Trade Multilateralism on Life Support

Despite the global trade hysteria prompted by the U.S’ unilateral act of Liberation Day Tariff, the World Trade Organization (“WTO”) as the sole institution serving the role of global trade overseer, remains dormant. A disappointing, but somehow unsurprising outcome considering its long withstanding problem: the blocking of appointments for new appellate body judges by the (again) U.S since the Obama administration  in 2016. A problem that later intensified under the Trump administration  and that leaves at least 32 WTO disputes appealed into void. The absence of WTO’s two-tier dispute settlement mechanism has compromised the judicial operation of the WTO, significantly weakening the enforceability of international trade law and eroding confidence in the WTO as the ‘guardian’ of multilateral trade order.

The U.S, which was once the  chief architect of the multilateral trading order under the Marrakesh Agreement, is now actively dismantling its core legal mechanisms and underscoring the system’s internal contradiction. Into this vacuum steps BRICS, a bloc often sidelined or vilified by the very powers currently eroding the system, now asserting a renewed vision for global trade governance in their 2025 Rio de Janeiro Declaration. This piece examines how BRICS’ bloc (hereafter BRICS) initiatives either reinforce or fragment the coherence of the WTO legal architecture viewed through the lens of Abbot-Snidal’s hard-soft law theory. Do their recent declarations and statements regarding the WTO reflect genuine commitment to multilateral trade reform or do they signal an opening toward future fragmentation?

The BRICS’ Bloc Position on Trade and Multilateralism

Despite increasing global skepticism toward multilateralism in trade, the BRICS bloc has positioned itself, at least rhetorically, as a ‘defender’ of the WTO-centered trading system. The 2025 Rio de Janeiro Declaration reaffirmed BRICS’ support for ‘an open, rules-based, equitable, and non-discriminatory multilateral trading system’ and identified WTO as ‘the only existing global institution with the necessary mandate, reach, and competence’ to take the oversight role of the full spectrum of international trade. This statement of institutional loyalty is notable, particularly when juxtaposed with prevailing Global North skepticism and ongoing paralysis within the WTO’s dispute settlement mechanism. This declaration of support upon WTO and trade multilateralism, however, is not without its irony. Russia, as one of the signatories, is still engaged in a war that directly challenges the very principles of rules-based order of international law BRICS claims to uphold. Yet in the trade sphere, the bloc remains committed to a cooperative multilateral order, at least rhetorically.

At the heart of BRICS’ multilateral posture is a strong emphasis on restoring the two-tier WTO dispute settlement system. Both the 2025 Rio Declaration and the earlier BRICS Declaration on WTO Reform and Strengthening of the Multilateral Trading System explicitly recognize that the credibility of WTO law depends on the enforceability of its rules. For BRICS, the restoration of the Appellate Body is not just desirable but urgent. BRICS’ member states commitment includes active engagement in Geneva negotiations and a stated willingness to fulfill the Ministerial Conference mandates, particularly the goal of reinstating WTO’s well-functioning, binding, adjudicative structure by the post-MC13 timeline.

However, the BRICS’ open support for the WTO does not preclude efforts to establish complementary mechanisms that reflect their collective development priorities. The BRICS Trade and Sustainable Development Framework, developed under the auspices of the Contact Group on Economic and Trade Issues (CGETI), provides a structured platform for internal coordination on trade-environment linkages. Through this platform, BRICS members seek to ‘harmonize national approaches, share best practices, and explore joint strategies for integrating trade policy with sustainable development goals.’ Crucially, the framework also calls for coordinated positions at multilateral fora, including the WTO and UNFCCC, indicating desire to amplify the collective voice of the Global South in shaping global trade governance.

This dual posture of both affirming WTO centrality while simultaneously developing BRICS-specific normative platforms presents a legal ambiguity. On one hand, these efforts can be viewed as constructive pluralism, operating within WTO-compatible parameters and aiming to influence reform from within. On the other hand, the institutionalization of parallel initiatives may risk normative fragmentation, particularly if BRICS begins to entrench separate legal standards or institutional processes that diverge from WTO norms.

To Reform or to Fragment?

The concept of soft law such as declarations, joint statements, and political commitments plays a crucial role in international governance, particularly for blocs like BRICS that rely on consensus-based diplomacy. Abbott & Snidal’s framework on soft-hard law helps assess whether such soft commitments serve as precursors to harder legalization or nothing more. Their theory identifies three key dimensions: obligation (legal enforceability), precision (specificity of rules), and delegation (institutional oversight). Historically, soft commitments can evolve into hard law if states institutionalize them (e.g., via treaties or dispute bodies). For BRICS, the critical question is whether their rhetoric will remain aspirational or escalate into formal rule-making, potentially diverting from WTO norms.

BRICS’ 2025 Rio Declaration and 2024 Declaration on WTO Reform demonstrate a deliberate use of soft law instruments that align with Abbott & Snidal’s framework. BRICS’ statements emphasize support for a “rules-based multilateral trading system,” yet they remain non-binding political commitments. For instance, while the Rio Declaration calls for the “urgent restoration” of the WTO’s dispute settlement system, it does not specify consequences if members fail to comply aside from general state responsibility. Similarly, pledges to “engage constructively” within the WTO rely on voluntary cooperation rather than enforceable obligations. This reflects classic soft law strategy: rallying consensus and engaging deeper cooperation without locking states into rigid legal commitments. Based on Abbot-Snidal’s framework, this relatively weak legal enforceability could imply a low level of obligation.

BRICS’ recent declarations employ strikingly precise language for non-binding instruments, explicitly mirroring the MC12 mandate, demanding “a two-tier, fully-functioning dispute settlement system by 2024” and outlining measurable goals for sustainable trade coordination. Yet, whether this precision reflects genuine commitment or performative diplomacy remains open to question. In international diplomacy, detailed phrasing can serve as a rhetorical strategy which offers political cover and moral ground rather than an operational roadmap. Given the bloc’s internal economic asymmetries and absence of enforcement mechanisms, BRICS’ linguistic precision may signal aspiration more than capacity, a means of shaping perception while avoiding the hard-law obligations that true reform would require.

On the other hand, should WTO reform continue to stall, BRICS may increasingly rely on parallel coordination frameworks to advance its agenda. Such frameworks may initially be framed as complementary soft-law platforms, but risk gradually eroding the WTO’s authority and coherence by creating alternative trade dispute settlement and policy alignment. The experience of the Multi-Party Interim Appeal Arbitration (MPIA) demonstrates how provisional arrangements, even when intended as stopgaps, can normalize institutional fragmentation within the multilateral system. Similar dynamics can be observed in regional trade agreement courts, where dispute settlement occurs outside the WTO’s umbrella, weakening its role as the central adjudicative forum. Ultimately, BRICS’ approach embodies a dual potential: it could reinvigorate momentum for reform through constructive pressure, or, if unmet, accelerate institutional fragmentation by transforming rhetorical precision into the base for establishing a whole new institution.

Crucially, BRICS has not created new institutions to enforce its declarations. Unlike regional trade blocs, BRICS relies on the WTO’s forums, such as “technical discussions in Geneva.” This suggests a preference for working within the multilateral system, at least for now. However, the Sustainable Development Framework’s proposed “dedicated platform” for BRICS coordination could evolve into a more autonomous body, particularly if WTO reform stalls. The case of the establishment of New Development Bank (NDB), BRICS’ own multilateral development bank, presents an example of how the outcome of underrepresentation in existing institutions and their unwillingness/slowness in adapting to new global context leads to BRICS “opting out”. In Abbott & Snidal’s terms, this calculated lack of delegation exemplifies soft law’s ‘strategic ambiguity’ that allows BRICS to preserve its freedom to later choose between keeping pushing for WTO reform from within or going into hard legalization.

Future Scenarios

The trajectory of BRICS’ engagement with the WTO hinges on whether their soft law commitments remain declaratory or evolve into concrete institutional alternatives. Abbott & Snidal’s framework suggests two plausible possibilities, each carrying distinct implications for the multilateral trading system.

Should WTO reform stagnate, BRICS possesses both the capacity and motivation to transform its rhetoric into binding arrangements. The bloc could establish a BRICS-specific dispute settlement mechanism, mirroring how the EU’s internal system operates alongside WTO procedures. More disruptively, the Sustainable Development Framework might mature into bloc-wide trade rules on environmental goods or industrial subsidies, potentially generating parallel interpretive frameworks that, while not formally displacing WTO law, may weaken its centrality and coherence. For BRICS, such institutionalization would signal a pivot from reforming multilateralism to competing with it, at least institutionally, particularly if accompanied by preferential tariffs or investment rules among member states.

Alternatively, should WTO reform progress, BRICS may continue leveraging soft instruments to pressure the WTO from within. The existence of BRICS’ Sustainable Development Framework, with absence of delegation mechanisms, implying its enduring commitment to multilateralism. Although not a politically agreed ideal representation of the whole Global South (Argentina, for instance, decided to stay out of BRICS despite constituting a relevant case of global south countries), BRICS functions as a politically diverse coalition that straddles both developing and emerging economies. It offers a “second perspective” on the multilateral trade order: lending the microphone to states feeling sidelined within the existing structures. As disillusionment with the current system deepens, more countries may gravitate toward its platform. This may potentially strengthen BRICS’ collective bargaining power, and by extension, its capacity to influence the WTO’s reform agenda. The evolution of the Sustainable Development Framework would be worthy to be considered as a kind of “litmus test”. If it remains a dialogue forum, BRICS will likely stay on a soft law path in their pursuit of WTO reform. However, should it adopt binding standards or dispute resolution functions, this would mark the bloc’s transition toward alternative regime-shifting.

At the end of the day, a decisive factor shaping BRICS’ trajectory remains the willingness of its members to pursue reform within the WTO framework rather than constructing an alternative order. The bloc itself is not a treaty-based institution but a loose consensus among states with diverse political systems and economic models. Despite these divergences, BRICS members often align on issues that link sovereignty, inclusivity, and equitable development. Past cases such as Russia’s war in Ukraine, Beijing and New Delhi’s border tensions, and Moscow’s prior support for the Assad regime illustrate how BRICS compartmentalizes political divergences by allowing members to maintain distinct “national positions.” This issue-based cooperation enables BRICS members to exercise leverage in bargaining power in multilateral negotiations, often exceeding what each member could achieve individually.

In the WTO context, this capacity for coordinated yet flexible alignment gives BRICS tangible influence over the direction of trade reform debates, particularly on dispute settlement restoration and policy space for development. Whether this leverage ultimately reinforces the WTO’s centrality or accelerates institutional drift will depend on whether BRICS continues to channel its collective weight through multilateral processes or gradually normalizes parallel coordination as a functional substitute. BRICS’ internal cohesion, however issue-specific it might be, has direct implications for the future coherence and authority of the multilateral trading system.