In “Achieving Sex-Representative International Court Benches,” Nienke Grossman begins with embarrassing statistics. Despite decades of progress on gender equality, women are still quite scarce on international benches. Grossman reframes the debate on gender equity in a powerful way. Most promisingly, she suggests that greater meritocracy and greater gender equity go hand in hand. As she argues, “international judgeships are often used to reward political loyalty” and “political horse-trading among states” abounds. For these reasons, reforms to broaden the pool of candidates and to increase the transparency of the selection process would also result in the appointment of more women, in all likelihood. In addition, Grossman puts forth a provocative legal claim—she argues that “states are legally required to take steps to understand and remedy the paucity of women judges on most international court benches.”

This contribution considers why states as well as international courts and tribunals should act to remedy the gender imbalance on international benches. In my view, the most appropriate question is not why they must, but why they should. Arguments that states are legally bound under the UN Charter to address this gender imbalance are weak, though human rights law does provide a basis for claims that states must take action. But arguments about legitimacy—both normative and sociological—could provide a more persuasive basis for arguing that states as well as courts and tribunals should act. In particular, the normative legitimacy of international courts and tribunals could benefit from selection procedures designed to help ensure that states nominate the most meritorious candidates for judgeships.

Nienke Grossman offers a much needed overview of the statistical patterns behind the substantial underrepresentation of women in international courts benches. As her inquiry reveals, despite the growing proportion of female qualified lawyers, sex representativeness has hardly improved in recent years. On the contrary, in the absence of special requirements in courts’ statutes or judicial selection procedures, the percentage of women judges has actually stagnated or even declined in some cases. Such acute sex imbalance cannot be attributed to the (contingent) fact that not enough qualified women are available for such highly prestigious positions. Grossman persuasively contests the plausibility of this widespread assumption. Not only is the limited-pool argument fallacious, but, as her analysis suggests, part of the problem might actually be that judicial selection procedures lack transparency and are not driven by merit. Instead, nominations of international judges are often used “to reward political loyalty or to advance political agendas”; this practice seriously impinges on the chances of women to be appointed as international judges, as politics (both domestic and international) remains very much a male-dominated sphere.

In her interesting study on “Achieving Sex Representative International Court Benches,” Nienke Grossman observes that international judgeships are often based on personal networks and social currency, or used to reward political loyalty or to advance political agendas, rather than to select the most qualified candidates. She illustrates how nomination procedures for international benches generally lack transparency, and horse-trading infects elections to the international courts. To ensure gender equity, Grossman advocates that states should take remedial steps to make nomination and selection procedures more open, transparent, and merit-based, at both the national and the international level.