Why so few women on international courts? It’s time for a change.

You may have heard about the launch of the Gqual campaign to increase gender parity on international law bodies including international courts and tribunals, taking place at the UN on September 17. Here’s a link to the Facebook page if you’d like more information: https://www.facebook.com/GqualCampaign. The point of the campaign is to get states to nominate and vote for more women for these important positions. The campaign is timely and significant because women continue to lag far behind men in decision-making positions on these bodies. Did you know only one woman is serving on the 7 member benches of the WTO Appellate Body, the ECOWAS Community Court of Justice, and the Inter-American Court of Human Rights? And only one woman sits on the 21-member bench of the International Tribunal for the Law of the Sea? She also happens to be the only woman ever to serve on that court, in almost two decades.

I’ve just written a paper documenting the paucity of women judges on twelve international courts and tribunals in mid-2015 and historically, explaining why there are so few women being elected and proposing solutions. It’s forthcoming in the Virginia Journal of International Law. If you’d like a preview, please download it at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2472054.  The article argues, in part, that a limited pool of qualified women is an unpersuasive explanation for the paucity of women on international court benches.   Proponents of this view argue that women are found in lower numbers in the highest echelons of the legal profession domestically, and therefore, it’s not surprising that they serve in low numbers on prestigious international court benches.

But if the limited pool argument is right, wouldn’t we expect the pool to grow over time, as more women join the legal profession and advance within its ranks? Yet eight of the twelve courts surveyed had fewer women on the bench in mid-2015 than in previous years. Also, states with higher percentages of women lawyers would appoint them in greater numbers than states with fewer women lawyers. The data, however, appears to point to a different conclusion.

It is estimated that half of France’s lawyers are women, yet it has never had a female permanent judge on the International Court of Justice, the International Criminal Court, the International Criminal Tribunals for Yugoslavia or Rwanda, the European Court of Justice, the Law of the Sea Tribunal, the International Court of Justice, or the European Court of Human Rights, although French men have served on all of them. (One French woman served as an ad litem judge for the ICTY.) About half of the UK’s lawyers are women, yet no British woman has ever served on the European Court of Justice, the International Criminal Court, the European Court of Human Rights, or the Yugoslav tribunal, although British men have. The UK did nominate Rosalynn Higgins, though, as the first woman ever to serve on the International Court of Justice, in 1995. (Only three more women have been elected to the 15-member ICJ bench in the intervening 20 years.) Although Russian women consist of about half of that country’s lawyers, no Russian woman has ever served on the five international courts where its men have served. On the other hand, China, where women are estimated to hold 20% of legal degrees, has successfully elected Chinese women to the International Court of Justice and the World Trade Organization’s Appellate Body.

It’s also important to remember that there are not that many international judge positions out there. We are not talking about filling 10,000 judicial seats. On the twelve courts surveyed, there are 195 judicial slots available, and they turn over every few years, depending on the court. You don’t need a very large pool to fill these slots. And there must be more than one woman in a world of 7 billion people who is qualified to serve on ITLOS and the WTO’s Appellate Body, and in the entire populations of the states parties to the Inter-American Court of Human Rights and the ECOWAS Court.

Finally, there’s a problematic side effect to relying on the pool argument. The pool for international judges could itself be limited due to discrimination and exclusion at the domestic level. So using it to justify lower numbers of women at the international level simply replicates and exacerbates exclusion at the domestic one.

I hope you’ll check out Gqual in the days to come. It’s time for a change!

gqual graphic

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