Symposium on International Institutional Bypass: A Further Legal Analysis
“In summary, our aim in this symposium is to introduce readers to the concept of international institutional bypasses, provide concrete examples, and show that this concept can be of great value in attempts to understand and analyze changes and innovations in global governance. That being said, this is only the first step in a much larger and more ambitious project. Thus, we hope it will also serve as an invitation for readers to further explore the many interesting questions and implications of institutional bypasses in the international context”—this was what was concluded by Mariana Mota Prado and Steven Hoffman in their ‘Introduction to Symposium on International Institutional Bypass’ and it was a publication of Cambridge University Press . The arguments of the authors are full of insights and would contribute to the field of international law. However, there might be more analyses on the application of the International Institutional Bypass (IIB) concept in the light of the current problems ongoing in the ‘real fields’ of human rights and its role to implement the human rights in the ‘real world’; on a random selection let me pick the Myanmar Issue first.
In this Symposium Authors, by their essays, afford to provide different sets of examples to illustrate the application of international institutional bypasses (IIB). Oliver Stuenkel  takes the form of the New Development Bank and the Asian Infrastructure Investment Bank, which serve as bypasses of the World Bank and the Asian Development Bank, respectively. Rohinton.P.Medhora  produces examples that are regional swap lines and regional central banks, which are presented as bypasses of the International Monetary Fund (IMF). And Edefe Ojomo  tells about regional institutions in West Africa, and particularly those providing health services, are framed as bypasses of domestic institutions that serve the same functions.
According to Mariana Mota Prado and Steven Hoffman  there are six following characteristics in the concept of International Institutional Bypass (IIB):
- it keeps the dominant institution in place;
- it creates an optional alternative pathway through which to discharge functions performed by the dominant institution;
- it has at least one distinctive feature that aims at addressing a perceived dysfunction in the dominant institution;
- it has effects in the same international regime or domestic legal order of the dominant institution;
- it is compatible with the requirements of the international regime or domestic legal order within which the bypass is operating; and
- it is separated from the dominant institution’s governance structure.
Domestic Institutions of Myanmar VERSUS The SDGs: International Institutional Bypass:
‘The Myanmar government has evacuated at least 4,000 non-Muslim villagers amid ongoing clashes in north- western Rakhaine state, the government said, while thousands of Rohingya Muslims fled across the border to Bangladesh’. This was what was reported in the U.K guardian  on 27 August 2017. Neither the news of that kind nor the persecution on Rohingya is any new to the globe. Can the concept (IIB) ensure the non-recurrence?
The country is in conflict. The facebook and other social medias are publishing, everyday, the news and images of persecution of Rohingya in Myanmar. Victims count from the sick and aged persons through children. Violations of international humanitarian laws are every day’s news. People of the globe are keen to see the violators are not above the law.
The world is proceeding from further to further. World-leaders are now to achieve the Sustainable Development Goals . Let me compare the SDGs with an International Institutional Mandate. The objectives set forth in the SDGs offer a broad and ambitious roadmap for furthering those achievements to the next level. The question is – whether shall we achieve the goals if we fail to ensure the respect, dignity and security of every human life? In other words, Can we achieve the SDGs without committing to the Universal Declaration? Questions merit deep attention. In 1948 the Universal Declaration of Human Rights was established to stop the repeat of the atrocities that were experienced during the two world wars and it defined the basic rights and freedoms that should be enjoyed by the all members of the human family. The current condition of Ruhingya tells us to have a view on the Universal Declaration of Human Rights. Article 13  of the Universal Declaration says “everyone has the right to freedom of movement and residence within the borders of each state”. If we look at Ruhingya we find that they are far away from the rights we are talking about. Ruhingya do not have this right neither in the land where they were the habitual residents nor in the land they have got the status of refugee. How can we achieve the SDGs without ensuring the right of free movements to the Ruhingya that has been guaranteed by the Article 13 of the Universal Declaration? Article 14  of the Universal Declaration says “everyone has the right to seek and to enjoy in others countries asylum from persecution”. The current situations attached to Ruhingya and the response of other countries to them tell us what amount to a denial to this particular right. Unfortunately despite the best intentions the SDGs are silent on the Ruhingya children and aged people who, to their reluctance, have been moving from country to country for decades. Who will come forward to help If the leaders of power do not make commitments to save our fellow humans? Article 15  of the Declaration of Human Rights says that” everyone has the right to nationality”, and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. It is known to the whole world that the Ruhingya have been denied the basic rights of citizenship for decades. They are forced to live in a situation where they do not have access to full education, employment and healthcare. The SDGs can not bring any fruit for the future world leaving the Ruhingya in the state they are in. Myanmar is also a stakeholder to the SDGs and is supposed to play positive role in paving the avenue of development for the coming future. International instruments impose on Myanmar to do or refrain from doing certain things that were contemplated in the instruments. International law mandates that States either act or refrain from acting in certain ways and also provides remedies for the incidence of breaches/ violations. There are four interrelated bodies that pass obligation to the Myanmar: international human rights and other treaty laws including the UN Charter; customary international law including the laws of state responsibility; international humanitarian laws; and international criminal law. A number of international instruments has been ratified by Myanmar and thereby accepted the obligations that derive from those. As per the Vienna Convention Myanmar, by ratifying a treaty, is obliged under international law to comply with the provisions of the treaty in good faith and can not use domestic laws to justify a failure to comply with treaty obligations. Myanmar is a party to the UN Charter and treaties, amongst others, include the Genocide Convention, the four Geneva Conventions, the Convention on the Elimination of All Forms Discrimination against women (CEDAW), the Convention on the Rights of the Child (CRC), and the Treaty on the Non- Proliferation of Nuclear Weapons (NPT).
Along with other stakeholders Myanmar is also on its way to future. One could raise a question saying that – Isn’t it essential to understand the importance of international obligations in order to be a stakeholder to the SDGs? It is known to all that Myanmar have always failed to comply the obligations derived from the treaties mentioned above. The national institutions of Myanmar have already failed to perform their duties. And the the duties and functions that have been bypassed are being undertaken by SDGs. I would categorize it as ‘vertical bypass’ that means that the dominant institution and the bypass are located at different jurisdictional levels. This notion includes a domestic or a regional institution that tries to bypass an international one, or vice-versa.
International Institutional Bypass: Customary International Law
It was a common scene of the past that the neighbouring countries of Myanmar were reluctant to receive the persecuted Rohingya when they were desperately seeking refuge. A bypassed duty my be passed under the customary international law.The principle of non- refoulement  means that all States, whether or not they are party to a particular human rights and or refugee convention, are obliged not to return or extradite any person to a country where the life or safety of that person would be seriously endangered. A neighbouring country of Myanmar can not bypass the duty of giving the persecuted Rohingya a shelter in their land; because this lesson comes from the doctrine of customery international law.
ICC and Security Council VERSUS “R2P” and “Uniting for Peace”: International Institutional Bypass
Now it is the time to check if the sufferings of the persecuted people of Myanmar come within the ambit of the war crimes and the crimes against humanity. If they do, the offence could be tried by the ICC. However, if Myanmar is not a member of the courts statute the ICC has no jurisdiction unless their situations are referred to it by the UN Security Council. In the Security Council the incidents of Veto might stop referring a situation to the ICC. And even in that case, I would examine the alternative left for us that we could recourse to. Pointing at the humanitarian catastrophes one might argue that in case of the failure of the Security Council the doctrine of R2 P  and “ Uniting for Peace ” would be the basis for the General Assembly to intervene the situations in Myanmar. The doctrine R2P was developed by an International Commission on Intervention and State Sovereignty (ICISS) following the failure of the international community to prevent humanitarian catastrophes in Rwanda in 1994 and Srebrenica in 1995. In 1950 the General Assembly adopted resolution 377(V), referred to “Uniting for Peace” under which, if the Security Council fails to exercise its primary responsibility for the maintenance of international peace and security due to the lack of unanimity amongst permanent members, the General Assembly shall consider the matter immediately and may recommend collective measures including the use of armed force where necessary to maintain or restore international peace and security. And this is how for the sake of peace and security a bypassed duty of an institution could be undertaken by another institution.
ICC Judgment in Al Mahdi Case: International Institutional Bypass
On September 27, 2016, the Trial Chamber of the International Criminal Court rendered its judgment in Prosecutor v Ahmad Al Faqi Al Mahdi. In this case Mahdi was convicted of the war crime of intentionally directing attacks on protected cultural objects under article 8(2) (e)(iv) of the Statute for his role in the attack on, and destruction of, ten mosques and mausoleums in Timbuktu. The Trial Chamber sentenced him to nine years in prison. The Al Mahdi judgment sets a precedent that there must be least some accountability for the attack on cultural heritage. However, the question is — how the status of the cultural objects should be determined? This question warrants further questions; does the UNESCO provide the final list? If not, what would be the legal framework for a case where the status of the cultural objects are disputed or ambiguous? Legal analysis and reasoning of ICC do not adequately answer those questions. One might argue that in so doing a bypassed task has been bypassed.
Despite the deficiencies, the concept (IIB), can, as an alternative, play a role implementing, in a crisis situation, the human rights and thus the practitioners are in a position to advocate the concept as an alternative for a particular situation. One might pull a conclusion that the concept, vertically or horizontally, theoretically or practically, is still in use.
About Author: Barrister, Human Rights Activist and Advocate of the Supreme Court of Bangladesh.
Editor’s Suggestion for further reading: https://www.cambridge.org/core/journals/american-journal-of-international-law/article/concept-of-an-international-institutional-bypass/D926E942B26FDBAA08FCF230473166B0