A Minimum Standard of Treatment: Improving Labour Practices in the International Law Profession

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

Reading further might disappoint those interested in investor-state dispute settlement. I will not be analysing the minimum standard of treatment with which the ISDS aficionados are familiar. Instead, I offer some thoughts relating to a minimum standard of treatment in the context of labour practices, specifically those of entities within the international law community. I recently wrote about how the international law profession has work ahead if it wishes to become inclusive. How this field contributes to the very problems it aims to solve requires serious consideration. For example, does the academy facilitate learning by pretending that conferences are akin to music festivals, where the usual ‘rock star’ performers, with their classic hits, excuse costly admissions and are ultimately ignored by the audience captivated updating their Twitter feeds? With the technology that is available today, should we continue to fly around the world to discuss issues such as climate change? The core of what I am getting at concerns two broader questions:

• Need we concern ourselves with the thought that individuals and institutions in fields that purportedly advance particular causes might in fact not be advancing such causes?
• Why do we do what we do?

People and other entities can misrepresent what they actually do, and why they do it. This is not necessarily intentional, but if left unrealised we create playgrounds for ‘bullshitters’. Instead of lies, which are comparatively easier to recognise and therefore address, bullshit can fly around undetected. Perceptions are shaped through communications with the aim of convincing others of particular narratives, regardless of whether they are objectively true. This is where our inherent psychological traits as human beings make tendencies such as confirmation bias particularly problematic. Unless some method of mind reading is created, human beings can never truly know why entities do something. Even if entities disclose their incentives, we can only choose whether we trust and/or accept them. A result of this process is that assumptions are made and accepted on a daily basis. This is a normal part of our society, and not necessarily problematic. However, despite the axiom that ignorance is bliss, depending on the circumstances, presuming too much and knowing too little can perpetuate problems.

A brief example

There is a lot of information that does not lie behind paywalled journals making profits from the work of researchers that do not receive a penny for their efforts. Here I provide some data on the practices of entities that have goals such as to ‘defend rights’, ‘achieve equality’ and ‘dignity enjoyed by all’. For the sake of brevity, I focus on two entities that are well known, particularly so within the international law profession: Human Rights Watch (HRW) and the United Nations (UN). Both do helpful work, not least raising awareness of global issues, convening large groups of people to reach consensus, and fostering cooperation. These entities should also be credited for being transparent with the details of their financials, which are easily accessible (for some data on the UN see here – similar details can be found on other entities. See, for example, Amnesty International, Greenpeace and Judges of the International Court of Justice).

The HRW website shows that it is a 501(C)(3) organization registered in the United States for tax purposes. According to the Internal Revenue Service: ‘All section 501(c)(3) organizations that file Form 990-T must make the return public’ (p. 18). There are reasons why the current US President does not want his tax returns released to the public. Tax returns, however tedious, provide substantial amounts of information. HRW is a corporation (‘Human Rights Watch, Inc.’), one that is ‘exempt from income tax’. I am going to skip over the substantial issue regarding non-payment of taxes by high-earning entities and how that alone contributes to inequality. What qualifies as ‘high-earning’? Arguably net assets in the range of $213,493,570 to $209,418,575 (see 2019 Form 990, p. 1) and a total revenue of $85,587,277 (2019 Form 990, p. 11). The highest paid contractor in the 2018-2019 tax year was remunerated $1,626,918 by HRW, and eleven independent contractors were compensated more than $100,000 each (2019 Form 990, p. 8). The Executive Director was compensated $566,316, with an additional ‘estimated amount of other compensation from the organization and related organizations’ totalling $61,066 (2019 Form 990, p. 9). I will not tire readers with further earnings information of HRW staff members, but of those listed, every person earns over $150,000 (not including the ‘estimated’ supplementary compensation from HRW and other ‘related organizations’).

2016-2017 was the year in which the UN reported net assets in the range of $2,322,881,000 to $2,082,989,000 (‘accumulated surplus’) – yes you just read surplus – and total net assets in the range of $2,380,432,000 to $2,143,238,000 (A/73/5, vol. I, p. 179). The ‘Special account’ of the UN had total assets amounting to $202,084,000, the ‘Working Capital Fund’ of the Organization totalled $150,657,000, and the ‘General Fund and related funds’ totalled $810,757,000 (A/73/5, vol. I, p. 172). These statistics are a taster of the data that is publicly available. Again, I do not wish to tire readers with lots of numbers, which is why I will not provide anymore here. While all entities accumulate operational costs, and the financial stability of an entity is important to its longevity, which can be improved through investment, the abovementioned facts raise questions.

Questions seeking answers

Q&A dialogues can be more illuminating than presentations. In the same respectful spirit, I hope more people will start posing the questions I ask below to entities with the answers. This is especially important if you happen to work within an entity to which you think these questions are relevant (practice some grassroots globalisation – see below). Although the UN and HRW are used as contextual examples, I pose the same questions to all entities part of the international law community:

• Why are there people that work for you who are not financially compensated?
• Why are gross payments of ‘low level’ workers in the region below living wages and pro-rated based on hours worked?
• Where pay does not meet living costs in a particular location, why is remote working not an option?
• What are the differences in pay between workers, and what evidence do you have to justify those differences?
• How do you expect to uphold and advance causes such as equality, human dignity and inclusivity by preventing people from working with you that cannot afford to do so?

Practicing grassroots globalisation

People and other entities can accumulate wealth and advance causes simultaneously. Despite money being an intersubjective construct, in today’s world it matters. Yet this does not justify exploitation. There are a number of issues with respect to disproportionately spread earnings; two inexcusable forms being modern slavery and gender pay disparities. The ‘volunteer’ argument is also no longer tenable (if it ever was). Credentialism and academic inflation mean that employers can no longer differentiate between applicants based on pieces of paper alone, especially because degrees provide very little assistance in predicting professional potential. Work experience and professional networks are crucial. In order to build either you have to have had previous work experience, or personal connections that can get you a position (sometimes regardless of whether you are qualified for it). Unpaid and underpaid work means that people that cannot afford to work under such labour practices are ostracised by particular professions, whether international law, human rights, or others. Maintaining practices that contribute to the exclusion of certain people and groups of people from particular professions does not respect, protect or promote causes that are advocated by human rights corporations, international organizations and universities alike.

As a minimum standard of treatment, human beings should be remunerated for services rendered, in addition to equal pay for equal work. This does not mean pro bono initiatives should not continue. Yet there are different forms of ‘pro bono’. Schemes should not be in place within entities for the purpose of maintaining a steady stream of temporary workers, one in one out, while permanent employees and their employing entities reap the benefits, financially and otherwise. Even for-profit entities are beginning to recognise the drawbacks of this practice and are changing their modes of operation accordingly. Pro bono is about choosing to help someone or something for the public good. We dilute that ideal by tolerating the term ‘pro bono’ being used as a guise for pretend philanthropy, where the purpose behind the practice is lowering costs and getting a tax break. We need to realise that many people undertake ‘pro bono’ not out of choice, but out of necessity, in an attempt to break into a particular field. Only financially privileged individuals can proceed down this route, or those that do ‘pro bono’ work in addition to caring responsibilities and/or working paid jobs that are then deemed irrelevant by recruitment committees who fail to spot the value of transferable skill-sets.

Financing a fully paid workforce can be achieved by implementing some relatively basic accounting strategies. Pay disparities are hard to justify. When people say that everyone in an entity is equally important to its successes, are these plaudits reflected in paychecks? Probably not, but why should they not be? There are many business models within the international law profession that are broken. We can help fix them, from inside. Whatever our reasons for doing something, or refraining from doing it, we have causes we believe to be important. How we advance such causes is significant. Yet we also need to probe a wee bit further regarding the why we do what we do. Let us continue challenging and overcoming practices that perpetuate and aggravate problems inhibiting progress.

Although I do not endorse or agree with much of the contents in this book, there is wisdom in undertaking conduct that sets our own practices in order before tending to those of others (chapter 6). How human rights advocates expect to advance equality without practicing it themselves is not only an opaque aim, but also irrational. How international organizations can improve cooperation by excluding people from their workforces is equally hard to picture. Upholding the very structures that allow inequality, poverty, racism and sexism is easy when we do not practice what we preach. Want to hit the streets in protest? Understandable, but also think about how your employer contributes to the issues that prompted you to protest. Want to spend years engaged in proceedings attempting to hold a state responsible for violating human rights? Respectable, but at least address the human rights issues within your law firm as well. Want to spend months writing a report about discrimination? Informative, but also address the practices of your organization that discriminate against larger groups of people than you might care to admit. Grassroots globalisation should be the way forward. In other words, let us address the issues in our own workplaces and realms of influence before, or at the very least in addition to, attempting to change situations over which we have comparatively little influence. There are people making such efforts – we have a responsibility to emulate them. To paraphrase a restaurant in Glasgow that I recommend if you ever find yourself in the wonderful city: Think global, act local.