Achieving Gender Parity in International Courts and Bodies: Does Diversity Matter?

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Conference Attendees

From October 3 to 5 2017, women’s rights advocates, feminist scholars, Ambassadors, Heads of Government, policy practitioners and supporters of women’s rights convened in the beautiful city of Den Haag in the Netherlands. Viviana Krsticevic, Maria Noel and the entire team at the GQUAL Campaign organized this conference which had a twofold purpose; first, to celebrate the second-year anniversary of the GQUAL Campaign, and second, to bring together participants under a conference theme “Changing the picture of International Justice.” The highlights of the three-day event included an exciting plenary session with speakers like Judge Silvia Fernández de Gurmendi, the current President ofthe International Criminal Court (ICC).

ICC President Judge Fernandéz de Gurmendi and Prof. Josephine Dawuni

Judge Fernandéz de Gurmendi, while acknowledging the gains made in achieving near gender parity on the ICC bench, cautioned participants and feminist advocates that such gains could easily be reversed. The ICC reached a high of eight women judges out of eighteen in 2003, which reduced to six out of eighteen by early 2017. With the  ICC elections in December 2017, women took five of the six available seats. Out of the five women elected, two were from the continent of Africa, Judge Reini Alapini-Gansou of Benin and Judge Solomy Balungi Bossa of Uganda.

 Another highlight of the plenary session was the speech by the current Vice President of Costa Rica, Her Excellency Ana Helena Chacón. While reflecting on her experience in the parliament of Costa Rica and now in the office of the Vice President, Mrs. Chacón hinted at the fact that women have to work together to push women’s equality forward, noting further that “together we can and we should change the face of international quality; democracy is real if we leave no one behind.” Dr. Theresia Degener, Chairperson of the United Nations Committee on the Rights of Persons with Disabilities (CRPD), gave moving remarks on the imbalance in the UN body, noting in particular the challenges she has had to face as the only woman in the Committee at one point during her tenure. She called for more efforts to nominate women. The rest of the conference was filled with insightful panels and workshops aimed at addressing central questions such as why equal participation of women matters, the international obligations of states in promoting gender equity on international courts and bodies, and strategies on how to achieve gender parity on these bodies.  The conference concluded with the adoption of an Action Plan to achieve gender parity.

The overall goal and theme of the conference, was to acknowledge modest gains, while mapping a strategy for moving the campaign forward. The question that remains to be answered is how do we move this agenda forward? I provide a few strategies, which I believe are important for the overarching goal of changing the picture of international justice with the goal of achieving gender parity on international courts and bodies. In the first place, it is important to acknowledge, celebrate and develop a conscious effort to embrace all forms of intra-group diversity. To borrow from the acclaimed poet, Maya Angelou, “we all should know that diversity makes for a rich tapestry, and we must understand that all the threads of the tapestry are equal in value no matter what their color.” The global feminist movement has come under attack for tendencies to reproduce the very gendered and privileged hierarchies which it purports to fight in the first place. For Black feminist scholars such as Kimberlé Crenshaw, developing the concept of intersectionality provides a new prism through which feminist scholars can begin to question the multiple and intersecting layers different women face in their struggles against patriarchy and other forms of dominant discourse.

 

The call for acknowledging diversity has also come from what some call “Third World Feminists”. Scholars like Chandra Talpade Mohanty has criticized the western notions of womanhood and the incipient tendency at “othering” non-western women in her powerful piece “Under Western Eyes.” African feminist scholars such as Filomina Steady, Amina Mama, Oyeronke Oyewumi and Akosua Adomako Ampofo have increasingly called for a recognition of African notions of womanhood and the impact of imperialist and globalist layers of oppression in challenging the traditional notions of womanhood and women’s agency. Chicana feminist such as Gloria Anzaldúa, and feminist scholars from Asia such as Trinh Minh-ha, each remind us of the need for the global feminist movement to accept, celebrate and embrace a truly diverse global ethos of feminism.

So, how can the plethora of feminist voices be incorporated in the global agenda for more women on international courts in order to create an all-inclusive bench? The answer is simple; that in adopting strategies to increase gender parity on international bodies, these efforts  should focus on adopting all-inclusive strategies that advocate for the “best woman candidate”, irrespective of national origin, geo-political affiliation, sexual orientation or other identity marker. This sounds like a simple suggestion; however, it requires that feminist scholars develop an understanding of the historical, social and political context from which different women come from. No doubt the domestic politics of judicial nominations will have to be examined as well. Ascribing personal agency to some women from particular regions of the world and not to others­— which has tended to plague the global feminist movement, will need to be addressed in the global efforts demanding the nomination of more women. If indeed, feminist scholars and advocates are interested in achieving gender parity, it must be a gender parity that fully embraces intra-group diversity. The multilayered and intersecting identities women come with, will need to be fully recognized, acknowledged and accepted.

Another important strategy for the success of the GQUAL Campaign will be the cross-pollination of ideas and strategies. In other words, there is the need to learn from one another in terms of what has worked in some places and not so well in other places. Let me pause by noting that I am fully aware of the plethora of different variables at play here—the different legal traditions, the different political systems, the multiplicity of selection methods and the varying levels of political will to name just a few. Nonetheless, as I argued in my presentation at this conference, based solely on my research findings from the continent of Africa, women across the African continent have done relatively well, within a relatively short time period in not only accessing the judiciaries, but rising to the top as Chief Justices. At the international level, women from across the continent of Africa have made immense gains as international judges—both permanent courts and ad hoc tribunals.

Though the gains are not uniform across the continent—and that should come as no surprise for the second largest continent of 54 nation-states, yet certain patterns are evident. The success of African women as judges on international courts at the global and sub-regional levels in the International Criminal Court, the International Court of Justice and the African Court on Human and Peoples’ Rights are noted in a recently published edited by Josephine Dawuni and Akua Kuenyehia—- International Courts and the African Woman Judge (Routledge, 2018). Using legal narratives, this book presents the lived experiences of seven women judges from Africa. It challenges exiting notions of gender and judging, it elevates the voice of the woman judge and it leaves a legacy for the future through the voices and lives of these remarkable and accomplished women judges. Documenting the experiences of women who have blazed the trail in the international judiciary is important for raising awareness not only to stakeholders, but also to future generations that “yes, women can!” Documentation through theoretically grounded research and the development of context relevant epistemology, such as the matri-legal feminist theory I have argued elsewhere[1] is important for moving the gender equality agenda forward.

IMG_9821Other speakers at the conference spoke about developments that have taken place within the African context. Osai Ojigho highlighted the developments within the African Court which led to the current situation with the African Court being the most gender balanced international court as of this writing. In an earlier post, I highlighted the African court as a roadmap for achieving gender parity and encouraged other courts to follow suit. The African experience provides many lessons which the rest of the world can learn from. To think that in its eleven-year history of existence, it has achieved gender parity, a goal and aspiration which the European Court of Justice and the European Court of Human Rights are yet to attain. Sheila Keetharuth, the UN Special Rapporteur on the Human Rights Situation in Eritrea highlighted the developments that have taken place within the African Commission on Human and Peoples’ Rights where women have made gains as Commissioners.

Lastly, it is necessary for the survival for a movement, or campaign like GQUAL, that  scholars and policy makers engage in research as a tool and mechanism for awareness raising. Justice Mary Mamyassin Sey, a Justice of the Supreme Court of The Gambia and first woman judge in The Gambia discussed her experiences across multiple jurisdictions, spanning The Gambia,  and as a Commonwealth judge in Sierra Leone, Swaziland, Liberia and Vanuatu. While discussing the challenges of working in different cultural contexts and often being the “first” and often “only woman”, Justice Sey noted that her call to duty, integrity and personal work ethics contributed to her success in these multiple arenas. Indeed, being at the intersection of multiple identities has come with its own costs, for instance with the threat on her life and threat of deportation for her decision in the Vanuatu Supreme Court that led to the conviction of 14 members of parliament.

The foregoing summary is my personal de-briefing from the wonderful conference in The Hague. Many strategies and action plans were adopted during the workshops held over two days. We look forward to more engaged, vibrant, diverse and theoretically relevant and practically plausible strategies that will be developed out of this conference. Many questions abound, such as the issue of setting aspirational targets as posited by Professor Nienke Grossman. For other practitioners such as Osai Ojigho who poignantly

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(L-R )Josephine Dawuni, Nienke Grossman and Osai Ojigho at the foregrounds of the ICJ.

asserted “why walk when you can fly?”, quotas should be used as a necessary strategy to achieve gender parity, Ojigho further argued that “women should not be shamed into thinking that quotas or affirmative action lacks merit.” Gender equality matters not because it is a women’s issue, but because it is a human issue. Together, we can make gender equality on international courts and bodies a reality! Join the movement by signing the GQUAL Campaign Pledge!

 

 

[1] See, Dawuni, Josephine. (2018). Matri-legal Feminism: An African Feminist Response to International Law. In Ogg, Kate and Rimmer, Sue Harris (eds.). Feminist Approaches to International Law. Edward Elgar Publishing. (Forthcoming, 2018).

 

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Nuevo libro para abogados hispano- y angloparlantes/New Book for Lawyers Who Speak Both Spanish and English

(English version follows)

Tres mujeres y profesoras de derecho: S.I. Strong de la Universidad de Missouri (Estados Unidos), Katia Fach Gómez de la Universidad de Zaragoza (España) y Laura Carballo Piñeiro de la Universidad de Santiago de Compostela (España) tenemos el honor de presentar el libro Derecho comparado para abogados anglo- e hispanoparlantes: Culturas jurídicas, términos jurídicos y prácticas jurídicas/ Comparative Law for Spanish-English Speaking Lawyers: Legal Cultures, Legal Terms and Legal Practices  (Edward Elgar Publishing Ltd., 2016). Este trabajo supone una plasmación por escrito de algunas de las características más relevantes de nuestras carreras profesionales: trayectorias académicas y de práctica de la abogacía internacional desarrolladas en español e inglés, y en estrecho contacto con las comunidades jurídicas latinoamericana, europea y estadounidense. En consonancia con ello, la obra que hemos elaborado permite que abogados y estudiantes de derecho que hablan inglés y español adquieran fluidez jurídica en un segundo idioma. Realizar dicho esfuerzo es extremadamente importante no sólo para abogados especializados en derecho internacional, sino también para abogados dedicados al derecho nacional pero que tratan con clientes cuya lengua materna es un idioma extranjero.

La forma en que “Derecho comparado para abogados anglo- e hispanoparlantes” involucra a abogados y estudiantes de derecho en la práctica jurídica bilingüe es única por diversos motivos. En primer lugar, y dado que la mayoría de los abogados bilingües trabajan con otros abogados y con clientes que cuentan con unos orígenes legales y culturales muy variados, el libro no se limita a analizar unas jurisdicciones concretas. Por el contrario, el libro ofrece información sobre diversos países hispanoparlantes (fundamentalmente, España y México) y angloparlantes (fundamentalmente, Estados Unidos y Reino Unido). En segundo lugar, la monografía contextualiza la información, no sólo ubicando el nuevo vocabulario y los principios legales en el contexto lingüístico apropiado –el libro es completamente bilingüe-, sino también ofreciendo abundantes comparaciones con la legislación y la práctica de otras jurisdicciones. En tercer lugar, este tipo de análisis permite que los abogados y estudiantes de derecho aprecien las diferencias existentes en las culturas jurídicas, empresariales y sociales relevantes. Ello ayuda a los lectores a no incurrir en ofensas que puedan derivarse de problemas de comunicación involuntarios. El libro también explica por qué existen dichas diferencias y cuál es su fundamento en un contexto jurídico determinado.

Profundizar en la comprensión a través de barreras nacionales, sociales y culturales es un objetivo esencial de un mundo cada vez más pluralizado. Derecho comparado para abogados anglo- e hispanoparlantes es una herramienta muy útil para aquellos que trabajan cruzando fronteras lingüísticas. Como este libro de 700 páginas demuestra, no hay que temer a las diferencias, sino que hemos de alegrarnos de que la diversidad jurídica y lingüística exista.

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unnamedThree law professors – S.I. Strong of the University of Missouri, Katia Fach Gómez of the University of Zaragoza and Laura Carballo Piñeiro of the University of Santiago de Compostela – have the honor of presenting their new book, Comparative Law for Spanish-English Speaking Lawyers: Legal Cultures, Legal Terms and Legal Practices / Derecho comparado para abogados anglo- e hispanoparlantes: Culturas jurídicas, términos jurídicos y prácticas jurídicas (Edward Elgar Publishing Ltd., 2016).  This work reflects some of the characteristics that are most relevant to our professional careers as academics and practitioners working in both English and Spanish, and involving jurisdictions in Latin America, Europe and the United States.  Consistent with that, the book that we have written helps lawyers and law students who speak Spanish and English become legally fluent in their second language.  This effort is extremely important not only for specialists in international law, but also for domestic lawyers whose clients speak different languages.

 

Comparative Law for Spanish-English Speaking Lawyers: Legal Cultures, Legal Terms and Legal Practices / Derecho comparado para abogados anglo- e hispanoparlantes” introduces lawyers and law students to bilingual legal practice in several ways.  First, the book does not focus solely on single jurisdictions, since most bilingual lawyers work with clients and co-counsel from a variety of legal and cultural backgrounds.  Instead, the book offers information on several English-speaking nations (primarily the U.S. and the U.K.) and Spanish-speaking countries (primarily Spain, Mexico and Argentina).  Second, the text seeks to contextualize the information, not only by placing the new vocabulary and legal principles in the appropriate linguistic setting (the book is entirely bilingual) but by providing extensive comparisons to the law and practice of other jurisdictions.  Third, the discussion helps lawyers and law students appreciate differences in the relevant legal, business and social cultures, thereby helping them avoid giving offense through any inadvertent miscommunications, and explains why those differences arose and why they make sense in that particular legal environment.

 

Increasing understanding across national, social and cultural lines is an important goal in our increasingly pluralistic world, and Comparative Law for Spanish-English Speaking Lawyers provides a useful tool for those who work across linguistic lines.  As this 700+ page text shows, legal and linguistic differences need not be feared but can instead be celebrated.

 

Write On! Read On! “Inter Gentes”: a new kind of international law journal

Yesterday a buzzing social event at McGill Faculty of Law marked the launch of a new peer reviewed international law journal – but rather than adding to the existing plethora of academic journals, Inter Gentes is breaking the mold and doing something truly exciting and innovative. And they welcome your submissions in many different, multi-media forms.

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The name Inter Gentes represents the ethos of this journal, to consider international law not according to the traditional 19th Century conception of law between States, but rather as law between people. This goes far beyond a “transnational” or “transboundary” approach, and is broader than “legal pluralism” or “cosmopolitanism”. The intention is to create debate and interaction on the way in which international law affects individuals and peoples, and the way in which we affect international law.

To facilitate this debate, Inter Gentes is an open access online journal, with no paper print issues. This reduces the overheads for the team producing the bi-annual publication, but more importantly ensures true international accessibility.

Inter Gentes will be publishing articles in English, French and Spanish, all of which will be peer-reviewed by members of the star-studded Advisory Board, including Bruno Simma; Francois Crepeau, the UN Special Rapporteur on Human Rights of Migrants; Mark Drumbl; Lorie Graham; Sally Engel Merry; Jens Ohlin; Rene Provost; Juan Carlos Sainz Borgo and others. The expertise of the Advisory Board will guarantee the quality of the work published, but the real footwork will be undertaken by a dedicated team of students at McGill Faculty of Law, a faculty renowned for it’s commitment to linguistic and legal diversity, and which attracts students from all over the world.

As well as the peer-reviewed articles published in the bi-annual themed issues, Inter Gentes will have op-ed dialogues, encourage debate and dialogue among readers through interactive comments platforms, and provide multi-media content in the form of podcasts, images, posters and more. Since 2015 it has been creating ad-hoc content in the form of editorials, and it will continue this alongside it’s bi-annual issues.

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The inaugural edition has the theme “International Law and Peoples’ Resistance”, and it is testament to the commitment and ethos of this new journal that the articles included are written by authors from around the world, from perspectives as diverse as indigenous law and international law as colonialism; self determination as resistance; and global participation in global democracy.

The theme for next Spring is “(In)tangible Ownership in the International Sphere”, looking at diverse notions of property and land rights. The deadline for the Spring edition has now passed,  however the editorial team is happy to receive op-ed pieces on topics related to this theme.

Keep an eye out for this exciting new platform, which really is an expression of twenty-first century perspectives, dialogues, multi-media forms of knowledge dissemination and learning, and diverse identities. And let the editorial team know if you have something you’d like to submit – they  accept non-thematic articles on any area of international law year round on a rolling basis, which will be considered for ad-hoc publication, outside the publishing schedule for the theme issues

 

Read On! ‘Developing the Right to Social Security – A Gender Perspective’

I am really pleased to be writing for IntLawGrrls for the first time and to introduce my new book Developing the Right to Social Security – A Gender Perspective which is part of the Routledge Research in Human Rights Series. The right to social security has become increasingly relevant in the context of austerity cuts to welfare in many parts of the developed world following the global financial crisis. At the same time, there has been a burgeoning of social protection programs in developing nations as a response to poverty. Many countries in the world now recognise the right to social security within their national constitutions and the international law in this area has recently been given greater definition. These developments present an opportunity to consider the gender dimensions of this right, particularly as women face disproportional poverty all over the world.
My book develops a set of principles for a substantively equal, gendered right to social security by rethinking the relationship between the right to social security and traditional conceptions of work. I argue for a new understanding of this crucial right that takes account of women’s unpaid labour, informal work, and care, within the context of global economic changes. The book applies this gender perspective to an examination of the international law on the right to social security and includes three country studies – India, South Africa and Australia. Hopefully the book will be of interest to people working on international law, comparative constitutional law, social policy, feminism and women’s rights.

Read On! New Book on Public Law of Gender

I am delighted to contribute my first post to this excellent website to let readers know of the final book in a six volume series, Connecting International Law with Public Law, which I initiated as part of my former position as Director of the Centre for International and Public law at the ANU (2006-2015).  The first five volumes looks at themes including Sanctions, Access to Medicines, Environmental Discourses, Allegiance and Identity, and Security Institutions and have been published through Cambridge University Press.

The final volume has just been launched and it is of particular interest to the IntLawGrrls community.

I have co-edited this final volume with my friend and former ANU colleague Dr. Katharine Young, who is now at Boston University, and it is called The Public Law of Gender: From the Local to the Global. The volume brings together leading lawyers, political scientists, historians and philosophers.

The book examines the worldwide sweep of gender-neutral, gender-equal or gender-sensitive public laws in international treaties, national constitutions and statutes, and documents the raft of legal reform and critically analyses its effectiveness. In demarcating the academic study of the public law of gender, the book examines law’s structuring of politics, governing and gender in a new global frame.

Of interest to constitutional and statutory designers, advocates, adjudicators and scholars, the contributions explore how concepts such as equality, accountability, representation, participation and rights, depend on, challenge or enlist gendered roles and/or categories. These enquiries suggest that the new public law of gender must confront the lapses in enforcement, sincerity and coverage that are common in both national and international law and governance, and critically and pluralistically recast the public/private distinction in family, community, religion, customary and market domains.  The book outlines the common and distinct challenges and issues across various fields and it provides those working with gender-sensitive laws and gender-neutral laws with an assessment of the various ways in which public law interacts with gender, by intent or outcome. It also uncovers the local and global perspectives and the obstacles facing gender equality, equity and parity, showing how traditional agendas of feminist theory now translate in a global legal frame.

I would encourage any one interested in reviewing the volume (or any of the set of six, or indeed the whole set!) for a journal to contact Elizabeth Spicer at Cambridge University Press- espicer [at] cambridge.org.

Professor Kim Rubenstein, ANU College of Law, Public Policy Fellow, Australian National University

The Trial of Hissène Habré

CAE from afarOn May 30, the Chambres Africaines Extraordinaires (CAE) will announce its verdict in the trial of Chad’s ex-dictator Hissène Habré. Conviction is expected. What will it mean?

The trial of Chad’s Hissène Habré by an ad hoc court in Senegal is making history, and more is expected in the Judgment, scheduled for May 30, 2016. Habré’s trial represents many firsts: it is the first trial of the leader of one country by courts of another, and the first exercise of universal jurisdiction in Africa. The trial is taking place before the CAE, a hybrid judicial product governed by a statute resolved between Senegal and the African Union (AU) employing Senegalese procedure and international criminal law content.

In advance of the expected judgment, this post considers three victors of the CAE, what the trial means for Chad, and what to watch in the post-judgment phase.

The CAE’s Victors:

First, the trial is a triumph for the coalition of international NGOs and Chadian victims that have agitated for recognition of state-sponsored atrocity in Chad since Habré fled in 1990, and perhaps for the broader question of universal jurisdiction more generally. Human Rights Watch’s Reed Brody, a central figure in the effort, deliberately elected Habré’s asylum in Senegal as the place to make this stand, and the trial is the result of two decades of efforts, passing through multiple domestic and international institutions (courts in Senegal, Belgium, Chad, ECOWAS, ICJ and even the fledgling African Court of Human and People’s Rights).

Second, the trial appears to be a triumph for Senegal. Nearly everyone – from foreign diplomats to the proverbial man on the street – describes the trial as “well-run”. The trial stayed within its modest 8.6 million euro budget and, provided the scheduled judgment is issued as predicted, nearly within its timeline. Witnesses appeared when planned and none of them perished or disappeared. Even the resistant Habré was effectively contained: after his first days of bitter resistance, where he fought his guards and was ultimately carried to his seat and physically restrained once there, the Chambers began seating him before the trial began. In this way, Habré’s resistance – beyond his total silence – effectively became a non-news item. Overall, the trial highlighted Senegal’s position as a long, stable democracy with a vital civil society sector, unique to the region. In an African power structure where South Africa is wealthy and Nigeria has vast resources, Senegal has further carved out a position as a regional rule of law expert.

Finally, the trial is arguably a triumph for the International Criminal Court (ICC), though it may be a Pyrrhic. To the degree that the trial follows the tenets underwriting the ICC – the appropriateness of legal responses to atrocity, and the centrality of combating impunity for leaders – the trial can be understood to shore up the ideological foundation of the ICC, and thereby its work. Senegal officially maintains its support for the ICC, and officials at the CAE and within the Ministry of Justice represent the CAE as an institution in line with, not in conflict with, the ICC. On the other hand, the trial can be read as an example of local alternatives to the ICC, and is supported by powers (the AU, Chad) that openly oppose the ICC. Moreover, the lean efficiency of the CAE stands in stark contrast to the ICC’s unwieldy behemoth. For example, the CAE’s four investigative judges, who completed the impressive work of roping international criminal law and the facts (2500 witnesses, 4000 documents) into the 160 page Ordonnance did this by themselves, with no clerks or researchers, over the space of 19 months. The Court Administration, responsible from soup to nuts, from hiring personnel to housing witnesses, has a staff of three. Continue reading