Author: Mohd Imran | Indian Society for Legal Research
(This post is part of the First Edition of the ‘Symposium on Development Aid: Charity, or An Oppressive Tool of Inequality?’ by asiablogs.)
For college students and graduates, internships provide an opportunity to work in their field of interest and give them a taste of what their future careers would look like. For those who come from Third World Countries, making a career in international law comes with several challenges. In this article, I have tried to look into how unpaid internships to three international Courts, namely, the International Court of Justice (ICJ), International Criminal Court (ICC), and International Tribunal for Law of the Sea (ITLOS), forms the part of larger neocolonial global order and has a role in shaping the future of international law. I attempt to answer whether the internship in these International Courts and Tribunals (ICTs) affects the quality of international lawyers coming from Global North and Global South.
Training Programmes at ICTs
Recently, the ICC advertised several opportunities for young professionals and students, including internships and Visiting Professionals Program. What was appalling to see is that an independent court with a budget of €148,259,000 (2021) does not guarantee even minimum wages to interns and young professionals. Although the ICC established a Trust Fund for the Development of Interns and Visiting Professionals in 2019, the funding depends on donations from the State Parties, court staff, and elected officials. Moreover, to be eligible for funding from ICC’s Trust Fund, the applicant must be a national of a State party to the Rome Statute, and that State should be a developing country. Therefore, if an applicant comes from a country which is not a State Party to the Rome Statute, she/he might not get a chance to gain experience at the ICC without making other arrangements for living in The Hague.
Similarly, the Judicial Fellowship Programme (JFP) at the ICJ was started to enable the law graduates to gain experience at ICJ and build up their understanding of international law and the ICJ’s procedures by actively involving in the work of the Court. The fellowship allows them to build on experience under the supervision of a judge. Despite ICJ’s annual budget of $ 28 145 500 (2020), the JFP at ICJ requires funding from the nominating university of applicants for a stipend covering accommodation and subsistence in the Hague, health insurance, and travel cost. The data provided in the resolution for creating a Trust Fund at ICJ provides the following:
“From 2000 to 2019, a total of 193 fellows participated in the Programme; 95% were sponsored by universities based in countries of the Group of Western European and other States. During the same period, no fellows were sponsored by universities in Africa and Eastern Europe. Only one fellow (0.5%) was sponsored by a university in Latin America and the Caribbean, and eight fellows (4%) were sponsored by universities in the Asia-Pacific region. Of the 193 fellows, the overwhelming majority (68%) were nationals of countries of the Group of Western European and other States. Only 11 fellows (5%) were nationals of Eastern European countries, 13 (6%) of African countries, 17 (8%) of Latin American and Caribbean countries and 30 (13%) of Asia-Pacific countries.”
The Internship at ITLOS is supported by a Trust Fund for the Law of the Sea established in 2010 that covers the living and travel cost of the interns. However, even at ITLOS with an annual budget of €24,155,000 (2021-2022), the contribution in the Trust Fund is made by the Korean Maritime Institute and the Ministry of Foreign Affairs of the People’s Republic of China. It is interesting to note that funding for the internship is not covered under the regular budget of the court. It depends on external sources. It is not that these ICTs do not have enough money to pay interns. It depicts the political will of the people working in these ICTs. A few UN agencies, such as UNICEF and the World Food Programme, have started to pay stipend to their interns. The World Health Organization is also offering stipends to students, including medical and accident insurance.
Neocolonialism and International Law
Mathew Perish, in his book, argues that international law is industry driven by the need for its self-propagation. The international legal regime is not a legal system in the conventional sense but is rather a bureaucracy. Brian-Vincent Ikejiaku writes that the construction and reconstruction of international law favouring Western countries has been the key instrument that perpetuates severe inequality between the Global North and Global South, which in turn hampers efforts toward global peace and security. On this Professor B. S. Chimni writes,
“… [T]he culture of international law is shaped in the academic institutions of the North. Third World students of international law tend to take their cue from books and journals published in the North. From reading these they make up their minds as to what is worth doing and what is not? Who are good scholars and who are bad, or, which is the same, what are the standards by which scholarship is to be assessed? It is therefore important that third world international lawyers refuse to unquestioningly reproduce scholarship that is suspect from the standpoint of the interests of third world peoples.”
Prof. Chimni recognises the role of international institutions (which includes ICTs, international financial institutions, and academic institutions in the North, etc.) in legitimising the norms of the world order with the interests of the dominant States. He argues that the international legal order is nothing but neo-colonialism.
It is apparent that ICTs and international organizations are not only propagating the ideas that suit the Global North, but they have been also been successful in ensuring that only a limited number of professionals from the South join these institutions. Thus, it can be argued that the exclusion from ICTs through unpaid internships is an extension of the neo-colonial global order. The North controls the pool of students from the South. Indeed, an unrestrained professional from the South might challenge the North’s hegemony in ICTs and International Organizations. It must be noted here that all three courts have provisions for Trust Funds now. However, the Trust Funds are dependent on donations from the States, IGOs, Non-profit Organizations, etc. Thus, the North always gets bargaining power in deciding the time and amount of donations.
The internships in the ICTs are important as international law is continuously evolving. The ICC has already faced a backlash for targeting only African leaders. However, the number of international lawyers from the North representing Third World Countries is significantly high, keeping in mind that the ICC is involved mainly with Third World Countries. This is why the ICC has been accused of being a neocolonial plaything to experiment with the ideas of colonial powers. At this juncture, the new age graduates from Third World Countries can play a huge role if they are adequately trained in the ICTs. Third World Countries might get a new breed of indigenous international lawyers in the coming years. Here the idea of getting international lawyers from the Third World Countries is not for defending the African leaders accused of committing international crime, but to create equilibrium in the international law scholarship which finds weak arguments when it comes to the accountability of powerful States for international crimes. As Professor B.S. Chimni argues, powerful States exercise dominance in the international system through the world of ideas and not through the use of force. But from time to time the use of force is used to quell the possibility of any challenge being mounted to their vision of world order.
Uneven Representation of Judges and Lawyers in ICTs
Although customary international law is the creation of States, Loretta Chan argues that ICJ has a dominant role in the creation of international custom. Similarly, Mathew Perish writes that the signatories to the international treaties are not the prime movers behind the international law; it is the ICTs and international organizations. One may argue that there is an equitable representation of the judges from the South in these courts, but their educational background, as Chimni writes above, entails that most of them have studied in the North. For example, one of the most celebrated judges from Global South is Christopher Weeramantry, who pursued his LL.B and LLD degrees from the University of London. Among the four judges who represented India in ICJ (B N Rao, Nagendra Singh, Raghunandan Swarup Pathak, and Dalveer Bhandari), only Judge Raghunandan Swarup Pathak never went to study in the North.
The South has a better representation of Judges in ICTs than that of the lawyers because the appointment of judges is based on the fixed quota from specified regions. What would have been the case if there were no fixed quota for the appointment of judges from each region? The result of unequal representation of international lawyers in ICJ emanates from article by Sondre Torp Helmersen, where among the 40 most cited publicists by ICJ, most of the scholars come from Global North. As far as South Asia is concerned, no international lawyer finds place in the list.
Teaching of International Law in Global South
The teaching of international law in the Global South still focuses on the substantive part of international law. The procedural part of the ICTs is entirely missing. Moreover, unlike academic scholars of the North who also argue in the ICTs, the academic scholars of the Global South do not get much chance to represent States in ICTs. Thus, the students of the South not only lose the opportunity to work and gain experience at international courts, they also lose an opportunity to be trained by judges and international lawyers who have the experience of working in these institutions. The internships in ICTs do not form a very important part of the international law curriculum in Third World Countries. The 2020 report of Teaching and Researching International Law in Asia (TRILA) Project discussed various concerns of the teachers in Asia in teaching and researching international law. Five articles published by the TWAILR on teaching international law, the authors mainly focused on the curriculum, classroom discussions and its challenges. However, the issue of internships in the ICTs has been completely ignored. The TWAIL (Third World Approaches to International Law) scholars have written extensively on how international institutions serve the cause of the North. But the issues of exclusions and under-representation of students and young professionals in ICTs and international organizations due to financial constraints have not received proper attention.
Paul Novosad and Eric Werker argue that the staffing rules limit geographic representation. They argue that major powers play a huge role in shaping the outcomes including loan, agendas, concessions, votes, or peacekeeping etc. Thus, the countries with greater ability to influence international organizations will be more successful in placing their nationals into senior positions.
In December 2020, The United Nations General Assembly adopted a resolution to establish a Trust Fund for the Judicial Fellowship Programme of the ICJ, similar to Trust Funds of ICC and ITLOS. However, like other Trust Funds, this too does not form part of the annual budget of the ICJ. Unpaid work in cities with high living costs means that more applicants come from the Global North than the Global South. For example, from 2012 to 2013, 372 interns at the UN Secretariat hailed from African nations, compared with 364 from France alone. These champions of human rights have established a system of discrimination against the students of developing countries and low-income families. By excluding students from developing countries and low-income families, ICTs are widening the existing gap between the North and the South.
It is true that funding for internships is not the lone factor for the underrepresentation of students from Third World Countries. Still, given the geographical locations of ICTs, the funding for internships will increase the number of applicants for internships. To give hassle-free access to students, and young professionals, interns of the ICTs should not be charged for a visa. This is important because all of the three ICTs are located in Europe and may travel without bothering about currency exchange rates and visa.
Each party to the Statutes of the ICTs makes monetary contribution as per the agreed terms and conditions. However, due to their geographical locations, ICTs fail to give equal opportunity to the young professionals of Third World Countries. The Trust Funds are limited and dependent on the amount of donations; therefore, there is no guarantee that the young professionals will be able to join ICTs each year. Therefore, the ICTs can ensure equal access of young professionals from all the regions by making Trust Funds part of annual budget of the respective courts. It is also suggested that while accepting the applications, the geographical representation along with the funding should be kept in mind. In case there are more positions available, the interns from Third World Countries should be preferred for funding. Since Third World Countries are mostly represented through diplomats and senior officials in the ICTs, they should also ensure students and young professionals’ access to these ICTs.
Mohd Imran is the Founder of Indian Society for Legal Research. Currently, he is pursuing LL.M in International Law from South Asian University, New Delhi. The author is thankful to Dr. Srinivas Burra, Farheen Ahmad and Avantika Banerjee for their valuable comments and suggestions on the draft of this article.