Why the International Law Commission Must Address its Gender and Geography Diversity Problem

[J. Jarpa Dawuni , Ph.D., is an Associate Professor of political science at Howard University and the Founding Director of the Center for Women, Gender and Global Leadership. Maame Ama Adu-Mensah is the Practice Manager of Amua-Sekyi & Co. in Ghana and a Research Fellow at the Institute of African Women in Law.]

Achieving equitable gender representation in international law bodies cannot wait. Women have held half of the sky for too long, it is time for them to be at the international seats where decisions are made about what lies below and beyond those skies. Global shared governance at the international law commission must include women.

J. Jarpa Dawuni, PhD

In November 2021, the International Law Commission, the main UN body charged with the codification and progressive development of international law, will be electing 34 members to serve a five-year term beginning on January 1, 2023. The election will take place at the 76^th session of the General Assembly. For over seventy years of its existence, the International Law Commission has had 229 members, out of which only seven have been women, representing only a paltry 3% of all members past and present. The first two women Paula Escarameia of Portugal and Xue Hanqin of China were elected in 2001. Since then, only five more women have been elected.

Background on the ILC

The ILC was established by the General Assembly of the United Nations in 1947. According to Article 1 of the ILC Statute, the objective of the Commission is to “initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification.”  Progressive development of international law refers to the preparation of draft conventions on novel subjects yet to be regulated by international law or areas where the law is not sufficiently developed. By codification of international law, the Commission formulates and systematizes rules of international law in fields where there have been extensive State practice, precedent and doctrine. These mandates are achieved through consultation and collaboration with other organs of the UN, international and national organizations. The ILC consists of thirty-four members selected from UN member states who are competent in international law. Such persons must possess qualifications in doctrinal and practical aspects of international law with expertise and experience which span across the entire spectrum of international law.

Women on the Commission

Presently, women represent 11.76% of members on the Commission – the highest proportion of representation ever achieved. Paula Escarameia, Xue Hanquin and Marie Jacobsson served the Commission for two terms. Xue resigned in 2010 before the completion of her term to contest for the elections to the International Court of Justice (ICJ), while Concepción Escobar Hernández was elected to fill the casual vacancy created by the passing away of Ms Escarameia in 2010. Ms. Hernández was re-elected in 2016 and has been nominated again for election in 2021 together with Patricia Galvão Teles and Nilüfer Oral.

In a recent Opinio Juris Symposium on Gender Representation, Priya Pillai expertly weaves a narrative on the historical paucity of women at the Commission. As Pillai argues, “the [West Europe and other States] (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.)

Table 1. Women on the Commission: 2002 – present

Name	Country of origin	Years at the Commission
Paula Escarameia	Portugal	2002 – 2006 2007 – 2010 (re-elected)
Xue Hanqin	China	2002 – 2006 2007 – 2010 (re-elected)
Marie G. Jacobsson	Sweden	2007 – 2011 2012 – 2016 (re-elected)
Concepción Escobar Hernández	Spain	2011/12 – 2016 2017 – present (re-elected)
Patrícia Galvão Teles	Portugal	2017 – present
Nilüfer Oral	Turkey	2017 – present
Marja Lehto	Finland	2017 – present

The unequal representation of women on the ILC is evidence of a wider problem of gender imbalance in international law. Apart from the International Criminal Court which recently obtained a 50:50 representation of both female and male judges, most international courts continue to grapple with a paltry  20% or less representation of women on the bench.

Achieving gender parity in international organizations is urgent because it increases the legitimacy of these organizations as women bring to the decision-making table innovative ideas, creativity and resources coupled with their unique experiences. Lack of meaningful female participation is at odds with the commitments of most States in human rights instruments to work towards equality of men and women in all spheres including participation in public institutions. Gender parity is also an aspirational goal espoused by United Nations Sustainable Development Goals (SDG) #5, and equal opportunity to represent their governments at the international level is an explicit obligation under Article 8 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Certainly, there has been remarkable progress in the last few years, with a number of women getting appointed to key roles at the international level. A few instances are Deputy Secretary-General of the UN: Amina J. Mohammed, Director-General of the World Trade Organization: Dr. Ngozi Okonjo-Iweala, President of the European Central Bank: Christine Lagarde, Managing Director and Chairwoman of the International Monetary Fund: Kristalina Georgieva, Director-General of United Nations Educational, Scientific and Cultural Organization (UNESCO): Audrey Azoulay, President of the European Commission: Ursula von der Leyen and Executive Director of UNAIDS: Winnie Byanyima. As encouraging as these may be, women continue to be underrepresented in all levels of leadership globally.

Fewer Women…… and No African Woman at the ILC for Over 70 Years

The ILC is one of the least gender diverse international bodies in the world. Since its establishment in 1947, it has had only seven women members from China, Finland, Portugal, Spain, Sweden and Turkey. The Africa region has never been represented by a woman, which is mainly due to the domination of African nominations by male candidates. The first African woman to be nominated to the Commission was Ms Mwangala Beatrice Kamuwanga of Zambia in 1991, and unfortunately, she was not elected. Since then, it has taken another 30 years for an African State to nominate a woman. Despite the rhetoric of gender inclusion and diversity across UN bodies, this is a single story of unmitigated marginalization of African women.

This trend has been seemingly replicated in this year’s nominations which closed on 1^st June 2021. Out of the 13 nominations submitted by African countries, only Kenya presented a female candidate – Professor Phoebe Okowa. Professor Okowa’s nomination is an important opportunity for the African States to make good on their commitments to African Union Agenda 2063, goal # 17 on “full gender equality in all spheres of life.”

Table 2. African Candidates for the 2021 election

Name	Country of origin	Gender
Yacouba Cissé	Côte d’Ivoire	M
Aly Fall	Mauritania	M
Ahmed Amin Fathalla	Egypt	M
Charles C. Jalloh	Sierra Leone	M
Likando Kalaluka	Zambia	M
Ahmed Laraba	Algeria	M
Clement Julius Mashamba	Tanzania	M
Ivon Mingashang	DR Congo	M
Phoebe Okowa	Kenya	F
Hassan Ouazzani Chahdi	Morocco	M
Alioune Sall	Senegal	M
Louis Savagodo	Burkina Faso	M
Muaz Ahmed Mohamed Tungo	Sudan	M

Although the African Region has been commended by IAWL for its efforts in having the highest number of women judges on the International Criminal Court (ICC) bench, and the African Court on Human and Peoples’ Rights, such enthusiasm has been lacking in nominating more women to represent the region at the International Law Commission.  In a recent publication in the Opinio Juris symposium on Gender Representation, J. Jarpa Dawuni argued for the representation of African women in international human rights bodies, noting that when compared to African men, African women were not represented equitably.

The current discussion is not a call to place candidates at the ILC because of their gender, rather, it is a call to draw the attention of African States and the world to the numerous qualified African women who possess the requisite skills, knowledge and experiences to represent their countries at the ILC. Apart from Phoebe Okowa, other women who have been nominated in other states for this year’s elections are Vilawan Mangklatanakul (Thailand – Asia Pacific States) and Réka Varga (Hungary – Eastern European States). Western Europe and Other States nominated five women – Evelyn Aswad (United States of America), Concepción Escobar Hernández (Spain), Patrícia Galvão Teles (Portugal), Nilüfer Oral (Turkey) and Penelope Ridings (New Zealand), and they are duly commended. Meanwhile, the Latin American and Caribbean States failed to nominate a single female candidate for this year’s ILC elections.

Focus on Professor Phoebe Okowa

Professor Phoebe Okowa is a venerable Professor of Public International Law at Queen Mary University of London, with over 25 years of experience in advocacy, consultancy and academia particularly in the area of Public International Law. Her work in the field cuts across national and international levels focusing on public international law, private international law, international environmental law, international criminal law and international humanitarian law.

The Kenyan government has presented the distinguished Professor as their nominee to the International Law Commission for the term 2023-2027. Her dual experience as an academic and practitioner of International Law gives her a good understanding of both the technical and practical elements of the Commission’s work. She has a long and sustained interest in the role of international law in meeting environmental challenges and wrote one of the earliest groundbreaking monographs in the field – State Responsibility for Transboundary Air Pollution in International Law.  Given that these issues remain on the Commission’s agenda and a priority in its current and long-term program of work, she will be a real asset to the Commission if elected. The statement of qualifications submitted by the government of Kenya for Professor Okowa’s nomination gives detailed insight into her qualifications and work experience over the years. 

As an ardent advocate of the High Court of Kenya who was called to the bar in 1990, she has acted as counsel and consultant to governments and non-governmental organizations in numerous cases before both domestic and international courts. Before the International Court of Justice, she has appeared as co-counsel in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) Provisional Measures (2019), co-counsel in a case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) Merits (2020 – 2021) as well as co-counsel in a case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) Merits (2019 –2021). In 2020, she wrote an amicus brief for counsel on the Domestic Implementation of Treaties with Conflicting Obligations – Federal Court of Canada. Since 2017, Professor Okowa has been an honorable member of the Permanent Court of Arbitration at the Hague. 

Professor Okowa’s role in academia cannot be overemphasized. She has previously taught Public International law, Constitutional Law and Private International Law at the University of Bristol, Faculty of Law (1994 – 2001). She has also served as a visiting Lecturer and Professor in many universities including the University of Antwerp, New York University School of Law, PACE University School of Law, University of Lille, University of Helsinki, University of Oxford, University of Stockholm and University of Cambridge. Quite recently in 2020 she articulately lectured at the United Nations Regional Course on International Law for Africa in Addis Ababa. 

Professor Okowa’s opinions and writings on diverse aspects of international law have received worldwide acclaim and she currently a joint editor of Oxford Texts in Public International law.

How Commissioners Are Elected

Articles 3 to 11 of the ILC Statute indicate how the 34 members of the Commission are elected. Each member is elected for a term of five years and is eligible for re-election. Prior to such election by the UN General Assembly, States submit names of their nominated candidates to the General Assembly. Each member state can nominate not more than four candidates of whom two may be nationals of the nominating state and two nationals of other States.

Names of candidates are submitted to the Secretary-General by June 1 of an election year, except where a State decides to substitute a candidate whom it has nominated before June 1 with another candidate. In such instances, that State shall name the substitute not later than thirty days before the opening of the General Assembly. The Secretary-General shall then submit the names of candidates and their curriculum vitae to governments of states and the UN General Assembly. The elections will be by secret ballot and the candidates up to the maximum number prescribed for each regional group who obtain the highest number of votes and at least a majority of the votes of the States Members present and voting shall be elected. If the maximum number of persons prescribed for each regional group is not elected on the first ballot, additional ballots will be conducted to fill the remaining places. 

In the event that more than one national of a State obtains a sufficient number of votes for election, the one who obtains the greatest number of votes shall be elected. If those candidates obtain an equal number of votes (that is, where there is a tie), the elder or eldest candidate shall be elected.

Per paragraph 3 of resolution 36/39 of November 18 1981, the 34 members of the ILC are elected according to the following pattern: eight nationals each from African States and Western European/other States, seven from Asia-Pacific States, six from Latin American and Caribbean States, and three nationals from Eastern European States. Two rotational seats exist, one of which is shared by African and Eastern European States and the other seat is shared by Asia-Pacific and Latin America/Caribbean States.

Conclusion

Seventy years is enough time for the silence on gender equality within the ILC. The ILC cannot remain quiet and insulated from the ongoing activism and calls for changing global institutional patriarchal norms and practices. Feminist legal scholarship has provided empirical and theoretical arguments for why international law must be more gender inclusive.

It is time for the ILC to catch up with these trends. In the words of  António Guterres,  equal rights for women is “the unfinished human rights struggle of this century.” It is time for the ILC to listen to the words of António Guterres and change that struggle by creating equitable opportunities for women—who are equally qualified.