Symposium on Classism and the International Legal Profession: Third Tier, Third World

[Sanam Amin (@cardboardsky) is a PhD student at Melbourne Law School and a member of several international feminist advocacy networks]

To self-describe as an international lawyer (at a party, say) is to call up an image of a person who travels a lot doing law, someone perhaps involved in the mercantile world, a trans-nationalist. This person carries a briefcase and a small piece of carry-on luggage, and she moves from town to town (accumulating air miles to be redeemed for upgrades on family holidays)

When I read these lines in Gerry Simpson’s The Sentimental Life of International Law: Literature, Language, and Longing in World Politics, I felt very exposed. I have been lucky to have that role, being the UN representative, going to New York in March (Commission on the Status of Women), to Rome in October (Committee on Food Security), and to Geneva (Human Rights Council) either before or after, participating in that petty bourgeoisie. I have five airline rewards program memberships and a collection of carry-on luggage, 100ml bottles, shampoo and conditioning bars to reduce the liquid tally (and leak possibilities).

But even as I drafted legal and policy documents while working across multiple time zones, I’ve faced great scrutiny as a brown Third World female traveller. In the post-9/11 world, being asked to step away for additional questioning at the airport is just the last of a series of procedures that question the legitimacy of your presence outside of where you supposedly belong.

When First World candidates want to attend a conference, it is a very easy thing, with great flexibility; for those with lowly ranked passports, weeks, sometimes months, of work go into an application. We rapidly use up any funds for exorbitant fees – and yet we are allocated the same amount as our Global North colleagues. We are stuck with going once we have spent the money, while our colleagues and peers can change their minds at the last moment if anything changes in their circumstances. They do not even need to show that they have an untouched lump sum of money in their bank accounts. Even if they are in debt, they can still travel.

The amount of labour that Third World lawyers and academics put into participating in the same event is not measured or acknowledged. There is no certainty: we can be rejected with no explanation and lose both the money and the opportunity to participate in spaces relevant to our work. Passport privilege is an aspect of class inequality that is somewhat aligned with wealth and privilege – and yet operates slightly differently, as it determines your access to the world depending on where you were born.

This reality is more recent than we think. Passport usage, the way that we know it in the 21^st century, is a relatively new development, and before World War I, it used to not be necessary for travel, even if it was recommended. As recently as 1947, the UN World Conference on Passports and Frontier Formalities considered ‘the possibility of a return to the regime which existed before 1914 involving as a general rule the abolition of any requirement that travellers should carry passports’. Today, passport-free travel is indicative of geopolitical power: Indians can enter Nepal with an ID card only; Americans can go to Mexico with a driver’s license only. (And if you are the lucky holder of a US visa, you can enter Mexico with that, no separate visa is needed.)

Before the pandemic, I prepared to take a break from my international lawyering to do a PhD. The student visa to Australia took eight months to come through, punctuated in the middle with a request for a police clearance certificate from my home country – a request other international students in my cohort did not receive. I nearly gave up on the program and began to jokingly refer to the online application as my second longest relationship, as I had to regularly update the online system every time my details changed or a new document (an original copy of my birth certificate, as well as the police clearance, were both essential) came through.

I am not unfamiliar with difficult visa processes; mine is a ‘Tier Three’ passport. The most limited: the few visa-free countries are far and expensive to reach. The most scrutiny: more documents, extra scans, longer waits. Your very existence from birth has to be explained and proved: in 2006, when I first applied for a US visa to attend a conference, I had to provide every address I had ever lived at. I now maintain a spreadsheet with travel dates and visa numbers so I can fill out the forms that seem only to get longer.

The scrutiny that international travel today invites is itself a true marker of division and inequality. Canada, the United States, the EU, the UK, and Australia are all countries that fingerprint and scan the faces of Third World visa applicants over and over. If you object to this massive collection of data, then you cannot go. There is no way to ask for the removal of this data or to limit the surveillance if you travel internationally. The US has now also introduced the requirement of sharing social media handles in visa applications. This is optional for the 38 First World countries that are in the visa waiver program. Fees are non-refundable, and there is often no explanation of what went wrong. Many countries now don’t process visas at their embassies but instead utilize a company (the infamous VFS for many) as the middleman, avoiding any face-to-face interaction. Visa officers can reject and leave it to you to reapply and pay the fees again, and the onus is on you to report on future visa forms whether you have ever been rejected.

I learned from a European diplomat a few years ago that it was good to provide copies of other First World visas, even if they are from a previous passport, to demonstrate that you have been through this rigorous series of hurdles already and have actually returned and not overstayed. Although VFS centres now have to scan these documents and upload them to an online system for embassy review, we still have to bring the printouts: this visa industry is probably contributing to the destruction of forests with all the paper it uses up.

I have also learned that even when the visa has been issued, the journey is not guaranteed, and a myriad of complications can occur. I was once stopped from boarding a flight to Frankfurt on my way to Geneva so that a security official could use a magnifying glass to peer at my Schengen multiple entry business visa: so unlikely it seemed that a Third World woman travelling alone would have one.

I have also been prevented from taking flights that transit through those First World countries because they have rules not allowing Third World citizens to enter their airspace without a visa. I learned my lesson a few years ago, having once been bumped off a flight to the US that would have stopped in Toronto first. The airline shredded my boarding pass and rerouted me, all because I had an American but no Canadian visa, even though I would have stayed on the same aircraft and not even entered the airport. Yet, these experiences are not unique: they only sound outrageous to Global North colleagues who do not have their very existence questioned wherever they go.

It is a much more limited world to live in than a hundred years ago; my friend Graham Jefcoate’s upcoming anthology of writings in English by Anglo-Americans in northern Thailand gives us a glimpse not only of that world of passport-free travel but also a world with greater freedom of movement. To be a subject of the British Empire meant that if you had the means, you could travel to most parts of it. Trains and steamships of the 20^th century saw the journey of all sorts of tourists and wanderers and the possibility of spontaneous travel. Today, spontaneous travel is the privilege of the First World traveller; if a last-minute opportunity comes up to invite a speaker or more funds are put towards a conference, then that will go to the person who already can travel without going through a long-drawn-out visa process.

This deep division is unwritten and undocumented when we, as legal professionals and academics, are encouraged to participate in workshops, conferences and fellowships. Yet, this effort cannot be avoided if we wish to be international lawyers or part of an academic community. Being part of an academic institution in the Global North is an incredible privilege, and I do not forget that institutional affiliation does open up doors. But at the same time, it is clear that I and other Third World scholars and lawyers alike have a lot more work to do and a lot more to prove.

It’s this difference of worlds, access and privilege that creates a clear division between those from the Global North and those from the Global South. It is not completely tied to racial differences; for some belong to migrant communities in the Global North who might face discrimination but are still able to travel with a First World passport with all its privileges.

Those of us who have to navigate these labyrinthine processes turn to each other for support and intel: ‘what site do you use to create a dummy air ticket’ is a simpler hurdle, while ‘what embassy do you go to since the one in this city isn’t processing visas’ is a more complex one. There is no shortage of Kafkaesque stories from Global South professionals and academics trying to find a way to participate in what is supposed to be a world of free movement. It is a system designed to keep us out of the fortresses of the West. It is one of the things that bring us together within a department, and it is a feature that we constantly draw attention to when planning our own events.

Many have written about the humiliation, the expense and the unjust outcomes – with their research being presented by others in their absence or missing opportunities entirely. In a recent article for the Social Psychological Review, Arda Bilgen and Özden Melis Uluğ call this ‘an important but neglected structural barrier that concerns the right to travel and international academic mobility’. (‘Some scholars are more equal than others: Visa barriers, passport privilege, and global academic mobility’) The authors offer proposals on how to address this, from hosting events in places outside of Europe and North America to institutional support with visa processes. In the intergovernmental spaces I worked in previously, similar proposals were made – to move events away from the UN headquarters in New York and Geneva to take advantage of the regional commissions in the Global South. It is an issue that affects a wide range of professions and academic fields – for instance, here is another piece on passport privileges for those in the global health sector that also highlights the fact that most of the global health agencies, and the conferences they host, take place in the US, the UK and Europe.

Each of these narratives captures how limited the world is for the most successful, law-abiding professionals doing their best to expand their networks and be part of international collaborations, and some land on the need to change the venue actually to enable diverse participation. Of course, this, on some level, tells us that we have accepted the ‘fortresses’ and do not see a way to challenge those systems. Today, only a small handful of people talk about a borderless world and what that might look like, even though technology and travel options are more varied than a century ago. The idea of travel without a passport is unimaginable, but if that is a reality we have to live with, then why should the freedom of wandering, of impromptu and last-minute meetings, be with only a certain category of passport?