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Achieving Sex-Representative International Court Benches

Published online by Cambridge University Press:  20 January 2017

Nienke Grossman
Nienke Grossman*
Affiliation:
University of Baltimore School of Law; Center for International and Comparative Law
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Twenty-five years ago, in this Journal, Hilary Charlesworth, Christine Chinkin, and Shelley Wright argued that the structures of international law “privilege men.” As shown in Table 1, which summarizes data from a forthcoming article, on nine of twelve international courts of varied size, subject-matter jurisdiction, and global and regional membership, women made up 20 percent or less of the bench in mid 2015. On many of these courts, the percentage of women on the bench has stayed constant, vacillated, or even declined over time. Women made up a lower percentage of the bench in mid 2015 than in previous years on two-thirds of the courts surveyed.

Type
Notes and Comments
Information
American Journal of International Law , Volume 110 , Issue 1 , January 2016 , pp. 82 - 95
Copyright
Copyright © American Society of International Law 2016

Footnotes

*

I would like to thank for their comments and feedback on this project Cindy Galway Buys, Harlan Grant Cohen, Susan Franck, Claudio Grossman, Audrey McFarlane, Darren Rosenblum, Colin Starger, Eric Voeten, and Markus Wagner. I am grateful for comments received at the New York University Colloquium on International Law and Justice, the Junior International Law Scholars Association meeting at the University of California, Berkeley, the Association of American Law Schools Workshop on Transnational Perspectives on Equality Law, and the University of Bruxelles “Le juge est une femme” conference, as well as for research assistance from Harvey Morrell and Adeen Postdar. I also wish to thank Irene Klinger and Ezequiel Steiner for their support and encouragement throughout this project.

References

1 Charlesworth, Hilary, Chinkin, Christine & Wright, Shelley, Feminist Approaches to International Law, 85 AJIL 613 (1991)CrossRefGoogle Scholar.

2 For a more comprehensive description of the data presented in this article and its sources, see Grossman, Nienke, Shattering the Glass Ceiling in International Adjudication, 56 VA. J. Int’l L. 213Google Scholar (forthcoming 2016).

3 Id.

4 Id. Although not the focus of this article, women are also found in low numbers in investor-state dispute resolution. Only 6.5 percent of known investment treaty arbitration appointments were women until May 2010. Two women, Gabrielle Kaufmann-Kohler and Brigitte Stern, accounted for 75 percent of female appointments, whereas the two most frequently appointed men accounted for 5 percent of the appointments of male arbitrators. See, e.g., Gus van Harten, The (Lack of) Women Arbitrators in Investment Treaty Arbitration, 59 COLUM. FDI PERSP. (Feb. 6, 2012); see also Franck, Susan D., Freda, James, Lavin, Kellen, Lehmann, Tobias & van Aaken, Anne, The Diversity Challenge: Exploring the “Invisible College” of International Arbitration, 53 Colum. J. Transnat’l L. 429, 430 (2015)Google Scholar (finding through a survey of attendees at the Congress of the International Council for Commercial Arbitration that 17.6 percent of arbitrators were women).

5 See infra part III.

6 Charlesworth et al., supra note 1.

7 Members of the Tribunal Since 1996, at https://www.itlos.org/the-tribunal/members-of-the-tribunal-since-1996/.

8 See Judges of the Court, at http://www.african-court.org/en/index.php/about-the-court/jurisdiction-3/judges.

9 Seven men have served on the European Court of Justice, including one for two separate terms. Five men have served on the European Court of Human Rights (ECHR). One man has served on the International Tribunal for the Law of the Sea (ITLOS). Five men have served on the International Court of Justice (ICJ) as permanent judges. Three men have served as permanent judges on the International Criminal Tribunal for the Former Yugoslavia (ICTY), and one of them (Claude Jorda) also served on the joint appeals chamber for the International Criminal Tribunal for Rwanda (ICTR) and the ICTY. Three men have served on the International Criminal Court (ICC). One woman, Michele Picard, served as an ad litem judge on the ICTY. The data was drawn from the court websites referenced in Grossman, supra note 2, at 223 n.43.

10 Michelson, Ethan, Women in the Legal Profession, 1970 –2010: A Study of the Global Supply of Lawyers, 20 Ind. J. Global Legal Stud. 1071, T. A 6 (2013)CrossRefGoogle Scholar.

11 Six men have served on the European Court of Justice, whereas two served on the ICC. Seven served on the ECHR, and three served on the ICTY as permanent judges. Six men and one woman, Rosalyn Higgins, have served as judges on the ICJ bench. See Grossman, supra note 2, at 223 n.43.

12 Michelson, supra note 10.

13 Id. Three men have served on the ECHR. On the ICJ, five men served on behalf of the Union of Soviet Socialist Republics and four on behalf of the Russian Federation. Two men were judges for ITLOS, and three for the ICTY and ICTR combined. See Grossman, supra note 2, at 223 n.43.

14 Four men have served on the ICJ, and three on the ICTY and ICTR combined. One woman serves on the ICJ and one on the World Trade Organization’s Appellate body. See Grossman, supra note 2, at 223 n.43.

15 Michelson, supra note 10.

16 See, e.g., Ruth Mackenzie, Kate Malleson, Penny Martin & Philippe Sands, Selecting international Judges: Principle, Process, And Politics 95 (2010); Cherie Booth & Philippe Sands, Keep Politics out of the Global Courts, Guardian (UK) (July 13, 2001).

17 Final Report of the Independent Panel for the Election of Inter-American Commissioners and Judges 25–26, 29 (June 2, 2015), at http://www.opensocietyfoundations.org/sites/default/files/iachr-panel-report-eng-20150603.pdf.

18 Bohlander, Michael, The International Criminal Judiciary—Problems of Judicial Selection, Independence and Ethics, in International Criminal Justice: A Critical Analysis of Institutions and Procedures 354 (Bohlander, Michael ed., 2007)Google Scholar.

19 See, e.g., 1 Shabtai Rosenne, The Law and Practice of the International Court, 1920–2005, at 384 (2006); MacKenzie, Ruth & Sands, Philippe, International Courts and Tribunals and the Independence of the International Judge, 44 Harv. Int’l L.J. 271, 271–72 (2003)Google Scholar.

20 UN Charter, Art. 8. The preamble “reaffirm[s] faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.”

21 Id., Art. 92.

22 SC Res. 827 (May25, 1993)(ICTY); SC Res.955 (Nov. 8, 1994) (ICTR);The United Nations System Chart (2015), at http://www.un.org/en/aboutun/structure/pdfs/UN_System_Chart_30June2015.pdf.

23 Rome Statute of the International Criminal Court, Art. 13(b), July 17, 1998, 2187 UNTS 90.

24 Negotiated Relationship Agreement Between the International Criminal Court and the United Nations, ICC Doc. ICC-ASP/3/Res.1 (Oct. 4, 2004).

25 Furthermore, in the 1995 Beijing Platform for Action, states made political commitments to “[a]im at gender balance in the lists of national candidates nominated for election or appointment to United Nations bodies, specialized agencies and other autonomous organizations of the United Nations system.” Platform for Action, para. 190(j)(Sept. 15, 1995), in Report of the Fourth World Conference on Women, UN Doc.A/CONF.177/20/Rev. 1, ch. I, Res. 1, Annex II (1996).

26 International Covenant on Civil and Political Rights, Arts. 3, 25, Dec. 16, 1966, 999 UNTS 171.

27 See, e.g., American Convention on Human Rights, Art. 23, Nov. 22, 1969, OASTS No. B-32, 1144 UNTS 123 (Every citizen has the right and opportunity to “take part in the conduct of public affairs” and “to have access, under general conditions of equality, to the public service of his country.”); see also Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, Art. 4, June 9, 1994, 33 ILM 1534 (recognizing women’s right “to have equal access to the public service of her country and to take part in the conduct of public affairs, including decision-making.”); African Charter on Human and Peoples’ Rights, Arts. 13, 18, June 27, 1981, 1520 UNTS 217, 21 ILM 58 (All citizens shall have “the right of equal access to the public service of his country” and the “State shall ensure the elimination of every discrimination against women.”); Protocol to the African Charter on Human and Peoples’ Rightson the Rights of Women in Africa, Art. 9 (2), July 11, 2003, OAU Doc. CAB/LEG/66.6/Rev. 1, at http://www.achpr.org/instruments/women-protocol/ (“States Parties shall ensure increased and effective representation and participation of women at all levels of decision-making.”); Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 1, Apr. 4, 2000, ETS No. 177 (“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”).

28 Convention on the Elimination of All Forms of Discrimination Against Women, Art. 8, Mar. 1, 1980, 1249 UNTS 13; Claudia Martin, Article 8 of the Convention to Eliminate all Forms of Discrimination Against Women: A Stepping Stone in Ensuring Gender Parity in International Organs and Tribunals (n.d.), at http://www.gqualcampaign.org/wp-content/uploads/2015/09/Advocacy-Piece-1.pdf.

29 Convention on the Elimination of All Forms of Discrimination Against Women, supra note 28, Art. 7.

30 Beijing Declaration, para. 36 (Sept. 15, 1995), in Report of the Fourth World Conference on Women, supra note 25, ch. I, Res. 1, Annex I.

31 Convention Concerning Discrimination in Respect of Employment and Occupation (No. 111), Arts. 2–3, June 25, 1958, 362 UNTS 31; Ratifications of C 111, at http://www.ilo.org.

32 De Bürca, Gráinne, Developing Democracy Beyond the State, 46 Colum. J. Transnat’l L. 221, 226–27 (2008)Google Scholar. von Bogdandy, Armin & Venzke, Ingo, On the Democratic Legitimation of International Judicial Lawmaking, 12 German L. J. 1341, 1343 (2011)CrossRefGoogle Scholar.

33 Grossman, Nienke, The Normative Legitimacy of International Courts, 86 Temp. L. Rev. 61, 68–76 (2013)Google Scholar; von Bogdandy, Armin & Venzke, Ingo, In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification, 23 Eur. J. Int’l L. 7, 8 (2012)CrossRefGoogle Scholar.

34 Grossman, Nienke, Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?, 12 CHI. J. Int’l L. 647, 668–69 (2012)Google Scholar.

35 See King, Kimi L. & Greening, Megan, Gender Justice of Just Gender? The Role of Gender in Sexual Assault Decisions at the International Criminal Tribunal for the Former Yugoslavia, 88 Soc. Sci. Q. 1049, 1050 n. 2 (2007)CrossRefGoogle Scholar (not including the ICTR in a study on the gender effect of judging because “there are too few [women judges]to conduct empirical analysis and virtually all the guilty defendants received life sentences”).

36 Id. ; Michael Waibel & Yanhui Wu, Are Arbitrators Political? 35 (paper presented at the ASIL Research Forum, Los Angeles CA (Nov. 3–5, 2011)), at https://www.researchgate.net/publication/256023521_Are_Arbitrators_Political.

37 Wald, Patricia, Six Not-So-Easy Pieces: One Woman’s Journey to the Bench and Beyond, 36 U. Tol. L. Rev. 979, 989 (2005)Google Scholar; Wald, Patricia, What Do Women Want from International Criminal Justice? To Help Shape the Law, Intlawgrrls (Oct.5, 2009), at http://www.intlawgrrls.com/2009/10/what-do-women-want-from-internation-al.htmlGoogle Scholar; Terris, Daniel, Romano, Cesare P.R. & Swigart, Leigh, The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases 48, 186–87 (2007)Google Scholar (containing comments by former ICC Judge Navanethem Pillay and former IACHR Judge Cecilia Medina Quiroga).

38 Grossman, supra note 34, at 664–65.

39 Kumar, Shashank & Rose, Cecily, A Study of Lawyers Appearing Before the International Court of Justice, 25 Eur. J. Int’l L. 893, 904 (2014)CrossRefGoogle Scholar.

40 According to the curricula vitae of the fifteen current members, available on the ICJ’s website, only three have served as Counsel in cases before the ICJ: Christopher Greenwood, Giorgio Gaja, and James Crawford. Three served as agents for their states: Ronny Abraham, Peter Tomka, and Kirill Gevorgian.

41 Wolbrecht, Christina & Campbell, David E., Leading by Example: Female Members of Parliament as Political Role Models, 51 AM. J. Pol. Sci. 921–39 (2007)CrossRefGoogle Scholar; see also, e.g., Crawford, Kijana & Smith, Danielle, The We and the Us: Mentoring African American Women, 36 J. Black Stud. 52 (2005)CrossRefGoogle Scholar (referring to the importance of mentoring to the career development of African American female administrators in higher education).

42 Mackenzie et al., supra note 16, at 64–65.

43 Id. at 95.

44 Id. at 86.

45 Terris et al., supra note 37, at 23.

46 Dezalay, Yves & Garth, Bryant G., Dealing Invirtue: International Commercial Arbitration and the Construction of a Transnational Legal Order 10, 29 (1996)Google Scholar.

47 International Law Commission, Membership (2012–2016), at http://legal.un.org/ilc/ilcmembe.shtml.

48 Council of Europe, Committee of Ministers, CM(2012)40 Addendum Final, 4.4 Guidelines of the Committee of Ministers on the Selection of Candidates for the Post of Judge at the European Court of Human Rights–Explanatory Memorandum, pt. C(III)(1) (Mar. 29, 2012).

49 Id., pt. C(III)(2).

50 Id., para. 42.

51 Id., para. 43.

52 International Criminal Court, Assembly of States Parties, 10th Sess., Report of the Bureau on the Establishment of an Advisory Committee on Nominations of Judges of the International Criminal Court, ICC Doc. ICC-ASP/10/36 (Dec. 21, 2011).

53 International Criminal Court, Assembly of States Parties, 12th Sess., Report of the Advisory Committee on Nominations of Judges on the Work of Its Second Meeting, ICC Doc. ICC/ASP/12/47, para. 10 (Oct. 29, 2013).

54 Eur. Parl. Ass. Res. 1082, Procedure for Examining Candidatures for the Election of Judges to the European Court of Human Rights (Apr. 22, 1996).

55 Eur. Parl. Ass. Res. 2002, Evaluation of the Implementation of the Reform of the Parliamentary Assembly (June 24, 2014).

56 Id.

56 Final Report of the Independent Panel for the Election of Inter-American Commissioners and Judges, supra note 17.

58 Coalition for the International Criminal Court, > Delivering on the Promise of a Fair, Effective and Independent Court < Election of ICC and ASP Officials > Judges, at http://www.iccnow.org/?mod=electionjudges.

59 See supra part III.

60 See Alter, Karen J., Agents or Trustees? International Courts in Their Political Context, 14 Eur. J. Int’l Rel. 33, 35, 39–40 (2008)CrossRefGoogle Scholar.

61 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights, Art. 14(2), (3), June 10, 1998, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III), at http://www.achpr.org/instruments/court-establishment/.

62 Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 13 ter (1)(b) (Sept. 2009), at http://www.icty.org/sid/135; Statute of the International Tribunal for Rwanda, Art. 12 ter (1)(b) (as amended, Jan. 31, 2010), at http://unictr.unmict.org/en/documents/statute-and-creation.

63 Rome Statute of the International Criminal Court, supra note 23, Art. 36(8)(a)(iii).

64 International Criminal Court, Assembly of States Parties, Procedure for the Nomination and Election of Judges of the International Criminal Court, Res. ICC-ASP/3/Res.6, para. 11 (Sept. 10, 2004).

65 Id., paras. 20, 22.

66 Eur. Parl. Ass. Res. 1366, Candidates for the European Court of Human Rights (Jan. 30, 2004).

67 Advisory Opinion on Certain Legal Questions Concerning the Lists of Candidates Submitted with a View to the Election of Judges to the European Court of Human Rights, 49 Eur. Ct. H.R. 33, para. 54 (Grand Chamber 2009).

68 See supra part II.

69 Mackenzie et al., supra note 16, at 48–49.

70 International Geneva Gender Champions, at http://genevagenderchampions.com/. The documents cited below can be obtained through the main Web page.

71 International Geneva Gender Champions, Commitments.

72 International Geneva Gender Champion, Champions.

73 Gqual. The Campaign: An Overview, at http://www.gqualcampaign.org/our-work/. The documents cited below can be obtained through the main Web page.

74 Gqual. The Gqual Declaration ; Gqual. The Signatures.

75 Human Rights Council, Equal Participation in Political and Public Affairs, pmbl., para.3, UN Doc. A/HRC/30/L.27/Rev.1 (Sept. 30, 2015).