Symposium on Gender Representation: Promoting Gender Representation at the International Court of Justice

[Laura França Pereira is an associate in the Washington, DC office of Three Crowns specialising in international commercial and investor-State arbitration, with an active pro bono practice focused on the defence of human rights. Laura holds an LLM from Harvard Law School and an LLB from University of São Paulo (First in Class).

Raymundo Treves is an associate in the Paris office of Three Crowns specialising in international arbitration and public international law; a graduate of the University of Milan with honours, LLM from New York University School of Law, and member of the International Max Planck Research School on International Dispute Resolution.

The views expressed in this contribution are the authors’ alone and do not represent the views of the law firm they work for or of any of the lawyers working at the firm nor of the clients of the firm.]

The recent Report of the Human Rights Council Advisory Committee on “Current levels of representation of women in human rights organs and mechanisms” (the Report) offers a good opportunity to also reflect on gender representation at the International Court of Justice (ICJ or Court).

Currently only three out of the 15 ICJ judges are women, and only four out of all 109 judges have been women. Of the 123 individuals who have sat as ICJ judges ad hoc, only five have been women. There are currently 12 cases in which 19 judges ad hoc have been appointed, of which only two are women. In light of these numbers, the Report provides further impetus for the recent calls by Professor Dawuni in this forum, as well as GQUAL’s resilient advocacy for gender representation in international bodies and tribunals.

Although gender is not a formal criterion for the composition of the Court, the ICJ’s nomination and voting procedures offer opportunities to promote a more balanced gender representation on the bench. As the ICJ is the principal judicial organ of the United Nations, all participants to the nomination and election process of ICJ judges should further the UN goals to promote gender balance. Additionally, States Parties to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) have the obligation, according to Article 8, to take all appropriate measures to ensure women, on equal terms with men, the opportunity to participate in the work of international organizations, which has been interpreted to include international courts.

Strategies adopted by regional and international courts to include gender considerations in procedures for the nomination and election of judges, described in Annex III of the Report, along with the Report’s recommendations, could serve as a source of “creative inspiration” for enhancing gender representation at the ICJ. This piece aims, thus, to describe some of the good practices and comparative experiences discussed in the Report (I); briefly review the ICJ’s nomination and election process to identify the actors that may take actions to promote greater gender representation (II); and finally, propose actions that could enhance gender representation at the ICJ (III).

1. Good Practices from Regional and International Courts

There are now a good number of examples of different approaches that have been implemented throughout all stages of the selection process for regional and international courts, from nomination to election. Additionally, the good practices from regional and international courts discussed in the Report confirm that actions toward greater gender representation do not necessarily require a treaty modification. Several of the existing measures were, in fact, elaborated by the assemblies of States of the treaty establishing a certain court.

Minimum voting requirements, ensuring that the bench has a minimum number of judges of each gender is perhaps the most robust measure that has been adopted so far. It was adopted by the International Criminal Court (ICC) Assembly of States Parties and provides that, in order for their ballots to be valid, States must direct their votes so as to always ensure at least six judges of each gender at the bench. It has been noted that minimum voting requirements have been questioned by some as overly rigid and limiting States’ freedom to choose the “best judges” on their merits. Others have pointed to the risk of this minimum number being seen, effectively, as a maximum requirement, thus functioning as a limit to gender representation rather than as an incentive. In this regard, in the past 2020 ICC elections, GQUAL recalled that the measure “establishes a soft minimum quota” and advocated that, on such occasion, the rule should have been exceeded. At the time of the election, there was a minimum voting requirement of only one female judge, given that, at the time, six out of the 18 judges on the bench were woman, only one of which was leaving the Court. As a matter of fact, currently, 9 out of 18 ICC judges are women.

At the European Court of Human Rights (ECtHR), instead, nomination thresholds were introduced. The Parliamentary Assembly of the Council of Europe (PACE) requires that shortlists of candidates include both genders, except where (i) the candidates on a single-gender list belong to the gender which is underrepresented in the ECtHR; or (ii) in exceptional circumstances. It is important to note that the original rule simply provided that PACE would not consider lists of candidates that did “not include at least one candidate of each sex”—no exceptions allowed. Such original formulation, however, faced resistance, being subsequently replaced by the current version. Currently, 14 out of the 47 ECtHR judges are women.

A third measure that has been implemented is the creation of “institutionalized candidate screening”. At the ECtHR, for example, there are two screening bodies: (i) the Advisory Panel of Experts, tasked with evaluating the qualifications of candidates and consider whether the national selection procedure was fair and transparent; and (ii) the Committee on the Election of Judges, responsible for ensuring that States comply with the Assembly’s requirements for candidates’ lists. The ICC Assembly of State Parties also established an Advisory Committee on Nominations, responsible for ensuring that candidates meet the requirements of the Rome Statute.

A fourth measure is the inclusion of “aspirational” requirements on gender representation in the foundational treaties. For example, according to Article 12(2) of the Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights “[d]ue consideration shall be given to adequate gender representation in the nomination process”, and according to Article 14(3) of the same Protocol “… the Assembly shall ensure that there is adequate gender representation”, in the election of the judges. Even though these provisions establish what has been referred to as a “weak form of affirmative action”, currently six out of the 11 justices of the African Court of Human Rights are women, i.e., 54.54%.

A fifth measure is to commit “to gender parity through resolutions adopted at the highest political level”, which has been applied in relation to the Inter-American Court of Human Rights (IACtHR). Although its Statute does not include provisions on gender representation, the OAS General Assembly—the body that elects IACtHR judges—has in recent years taken measures to promote gender balance at the IACtHR, including by (i) instructing the Committee of Juridical and Political Affairs to share best practices in the nomination and election processes to promote gender representation at the IACtHR; and (ii) resolving “[t]o urge the member states, when selecting and nominating judges for the [IACtHR], to strive for parity in the composition of the Court by ensuring that more female candidates are nominated”. These measures were adopted in OAS General Assembly Resolution 2928 of June 2018 and Resolution 2961 of October 2020. Currently, only one of the seven judges of the IACtHR is a woman.

2. Nomination and Election Process at the ICJ

To recall, ICJ judges are elected from a list of candidates nominated by national groups of the Permanent Court of Arbitration (PCA)—or, in the case of Members States not represented at the PCA, nominated by national groups set up for that purpose. The ICJ Statute provides limited guidance to national groups in relation to the nomination of candidates, simply stating that they may not nominate more than four individuals and that no more than two of the nominees shall be of the nationality of the national group. Also, Article 6 of the Statute recommends that each group consults “its highest court of justice, its legal faculties and schools of law, and its national academies and national sections of international academies devoted to the study of law” in selecting nominees.

The UN Secretary General invites national groups to nominate candidates at least three months before the election and, once nominations have been received, draws up the list of nominated candidates that will be submitted to the UN General Assembly and Security Council for voting. Article 9 of the Statute provides guidance to the UN General Assembly and Security Council in relation to the election of judges, requiring them to “bear in mind […] that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured”.

Even though a diverse representation on the bench is contemplated under the ICJ Statute, considerations of nationality and geographical distribution are, thus, at the forefront in the Court. Recently, however, it has been argued that Article 9 has a “higher meaning”, not being limited to the requirements it sets, but rather requiring Member States to safeguard the Court’s legitimacy through its representativeness, including by ensuring a “fair representation of men and women”.

3. Possible Actions to Promote Gender Representation at the Court

Member States should strive to ensure that national groups “reflect a gender balanced composition”. There are currently 259 PCA national group members, and only 59 are women. Out of the 75 PCA national groups, 34 are all male; 24 have one woman only; 15 have two or more women; and only two are all female (these two groups, however, are composed by one member each).

In addition, national groups could:

• First, be proactive in identifying more female candidates, by following more systematically and formally the recommendation in Article 6 of the ICJ’s Statue (see above), while also (i) working with civil society organizations and other non-State actors to identify women candidates; and (ii) widely disseminating information regarding vacancies and selection processes.
• Second, ensure that more female candidates are nominated by, inter alia, (i) developing and adopting formal, consistent, and transparent nomination procedures at the national level, which would ideally be carried out by a specific body tasked with monitoring the diversity of candidates; and (ii) committing to nominate candidates of the underrepresented gender for each vacancy, taking into account the actual and historical gender composition of the Court.

Efforts by Member States and national groups at the nomination phase could also be supported by the inclusion of a special recommendation for national groups to consider the actual and historical gender composition of the Court in the UN Secretary General’s request for nominations.

At the election phase, Member States could consider meeting with female candidates and giving careful consideration to their candidacies, while preferably voting, in regional groups and individually, with a view towards improving gender representation at the Court.

The UN Secretary General could again support measures at the election phase by proposing a recommendation to the UN General Assembly and Security Council when circulating its memorandum on the election of ICJ judges, which includes a description of the voting and election procedures. To the possible objection that the ICJ Statute or the UN Charter do not include such recommendations, one should be mindful that States are bound by several international norms ensuring equality and non-discrimination in UN bodies.