Mobility and Freedom in the International Legal Academia: A Comment on Anthea Roberts’ Is International Law International?

by Marko Milanovic

I’d find it difficult to think of a book more deserving of the ASIL certificate of merit than Anthea Roberts’ Is International Law International? This is especially so because this is a book about international lawyers, rather than about the law as such; it is a foray into a sociology of our profession, examining in particular to what extent that profession is really a common or shared one. The book explores many themes – internationalism v. parochialism, centre/periphery dynamics, the need for more rigorous empiricism rather than casual reliance on anecdotal evidence. Two themes, however, got stuck in my head as particularly noteworthy – probably also because both were personally relevant and I could relate to them directly as a matter of my own experience.

The first is the nature of the academic markets in international law, especially with regard to their openness to foreigners or outsiders. The second – which is less explicit in Anthea’s book, but is certainly there – is the extent to which the strength and international influence of the local academia in any given society is dependent on the level of academic freedom in that society, most importantly the ability to criticize the conduct of one’s own state or group without running the risk of suffering some significant social sanction. So let me deal with these two themes in a bit more detail.

As for the first, the level of openness of any given academic market to foreigners is in most situations a point on a rather wide spectrum. The language of instruction is of course an important consideration here, but as Anthea shows in the book it is only one among many factors. Of greater importance perhaps is how existing academic hierarchies replicate themselves, through hiring and promotion processes. Even in systems which strongly emphasize meritocracy above all other considerations – and these are probably not in the majority – the criteria for assessing merit can impose structural barriers on outsiders that are very difficult to penetrate, as Anthea well explains. If we compared top US and UK law schools, for example, we would see just how much smaller the proportion of foreign-educated lawyers is in the American academia.

This is not only the case with international law, even if international law is probably the most portable of legal subjects; in Nottingham, for example, we have foreign-educated lawyers teaching everything from constitutional law to public procurement. Nor does this have anything to do with resources – US law schools are by far the richest in the world. It is rather the structural barriers, such as entrenched career pathways and elite credentials, hiring processes (e.g. a 2/3 vote of the whole faculty rather than a decision by a small committee), the great value placed on publication in US generalist student-run law reviews and the devaluation of foreign peer reviewed journals, and so on, that make it much more difficult for an outsider to penetrate the US academic market than is say the case in the UK, Australia, the Netherlands, or Scandinavia.

Similar structural barriers of course exist elsewhere, like the habilitation in Germany, or the agrégation in France, which effectively fence out most of the academic system (sometimes with limited exceptions, such as the Max Planck Institute(s) or Sciences Po). Looking at this matter globally, the more closed systems appear to be substantially more common than the very open ones. This is especially going to be the case if the system of elite reproduction is less meritocratic, and if other disciplines which should intrinsically be more open than law is – the hard sciences, but also the social sciences and humanities – are themselves also closed. If I look at the university sector in the various countries of the former Yugoslavia, for example, the number of academic staff across all fields who were educated primarily outside the region is either zero, or very close to zero. This is certainly true of the international lawyers. And because this experience is again far more common worldwide than is the highly internationalized, open and cosmopolitan one in say the UK, this necessarily means that Anthea is right in arguing that our study of international law has to be a comparative one if it is to accurately reflect our reality.

This brings me to my second theme, which is a bit less explicit in Anthea’s book: the relationship between the external influence or standing of a local academia and the perceived level of freedom that they enjoy in their society, especially in criticising the policies of their government. Anthea touches on this topic when she examines Russian international lawyers’ engagement with Crimea, and Chinese international lawyers’ approach to the South China Sea arbitration (and the jurisdictional issues in particular). Anthea shows how (partially for widespread lack of non-Russian language ability) the conversation of the Russian international law academics is a mostly inward one, while, on the contrary, the Chinese academics have actively engaged with their Western counterparts. In both cases, however, there is near-total alignment between the academic lawyers and the respective official government positions (i.e. the annexation of Crimea was perfectly lawful, and the arbitral tribunal manifestly lacked jurisdiction).

Obviously, this topic is only relevant when there is some non-negligible level of academic freedom, as is in fact the case with both Russia and China. These societies might be authoritarian, but they are far from being North Korea. But there are nonetheless significant formal or informal costs imposed on academics who would defy the official line on matters that are regarded as being of crucial national importance – they might be fired, or not get promoted, or not get a grant, or not be allowed to publish because a supposedly blind peer review just happened to be negative, and so on. I still vividly remember how, for example, in 1998 the Milosevic regime purged Serbian universities or how the official textbook from which I had to study public international law at the Faculty of Law of the University of Belgrade had a chapter on the International Criminal ‘Tribunal’ for the Former Yugoslavia (with the scare quotes, because the official line was that the ICTY was illegally established). Academics in such societies are thus faced with a choice – leave for greener pastures (but most will not have that option, which can be extremely costly emotionally and financially); write on issues less likely to provoke controversy (e.g. air and space law); if pressed, tow the party line or at least stay quiet, under the radar; or dissent, and face the backlash and marginalization.

It is no wonder, therefore, that many of our colleagues who are faced with such unenviable choices will often take the path of least resistance. The more of them do so, the greater the internal pressure on the rest of their peers. But the more this happens, the more likely that the local group of international lawyers will lose influence externally, within with the wider international legal community, which will treat their arguments with suspicion, as nothing more than self-interested apologies.

There are, of course, significant differences between the Russian legal community’s position on Crimea and the Chinese community’s position on the South China Sea arbitration. The former matter touches on the most foundational norms of international law, which are in this case perfectly clear; the latter is jurisdictional, more technical, and more open to different reasonable interpretations. But it is precisely the fact that the jurisdictional question in the South China Sea arbitration is more open that demonstrates that the consensus of Chinese international lawyers on the issue is driven by pressures to align with the official government position, as one would have expected much more disagreement in the absence of such pressure. Technical though the jurisdictional issue might be, it is in the public mind directly related to the sovereignty question, which is part of a core nationalist narrative in China which does not admit of dissent. Externally, the unanimity only serves to undermine itself.

Here would of course come the inevitable charge of Western hypocrisy. Isn’t it equally a fact that the positions of Western international lawyers on Crimea align near-perfectly with the policies of their states? Aren’t we all doing the same thing? To that I would say that this may be true in some cases, but not generally. It was Western international lawyers who, for example, criticized the 2003 invasion of Iraq most forcefully; there are examples beyond number of (say) UK-based international lawyers litigating cases against the UK before domestic and international courts. The charge of hypocrisy has greater bite against Western (and non-Western) governments, than against the legal community as such. And this, I submit, is a direct result of the greater level of freedom that legal academics and practitioners enjoy in the West.

This freedom is, as I noted above, often a matter of degree and context. There are differences among Western countries, and there are other factors at play. For instance, my (anecdotal) impression is that the international law professoriate in the United States is more often in substantive alignment with the positions of the US government than is the case in Europe (the legality of the Iraq war being one example). This is obviously not because the level of academic freedom in the US is any lower, but because of those other factors: the more instrumental, policy-driven approach to law generally; the peculiar, foreign relations law slant to international law instruction more specifically; the fact that many American international law academics were first socialized into the profession as government lawyers; that they similarly first started writing academically on topics that they had dealt with in government; that accordingly they exhibit a greater level of identification with government policy, if not necessarily consciously so. That said, while American international lawyers might perennially be a tad closer to apology than their utopian European counterparts, recall for example how even the most government-aligned collection of such lawyers rejected the legality of President Trump’s missile strike in Syria last year with virtual unanimity.

Of course, even in the free West, in which governments and other social hierarchies do not actively punish academics for saying things that they do not want to hear, there are many subtle and not-so-subtle rewards that the government can dispense – say consultancies, invitations to the ‘room where it happens,’ or nominations for an international judgeship or some other nice such position – which will inevitably influence some in the academia. Especially if they want to be relevant. But that situation is still radically different from the actual lived experience of most members of our profession, which is significantly more constrained. My point is simply this: in engaging with this enterprise of comparative international law, we should always be aware that most international lawyers in the world today do not enjoy the same privileges that those of us based in the West do, privileges which can be lost all too easily if they are not vigorously defended. This is difficult to measure with empirical rigour, but is, I’d submit, at least as important for developing a sociology of our profession as are, say, market mobility or the universalizing reach of the English language or other, more outward-looking, patterns of dominance.

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