Solidarity within the International Law Profession

As I sat checking my email this morning, I automatically noticed the EJIL:Talk! email, as I always do. The title intrigued me: Professional Solidarity in Teaching: An Invitation to the ESIL Teaching Corner. When I opened the email, I saw a welcome line: “At many different levels of social interaction, COVID-19 has emphasized the need to act in a spirit of solidarity.”  The two authors, Gleider Hernandez and Evelyne Schmid, are two academics whom I respect and admire. When I continued to read the post, I was heartened to see that they note the turmoil that many people are finding themselves in at the moment due to precarious employment.

I started to think about the experiences that many people in the international law profession, teaching and otherwise, are actually having at this time, people whose interests are not always (read: often not) met by the guardians of university inclusion: hiring managers and those who are behind and support the system of casualized contracts. These experiences include, but are not limited to, financial turmoil, poverty, emotional, physical, and professional hardship, and essentially falling out of the profession due to the nature of their contracts. Their circumstances are due, at least in part, to the culture of prioritizing (overpaid, overly powerful) university “management” over the rights and needs of professors, graduate students, adjuncts, lecturers, and everyone else who is affected by the instability of the current academic system. I am horrified by the fact that universities could allow their staff to fall into such situations, situations that also include death due to lack of health insurance.

The failure of academe and the “invisible college” is partially to blame for the plight that many adjuncts, casualized staff (research and otherwise), graduate students, and others find themselves in not only at the present, but on a regular basis. Concrete, specific examples of such failures include unpaid research opportunities, unpaid teaching (and being expected at times to contribute to unpaid teaching before being integrated into the formal teaching framework), underpayment or lack of payment for research/teaching/marking hours, etc. And then there are the insidious informal types of attacks/aggressions.

Too many academics, junior researchers, and teaching professionals are struggling, not being paid for all of the hours that they are working (which has been an occurrence reported at multiple institutions), and are being denied access to benefits and to stable salaries. Instead, their contracts and positions are set up by the universities and institutions for which they work to make them expendable. Briony Neilson and Natalie Maystorovich Chulio’s recent article in The Guardian reports that this practice is occurring at Australian universities as well, and they call this “hospitality-industry levels of wage theft”. I think that this is an apt description. The hospitality industry is notorious for under-paying its workers and for not providing them with benefits; indeed, if a club is considered as a provider in the hospitality industry, it is worth noting that George Floyd had lost his job as a bouncer and was allegedly attempting to pay for groceries using counterfeit money before his death.

The fact that this parallel exists between George Floyd’s situation and that of many professionals in international law, and indeed, in academia, these days, is probably not a coincidence. Part of the convenience of casualized contracts and employment is to allow employers to exercise greater control over their staff and to pay less for their upkeep, even though they are the ones doing the bulk of the work that brings in the metaphorical bacon, so to speak. My reference to George Floyd is deliberate: many of the people who find themselves in dire straits are people of color, are minorities, self-identified and/or otherwise, and many are international students in universities, with little recourse to support (even if the boxes for institutional support are checked) and solidarity. They are also subject to departmental, university-level, and disciplinary politics.

One of the main reasons that people keep their mouths shut, or “say nothing”, is because they fear attempts at “retribution” and retaliation, or some other such nonsense. For many minorities, including but not limited to people who may be, for example, international students, women, racial/ethnic/religious minorities, etc., they may have no choice but to keep their heads down and say nothing. They also may face the prospect of financial limitation, as if they are forced to depart from a job or a program, they may not be able to return or to find a similarly funded or analogous position, due to formal and informal obstacles to inclusion and participation in academia. Do ESIL, the IBA, and ASIL, etc. provide real support for people in this situation? Are people in this situation really part of the club? Since ASIL is not paying its interns, for example, my instinct is to think that more work needs to be done on this. While there are inevitable structural (formal and informal) constraints to what a professional organization can do, we are making it too hard for people at the early stages of their careers and those who have found themselves in casualized situations to find permanent, stable jobs that provide benefits.

In other words, the international law profession needs to take a real stand and to take concrete, identifiable measures to reject the status quo and to provide pathways into decent positions that are available to everyone – not just to those who have managed to get there immediately after graduation or after years in practice. We must include people who have spent years as adjuncts, underpaid and underserved researchers, etc., as fully integrated members of the invisible college, and this must be done at the university, governmental, and institutional level. As academics, and as lawyers beholden to something more important than our academic contacts, the oaths we swore as members of the bar, we must not bow down to the whims of academic managers, and even to the neoliberal tides of the commercialization of education – even if these obligations are formalized and institutionalized through nasty contact provisions and inequitable working setups that create a permanent power imbalance that serves to undermine our fundamental rights – including our rights to express our solidarity with our colleagues without facing political retribution/retaliation, dismissal, harassment, etc.

It is my personal view that such management – and its underlying ethos – should be removed from university administration in theory and practice, and that universities and international institutions, etc., should divest from casualized work contracts. All staff, students, and workers (including casualized, and including those who are hired through/officially employed by private companies) should have their rights realized and should be brought into the fold. While there are some (very specific) situations in which creating an adjunct position could be appropriate, such as, for example, hiring a top tax practitioner to teach a class, this is the exception, not the norm, and even top tax practitioners should not be underpaid for their work.

Until we are willing and able to do this, ESIL, ASIL, and all other professional associations will not be able to offer true solidarity to all the people in the international law profession – or to those who have been overlooked and/or who have fallen through the cracks. I refuse to be silent, and if the only thing that I can do is to speak out in a blog post, I will. We need to take a collective stand against the status quo and the philosophy and practices that undermine the integrity of the role of universities and professors, etc., in teaching and promoting the very substance of what we are trying to publicize: international law, human rights, equality, justice.

We are, after all, publicists, of sorts, but what are we publicizing, and how? Form and substance matter, and in this case, if the vehicle is broken, it must be fixed.

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