Symposium on Gender Representation: Representation of Women at the International Law Commission

[Priya Pillai is a lawyer and international law specialist. She has worked at the International Federation of Red Cross and Red Crescent Societies (IFRC) headquarters in Geneva, at the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) and with various civil society organizations on implementation of international law.]

This is an opportune moment to examine the representation of women (in an inclusive sense) in expert bodies or institutions. The basis for this symposium is the recent report by the Human Rights Council Advisory Committee on the current levels of representation of women in international human rights bodies. The Advisory Committee was asked to present its findings “…on current levels of representation of women in human rights organs and mechanisms such as the Advisory Committee, the treaty bodies and the special procedures established by the Human Rights Council…” This post seeks to broaden this examination and apply it to other international institutions, specifically the International Law Commission (ILC), given its significant role in the development of international law.

This topic is particularly relevant in the current context, as the ongoing election cycle of the ILC is worth a close watch. For the first time in the 70+ years of its existence, a record number of women – eight in total – have been nominated in elections scheduled for November 2021 at the UN General Assembly. The women nominees for these ILC elections are: Phoebe Okowa (Kenya, and United Kingdom of Great Britain and Northern Ireland); Vilawan Mangklatanakul (Thailand); Réka Varga (Hungary); Evelyn  Aswad (United States of America); Concepción Escobar Hernández (Spain); Patrícia Galvão Teles (Portugal); Nilüfer  Oral (Turkey); Penelope Ridings (New Zealand, and Australia, Canada, Sierra Leone).

The trajectory that has got us here at this point in time is important – from no women nominated in 1947 to the first woman nominee in 1966, followed by a nearly thirty-year gap before two subsequent nominations of women in 1991, and with no women elected at all until 2001. This year’s record number of nominations constitutes significant progress by ILC standards.

It is also worth noting that the current composition of the ILC, with four women members – Patrícia Galvão Teles (Portugal), Nilüfer Oral (Turkey), Marja Lehto (Finland), Concepción Escobar Hernández (Spain) – is the highest number of women in the ILC so far in its history. Of the two hundred and twenty-nine members since 1947, there have been only seven women. This amounts to about 3% of the membership, thus far. (Figure 1)

“Equal Participation in International Decision Making”

I have always been puzzled – and frankly, aghast – at the stark statistics on representation of women at the ILC – which leads to an inquiry regarding the structure, establishment, and functioning of the institution.

In terms of its mandate and scope of work, the ILC owes its existence to Article 13 (1) (a) of the Charter of the United Nations, which specifies that the General Assembly is to “initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification.” On this basis, Article 1(1) of the Statute of the ILC specifies that: “The International Law Commission shall have for its object the promotion of the progressive development of international law and its codification.” Clearly, the scope of the work of this institution is to contribute to the development and codification of international law, which affects all of us in myriad ways.  

The Statute of the ILC provides some guidance regarding membership criteria, in order to contribute to the institution’s work: Article 2a (amended in 1981) specifies that the composition of the ILC of thirty-four members “…shall be persons of recognized competence in international law”.

With respect to how states elect members, it is worth quoting Article 8 of the Statute of the ILC in its entirety: “At the election the electors shall bear in mind that the persons to be elected to the Commission should individually possess the qualifications required and that in the Commission as a whole representation of the main forms of civilization and of the principal legal systems of the world should be assured.” Clearly, similarities exist between the ILC and the International Court of Justice (ICJ) requirements, based on their statutes. Neither statute provides for gender parity and both these institutions are mostly at par in terms of their gross underrepresentation of women.   

The elected members need to be qualified individuals for the post, and clearly, per the Statute, the ILC as a whole needs to be representative – which surely must include better representation of women. 

This is crucially important as the ILC is tasked with the codification and progressive development of international law. The topics included in the work of the ILC include immunities of state officials from foreign criminal jurisdiction, the protection of the atmosphere, the protection of the environment in times of armed conflict, the application of treaties, peremptory norms – all issues of great significance, which deserve to be addressed in the most comprehensive manner possible. To borrow from the Advisory Committee report, equal participation in international decision making is only one of several key arguments for better representation of women in international institutions.

Mapping the ILC on Representation

Currently, four women out of thirty-four members – 11.76 % – is the highest proportion of representation ever achieved at this institution. Out of 229 members of the commission, there have only been seven women members so far, in its 71-year existence. While this amounts to one woman per decade, unfortunately, the first woman was elected in 2002. Therefore, all of the seven women members were only elected in the past twenty years.  

In order to get a more complete picture, I have reviewed the election records for the ILC from 2001 (which are available on the ILC website), assessing the lists of nominees submitted by states to the General Assembly, as well as the elected members. In combing over the records, a simple yet telling point struck me: there was no indication of a gender prefix beside the names of nominees for the election cycles in 2001, 2006, 2011, and 2016. This has been changed, however, for the 2021 election cycle.

Firstly, below are the details of statistics regarding those elected to the ILC.

Figure 2 indicates the current composition of the ILC for the term ending in 2021 – the percentage of women to men. 

In keeping with the General Assembly resolution 73/341 of 12 September 2019, which in paragraph 30 encouraged the nomination of “women candidates…for the subsidiary organs of the General Assembly in seeking to promote gender balance”, it is important to assess the past and present record of nominations to the ILC.

Figure 3 illustrates quite simply the numbers of women nominated for membership to the ILC, broken down per year.

Figure 4 presents a bit more detail – this is an assessment of the number of women nominees in comparison to the total number of those nominated – and the ensuing percentages. By way of example, the 2006 nominations of women to men were 3 women and 41 men (with a total of 44 nominees), translating to women accounting for roughly 6.8% of the nominations. Similarly, in 2021, 8 women out of a total number of 49 nominees amounts to approximately 16.32% of women among those nominated for membership.

Gender and Geography

Representation matters, both in and of itself, and in terms of the diversity of views and approaches that it begets. Clearly there was enough of a clamour for changes based on geography – hence the modifications leading to seats being allocated on the basis of geographic representation, starting with changes by the Sixth Committee in 1956, linked to size of the commission. Eventually, in 1981, amendments to Articles 2 and 9 of the ILC Statute were made by virtue of General Assembly Resolution 36/39 of 18 November 1981. Along with an increase in membership from 25 to 34 members, the resolution included details on the pattern of representation based on seats per region. At that time, the allocation was 8 seats for African states, 7 for Asian states, 3 for Eastern European states, 6 for Latin American states, 8 for Western European and other states, and rotation of one seat each between Eastern Europe and Africa, and of another one between Asia and Latin American states for alternating elections.  

Keeping this geographic composition in mind as a means of representation of the legal systems of the world, it is worth examining the patterns of nominations and elections within these regional groupings in detail, to assess how far gender has been included and considered in nomination and election processes.

With regards to the upcoming election, it is firstly worth noting that the number of women nominees is the highest it has ever been. There is at least one woman nominee per regional group, with the exception of the Latin American and Caribbean group of states. The Western Europe and Other States group leads with five women nominated for this election cycle.

Figure 5 illustrates the percentages of women nominated per region, based on total number of nominations per region, from 2001 onwards. The chart indicates the differences between nomination practices between the regions, where the WEOS grouping leads with 45% of women nominated for the upcoming elections. A distant second is the Eastern European States group, followed by Asia-Pacific, and then by the African group of states. However, a caveat is that this figure does not include the nominations before 2001 – those of Olga Nuñez de Saballos (Nicaragua, 1966), and the 1991 nominations of Mwangala Beatrice Kamuwanga (Zambia) and Renata Szafarz (Poland) – none  of whom were elected.

Figure 6 indicates the percentages of women elected per region, based on the total geographic allocation of seats, from 2001 to 2016. Keep in mind that due to the rotational seats, this fixed number changes for all but the WEOS group (which remains static at 8 seats). These changes due to rotation per election cycle have been taken into account when plotting the numbers of women elected relative to the total seats per region. This figure naturally does not include the upcoming election.

Furthermore, looking at the data, a few more observations arise:

• Of the current membership of the ILC, all four elected women are from the WEOS group.
• The WEOS group has not only nominated the most women consistently since 2001, but all of its nominees have been elected (Paula Escarameia, 2001 and re-elected in 2006; Marie Jacobssen, elected in 2006, re-elected in 2011; Concepción Escobar Hernández, elected 2011; Patrícia Galvão Teles, Nilüfer Oral, and Marja Lehto, elected in 2016.)
• Asian states have thus far nominated women four times, with two election successes (Hanqin Xue, in 2006 and 2001; Ariffin Noor Farida, nominated unsuccessfully in 2011; and the current nominee, Vilawan Mangklatanakul, for the upcoming election).  
• The second African state’s nomination of a woman takes place in this election cycle, with the nomination of Phoebe Okowa (the first was that of Mwangala Beatrice Kamuwanga by Zambia in 1991, which was unsuccessful).
• The second nomination from an Eastern European state is in this election cycle – Réka Varga (Hungary) (Poland nominated Renata Szafarz in 1991 previously, unsuccessfully).
• The first woman ever to be nominated for an ILC seat was by the group of Latin American states – Olga Nuñez de Saballos from Nicaragua in 1966; subsequently, there has only been one unsuccessful nomination from the group – María del Luján Flores from Uruguay in 2011.

The upcoming elections at the ILC will be observed closely. While a historic number of women have been nominated, the question is whether these nominations will translate into elected members.

Fundamentally, there is a need for better representation of women at the ILC, and for states to take their legal obligations of representation more seriously. This starts with better nomination practices of qualified women – of whom there are many – as well as with a concerted effort to ensure that these nominees are elected.