International Institutional Bypass; From a straight view point
International organizations have evolved over time to meet the demand of the ever-changing world, in this process institutions have faced new challenges, waived primitive thought and adopted new policies as well. This sort of changes came into existence due to continuous evaluation and analysis of experts in the field.
One such evaluation was conducted by Mariana Mota Prado, Associate Professor, Faculty of law, University of Toronto, Canada; she observed that the massive effort of the international community to rule of law 303 projects have been initiated to reform the dysfunctional institutions around the world and spent 2.9 Billion USD on this sector since 1990. Despite such heavy effort, the institutions remained dysfunctional. She observed that it is better to form a new institution parallels with the old dominate one with a new improved procedure to avoid complexity. She named it as “Institutional Bypass” which is equally applicable in the international arena and domestic arena. To make it more clearly she compared with bypass surgery and bypass road. Furthermore, she provided few characteristics of the institutional bypass. Such as:
- It keeps the dominant institution in place;
- It creates an optional alternative pathway;
- It has at last one distinctive feature that aims at addressing a perceived dysfunction in the dominant institution;
- It is separated from a dominant institution.
Let’s re-visit her finding to understand and test the theory and its application in the international law; the concept of International Institutional Bypass (IIB).
That being said, an international institution basically depend on the collective agreement of state party; on the other hand, some dominant state or organization has de facto control over the formation process on the creation of an organization generally, those dominant figures contributes the most and often their contribution reflects their will in a sublime way, their interests are protected by legal limbo with some sort of exception in place to place, by doing this the organization becomes the paying tool of those determiners, thus the system is set to follow the rule of certain character, where the rules are written correctly the institution remains function where the fail to foresee the upcoming challenges it becomes dysfunctional; League of Nations can be considered as a good example of this explanation.
Considering this problem, when further initiative is taken to reform the institutional mechanism that becomes harder to face, at the time when all system is set up and people are already habituated with the (corrupt/dysfunctional) system, it is hard to introduce any new reform while the institution is functional (on the go), it is not possible to stop all the proceeding at once and bring a new method even partial change seems more problematic and confusing to the stakeholders because they were already dependent on their path, known as “Path Dependency”. In addition, the beneficiaries are reluctant to adopt the new system for their personal benefit, moreover, the legal complexity and proceeding make this sort of change quite impossible.
At this point, it becomes easier to establish a new institution while the dominant institution function in its own way. The idea is to create an alternative for the stakeholders so that they have an option to choose for the same purpose. This new parallel institution work for the same or similar objective but most of the time functions in a different way, new organizations focus the dysfunctions of the dominant one and try to deal the issue designing a new method or working solving that dysfunctionality. Similarly, as the stakeholders get the option and many choose the newly developed way to get their job done it reduces the pressure on the dominant (old) organization thus helps the situation in a two-fold way.
The proposition Dr Prado seems well feated with her explanation but that does not help the theory viewing from a different perspective, though the IIB has potentials to solve many problems in a more smart way, it should not be treated as panacea.
For example; ICJ (International Court of Justice) being an International institution and a part of United Nations has certain limits to its functionality, in the matter of the contentious case, It cannot try any suit where the contrasting parties (states) disagree to the jurisdiction of the court or the admissibility of the case, another drawback is no institution or non-state entity can be a direct party to these contentious issues or under advisory jurisdiction. On the other hand, the implementation of the judgment of the court depends on the United Nations, more specifically on the well wish of the Security Council if the respondent country disobeys the judgment of the court. Now, In the matter of Human Rights, we can consider European Court of Human Rights (ECHR) as an alternative that tends to solves the embankment that is present before the ICJ, ECHR do not need prior permission of countries of any issue presented before it, any state or legal or natural individual can present any Human Rights issue before it, it is more organised and active. After a judgment by the court the file to the Committee of Ministers of the Council of Europe, then the country concerned and the department responsible for the execution of judgments to decide how the judgment should be executed which is more effective procedure then the ICJ system.
Similarly, there are many regional trade agreement avoiding the dominant WTO for its mandatory imposing nature, moreover, WIPO is less functional for the development of TRIPS, World Bank is losing its mainstream control over the world money flow as emerging superpower wants to control the world economy in a new way; so international institutions like “BRICKS” and “AIIB” are on the rise.
As we said before the theory of IIB is not without criticism, when Dr Prado too enthusiastic about the new institutions it shall create a problem in long run. This parallel system could be a short-term solution but the achievement shall be vivid soon when the institutions will create a deadlock situation on the matter of founding and jurisdiction or sometimes simply to hold their pride. It must be kept in mind the very reason of dysfunctionality could come around with new institution as the intention and interest of dominant parties (states) shall change time to time and definitely, there will be new demand and new powers who would like to make their own rule, therefore the management of dominant organization is also very important, both the new (who bypass) and dominant (old) shall take lesion from each other and try to function properly from the collective knowledge.
 Alvaro Santos, The World Bank’s Uses of the “Rule of Law” Promise in Economic Development in THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL 253 (David M. Trubek and Alvaro Santos, eds., 2006