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. 

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