Exploitation Within the International Law Profession

[Richard Mackenzie-Gray Scott is a consultant at the Bingham Centre for the Rule of Law.]

There is an issue that has remained unscrutinised within the field of international law. This issue requires a spotlight being cast on subjects that some individuals and institutions may deem taboo. It also calls for open discussions and concrete action if it is to be effectively addressed. This issue is exploitation, specifically within the international law profession. Exploitation can be defined as the unfair use of someone to the advantage of another. Yet the type of exploitation within the international law profession that requires treatment can extend beyond this definition, in some respects to a point where ‘unfair’ would be a poor choice of word to describe certain situations.

Alonso Gurmendi and Paula Baldini Miranda recently raised a number of important points on what falls within the broader matter of exclusivity and normality within the international law profession (see here and here). I will not regurgitate what they wrote, but leave readers with their conclusion of hope towards initiating ‘a much-needed conversation in our profession, that helps us become [a] more inclusive and representative community’. In addition to having a discourse on exploitation within the international law profession, there also needs to be action. That said, such conduct is best based on informed, conscious decision-making (I have made a similar point elsewhere with respect to another matter). At present, there is little empirical data on the subject of exploitation within the international law profession. Although the reasons for this are likely multiple, such lack of consideration warrants attention, especially in light of findings that show how international institutions perpetuate racism, or how practicing international law may mean being subject to harassment from so-called peers. Despite the need for more concrete information relating to exploitation within the international law profession, there is evidence that highlights the exclusivity of this profession and the normality of discriminatory practices within it.

Exclusivity and the well-travelled road to exploitation

Social class and international law is a topic that has been written on, as has the concept of exploitation. Work has also been undertaken on international law as a ‘professional activity’. However, there is a dearth of research relating to social class and its impact on people that either have, or are trying to build, a stable career in international law, in particular, research that examines exploitation within the international law profession and its links to exclusion based on socioeconomic factors. Is this lack of attention surprising? Why? What do the answers to these questions tell us about international law as a profession? It is no new claim that the legal profession generally caters to the financially privileged. It takes nothing more than a glance at the practice of the United Nations to see how this claim applies to the international law profession. Unpaid and underpaid work is common. Many careers in international law never get off the ground, with individuals pushed out of this profession because they cannot afford to work within it – where ‘afford’ starts with, but extends beyond, the context of personal finances.

Socioeconomic exclusion affects legal education, practice and scholarship. A common theme across many discourses regarding international law is that some particular thing ‘needs to change’. Change can be good, and international law certainly needs to develop, both generally and in sectorally-specific areas. Yet there is an underlying assumption and expectation that change is possible with people from the same or similar socioeconomic backgrounds influencing the majority of a workforce. How change can be realised in such an environment is hard to envisage, both rationally and empirically. There may be objections to this observation. However, there is an abundance of information that substantiates the claim that those within the international law profession are from the same or similar socioeconomic backgrounds. For example, black women are underrepresented in the legal profession and are disrespected throughout their careers. The International Labour Organization has helped clarify that no matter what state your passport says you are from, only individuals from financially privileged families can sustain the costs that are often necessary to build a career in international law. There is further evidence showing that not being from a financially privileged family will reduce your chances of securing employment in the legal sector – in some cases considerably (see also here). The (sometimes unavailable and often skewed) metrics used to assess the quality of educational institutions also contributes to such exclusion. In terms of the white men that currently form the apparent majority of individuals part of the international law profession, it is highly unlikely that any are from ‘working-class’ families. These pieces of research are just some of the examples that show how the international law profession excludes based on socioeconomic factors – many more exist, although further empirical research is needed. Individually, these findings are, at best, sobering. Collectively, they are unacceptable. Yet addressing such issues is no easy task.

It can be a daunting and uncomfortable prospect having an open discussion about matters that straddle the personal/professional divide, especially if you are not an ‘established’ professional in your field. Geraldine Van Bueren has pointed out that: ‘people don’t feel able to talk about their backgrounds freely because they think it will negatively affect their career’. If people do not benefit from the protection that is provided by personal reputation and job security, the costs (actual and perceived) may outweigh the benefits in terms of the potential consequences of communicating honestly about objectionable practices. Providing safe spaces that give people the confidence to communicate without fear of repercussion is therefore crucial to respecting, protecting and promoting diversity. This practice is particularly important when accounting for socioeconomic factors. For example, failing to consider socioeconomic diversity in classroom settings can prevent students from wanting to continue learning about a particular subject (see here, here and here), making them less likely to consider job prospects in that area. Further, the higher your social standing, the more likely you are to get away with incompetence (see also here and here). Research also suggests that the prevalence of ‘upper-to-middle-class’ norms across workplaces that are perceived by the market as prestigious, makes people that are not from ‘upper-to-middle-class’ backgrounds not only less likely to apply to work within these places, but less likely to be hired if they apply, and more likely to leave if they secure employment. Social class differences in behaviour, cognition, feelings, identity and upbringing all affect opportunities regarding occupation. When you begin to introduce factors such as ethnocentrism (whether intentional or unintentional), lack of or minimal pay, fixed-term ‘part-time’ contracts, and practices in which work product (e.g. research and/or writing) is not publicly recognised, it becomes easier to grasp how and why the international law profession excludes/includes based on socioeconomic factors.

Relative normality and striving for improvement

How far discussions progress regarding exploitation within the international law profession and what they lead to depend on engagement, in which the gatekeepers and administrators of the ‘invisible college of international lawyers’ will likely prove influential. Likewise, whether we all choose to use our varying degrees of influence to push for change will determine whether outcomes such as inclusivity are achieved. People who cannot afford to work for free or for wages that do not (or barely) meet living costs require others to amplify their voices within the international law profession. So, too, do the people that cannot attend increasingly expensive institutions that are selected to participate in exclusive programmes that can be beneficial to career progression. Accessing these programmes provides the opportunity to build the networks that are needed in order for individuals to prosper within international law profession. If those within this field are to continue arguing that international law is somehow universal, there are barriers that need to be broken down, as well as biases that need to be challenged. Why these barriers and biases exist and whether they begin at the elitist centre of international law brings with it a separate set of questions that I will not attempt to answer here.

While I share the view that human beings are capable of sincere altruism (as opposed to the backhanded kind), perhaps the ‘norm of self-interest’ and what Harry Frankfurt summarises as ‘bullshit’ has shaped the international law profession to an extent where discussion and action can be hindered. Although changing how this profession operates regarding the people it includes and excludes might be an ambitious if not naïve aim, it is possible. First, because of the people that form part of the international law profession. There exist professional circles in which individuals treat each other with respect, pay attention and engage in meaningful and helpful ways. These circles and practices can be opened up, and the individuals that currently form part of them have the capacity to influence change. Second, change is necessary. Segments of society that are linked to the international law profession are creaking. Maintaining the status quo across a number of areas concerning international law has contributed to intensifying rifts within and between communities. Continuing with business as usual is a recipe that many who choose to engage with international law are growing tired of throughout the world.

The pushback against globalisation and international law is in part happening because people feel excluded. Others take advantage of this feeling to further political agendas, in which international law and its associated institutions become the scapegoats. It is an effective tactic. For instance, if you work a fifty-hour workweek on minimum wage to help a member of your family get a formal education and they end up working for free in a place that claims to advance human rights or criminal justice, you may also start to wonder if these international institutions are part of the problem. These thoughts might be amplified by reading the news (real or fake). Such thoughts would not be irrational when considering demands that you and/or your family member ‘cover the costs of travel, accommodation, as well as living expenses’ for the duration of their job. Paying to work? Accumulating financial debt because you are working? With such practices being part of the current international law package, it is hard to convince people that work a lot for the bare necessities in life about the benefits and value of international law and its institutions.

If the international law profession truly takes seriously ideals like ‘inherent dignity’ and believes in the apparently ‘equal and inalienable rights of all members of the human family’, then why do we tolerate exploitation within this field? Many of us make the continuous effort to learn more about the realities that occur outside of our bubbles. As individuals and communities continue to struggle with the consequences of socioeconomic inequality, those within the international law profession that publicly promote goals such as reducing socioeconomic inequality, eradicating poverty and confronting discrimination, must realise, acknowledge and address how their own practices, and those of the institutions to which they belong, contribute to these problems. We can all do better. By exercising more ‘intellectual modesty’ in the course of our work, combined with making informed choices about how we move forward, we can help prevent exploitation within the international law profession. In doing so, perhaps this community can become more inclusive; thereby allowing people from diverse backgrounds and circumstances to represent themselves, instead of having someone from the ‘invisible college’ attempt to do so.