Rethinking Representation on the International Bench

The battle for gender balance in international courts is being fought. Increasing data and knowledge produced on the subject matter helps publicize the issue - organizations launch campaigns, institutions start to pay attention to the issue, and important and vibrant scholarship discusses and refines the many available normative frameworks for strengthening objectives of gender balance in ICs. Nonetheless, the battle is far from won. The overall percentages of women judges sitting in ICs are a far cry from any notion of parity or even gender balance - none of them is currently close to an equal share of posts between men and women. As it focuses on the example of the European Court of Human Rights (ECtHR) where a gender balance rule has existed since 2004, this paper documents, that the figures are stalling. It then traces them back to the States‘ practice of either paying only lip service or acting in bad faith with respect to the gender balance objective, thus identifying this factor as a structural obstacle that has turned the objective of gender balance into a sticky floor instead of enabling it to shatter glass ceilings. 

To assess claims for more representative international courts, we should consider the reasons for more equitable representation of gender, geography, legal traditions and specialties, and beyond. 1. Both adjudication and judicial law-making have implications. 2. Reasons include epistemic competence and empathy, expression of status equality, and integrity, though not ‘democratization‘. 3. These reasons support representation for other considerations and perspectives beyond gender, such as TWAIL, often intersecting, depending on issue areas. Actual representations may not be necessary to ensure presentation of legal arguments, which is good news to secure the interest of future generations. 4. We should learn from relative success stories: the African Court of Human and Peoples‘ Rights and the European Court of Human Rights. Transparent and more formalized procedures help: the pipeline prior to election, and mechanisms of accountability for judicial law-making and judgments.

Diversity on the international bench is important but progress is marginal. There is a rough correlation between treaty requirements and diversity, best reflected in the composition of the African Court of Human and Peoples‘ Rights‘ bench. Initiatives have been undertaken by panels of independent experts and professional pledges in the arbitration community. The Council of Europe has introduced a gender quota for national nominations to the ECtHR, whereas the OAS has simply urged members to account for gender, geographical, and legal-system representation. Turning toward more structural reforms, the mandate of appointing authorities to consider diversity should be formalised. Treaty texts should be amended to mandate diversity considerations. Less direct and longer-term interventions include ensuring adequate opportunities at every stage along the path to the bench - increasing transparency and accountability - and reducing material and logistical disincentives.

By the beginning of 2018, out of the fourteen contentious cases pending on the International Court of Justice‘s (ICJ) docket, seven involved cases between Latin American states, submitted under the Pact of Bogota‘s jurisdictional clause. This trend did not appear out of the blue. After the proceedings brought by Nicaragua against Costa Rica and Honduras in 1986, Latin American states‘ resort to the ICJ —mainly under the jurisdictional clause of the Pact, a treaty that remained virtually dormant since its creation in 1948— increased sharply. While this move may appear natural to international lawyers, this paper first problematizes it by understanding the ICJ as an institution that does not necessarily represent nor serve the needs of Latin American states. Second, it identifies what factors could have propelled this turn. Overall, it hopes to provide a situated reflection on what attract states to the ICJ and how the question of representation features in these decisions.

The progressive consolidation of an international judiciary is often perceived as a cornerstone in the process of building an institutional architecture to bolster a global rule of law, yet its authority and legitimacy are increasingly contested. This piece explores the limitations of a formal account of representation that places state constituencies at the centre, thus engaging with diversity only marginally. The paper explores alternative conceptions embedded in difference-based models of democracy that might be more suitable to capture the pluralistic (cultural and legal) make-up of a global society composed by diverse (heterogenous and unequal) groups. The reference to ‘decolonization‘ is mostly used as a metaphor to critically engage with the appropriation of institutional and legal discourses by dominant groups that ultimately suppress alternative understandings by non-dominant groups that hold less material or symbolic power.