More Than Fair: GQUAL Campaign Mobilizes Law to Change Picture of International Justice

Globally, women occupy only 33% of the 599 seats found on the 91 adjudicatory bodies of international law. But when one excludes the committees and working groups on the rights of women and children, that number drops to 24% of the remaining 533 seats. Only one woman sits on each of the Inter-American Court of Human Rights, the appellate body of the World Trade Organization, and the Committee on the Rights of Persons with Disabilities. The paucity of women on international bodies reveals a gross imbalance of power that tips against a community that makes up roughly half the world’s population.

During the first week of October, ambassadors, legal experts, practitioners, and activists from around the world gathered in The Hague to strategize changing this male-dominated picture of international justice during the GQUAL Campaign’s international conference marking its second anniversary. The Action Plan adopted at the conference begins with an important reminder that achieving gender equality on international bodies is not solely a policy of fairness and institutional legitimacy but an action mandated by law. Together with the International Human Rights Law Clinic at UC Berkeley School of Law, GQUAL released at the conference a working paper that identifies the international legal basis for the Campaign’s aim of realizing gender parity.

States establish the nominating and voting procedures that apply to any particular international body, making them ultimately responsible for this state of affairs. Though political will is needed to remedy the stark and pervasive gender imbalance on international bodies, reform should be guided by international law and State practice, both of which support the fair representation of women in global governance.

The positive obligation to eliminate sex-based discrimination is deeply rooted and widely reflected in international human rights law. Numerous instruments, most notably the Convention on the Elimination of all Forms of Discrimination Against Women, not only prohibit States from adopting discriminatory laws but also require that States work to dismantle obstacles that result in discriminatory outcomes for women. The working paper looks beyond CEDAW for additional support to further strengthen the legal foundation of the GQUAL Campaign.

We identified several human rights treaties and policy statements that embody the non-discrimination principle and which enumerate three international human rights norms that require gender equality within different contexts relevant to the GQUAL Campaign—the right of access to decision-making within public bodies; the right of access to equal opportunity in employment; and the right of access to justice. In short, women on equal terms with men, are entitled to shape our governments, to employment that reflects our capabilities, and to the protection, recognition, and advancement of international law. Continue reading

Race to the top? African women judges and international courts

What do we know about African women as subjects of international law? More so, what do we know about African women judges who sit on international courts at the regional and international levels? These questions are central to moving forward the agenda on increasing the number of women on international courts, especially considering that most judges (though not all) on international courts are also judges at the domestic level. Countries across Africa have made substantial gains in the numbers and leadership roles of women judges, as documented in Gender and the Judiciary in Africa: From obscurity to parity? Across, the continent, women occupy important leadership positions such as that of Chief Justices and Heads of Constitutional Courts (for more see Her Ladyship Chief Justice).

Developments at the domestic levels have been replicated at the international level with a growing number of African women judges serving on international courts. The diversity of the continent of Africa, its peoples, culture and rich history cannot be simply qualified by one word “African”, however, for purposes of creating a uniform understanding of who I am referring to, I use the word “African” to denote women who hail from a country in Sub-Saharan Africa. In “African women judges on international courts: symbolic or substantive gains?”, I have argued that the presence of African women judges challenges notions of tokenism;  indeed they are highly qualified to be in those positions. The professional achievements of these women indicate that they have stellar academic backgrounds, outstanding professional qualifications, trailblazing achievements, and some of them have earned the status as “first” in their various professional endeavors. Notwithstanding these observations, women’s entry into international courts appears to be a road less travelled for various reasons as documented by IntLawGrrl Nienke Grossman. A critical rule of thumb remains that appointments to international courts involve a great deal of domestic politics and women have to find strategies to combine their professional experiences with other political considerations in creative ways. As fellow IntLawGrrl Fionnuala Ní Aoláin notes,

By accessing elite judicial institutions, women exert agency by taking    ‘strategic, creative and intuitive action’, to generate individual opportunity as well as to enable dynamic entry to gendered institutional environments that have been, as a practical matter, closed to the female sex since their inception (231).

 The persistent trend of gender imbalance in international courts is more disturbing when viewed in the light of the fact that international courts are perceived as arenas for fighting injustice and inequality. Increasingly, research has demonstrated that courts, both domestic and international, continue to be informed by masculine expectations, often operating within institutional selection cultures that view the qualifications of women as secondary to those of men, as argued by Terris, Romano and Swigart (another IntLawGrrl).  In essence, Mackenzie et.al remind us that the playing field is not equal for men and women.

That being said, we are seeing some preliminary advancements in the number of women sitting on the benches of international courts. Women judges on the International Criminal Court (ICC) represent the different geographic regions of the world, yet, we see that some countries have had success in nominating women to the court and not so for others.  For instance, women represent about fifty percent of all judicial positions in France’s judiciary. Yet, France has yet to successfully nominate a woman judge to sit on the ICC or the International Criminal Court (ICJ).  Similarly, in Great Britain, women are said to account for about fifty percent of the judiciary, though a dismal number occupy positions on the higher courts. This poor record of women on higher courts may provide some preliminary explanation for its failure to nominate a woman to sit on the ICC, though the first woman to sit on the ICJ in 1995, Judge Rosalyn Higgins, was from Great Britain.  In the case of Uganda, we see success in producing two women on international courts, one on the ICJ -Judge Julia Sebutinde and the other on the African Court on Human and Peoples’ Rights (ACtHPR).- Judge Solomy Balungi Bossa. Continue reading

Article 8 of the Convention to Eliminate All Forms of Discrimination against Women (CEDAW): A Stepping Stone in Ensuring Gender Parity in International Organs and Tribunals

Article 8 of CEDAW requires state parties to the treaty to “take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations.” Given the plain text of the provision and its subsequent interpretation by the Convention’s enforcement body, the CEDAW Committee, it is clear that state parties have a duty to ensure gender equality in the access to positions in international tribunals and bodies that play key roles in developing international law and human rights. As of today, 189 states have ratified CEDAW, thereby making the obligations arising out of Article 8 an almost universal requirement. The goal of GQUAL is to work with states, international bodies, and civil society organizations towards the effective implementation of this duty.

The obligation to ensure equal opportunity “to participate in the work of international organizations” under Article 8 is two-fold. At the international level, states must exert influence when the rules regulating processes of appointment to international positions are adopted to guarantee that they conform to the gender equality requirements of that provision (Sarah Wittkop, Article 8, in the UN Convention on the Elimination of All Forms of Discrimination Against Women, A Commentary,at 224). At the domestic level, states must establish transparent selection processes to ensure that women benefit on an equal basis from the opportunity to work at the international level, particularly when such opportunity requires states to nominate candidates to be appointed to those positions (Id.). Even though the obligation to ensure gender equality at the international level is of a positive nature, at the domestic level states have an immediate duty to set up the necessary conditions to guarantee women de facto equality to access those opportunities. On the other hand, the duty to achieve in practice gender equality is considered to be of gradual implementation.

When Article 8 speaks of “international organizations,” it is understood that this notion encompasses not only international bodies such as the United Nations, but also regional organizations, including the Organization of American States, the Council of Europe, and the African Union to mention a few (Id.). Moreover, all organs within those organizations are covered by this obligation, including “courts, subsidiary bodies, funds and programmes, specialized agencies, and treaty bodies.”(Id.) Consequently, states have a duty to ensure gender equality in access to positions at both levels and to all international organs.

Additionally, Article 8 requires that state parties to the Convention “take all appropriate measures” to ensure gender equality in their representations to international organizations. According to the CEDAW Committee, the appropriate measures include the creation of objective criteria and processes for the appointment and promotion of women to relevant positions (CEDAW, General Recommendation No. 23 (1997) paras. 38, 50) and the adoption of temporary special measures aimed at accelerating substantive equality for women,(Id., para. 43) as provided by Article 4 of the Convention. The Committee has read this article to require state parties to adopt temporary measures such as special educational opportunities, recruitment policies, and quotas in order to expedite gender de facto equality in areas where women are chronically underrepresented (CEDAW, General Recommendation No. 25 (2004) para. 22). Such temporary special measures are necessary to bypass entrenched cultural and structural issues that make it impossible for women to compete on an even playing field with men (Id., para. 14).

The CEDAW Committee’s interpretation of the Convention through its Concluding Observations on state parties and its General Recommendations is vital to understand the practical implications and obligations of the Convention. Even if Article 8 has not been extensively interpreted, the CEDAW Committee has repeatedly obligated states to take whatever measures necessary to ensure de facto gender equality in international representation. Specifically, the Committee has repeatedly recommended that state parties establish temporary statutory quota systems to achieve substantive equality in both the diplomatic service and states’ representations to international organizations. (Concluding Observations, the Netherlands, 2010, para. 33). Finally, given the precise nature of the obligation to take all appropriate measures, this duty is of immediate application and may be subject to enforcement at the domestic and international jurisdiction (Sarah Wittkop, Article 8, supra, at 231).

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