Symposium by GQUAL on CEDAW’s GR40: Gender Parity in the ICJ and ILC – About Time!

[Dr Nilüfer Oral is a Director at the Centre for International Law, National University of Singapore, Member of the UN International Law Commission and Co-Chair of the ILC Study Group on Sea Level Rise

Rashmi Raman is a Research Fellow at the Centre for International Law, National University of Singapore]

Introduction 

In 2019, as the International Law Commission (ILC) celebrated its 70th anniversary, the four women members of the Commission hosted a side event at the United Nations in New York titled “Seven Women in Seventy Years”. Many were quite surprised to learn that only seven women had been elected to the Commission since 1949. This revelation raises a key question: why has there been such long-standing and woeful underrepresentation of women at the highest levels in international law, including academic institutions and international bodies? The International Court of Justice (ICJ), one of the most powerful institutions of international law, is also marked by a significant underrepresentation of women, with only six women permanent judges having been elected in its 80 years of existence. In this brief piece, we reflect on why representation matters and how States can change the course of history to ensure that women are full members of the invisible college of international law at all levels, starting with the ILC and the ICJ.  

The International Law Commission: Where are the Women? 

The International Law Commission, while established in 1947, the first two women were only elected in 2001: Hanqin Xue of China, 2002–2010, and Paula Escarameia of Portugal, 2002–2010. This milestone of electing women to the Commission came fifty years after the Commission’s formation. However, this was not due to a lack of qualified candidates. The first woman, Olga Nuñez de Saballos, was nominated in 1966, and then 25 years later, two more women were nominated in 1991, although neither were elected. Another two decades passed before women finally succeeded in breaking the proverbial “glass-ceiling” with the election of Paula Escarameia of Portugal and Hanqin Xue of China in 2001. Their election paved the way for more women to join the Commission:  Marie Jacobsson from Sweden who was elected in 2006 and Concepción Escobar Hernandez from Spain in 2011. The gap seemed to be narrowing in 2017 as four women were nominated and all were elected. The last cycle of women nominees in 2021 saw a record eight women nominated, but only five were elected: Patrícia Galvão Teles, Nilüfer Oral, and Penny Riding (all from Western Europe and Others Group, WEOG), Phoebe Okowa (Kenya), and Vilawan Mangklatanakul (Thailand). In 2024, Alina Orosan was elected to fill the casual vacancy created by the resignation of Bogdan Aurescu, who was elected to the ICJ. In short, since the Commission’s establishment in 1948, only 10 women members out of a total 249 members have been elected to the Commission.  

It is not simply a question of the numerical presence of women in the Commission, but one of their inclusion in the process and in having women take on leadership roles in the progressive development of international law and its codification. For example, from 1949 to 2023, a total of 65 Special Rapporteurs were appointed to lead the Commission’s work on various  topics, and of these, only three were women. However, in 2019, the Commission established the Study Group on Sea Level Rise in Relation to International Law, and two of the five co-chairs appointed were women (Patrícia Galvão Teles and Nilufer Oral).  

The absence of women in the Commission during the so-called “golden years” of codification means that many of the foundational instruments of international law were made by men, without the voices and perspectives of women. A 2012 analysis observed that “The International Law Commission is far and away the most common source relied upon by the judges of the Court.” However, while the Commission may rank among the most influential sources for “the teachings of the most highly qualified publicists” for the Court, the reality is that, until the twenty-first century, there were no women members, Special Rapporteurs, or Study Group Chairs. In other words, the learned voices of women were absent for decades, creating lasting implications for the development and effectiveness of international law. 

The question that remains is why does this woeful underrepresentation of women continue well into the first quarter of the 21^st century? Why do States not nominate women? For example, in 2001, out of 133 nominations, only two were women. Twenty years later, the numbers have barely increased, with a mere 8 candidates being women out of 143.  The ILC statute provides that in the election of members to the Commission they “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.” Where are women in this qualification? 

How can this unacceptable exclusion of women be remedied so that one of the most influential expert bodies for international law can achieve gender parity? How to make States nominate more women? To “quota” or not? Or rather, require parity or not in the nominations is the question. Clearly without quotas the process has not worked for women. For the first time the Commission itself has addressed this in its 2024 annual report (para. 436) in relation to the need to ensure gender parity in the strengthening of the rule of law, recognizing that it must make progress in its own composition. 

The International Court of Justice: Why Having Women in the ICJ Judiciary Matters?  

Conversations with women judges who have broken the glass ceiling and are among the few at the ICJ reveal that there is growing momentum across the most powerful bodies of international law for change.  The role of women as judges at the ICJ will have a profound impact on the Court’s legitimacy, the optics of inclusion, and the trickle-down effect from the Court across the practice of international law at multiple levels. As Ruth Bader Ginsburg famously said, “Women belong in all places where decisions are being made ().” As Judge Charlesworth and Professor Chinkin wrote in The Boundaries of International Law, the election of women to the ICJ has an “educative and symbolic effect by underscoring the validity of the presence of women in the most prestigious and visible positions within international judicial fields.”  

It took fifty years for the first woman judge, Judge Dame Rosalyn Higgins, to sit on the ICJ Bench in 1995 (and 10 more years for her to become its first woman President in 2006). Seventy-eight years after its creation, the election of two highly qualified women jurists, Judge Hilary Charlesworth and Judge Sarah Hull Cleveland, brought the total number of permanent ICJ women judges to 4 out of the 15 (though that is 3.5 women judges short of achieving parity). This is a historic high in the Court’s 80- year history, given that only six women have served as permanent judges during these eight decades (as opposed to a 106 men!). While progress has been made, much more must be done to achieve gender parity on the ICJ’s bench.   

Judicial identity has a direct impact on judicial approaches to international law that will shape the future of ICJ decision making – it matters because the optics of gender parity are both symptomatic of and complicit in the gendered way in which international law and international institutions operate. With a telling statistic of just 6 women out of 112 permanent judges in the ICJ’s record to date, achieving judicial gender parity is a time-sensitive priority for those invested in ensuring the Court remains relevant in addressing global challenges. The ICJ today is in a uniquely critical moment in its own history, and as “world court,” is positioned to wield considerable influence on the big crises of our times, from climate change to armed conflict and human rights and everything in between. Now more than ever, the overrepresentation of one gender (the ‘boy’s club problem’) on the ICJ judiciary raises profound doubts on its institutional legitimacy and its ‘fit’ in a world of arguably more self-aware institutions of international law. There is no dearth of international law that obligates States and international organizations to ensure gender parity, diversity and representation in their judiciaries. These obligations arise from a variety of sources, including the UN Charter, the Convention on the Elimination of all Forms of Discrimination Against Women, the International Covenant on Civil and Political Rights, the Sustainable Development Goals, and more. Recent calls from key players in the ICJ judicial nomination process urge the need for a gender-equal ICJ bench. Achieving equality on judicial benches is critical; so too is inclusivity and gender parity across other spaces at the ICJ.   

Part of the problem with achieving gender parity at the ICJ is the lack of transparency in how judges are elected to the ICJ; specifically, the nomination processes that undergird these judicial elections. The Statute of the Court provides that the ICJ have fifteen independent judges who are of recognised competence (referred to by the Statute as the ‘members of the Court’), and elected without regard to nationality, by the General Assembly and the Security Council. They are meant to be representative of the main forms of civilization and the principal legal systems of the world (see here for critical comment on Art. 9). However, the key obstacle to election to the ICJ is the nomination by national groups in the Permanent Court of Arbitration or national groups set up along the similar bases (for UN member states not represented in the PCA). These groups are the bodies authorised to nominate candidates to the Court through internal consultative exercises. National groups are composed of four persons (known competency in questions of international law) under the 1899 and 1907 Hague Conventions, serving six-year terms. These groups have the exclusive prerogative to nominate candidates and because of this, emerge as significant spaces where changes that reflect in the election process must necessarily begin. Little has been written on the process of nomination to the ICJ, “in part no doubt because of the sensitivity and secrecy surrounding [it],” says Sir Michael Wood. In practice, ICJ nominations are often opaque and informed by politics, and the political campaigns that follow returned nominations are almost as important as the nomination itself in terms of election outcomes.  

In response, the PCA Congress adopted a Resolution urging Parties and the PCA to “consolidate gender equality and to promote the presence of women in technical and decision-making position within the institution, further increasing the number of female arbitrators appointed, and raising awareness amongst the Contracting Parties to achieve and increasing participation of women in other instances, such as national groups.” Other international and supranational courts, such as the African Court on Human and Peoples’ Rights and the International Criminal Court, have successfully reached parity on their benches. As States begin to announce their ICJ judicial candidates for 2026, they must adopt, at the national levels, policies aimed at achieving gender parity on the ICJ bench. To achieve this, through existing pathways of practice, States and National Groups at the Permanent Court of Arbitration (PCA) and equivalents must consciously nominate more women candidates for the 2026 election.  

Conclusion 

Achieving parity on judicial benches is essential to achieve key goals like access to justice, fairness, and the legitimacy of courts. Women’s equal participation in the international judiciary is essential to achieving the Sustainable Development Goals and for effective peacebuilding. The UN Secretary General António Guterres has called for “turbocharging progress,” acceleration of gender equality at the highest levels of the UN, and a determined effort to welcome women into leadership roles. Other international and supranational courts, such as the African Court on Human and Peoples’ Rights and the International Criminal Court, have successfully reached parity on their benches. Feminist critiques of international law have convincingly argued that this is the only acceptable response to countering the legitimacy deficit of international law-making bodies at the highest level, that is, the ILC and the ICJ. There is a clear need for making disruptive changes in a very traditional system, including options such as required parity in the make-up of the Commission and the Court (to say nothing of the many other ‘otherings’ that still remain) The challenge is how?