Twenty-five years ago, in this Journal, Hilary Charlesworth, Christine Chinkin, and Shelley Wright argued that the structures of international law "privilege men." (1) 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. (2) On many of these courts, the percentage of women on the bench has stayed constant, vacillated, or even declined over time. (3) Women made up a lower percentage of the bench in mid 2015 than in previous years on two-thirds of the courts surveyed. (4)
For courts where states were required by statute to take sex into account when nominating or voting for judges, a higher percentage of women sat on the bench in mid 2015. Examples include the International Criminal Court (ICC), the European Court of Human Rights (ECHR), the African Court on Human and Peoples' Rights, and the ad litem benches of the International Criminal Tribunals for Rwanda and the Former Yugoslavia (ICTR and ICTY, respectively). Thirty-two percent of the judges on these courts were women in mid 2015. Where a "fair representation" of the sexes was not aspired to or required, women made up only 15 percent of the bench.
From 1999 to 2015, four of the five courts with the highest percentages of judicial slots occupied by women had either mandatory or aspirational language in their statutes or selection rules. The year 1999 was the first in which any of the surveyed courts had such language. Percentages were obtained by dividing the total number of slots occupied by women each year by the total number of slots occupied by both men and women each year. None of the seven courts with the lowest percentages of women on the bench in the same period had sex-representation requirements or aspirations.
The character and quality of selection procedures may also play a role in the percentage of women on the bench. It is difficult to draw statistically significant conclusions about the impact of increased transparency or statutory guidance on national nomination procedures since neither is found in the vast majority of nomination procedures, and the sample size of twelve courts is small. Nonetheless, a lack of transparency and the closed nature of nomination processes on most international courts may depress the percentage of women on the bench overall. (5) By contrast, institutionalized screening after nomination may increase balance on the bench. For example, from 1999 until mid 2015, women occupied 29 percent, 40 percent, and 47 percent of judicial slots on the ECHR, the Court of Justice for the Economic Community of West African States (ECOWAS), and the ICC respectively--three of the four courts with institutionalized screening after nomination. But on the fourth court--the Appellate Body of the World Trade Organization (WTO)--women sat on the bench only 17 percent of the time.
In isolation the data on the percentage of women serving on these courts do not necessarily support Charlesworth, Chinkin, and Wright's thesis of institutionalized male privilege in relation to international courts; instead, they could reflect low numbers of qualified female candidates in the pool of candidates, explaining proportionately low numbers on international court benches. Yet, as discussed in part II below, the limited-pool argument is unpersuasive for a number of reasons, including the limited role that merit plays in international judicial selection procedures and the constant or declining percentage of female judges over time on some courts as the pool has grown. In addition, many states with higher percentages of female lawyers do not seat more international women judges.
States should take remedial steps to increase sex representativeness on the bench, both to comply with their international legal obligations and to buoy the legitimacy of international courts (part III). Reforms, described in part IV, might include making selection procedures more open, transparent, and merit based. Alternatively, states could signal their desire for sexrepresentative benches through aspirational statements incorporated into court statutes or selection procedures, or through temporary special measures or quotas (part V). A quarter century after the publication of "Feminist Approaches to International Law," (6) the time is ripe to achieve sex-representative international court benches.
THE POOL OF AVAILABLE CANDIDATES
A shallow pool of qualified female candidates is a poor explanation for the overrepresentation of men on international courts. The pool argument provides that women are found in lower numbers on courts without quotas because not enough qualified women are available to occupy these prestigious positions. But if the pool were the reason for the paucity of women judges, one might anticipate that the number of women on the bench would grow as women enter law schools, the diplomatic corps, and the legal profession in greater numbers. This is not the case for many international courts.
For the first fifteen years following the establishment of the International Tribunal for the Law of the Sea (ITLOS) in 1996, no woman served on the 21 -member bench. Since then, only one woman has served (Judge Elsa Kelly from Argentina), accounting for 2.5 percent of all ITLOS judges. (7) The number of women judges on the African Court on Human and Peoples' Rights has stayed constant at two of eleven since its establishment in 2006. In total, four of the twenty-two African Court judges, or 18 percent, have been women. (8) On eight of the twelve courts surveyed, a lower percentage of women sat on the bench in mid 2015 than in previous years. On some courts, the decline is dramatic. For example, in 2004, women accounted for 60 percent of the ICTR's ad litem bench, but since then that percentage has dropped precipitously; in 2011, only 20 percent of the ad litem judges were women. The Inter-American Court of Human Rights (IACHR) had as many as three female judges out of seven judges (43 percent) only a few years ago. The number then dropped to two and then to zero. One female judge was elected to the seven-member bench in the last round of elections. Women made up over 40 percent of the WTO Appellate Body only a few years ago, but in mid 2015, only one woman sat on the seven-member bench. The same applies to ECOWAS.
If the pool argument were correct, one might expect that courts with similar subject-matter jurisdiction would have similar percentages of women on the bench. Yet, the ICC had 39 percent women on the bench in mid 2015, whereas the ICTR had 22 percent permanent female judges, and the ICTY, 11 percent. In addition, between 1999 and 2015, women held 41 percent of ad litem slots on the ICTY bench but only 11 percent of permanent slots. In the same period, women held 35 percent of ad litem slots on the ICTR but only 22 percent of permanent ones.
Using the percentage of women lawyers in a country as a proxy for the pool, one might expect that states with a higher percentage of women lawyers would have a higher percentage of women judges. For many states, this does not appear to be the case. For example, no French woman has served as a permanent judge on the European Court of Justice, the International Court of Justice (ICJ), ECHR, ICC, ICTR, ICTY, or ITLOS--although twenty-five men have. (9) Fifty percent of France's lawyers are estimated to be female. (10) Twenty-four British men and one British woman have served on the European Court of Justice, ICC, ICJ, ECHR, and ICTY. (11) About half of the United Kingdom's lawyers are estimated to be women. (12) No Russian woman served on any of the five international courts on which Russian men served, although about half of Russia's lawyers are women. (13) By contrast, China has appointed one woman each to the WTO Appellate Body and ICJ, and seven men to the ICJ, ICTR, and ICTY. (14) About one-fifth of China's lawyers are female. (15)
The limited-pool argument assumes that judicial selection procedures aim to choose the most meritorious candidates. Yet, international judgeships are often used to reward political loyalty or to advance political agendas, rather than to select the most qualified or meritorious candidates. (16) A recent election to the IACHR illustrates the point. While praising the "long and deep commitment to human rights" of one judicial candidate, an independent panel expressed grave concerns about another candidate's ability to remain impartial and independent with respect to his country's human rights record. (17) The former lost the election, and the latter replaced him on the bench. In the same vein, one study showed that eight of twenty-five judges at the ICTY and the shared ICTY/ICTR appeals chamber had no prior criminal judicial experience. Many of them had no experience in international criminal law, and many did not have even fifteen years of relevant professional experience. (18) Also, it is widely acknowledged that international judicial elections are often the result of political horse-trading among states. (19) States trade votes for their candidates across a number of international courts. Such an international election system does not require any analysis of a candidate's qualifications. The pool argument loses much of its purchase if merit is not the driving factor in the international judge-selection process.
Finally, about 195 judges sit on the twelve benches surveyed in this study. Openings happen periodically on each of them. The pool need not be large to increase the percentage of international judgeships filled by women. Alternatively stated, it is difficult to believe that in a world of over 7 billion people, only one woman is qualified to sit on the seven-member benches of the ECOWAS, IACHR, and WTO Appellate Body, and on the 21-member bench of ITLOS.
WHY STATES MUST ACT TO...