Interview: In Conversation with Judge Hilary Charlesworth

This post is an adapted from an article in the forthcoming Volume 26 of the Max Planck Yearbook of United Nations Law in which Sai Venkatesh, the Managing Editor of UNYB, interviewed Judge Hilary Charlesworth. It has been edited for blog format with permission. 

Judge Hilary Charlesworth has had a profound impact on the advancement and development of international law over her 30-year academic career. Her research includes the structure of the international legal system, peacebuilding, human rights law and international legal theory, particularly feminist approaches to international law. Her insights have enriched generations of lawyers and students in Australia and beyond. 

Judge Charlesworth is currently a candidate for re-election to the International Court of Justice. She has received the support of 34 National Groups of the Permanent Court of Arbitration from across the globe, including Australia. The election on 9 November will see vacancies filled from four of the five UN geographic groupings: Western European and Others Group (2 vacancies), Group of Latin America and the Caribbean (1 vacancy), Eastern European Group (1 vacancy) and the Africa Group (1 vacancy) from a field of nine candidates. 

By way of introduction, could you briefly explain your role and responsibilities as a judge at the International Court of Justice?

The judicial role is quite different to that of an academic, whose teaching and independent research are given priority. The primary judicial task is dealing with cases. Before oral proceedings start, judges spend weeks or even months in preparation for a case, by reading the often-lengthy pleadings filed by both parties – the applicant and respondent. Sometimes there can be ten or twenty volumes of arguments and annexes filed by parties.

The parties then present their arguments in oral hearings, which is a relatively formal phase, quite unlike moot court competitions! Questions from the bench are rare and the parties are given time to file a written response. The real work of judging begins afterwards Each one of the 15 judges (sometimes more if there are ad hoc judges) is required to prepare, within a few weeks of the closure of the hearings, an extended analysis providing their first views on the legal issues in the case. Working with a Legal Officer and a Judicial Fellow, one draws on the parties’ arguments and legal doctrine to come up with a tentative view of where one stands on the relevant legal issues.

After judges have prepared their individual notes, there is an in-person deliberation, which can last up to a week. Each judge, starting from the most junior, presents their views and may be peppered with questions from colleagues. Sometimes during these discussions, judges will change their minds. I have been impressed by that at the Court, seeing judges come to a judicial deliberation, having written something that suggests their views on a matter, and then, through reading other colleagues’ written notes and listening to them, they will sometimes change their views. As such, it can be a very dynamic process. During the course of the meeting, the President of the Court keeps track of the issues on which there is a majority opinion. This can be complicated, as sometimes there is a narrow majority, or it is difficult to ascertain on what issues there is a majority. At the end of the meeting, the judges elect a drafting committee of two judges. If the President agrees with the majority, the President is the chair of that committee (if not, the Vice-President takes on this role, or another senior judge who is part of the majority). Then, those three judges draft a judgment that is subsequently discussed through two further lengthy meetings with their colleagues over the next two or three months. It is a slow and thorough process.

You are considered by many as one of the pioneers of the Feminist Approaches to International Law and have been a major proponent of this school of international legal thought for several years. What gains do you think have been made in the implementation of feminist legal theory in contemporary international law, and what challenges remain? How do you bring feminist approaches to your work at the ICJ?

As for the question of how I bring feminist approaches to my work at the Court: one problem for anybody interested in feminist legal theory is that you always have a label. I am not aware that any of my colleagues have been asked how they bring, for instance, their positivist approaches to international law to bear in their judicial work. This is related to the fact that there are so few women on the Court and we rather stand out. At the moment, there are only four women out of 15 judges, and that number is unlikely to increase after the next election. In this context, there is a feminist dimension to just being present on the bench in that it unsettles the standard image of an international judge. And we bring our diverse life experiences to the process of judicial decision-making. As our various judgments show, however, women judges can have quite different approaches to many legal issues.

Feminism means a lot more than simply the presence of women. I think that there are at least two aspects of feminist thinking in international law that are relevant to judging. First, it involves being attentive to structures of power: feminist theory, at an abstract level, is interested in where power lies in particular structures and institutions and how this is connected to gender. Often, power does not lie where it seems to formally reside, and one has to investigate submerged structures of power. Second, feminist theory underlines the significance of context. Although the Court is an inter-State court, with no individuals as parties, it is important to bear in mind the human context of the Court’s decisions and their effects on the world around us. Besides the human impact, some scholars emphasise the effects of legal principles on the animal world and the environment. Thus, paying attention to context means having an awareness that decisions taken by the Court, while they might be taken in an abstract way, do not have abstract consequences; they have real-life consequences. Being attentive to those consequences, I think, is a feminist move. In this sense, persons of any gender can be feminist judges.

Over the last few decades, the international legal system has witnessed an expansion in the number of specialised courts. Some of these specialised international courts and tribunals have overlapping similarities to the general jurisdiction of the ICJ, specifically the ITLOS. Do you think there is still reason for concern regarding the fragmentation in the interpretation of international law that may arise as a result of this?

I think the concern of fragmentation of international law caused by differences between the jurisprudence of the ICC or ITLOS and that of the Court is somewhat overstated. There have been cases where the Court has referred to the decisions of the ICC or ITLOS and explained how far it will take those decisions into account. The Court has also referred to the views of the various UN human rights treaty bodies, particularly their general comments and general recommendations.

So, the ICJ regularly deals with the judgments and views of other courts, tribunals, and other bodies, but its primary job, in its State-based context, is not to make the law consistent but to identify the law as it can best discern it. Occasionally, the Court has been critical of the analysis of other courts and tribunals, and this often receives significant attention, but that is part of the judicial function – to consider these decisions in the context of a particular case and determine their relevance.

What have been the most rewarding and/or difficult aspects of your work since you took office?

I think the challenging and rewarding aspects overlap. The task of drafting judgments, as a member of a drafting committee, or as part of the plenary deliberation, is demanding, particularly identifying the right legal conclusions to resolve a dispute between two countries. Usually, if a dispute has reached the ICJ, it means that the legal arguments are pretty evenly divided, making most of the cases here turn on truly difficult issues of law. I have had to let go of the academic idea of individual scholarly autonomy, and instead adjust to being part of a collective, where the important thing is the work of the Court, not that of any particular judge who is on the Court. It is inspiring to be part of an institution whose raison d’être is to resolve disputes between States to achieve one of the major purposes of the United Nations – the maintenance of international peace and security. The Court has a very particular legal role in this endeavour, and it is a huge privilege to be part of that.

The copyright for this interview lies with Brill. The version that is published here on Opinio Juris is a proof copy of the final interview contribution set to appear in Volume 26 of the Max Planck Yearbook of United Nations Law.