather vague text of Article 2 c) CERDS.

See on the following “general features” of the NIEO: Sacerdoti (2015), MN 13.

Cf. Kamal (2013 (first published in 1980)), p. 6; Salomon (2013), p. 34.

Remember, these terms have been defined in Chap. 1. See on the questionable radicality also: Rajagopal (2003), pp. 74 et seqq. and 89 et seqq. On the one hand, Rajagopal describes the NIEO as “a radical challenge to the ‘old’ European international law of the pre-War period” (p. 89), but on the other hand also argues that radicality was limited because the NIEO was based on Western conceptions of modernity, progress and development.

See for similar assessments: Tourme-Jouannet (2013), p. 26 and Salomon (2013), p. 39 et seqq.

Salomon (2013), p. 40; in a similar vein see also: Chimni (1998), p. 313 et seq.

Pahuja (2011), p. 124 et seqq.; see in a similar direction already: Abi-Saab (1991), p. 602.

Cf. Rajagopal (2003), p. 79.

G-77 First Ministerial Meeting of the Group of 77: Charter of Algiers, Algiers (10–25 October 1967). http://​www.​g77.​org., part 1, III.

See e.g.: Sacerdoti (2015), pp. 25 et seqq. and 31 (“it is evident that, as a whole, neither customary law nor treaty law has followed the NIEO principles approach”); Tourme-Jouannet (2013), p. 28 et seqq.; Salomon (2013), p. 46 et seqq.

The subject was intensely debated in the 1960s and 1970s, see e.g.: Higgins (1963); Falk (1966); Asamoah (1966); Castaneda and Amoia (Translator) (1969); see for a summary of the debate: Franck and Munansangu (1982), p. 2 et seq.

See for a summary of competing arguments: Klein and Schmahl (2012), MN 47 et seqq.

Klein and Schmahl (2012) MN 62; see among ICJ jurisprudence on the legal nature of UNGA resolutions and their importance for customary law, especially: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement. ICJ Reports 1986, p. 14, 89 (para. 188).

As early as 1955 Article XVIII (B) was incorporated in GATT 1947 which allowed States “at an early stage of their development” to adopt quantitative restrictions on imports to tackle balance-of-payments problems. Moreover, Article XXVIII (bis) asked contracting parties to take account “of the needs of less developed countries for a more flexible use of tariff protection to assist their economic development and the special needs of these countries to maintain tariffs for revenue purposes”, when calculating reciprocity in tariff negotiations.

Hudec (2010), p. 39.

Protocol Amending the GATT to Introduce a Part IV on Trade and Development, GATT Doc. PROT/2/62, L/2314, GATT BISD 13S/2; 572 UNTS 320 (Adopted on 8 February 1965).

See e.g. Rolland (2012), p. 72 with further references.

Rolland (2012), p. 72.

Generalized System of Preferences, Decision, GATT Doc. L/3545 (25 June 1971).

Generalized System of Preferences, Decision, GATT Doc. L/3545 (25 June 1971), Preamble.

Differential and More Favourable Treatment Reciprocity and Fuller Participation of Developing Countries, Decision, GATT Doc. L/4903 (28 November 1979).

See for a comprehensive analysis of the different forms of special and differential treatment, its historical development and also a critique: Jessen (2006).

Hudec (2010), p. 109 who argued that the GSP system became “a form of largesse similar to foreign aid – a tool to be used to win friends and punish enemies.”

See e.g.: Trachtman (2005), p. 619; Ismail (2007), p. iii; see on the exclusion of products of interest to developing countries (such as textiles and agricultural products): Michalopoulos (2014), p. 31.

Thomas and Trachtman (2009), p. 10.

See Articles 133 et seqq. UNCLOS on the principle of common heritage of mankind, and Articles 156 et seqq UNCLOS on the International Seabed Authority.

Progressive Development of the Principles and Norms of International Law Relating to the New International Economic Order, Report of the Secretary-General, UN Doc. A/39/504/Add. 1) (23 October 1984), 98 (para. 199); Millicay (2015), p. 272.

Progressive Development of the Principles and Norms of International Law Relating to the New International Economic Order, Report of the Secretary-General, UN Doc. A/39/504/Add. 1) (23 October 1984), 98 (para. 199); a number of States expressed these concerns, see: Rolland (2012), p. 72 with further references.

Progressive Development of the Principles and Norms of International Law Relating to the New International Economic Order, Report of the Secretary-General, UN Doc. A/39/504/Add. 1) (23 October 1984), 98 (para. 199); a number of States expressed these concerns within the UN, see: General Assembly Official Records (GAOR), Twenty-second Session, First Committee, 1515th and 1516th meetings (1967).

See e.g.: Fidler (2003), p. 44 et seqq.; Gathii (2008), p. 260 et seq.

Wood (2008), MN 6; see on the United States’ and other developed countries’ refusal to sign UNCLOS inter alia because of their opposition to the principle of common heritage of mankind: Progressive Development of the Principles and Norms of International Law Relating to the New International Economic Order, Report of the Secretary-General, UN Doc. A/39/504/Add. 1) (23 October 1984), 99 (para. 201).

‘Agreement Relating to the Implementation of Part XI of the Convention of the United Nations Convention on the Law of the Sea’, 10th December 1982, 1836 UNTS 3.

Sacerdoti (2015), p. 34; see in more detail also: Anand (1997); Fidler (2003), p. 55 (“On both the substantive rules on exploitation of deep sea-bed resources and the economic benefits deep sea-bed mining would generate for developing countries through international wealth redistribution, the Third World Lost”); see affirmingly also: Salomon (2013), p. 45 et seq.

See e.g.: Wolfrum (2009) MN. 1, 19.

See e.g.: Jaeckel et al. (2016).

See e.g. ‘International Development Strategy for the Second United Nations Development Decade’, UNGA Resolution 2626 (XXV), (24 October 1970) UN Doc A/RES/25/2626, para. 43.

UNGA Resolution 45/186, (21 December 1990) UN Doc A/RES/45/186.

UNGA Resolution 40/184, (17 December 1985) UN Doc A/RES/40/184.

See also: Faúndez (2010), p. 16; Sacerdoti (2015), MN 22.

The business and human rights treaty so far is mainly supported by developing countries, while the United States and members of the EU opposed the initiative, see for an overview: De Schutter (2016).

See e.g. Guzman (1998), p. 646 et seqq. who speaks of the derogation of the Hull rule due to developing country opposition.

Boon (2013), p. 11.

Texaco Overseas Petroleum Co v. Government of the Libyan Arab Republic arbitration (1978). ILM 17, p. 1, para. 88.

See for an evaluation of both controversies under customary law and compensation standards under BITs: Sornarajah (2010), p. 208 et seqq.

See on that paradox: Guzman (1998), pp. 642 and 651 et seqq.

UNCTAD’s Mapping Project reveals that ISDS clauses are included in 2441 out of 2572 mapped treaties and only 88 of these treaties contain ‘local remedies first’ clauses.

Tourme-Jouannet (2013), p. 28 et seqq.; Moyn (2018), p. 146 et seqq.

Tourme-Jouannet (2013), p. 29 with reference to UNGA Resolution 45/199 (21 December 1990) UN Doc A/RES/45/199 (on launching the Fourth Development Decade); UNGA Resolution 45/188 (21 December 1990) UN Doc A/RES/45/188 (on “Entrepreneurship”) and UNGA Resolution 54/204 (22 December 1999) UN Doc A/RES/54/204 (on “Business and Development”).

UNGA 47/171 (22 December 2002) UN Doc A/RES/47/171 committed UN “organs, organizations and bodies” to assist countries in “privatizing enterprises, demonopolizing and deregulating their economic activities” (para. 1 b).

See e.g.: UNGA Resolution 57/273 (20 December 2002) UN Doc A/RES/57/274 (on the “Role of the United Nations in promoting development in the context of globalization and interdependence”), preamble.

Tourme-Jouannet (2013), p. 29.

See: UNCTAD A New Partnership for Development: The Cartagena Commitment, Eight Session, Caratagena de Indias, Colombia (27 February 1992), para. 22, 27 et seqq., and 63 et seqq. (on the role of the market and the importance of private entrepreneurial activity); para. 23 and 96 (on the need for developing countries to adopt or strengthen a liberal regulatory investment regime); para. 125 et seqq. (on the need for further trade liberalization to increase development possibilities of developing countries).

Fortin (2013), MN 21; Sacerdoti (2015), MN 28.

Tourme-Jouannet (2013), p. 31 with further references.

TRIMS for example explicitly prohibits so-called performance and local content requirements often used to promote infant industries, see: TRIMS, Annex Nr. 1, a)-b).

See for an overview of the plethora of such provisions: Jessen (2006).

See on the more active participation in reciprocal liberalization of trade in goods and services: Michalopoulos (2014), pp. 36, 68 et seqq.

See for the first use of the term and an early explanation of its content: Williamson (1990).

On the diversity of reasons for the abandonment of the NIEO, see e.g.: Tourme-Jouannet (2013), p. 28 et seqq.; Sacerdoti (2015), MN 25 et seqq.

Cf. Bennouna (2011), MN 16.

Because of these factors, the end of the Third World was already proclaimed by some writers in 1986, see: Harris (1986); for the argument that the problem of differentiation among members at different ‘stages’ of development and the need to moderate tensions led to the watering down of radical positions within UNCTAD and G-77, see: Rajagopal (2003), p. 87.

See data provided by the World Bank on foreign direct investment flows, available at: https://​data.​worldbank.​org/​indicator/​BX.​KT.​DINV.​CD.​WD.

Cf. Salomon (2013), p. 41.

India is a founding member of both NAM and G-77. Brazil, China, and South Africa are also listed as G-77 member States, albeit China is not a formal member and G-77 statements are usually issued in the name of G-77 and China. Since 1994 South Africa is also a member of NAM and Brazil and China have observer status. A list of G-77 members is available at: http://​www.​g77.​org; a list of NAM members is available at: http://​nam.​gov.​ir. Accessed 13 Sept 2020.

Triepel (1961), p. 140 (“Machtgrade kann man nicht mit dem Zollstocke messen”; own translation: “One cannot measure power with a yard stick”).

Hoffmann (1995), p. 184; Keohane and Nye (2012), pp. 3, 9 et seqq.

See e.g. the work of the International Institute for Strategic Studies (IISS) based in the UK which provides an annual assessment of countries’ armed forces entitled “The Military Balance”; another annual ranking is provided by the website: https://​www.​globalfirepower.​com/​countries-listing.​asp.

Tian (2018), p. 149.

See: IISS (2017); See for data on military expenditure also the Stockholm International Peace Research Institute’s database, available at: https://​www.​sipri.​org/​databases.

Tian (2018), p. 149.

Tian et al. (2018), p. 157.

Tian et al. (2018), p. 157.

See also: IISS (2018a), p. 20.

IISS (2018b), p. 5.

Putz (2015).

See: IISS (2018c), p. 377; see also the ranking of Latin American States by Military Strength that ranks Brazil 1st available at: https://​www.​globalfirepower.​com/​countries-listing-latin-america.​asp.

See: ‘African Powers Ranked by Military Strength Ranking’ available at: https://​www.​globalfirepower.​com/​countries-listing-africa.​asp.

See: IISS (2018d), p. 485.

Numbers are based on data from the Stockholm International Peace Research Institute (SIPRI), see: Kile and Kristensen (2018c), p. 236.

See for country specific assessments of these strategies: Kile and Kristensen (2018a, b).

Kiely (2016).

See GDP figures provided by the World Bank, available at: http://​data.​worldbank.​org. Accessed 5 Jan 2020.

See GDP per capita figures provided by the World Bank for 2018, available at: http://​data.​worldbank.​org.

See for a detailed analysis of these problems in BRICS States: Kiely (2016), p. 83 et seqq.

The recent change of president in South Africa and successful elections in Brazil (whatever one may think of the newly elected president) suggest more political stability may be on the horizon, though it is too early to tell for certain.

Kiely (2016), p. 61 et seqq.

Among the many contributions to the field, see e.g.: Manning (2006), Brautigam (2009), Mawdsley (2012) and de La Fontaine (2013).

It has to be noted here that especially China actually is a ‘re-emerging donor’ as the country already had development cooperation projects earlier, see: Mawdsley (2012), p. 48 et seqq.

‘Agreement on the New Development Bank’, Fortaleza, 15 July 2014.

Ibid. Article 2.

See e.g.: Desai (2013).

Up until December 2018, only projects within BRICS States received funding. For an overview of projects, see: https://​www.​ndb.​int/​projects/​.

Agreement on the New Development Bank, Fortaleza, July 15, 2014, Article 2 and Articles of Agreement of the New Development Bank, Article 5, 10 e)

See on IBSA: Stuenkel (2015a).

Agreement on the IBSA Fund for the Alleviation of Poverty and Hunger, Durban (17 October 2017), Article 2, available at: http://​www.​itamaraty.​gov.​br/​en/​press-releases.

A list of voting shares is available at: https://​www.​aiib.​org.

See on these difficulties: Mawdsley (2012), p. 78 et seqq.

Data on China is provided for by the open-source-based website aiddata.​org, which is run by a number of experts in the field and based at the Institute for the Theory & Practice of International Relations at William & Mary University (US).

Aiddata.​org distinguishes between Official Development Assistance (ODA) which is commonly defined as containing a concessional element of at least 25% and is primarily intended for non-military development and welfare, and Other Official flows (OOF), which may contain a concessional element but below 25% and is primarily intended for commercial or representational purposes; statistics of China are available at: http://​aiddata.​org/​china.

Mullen (2003), p. 2.

OECD Active with Brazil (2015). http://​www.​oecd.​org/​brazil/​Brazil%20​brochureWEB.​pdf. Accessed 12 Sept 2020. p. 43.

Besharati (2013), p. 19.

Besharati (2013), p. 19.

See: Mawdsley (2012), p. 153 et seqq.; Quadir (2013), p. 326; see on South Africa also: Grobbelaar (2014), p. 10 et seq.; see also the summary of official goals and working principles of the Agência Brasileira de Cooperação (ABC) available at: http://​www.​abc.​gov.​br/​training/​informacoes/​ABC_​en.​aspx. Accessed 12 Sept 2020.

See e.g.: Mawdsley (2012), p. 158 et seqq.; Fuchs and Vadlamannati (2013); Mawdsley (2011), p. 483.

Mawdsley (2012), p. 161.

Mullen (2003), p. 15.

Inoue and Vaz (2012), p. 528 et seqq. with further references.

Naím (2007).

See for a differentiated assessment of China’s development cooperation and finance in Africa: Brautigam (2009), chapter 11 and p. 307 et seqq.

See e.g. Mawdsley (2012), pp. 55, 74 et seqq.; Brautigam (2009), p. 67.

Data is drawn from China’s WTO country profile, available online at: https://​www.​wto.​org/​english/​thewto_​e/​countries_​e/​china_​e.​htm. Accessed 12 Sept 2020.

Kiely (2016), p. 53 et seqq. with further references. Apple obtains many of its products from Hon Hai Precision Industry, a Taiwan-owned company, which uses its Chinese subsidiary, Foxconn, to assemble the parts of Apple products in China. In 2005 a 30 gigabyte iPod classic cost US$ 299 in the United States, of which Apple paid US$ 144 to Hon Hai. Of that US$ 144 only 3% went to Foxconn, 51% to a Japanese hard drive producer, 3% to the United States based semi-conductor designer, and 2% to a South Korean memory chip producer. The 2007 Apple iPhone, which sold for US$ 500 in the United States, only cost US$ 178.96 to be manufactured and Chinese labour costs only made up US$ 6.5 per phone.

All figures are drawn from WTO data available online on the respective country pages (data is of 2018): http://​stat.​wto.​org/​CountryProfile. Accessed 5 Jan 2020.

See on India’s service sector in the context of the WTO: Hopewell (2016), p. 149 et seqq.

All numbers are available on Brazil’s WTO country page, available at: http://​stat.​wto.​org/​CountryProfiles/​BR_​e.​htm. Accessed 5 Jan 2020.

See on the importance of the agribusiness sector for Brazil and trade policies: Hopewell (2013).

See for data of FDI flows between China and Hong Kong: https://​www.​statista.​com/​statistics/​720900/​total-outward-fdi-stock-from-china-to-hong-kong/​.

UNCTAD (2018), pp. 37, 43, 50, 61.

UNCTAD (2018), p. 37.

UNCTAD (2018), pp. 43, 50.

UNCTAD (2018), p. 61.

See on China’s efforts to increase its soft power and also its failures: Nye (2011), p. 88 et seqq.

See e.g. Rogin (2018).

See on the methodology: McClory (2019), p. 29 et seqq.

See on the methodology: McClory (2010), p. 3 et seqq.

McClory (2010), p. 5.

Cf. McClory (2017), p. 70.

The metaphor of ‘green room talks’ derives from the wall colour of the room in Geneva where these negotiations were conducted in the past.

For a helpful overview of all high-ranking meetings of BRICS officials and issued documents, see: http://​www.​brics.​utoronto.​ca/​. Accessed 12 Sept 2020. All statements and declarations cited in the following footnotes and chapters can be accessed there.

BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 1; BRICS Media Statement: Informal BRICS Leaders’ Meeting on the Margins of the G20 Summit, Buenos Aires, Argentina (30 November 2018), para. 4; BRICS Eleventh Summit: Brasilía Declaration, Brasilia, Brazil (14 November, 2019), para. 5.

See e.g. BRIC First Summit: Joint Statement of the BRIC Countries Leaders, Yekaterinburg, Russia (June 16, 2009) para. 3; BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010) para. 11; BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), 8 et seqq.; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 18 et seq.; BRICS Eighth BRICS Summit, Goa, India (16 October 2016), para. 30; BRICS Ninth Summit: BRICS Leaders Xiamen Declaration, Xiamen (4 September 2017), para. 29.

BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 18; BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), para. 19.

BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010), para. 11; BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), 12; BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 13.

The document is available at: http://​brics.​itamaraty.​gov.​br/​category-english/​21-documents/​227-brics-perspective-on-international-investment-agreements; see for a more detailed analysis Chap. 4, B. V.

BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 15; in a similar vein and adding that “efficient allocation of resources, free flow of goods, and fair and orderly competition [is necessary] to the benefit of all.” BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 20; see also: BRICS Media Statement: Informal BRICS Leaders’ Meeting on the Margins of the G20 Summit, Buenos Aires, Argentina (30 November 2018), para. 4–8.

BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), para. 21; BRICS Eighth BRICS Summit, Goa, India (16 October 2016), para. 34; BRICS Eleventh Summit: Brasilía Declaration, Brasilia, Brazil (14 November, 2019) para. 26.

See e.g.: BRIC First Summit: Joint Statement of the BRIC Countries Leaders, Yekaterinburg, Russia (June 16, 2009), para. 5; BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010) para. 14; BRICS Third Summit: Sanya Declaration and Action Plan, Sanya, China (14 April, 2011) para. 26; BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), 15 et seq.; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 21; BRICS Eighth BRICS Summit, Goa, India (16 October 2016), para. 35; BRICS Ninth Summit: BRICS Leaders Xiamen Declaration, Xiamen (4 September 2017), para. 32.

Quote taken from: BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 17; see on the support for UNCTAD also: BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 22; BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), para. 22.

BRICS Eleventh Summit: Brasilía Declaration, Brasilia, Brazil (14 November, 2019), para. 28.

BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 28; BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 22; BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), para. 10; BRICS Ninth Summit: BRICS Leaders Xiamen Declaration, Xiamen (4 September 2017), para. 54.

Quotes taken from: BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 28; see on human rights also: BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 22; BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), para. 10; BRICS Ninth Summit: BRICS Leaders Xiamen Declaration, Xiamen (4 September 2017), para. 54.

See e.g. BRICS Third Summit: Sanya Declaration and Action Plan, Sanya, China (14 April, 2011), 20 et seq.; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 54 et seqq.; BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), para. 65 et seqq.

See e.g. the Seventh BRICS Summit which was held under the theme “BRICS Partnership – a Powerful Factor of Global Development”, BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), para. 1 and also adopted the “Strategy for the BRICS Economic Partnership” aimed at improving trade, investment and financial cooperation within the group (para. 17).

BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010), para. 15; BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), para. 34; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 54; BRICS Eighth BRICS Summit, Goa, India (16 October 2016), para. 23.

See e.g. BRICS Ninth Summit: BRICS Leaders Xiamen Declaration, Xiamen (4 September 2017), para. 3.

See on issues of development: BRIC First Summit: Joint Statement of the BRIC Countries Leaders, Yekaterinburg, Russia (June 16, 2009), para. 6–7; BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010), 18; BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), para. 22, 35; BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 38 et seq.; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 6; BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), 65 et seqq.; BRICS Eighth BRICS Summit, Goa, India (16 October 2016), para. 21 et seqq.; BRICS Ninth Summit: BRICS Leaders Xiamen Declaration, Xiamen (4 September 2017), para. 14.

BRIC First Summit: Joint Statement of the BRIC Countries Leaders, Yekaterinburg, Russia (June 16, 2009), 14; BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010), para. 2; BRICS Third Summit: Sanya Declaration and Action Plan, Sanya, China (14 April, 2011), para. 5, 7, 8; BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), 4; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 2; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), 5; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 25; BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), para. 4; BRICS Ninth Summit: BRICS Leaders Xiamen Declaration, Xiamen (4 September 2017), para. 7; BRICS Ninth Summit: BRICS Leaders Xiamen Declaration, Xiamen (4 September 2017), para. 39 et seq.

BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 5.

BRIC First Summit: Joint Statement of the BRIC Countries Leaders, Yekaterinburg, Russia (June 16, 2009), para. 14; BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010), para. 4.

BRIC First Summit: Joint Statement of the BRIC Countries Leaders, Yekaterinburg, Russia (June 16, 2009), para. 14; BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010), para. 4; BRICS Third Summit: Sanya Declaration and Action Plan, Sanya, China (14 April, 2011), para. 8; BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), para. 26; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 25; BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), para. 4; BRICS Eighth BRICS Summit, Goa, India (16 October 2016), para. 10; BRICS Ninth Summit: BRICS Leaders Xiamen Declaration, Xiamen (4 September 2017), para. 40.

Quote taken from BRIC First Summit: Joint Statement of the BRIC Countries Leaders, Yekaterinburg, Russia (June 16, 2009), 12; see in a similar vein: BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010), para. 2; BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 1.

BRICS Third Summit: Sanya Declaration and Action Plan, Sanya, China (14 April, 2011), para. 7; see in a similar vein: BRICS Ninth Summit: BRICS Leaders Xiamen Declaration, Xiamen (4 September 2017), para. 6.

BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 24.

BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), para. 6.

BRIC First Summit: Joint Statement of the BRIC Countries Leaders, Yekaterinburg, Russia (June 16, 2009), para. 9; BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010), para. 22 et seq.; BRICS Third Summit: Sanya Declaration and Action Plan, Sanya, China (14 April, 2011) 22; BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), 29 et seqq., BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 37; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 52; BRICS Eighth BRICS Summit, Goa, India (16 October 2016), para. 21.

BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010), para. 11; BRICS Third Summit: Sanya Declaration and Action Plan, Sanya, China (14 April, 2011), para. 15 et seq.; BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), para. 9; BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 13.

BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010) para. 11; BRICS Third Summit: Sanya Declaration and Action Plan, Sanya, China (14 April, 2011), para. 15 et seq.; BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), para. 9; BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 13.

See: Agreement on the New Development Bank, Fortaleza, Brazil (15 July, 2014). http://​ndbbrics.​org/​agreement.​html., Article 2 and 6.

BRICS Third Summit: Sanya Declaration and Action Plan, Sanya, China (14 April, 2011) para. 14 et seq.; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 9; BRICS Seventh BRICS Summit: Ufa Declaration, Ufa (9 July 2015), para. 18; BRICS Ninth Summit: BRICS Leaders Xiamen Declaration, Xiamen (4 September 2017), 33.

See e.g.: BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), para. 3.

See also: Sampford (2013).