Go On! Panel Discussion on “Benchmarking in International Criminal Justice: Feasibility or Fiction?”

Go On! makes note of interesting conferences, lectures, and similar events. ► International Nuremberg Principles Academy and The Hague Institute for Innovation of Law announced open registration for a panel discussion on “Benchmarking in International Criminal Justice: Feasibility or Fiction?” which will be held online on December 7, 2021. Click here for more details and to register.

On the Job! Project Officer at International Nuremberg Principles Academy

The International Nuremberg Principles Academy, a foundation dedicated to the advancement of international criminal law and related human rights, is offering a full-time position as Project Officer starting on or after 1 April 2022. Applications are welcome from those with graduate degrees in law, international relations, social sciences or political science. The holder of this position will conduct background research, write and edit documents, engage in project design and implementation, organize conferences, workshops and events, and more.

Deadline for applications is January 15, 2022.  For more information on this vacancy, click here.

State Accountability, Obligations and Protection against Sexual Violence in School: IACtHR in Paola Guzmán v. Ecuador

When a 11-year-old girl in Bolivia was allegedly repeatedly raped by her step-grandfather, she became one of the world’s youngest victims of a shadow pandemic of gender-based violence that has swept the world as the coronavirus pandemic evolved. A substantial rise in reports of violence against girls and women throughout Latin America and the Caribbean during Covid-19 Pandemic is potentially enough to question the State[s] accountability in sexual-violence cases. Last year in June 2020, the Inter-American Court of Human Rights [‘the Court’] delivered its landmark judgement in the case of Paola Guzmán Albarracín v. Ecuador, where the court for the first time establish the state’s obligation to prohibit and address sexual violence in schools across the Latin America and the Caribbean.

The ‘Case’

The case concerns a school girl Paola del Rosario Guzmán Albarracn [‘Paola’] who was subjected to sexual assault by her public high school’s vice-principal. For continuous two years, he forced Paola into a sexual relationship and sexually assaulted her. Authorities at the school were cognizant of the issue, including vice-principle misdeeds. Paola became certain that she was pregnant in late 2002.  After threats from vice-principle for abortion, she visited school physician for abortion who proposed to terminate only in exchange for sexual favours. Later, she swallowed poison and died due to school’s unwillingness to take medical emergency measures. In 2006, the Center for Reproductive Rights, brought the issue to the Inter-American Commission on Human Rights [‘the Commission’] after Paola’s family members were deprived of justice throughout Ecuador’s domestic judicial proceedings.

Commission’s ruling

The Commission ruled that Ecuador is accountable for the violation of Paola’s fundamental right under the Inter-American Convention on Human Rights [‘Convention’], inter alia including the right to life, humane treatment, honour and dignity, special protection of the State for a girl, equality and non-discrimination, education, health, and a life free from violence. The Commission further held that Ecuador also violated the educational right protected under Article 13 of Protocol of San Salvador, and also violate Article 7 of the Belém do Pará Convention, failing to undertake appropriate measures to prohibit, penalize, and eliminate violence against women. Ecuador did not acknowledge the Commission’s recommendations. Therefore, in February 2019, the Commission brought the case before the Court.

Before the Court

The concerning issues before the Court were, firstly, the recognition of the State’s responsibility followed by the issue on the prevalence of sociocultural environments that foster human rights violations. The Court ruled that the vice-principle breached his status of authority, noting both the difference in age between him and Paola and the post he possessed, which reflected a trustworthy relationship with the female children. Thus, the instances took place in an educational atmosphere that not only lacked mechanisms to prohibit sexual assault but also institutionalized it. The Court concluded that Paola’s case was not an isolated case, but instead a structural position of sexual harassment & assault in the public education system. The ruling principally echoed the Commission’s observations, holding Ecuador directly accountable for a violation of Paola’s rights to life, personal integrity, private life, and dignity; special protection from the state as a child; equality and non-discrimination; education; and live free of gender violence.

Court’s rationale

The Court established that the State has an obligation to protect girls and adolescents from sexual assault in institutions and compelled Ecuador to implement structural measures to address sexual assault in the school surroundings, including, establishing a child-protection measures in accordance with the Convention on the Rights of the Child, followed by monitoring the situation of sexual violence in educational institutions and establishing measures to avoid it, and providing safe educational settings and lastly, establishing transparent and reliable reporting procedures so that incidents of violence may be recorded, investigated, and penalized.  

Furthermore, the Court underlined the necessity of proposing Comprehensive Sexual Education (‘CSE’) in school systems in the context of these state obligations. The Court recognized the Committee on Economic, Social, and Cultural Rights’ interpretation of CSE in General Comment No. 22, which stated that education must be free from discrimination, evidence-based, and scientifically authentic. The Court referred to patriarchal structures, gender stereotypes, the authority discrepancy between students and instructors, and multifaceted discrimination in sexual violence against girls and adolescents as a facet of the sociocultural environments that foster human rights violations.

Concerning the insufficiencies in the investigation and punitive measures of the responsible individuals, the Court found Ecuador accountable for violations of the rights to due process and judicial protection, including its general obligations to recognize and protect rights under the American Convention and the Belém do Prado Convention. Furthermore, the Court held that Paola’s mother and sister’s rights to humane treatment had been also violated including the right to psychological and social integrity [Para 207-214]. However, on the question of violation of freedom of expression and responsible for alleged acts of torture, or cruel, inhuman or degrading treatment to Paola, the Court reflected a negative approach and rationalize it with the absence of evidence of extreme sexual violence, and the substandard autopsy by medical authorities for examining Paola’s putative pregnancy and her impeded abortion which was unsubstantiated. The court concluded that Paola’s insufficient sex education had earlier been considered a violation of her right to education, rather than a specific limitation of her personal freedom of thought and expression, therefore, Ecuador is not accountable for these violations [Para 147-152].

In aspects of reparation, the Court mandated Ecuador to continue providing free psychological or psychiatric treatment to Paola’s mother and sister; publicly release the judgment; authoritatively recognise its responsibility; grant Paola a posthumous high school degree, pertaining to the family’s wishes; proclaim a national day against sexual violence in schools; recognize and implement interventions to address sexual violence [Para 276].

Conclusion

Paola’s judgement is remarkable since it is the first judgment on sexual assault in school’s spaces within the Convention’s jurisdiction. The Court’s ruling draws on preceding judgements by other transnational human rights organizations including the European Court of Human Rights’ 2014 ruling in O’Keeffe v. Ireland, holding Ireland accountable for failing to protect a nine-year-old girl from sexual violence by her teacher due to insufficient school close monitoring. The ruling will aid Ecuador and other nations of the Inter-American System of Human Rights to strengthen their national legal institutions on sexual violence and abuse in school, since rulings of the Court are regarded not only as a method of redress but also as statutory standards that have substantial implications for national legal systems.

Introducing Sarthak Gupta

Sarthak Gupta is an undergraduate B.A.; L.L.B law student at the Institute of Law, Nirma University, India. His scholastic interest follows Constitutional Law, Public Law, Human Rights & Gender Studies, and International Law.

He has authored several articles on constitutional law, contemporary violations of International human rights law, gender and sexual orientation rights, and European laws, in several places, like Columbia University’s RightsViews, King’s College European Law Blog, the Groningen Journal of European Law Forum, JURIST: University of Pittsburgh, Jus Cogens: The International Law Blog, and Fletcher Forum. He is currently working on his individual research, Project Engender and Constitution on the intersection of law, gender and sexuality. 

Heartfelt welcome!

Go On! Brunel University Law Research Group Event

Go On! makes note of interesting conferences, lectures, and similar events.

► The Brunel University London International Law Group will be holding a panel discussion on December 1st, 2021 at 1:00 pm (UK time) under the title “The Psychology of International Law: Emotions, Behavioural Bias and Mental Harm Issues” with Professor Anne van Aaken, Dr. Veronika Fikfak and Dr. Inbar Levy. The panel will be chaired by Dr. Solon Solomon.

For more details about the event and the Zoom link, click here.

Go On! Sixth International Conference on the Law of the Sea

Go On! makes note of interesting conferences, lectures, and similar events.

► The Ministry of Foreign Affairs, Korea, will be hosting the Sixth International Conference on the Law of the Sea together with the Korean Society of International Law and the International Tribunal for the Law of the Sea (ITLOS). The International Conference on the Law of the Sea has been held since 2016 to discuss the latest trends and progress in the research on the United Nations Convention on the Law of the Sea (UNCLOS) and to provide a venue for the judiciary and academia to share their invaluable insights on ways to develop the law of the sea.

The theme of this year’s conference is “Law of the Sea for the Next Generation: Challenges from New Technologies and Environmental Crises.” The Sixth International Conference on the Law of the Sea will take place in Incheon, Korea from November 30 to December 1, 2021, in a hybrid format. Participants from abroad will be able to join the conference either online or offline. 

For registration and more details about the conference, click here.

Write On! The Hague Yearbook of International Law Call for Papers

Cover Hague Yearbook of International Law / Annuaire de La Haye de Droit International

This installment of Write On!, our periodic compilation of calls for papers, includes calls for contribution to the Hague Yearbook of International Law, as follows:

The Hague Yearbook of International Law is now receiving submissions for publication in its upcoming volume. The Hague Yearbook of International Law is an internationally recognized journal with a wide-ranging and in-depth focus on various issues of international law. It aims to offer a platform for review of new developments in the field of international law. In addition, it devotes attention to developments in the international law institutions based in the international City of Peace and Justice, The Hague. Submissions on any issues of public or private international law in either English or French language are welcomed. The Editorial Board will select articles based on their quality and relevance. Selected papers will be subject to peer-review before publication. Most published papers are around 15,000 words, but shorter and longer pieces may also be accepted. Submissions should follow the OSCOLA style guide and should be sent to hagueyearbook@gmail.com before midnight on 15 February 2022  For more information, please click here.

“Conflicting areas”: Brazilian energy planning at odds with the protection of Indigenous Peoples and the Amazon Rainforest

Fernanda Frizzo Bragato*

Lara Santos Zangerolame Taroco*


Amazon is the largest tropical rainforest globally, and Brazil is home of 60% of its full extension. Although the Amazon rainforest is an essential global repository of carbon, mitigating climate change,[i] it also awakens deep economic interests, given its potential in untapped natural resources and rich biodiversity. 

The advancement of deforestation in the region backs to the 1960s, when the military took power and adopted economic plans to develop and integrate the Amazon into the rest of the country.[ii] In that period, the government boosted the opening of roads, the discovery of minerals, and the beginning of agricultural colonization in region.[iii] For instance, the herd grew from just 2 million in 1970 to around 80 million heads in 2010. Until 1975, deforestation affected less than 1% of the forest, reaching almost 19% in 2013. Social conflicts caused by violent land tenure disputes also intensified in the late 20th century due to the increasing availability of lands through recently opened roads and the intensification of land grabbing. [iv]   

In the civil-military dictatorship, studies discovered “the existence of an immense hydraulic potential in the Amazon region, mainly on the Tocantins and Xingu rivers.” [v]  The government then initiated the construction of hydroelectric power plants in the region, marked by environmental impacts and violation of the indigenous rights.

Since then, Brazil has been largely relying on hydropower as the main source of electricity generation.[vi] According to the National Energy Plan – 2050 (thereinafter PNE 2050), [vii] which came out in 2020, hydroelectricity supplied almost 2/3 of the electricity demand in October 2019.[viii]

In 1988, the new Constitution restricted the exploitation of hydroelectric resources in Indigenous lands, and environmental legislation established protected biodiversity zones. Convention no. 169 of the ILO, ratified by Brazil in 2002,[ix] reinforced this restriction by providing the FPIC with indigenous peoples before undertaking, or authorizing, any resources’ exploitation within their lands.

Brazil also ratified, in 1998, the Convention on Biological Diversity,[x] and created the National System of Nature Conservation Units in 2000, which established several Conservation Units. In 2004, Brazil reserved more than 500 thousand square kilometers for new Conservation Units. This effort resulted in an expressive reduction in deforestation, which fell from almost 28 thousand square kilometers in 2004 to around 5.8 thousand square kilometers in 2013.[xi]

Nonetheless, the electricity plans continued to prescribe hydroelectricity as the primary energy source, including its exploitation in protected areas, such as Amazonian Indigenous lands and conservation units.

The 2030 National Energy Plan (thereinafter PNE 2030), published in 2007,[xii] identified hydroelectric energy as the main source of energy generation, contributing for 79% of total generation, and 70% of the Brazilian energy potential in the Amazon and Tocantins/Araguaia basins. The document mentioned the existence of “issues” to be solved by the National Congress, citing as an example the possibility of “exploitation of energy potential in Indigenous lands”. [xiii]

In addition, the Decennial Energy Expansion Plan 2006-2015 (thereinafter PDEE 2006-2015)[xiv] pointed out that 41% of the Amazon Biome’s total area comprises “conflicting areas.” This expression refers to legally protected areas that make it impossible or difficult to expand energy production. Of the 41% mentioned, 16% are Conservation Units, and 25% are Indigenous lands. Moreover, neither the PDEE 2006-2015 nor the PNE 2030 mentioned Indigenous demands for more land demarcations in the Amazon. The non-demarcation of Indigenous lands leads the main claims and conflicts involving Indigenous Peoples in Brazil.[xv]

The Growth Acceleration Program (thereinafter PAC),[xvi] formulated by the Federal Government in 2007, provided energy infrastructure as one of its four pillars. The PAC maintained the creation of the Belo Monte HPP, and planned to build another 31 plants in the country’s northern region. Recently, the PNE 2050 also predicted the high participation of hydroelectricity as the country’s primary energy source.

Unlike the previous plans, the PNE 2050 mentions the “socio-environmental complexity for hydroelectric expansion,” [xvii] given that the hydroelectric potential is located predominantly in “areas of high socio-environmental sensitivity, especially in the Amazon region, which has half of its extension covered by legally protected areas.”[xviii]

According to the PNE 2050, 77% of the identified hydroelectric potential overlap with legally protected areas in the national territory, such as Indigenous lands or conservation units. Only 23% of the potential capacity of hydroelectric plants does not overlap with protected areas, which makes it difficult to reconcile “the purposes of a Conservation Unit with the expansion of energy supply.” [xix]  However, the PNE 2050 does not propose any alternative for the overlaps.

Considering the 204 conservation units in the Brazilian Amazon, which comprises around 104 thousand hectares,[xx] the energetic Brazilian plans look inconsistent with the urgent need to curb deforestation.  Likewise, deforestation within Amazonian conservation units jumped from 441km2 in 2018 to 953km2 in 2019, increasing more than 110%.[xxi]  In 2019, the Amazon was the Brazilian biome most affected by deforestation, amounting to 63.2% of the country’s deforested area (totaling 770,148 hectares). [xxii] The total deforested area increases every year. It is estimated that  20% of the rainforest has already been deforested, close to the tipping point, rated between 20-25%,[xxiii] in which ecosystemic changes would cause an irreversible cascade effect.

Also, the impacts of the electricity sector in Indigenous lands are severe and irreversible. Among them, the following stand out: the relocation of communities to other regions, often accompanied by disruptions in their livelihood; the flooding of large land parcels, including sacred areas, such as traditional burial sites, and rich biodiversity; the invasion of traditional lands; the decrease of hunting, fishing and the reduction of arable areas; and the proliferation of insect populations, including arthropods and mollusks, leading to increased incidences of malaria and other infectious diseases.[xxiv]

Considering the Brazilian history and the horizon of 2050, the incompatibility between what is defined by the government’s planning and protected areas – called inappropriately “conflicting areas”-  seems extremely clear. Therefore, state planning for the energy sector predicts conflict situations that tend to escalate in the following years, leading to more human rights violations against Brazilian indigenous peoples and increasing deforestation of the Amazon rainforest.


* Professor at UNISINOS Law Graduate Program. CNPQ Researcher. Coordinator of UNISINOS Human Rights Center. E-mail: fbragato@unisinos.br.

* Law PhD Candidate at UNISINOS. Law Master Degree from Vitoria Law School  – FDV. Member of Unisinos Human Rights Center. E-mail: larasantosz@hotmail.com.

[i] HUMAN RIGHTS WATCH. Rainforest Mafias. How violence and impunity fuel deforestation in Brazil’s Amazon. 2019. Available at: https://www.hrw.org/sites/default/files/report_pdf/brazil0919_web.pdf . Access on: Nov 09, 2021.

[ii] PRATES, Rodolfo Coelho, Carlos José Caetano BACHA. Os processos de desenvolvimento e desmatamento da Amazônia. Economia e Sociedade, dez. 2011, v. 20, n. 3 (43), pp. 601-636. Available at: < https://www.scielo.br/pdf/ecos/v20n3/a06v20n3.pdf. Access on Nov 9, 2021.

[iii] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021.

[iv] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021.

[v] MINISTÉRIO DE MINAS E ENERGIA. Centro da memória da eletricidade no Brasil. Disponível em: http://memoriadaeletricidade.com.br . Access on Nov 9, 2021.

[vi] BRASIL. Presidência da República. II Plano Nacional de Desenvolvimento (1975-1979). Brasília, 1974. Available at: http://www.planalto.gov.br/ccivil_03/leis/1970-1979/anexo/ANL6151-74.PDF . Access on Nov 9, 2021, p.65.

[vii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.75.

[viii] U.S. Energy Information Administration. Hydropower made up 66% of Brazil’s electricity generation in 2020. Sep 7, 2021. Avaliable at: https://www.eia.gov/todayinenergy/detail.php?id=49436. Access on Nov 9, 2021.

[ix] BRASIL. Decreto n. 10.088/2019. Anexo LXXII. Available at: http://www.planalto.gov.br/ccivil_03/_Ato2019-2022/2019/Decreto/D10088.htm#anexo72. Access on Nov 9, 2021.

[x] BRASIL. Decreto n.2.519/1998. Available at: http://www.planalto.gov.br/ccivil_03/decreto/d2519.htm. Access on Nov 9, 2021.

[xi] IMAZON. A floresta habitada: História da ocupação humana na Amazônia. 2015. Available at: https://imazon.org.br/a-floresta-habitada-historia-da-ocupacao-humana-na-amazonia. Access on Nov 9, 2021

[xii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia 2030. Rio de Janeiro: EPE, 2007.Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-PNE-2030. Access on Nov 9, 2021.

[xiii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia 2030. Rio de Janeiro: EPE, 2007.Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-PNE-2030. Access on Nov 9, 2021.

[xiv] MINISTÉRIO DE MINAS E ENERGIA. Plano Decenal de Expansão Elétrica: 2006-2015. Brasília: EPE, 2006. Available at:https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Decenal-de-Expansao-de-Energia-2015. Access on Nov 9, 2021.

[xv] CAVALCANTE, Thiago Leandro Vieira. “Terra Indígena”: aspectos históricos da construção e aplicação de um conceito jurídico. Revista História. Franca, v.35, 2016. Available at:http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0101-90742016000100501&lng=en&nrm=is. Access on Nov 9, 2021.

[xvi] MINISTÉRIO DO PLANEJAMENTO. Sobre o PAC. Available at:http://www.pac.gov.br/sobre-o-pac  Access on Nov 9, 2021.

[xvii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xviii] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xix] MINISTÉRIO DE MINAS E ENERGIA. Plano Nacional de Energia – PNE 2050. Brasília: EPP, 2020. Available at: https: https://www.epe.gov.br/pt/publicacoes-dados-abertos/publicacoes/Plano-Nacional-de-Energia-2050. Access on Nov 9, 2021, p.80

[xx] ISA. Instituto Socioambiental. Placar de Unidades de Conservação. Pará – Belém do Pará. 2020. Available at: https://widgets.socioambiental.org/placar/ucs/674  Access on Nov 9, 2021.

[xxi]  NOTÍCIAS MPF. Ação do MPF requer atuação imediata do governo federal para combater desmatamento na Amazônia. 2020 Available at: http://www.mpf.mp.br/am/sala-de-imprensa/noticias-am/acao-do-mpf-requer-atuacao-imediata-do-governo-federal-para-combater-desmatamento-na-amazonia . Access on Nov 9, 2021.

[xxii] MAPBIOMAS. Relatório Anual do Desmatamento no Brasil – 2019. Available at: https://mapbiomas.org/relatorio-anual-do-desmatamento-do-brasil-aponta-perda-de-12-milhao-de-hectares-de-vegetacao-nativa-no-pais-em-2019 Access on Nov 9, 2021.

[xxiii] LOVEJOY, Thomas and Carlos NOBRE. AMAZON TIPPING POINT. Science Advances, Feb. 2018, Vol. 4, No. 2. Available at: https://advances.sciencemag.org/content/4/2/eaat2340  Access on Nov 9, 2021.

[xxiv] TADEI, W. P., 1994. Proliferação de mosquitos na Hidrelétrica de Tucuruí, Pará. In: A Questão Energética na Amazônia. Avaliação e Perspectivas Sócio Ambientais. Anais do Seminário Internacional, pp. 2-13, Belém: Núcleo de Altos Estudos na Amazônia, Universidade Federal do Pará/Museu Paraense Emílio Goeldi; ARRUDA, M. E., 1985. Presença de plasmódio brasilianum em macacos capturados na área de enchimento do reservatório da usina hidroelétrica de Tucuruí, Pará. Memórias do Instituto Oswaldo Cruz, 80:367-369; BULCÃO, J. A. P., 1994. Proposta de um Modelo para Avaliação do Impacto dos Empreendimentos Hidroelétricos sobre as Doenças Transmitidas por Vetores com Especial Referência à Malária. Dissertação de Mestrado, Rio de Janeiro: Instituto Oswaldo Cruz, Fundação Oswaldo Cruz.; COUTO, R. C. S., 1996. Hidrelétricas e Saúde na Amazônia: Um Estudo sobre a Tendência da Malária na Área do lago da Hidrelétrica de Tucuruí, Pará. Tese de Doutorado, Rio de Janeiro: Escola Nacional de Saúde Pública, Fundação Instituto Oswaldo Cruz.

Work On! 2022 Inter-American Human Rights Moot Court Competition

American University Washington College of Law’s Academy on Human Rights and Humanitarian Law is pleased to invite JD/law students from all law schools around the world to register as teams in the 2022 Inter-American Human Rights Moot Court Competition

The Competition is a unique trilingual (English, Portuguese, and Spanish) event established to train law students around the world on how to use the Inter-American human rights legal system as a legitimate forum for redressing human rights violations. Since its inception in 1995, it has trained over 4900 students and faculty participants from over 365 universities from the Americas and beyond. A hypothetical case operates as the basis of the Competition. Students argue the merits of this case by writing legal memoranda and preparing oral arguments for presentation in front of human rights experts acting as the Inter-American Court of Human Rights. 

The 2022 Competition will be held in person from May 23 to 27, 2022 in Washington D.C. The hypothetical case focuses on “Climate Change and Human Rights: Impacts, Responsibilities, and Opportunities,” and was written by Astrid Puentes Riaño, who served as co-executive director of the Inter-American Association for Environmental Defense (AIDA) and who has over twenty years of experience in environmental protection, human rights, and climate justice.

Registration closes on March 11, 2022. For more information and to register, click here.

Where Are the Women? Breaking International Law’s Glass Ceiling

Just a few days ago, we received the happy news that Australian law professor Hilary Charlesworth has been elected as a judge to the International Court of Justice (ICJ).  Almost in parallel, at the same time, the University of Chicago Law Review published an essay by Fred Shapiro, containing the list of most cited legal scholars of all time.  The top 25 such scholars are all men.  In other words, despite the seeming prominence of some of our notable female colleagues, not a single one of them has amassed a sufficiently high number of citations to be included on this list.  While the citation list is not focused on our field, International Law (a separate list of top ten most-cited International Law scholars includes one female scholar only), and while some notable scholars included on the list worked in a different historical era when most scholars indeed were men, this list is indicative of the general phenomenon that women are under-represented and under-valued across the legal profession, including in International Law.  Professor Charlesworth’s election to the ICJ, as only the fifth female judge to be elected to this prestigious court, underscores this point further.  The purpose of this post is to highlight some of the recent discussion regarding the issue of under-representation of women at prominent international law institutions, as well as to suggest that an additional way which would help women to break international law’s glass ceiling is through citations.  Amassing a high number of citations would enable female scholars to put their names forward and gain a seat at the table. 

Several of my (I can’t help but notice, mostly female) colleagues have already begun to raise awareness and have written about the inadequate representation of women at prominent International Law institutions.  Priya Pillay recently wrote, as part of Opinio Juris’ excellent Symposium on Gender Representation, about the International Law Commission (ILC) and its members: of the two hundred and twenty-nine members since 1947, there have been only seven women.  In fact, the first female member of the ILC was not elected until 2002.  Because the ILC is tasked with codifying existing international rules as well as with contributing to the development of new international legal norms, the absence of women therefrom is particularly troubling as it signals that female voices are excluded from the making of international law.  Angela Mudukuti has written, in the context of the same Symposium, about the “Boys Club” problem at the International Criminal Court (ICC), where women occupy only 23.5 % of professional posts at the P-5 level.  The absence of women in key management and other high-level roles at the ICC has caused a work culture that is discriminatory toward women, according to the ICC Independent Expert Review.  Moreover, the under-representation of women in judicial roles may be contributing to the lack of prosecution of gender crimes and to the lack of development of appropriate jurisprudence in this area.  Finally, Viviana Krsticevic, as another contributor to this Symposium, has highlighted the fact that women are under-represented at international courts and tribunals as well as at other monitoring bodies. According to Krsticevic, because “international courts and monitoring bodies shape international and domestic dynamics” and are “the public face of international organizations and of international justice,” their legitimacy stems not just from their decisions but also from their composition.  The lack of gender diversity at such international institutions undermines their own legitimacy. 

In addition to the writing of prominent academics and lawyers  which have contributed toward the raising of awareness regarding the issue of female under-representation in international law, several other initiatives are important to mention and emphasize  Six years ago, a group of human rights lawyers launched the GQUAL Campaign in order to raise awareness about the absence of women in international justice as well as to promote solutions which would contribute toward inclusion of women.  The GQUAL Campaign was launched, in part, in response to the fact that the Inter-American Court of Human Rights bench was entirely male. In addition, and most recently, the Advisory Committee of the Human Rights Council issued a ground-breaking Report in June 2021.  The Report reviewed the historical and current data of several organs and human rights mechanisms, confirmed the underrepresentation of women therein, and suggested multi-level and multi-actor paths forward.  In particular, the Report highlighted the following five areas where improvements could be made in order to promote the advancement of women at international legal institutions. 

First, the Report includes crucial information about the under-representation of women at various UN bodies and mechanisms.  The Report then calls on States to disseminate such information domestically in order to highlight the importance of this issue, and in order to increase States’ commitment to gender diversity through better recruitment and selection processes.  Second, the Report makes it clear that several of its goals would be best achieved through the informal and formal work of professional networks, which can reach women from under-represented backgrounds and adopt a proactive advocacy agenda.  Networks can facilitate outreach to women across the globe, as well as develop information-sharing where potential candidates may learn from each other’s experiences.  Examples of such networks include the International Association of Women Judges, the GQUAL Campaign mentioned above, the ATLAS network, as well as this very blog.  Third, the Report makes clear that it is necessary to explicitly include gender parity or balance as a criterion in the selection and nomination procedures, and that it is therefore crucial to obtain personal and institutional commitments and pledges toward this goal.  Fourth, the Report underscores the need for women to break the glass ceiling as a right to gender equality and non-discrimination.  The Report discusses the possible development of domestic and international legal standards which would strengthen these rights, enable litigation over such rights to equality and non-discrimination, and thereby contribute toward a more equitable representation of women at prestigious international law institutions.  And, fifth, the Report recognizes that the fundamental problem regarding women’s under-representation at international institutions is the lack of appropriate domestic nomination processes, which, coupled with the lack of institutional mechanisms to remedy the issue at the international level, lead toward a perpetual absence of gender parity.  As Krsticevic has written in her Symposium post, “In short, a critical problem is that not enough women are nominated to fill less than 500 positions worldwide. This happens because not enough women are put forward as candidates by States, States do not take gender into account when voting, and international selection processes are not built to guarantee that women are fairly represented.” 

In addition to the various ways in which women’s representation in international law could be improved, as highlighted above, ensuring that scholarship by prominent female authors is adequately disseminated and cited is another important step toward breaking international law’s glass ceiling.  Citations matter. A scholar who is frequently cited, whose work is published by prominent editors and included in treatises and encyclopedias becomes viewed as an expert and authority in their field.  Studies have already suggested that male authors tend to be cited more frequently – either because male authors might tend to cite other male authors or because male authors seem to be inherently perceived with both authority and legitimacy.  The same way that women are under-represented as judges and lawyers at international institutions, courts, and mechanisms, women are under-cited in prestigious publications.  The list of top-cited legal scholars should include more women.  Some of the ways which could contribute toward a more equitable representation of women at international institutions discussed above and highlighted by the Report, such as information-sharing, networks, and personal and institutional pledges and commitments, apply equally to the issue of under-citation of female scholars.  It is thus important to continue to collect and disseminate information regarding the under-citation of female scholars; it is useful to have networks which can promote the published work of female scholars; it is crucial to work toward obtaining personal pledges by individual publishers and editors and by their respective institutions to publish and cite more women.  Once international law’s ceiling is hopefully broken, not only will women occupy a respectable number of positions at prominent institutions, but in addition female scholars will be cited equally as their male counterparts.  Let’s hope that, in the near future, Judge Charlesworth is in mostly female company at the ICJ and that the list of top-cited legal scholars includes the names of our distinguished female colleagues.