On November 5, 2021, Hilary Charlesworth was elected Judge of the International Court of Justice, the principal judicial organ of the United Nations, by a simultaneous vote of the General Assembly and the Security Council of the United Nations.
Her election to the International Court of Justice (ICJ) is significant for several reasons.
She was nominated by Australia to contest the election against Linos-Alexander Sicilianos, nominated by Greece, in order to fill the vacancy that resulted from the untimely loss of James Richard Crawford, an Australian national, who served on the ICJ from November 2014 to May 2021. Now, the very fact that multiple candidates had been nominated by various national groups was a matter of intense debate, as some scholars contended that according to the “practice” of the ICJ, in cases of “casual” vacancies that have arisen on the Court because of the death or resignation of a judge, the elected person has to have the same nationality as the judge who passed away or resigned. While there is no rule that this should happen, scholars have argued that there is an expectation that the seat is filled by a judge of the same nationality in cases of “casual” vacancies.
On the other hand, casual vacancies caused by death or resignation often go uncontested only when the judge is from a P5 state. For instance, when Judges Bedjaoui (Algeria) and Al-Khasawneh (Jordan) resigned, they were succeeded by people of different nationalities after a contested election. While regular elections used to have a similar practice wherein a judge of the nationality of the five permanent members of the Security Council (China, France, Russia, the United Kingdom, and the United States) always being elected to the Bench, this P-5 privilege was breached when Sir Christopher Greenwood failed to get re-elected in 2017, leaving the ICJ without a judge with UK nationality for the first time in the Court’s history.
This begs the broader question of whether such “practice” effectively condones P-5 states ensuring a continuous presence on the Court without even having to go through the process of regular triennial elections since resignations are a process that can be at least partially controlled.
Further, if this hypothesis is true, how much normative significance should we attach to such “practice”?
While these are interesting questions, these are beyond the scope of this piece.
Judge Julia Sebutinde. Photo: Wikipedia/CC BY-SA 3.0
Instead, I want to delve into what these contested elections tell us about the barriers to entry for women in leadership positions in international institutions, especially in context of casual vacancies often going uncontested.
It seems, upon recollecting the case of Judge Julia Sebutinde, that there is a pattern here. The African Union (AU) has always endorsed the re-election bid of incumbent ICJ judges contesting for a second term.
Yet the bid for re-election of Judge Julia Sebutinde, the first and only African woman judge at the ICJ, was not formally endorsed by the AU and was instead challenged by two male competitors.
Further, the news of Charlesworth’s election has also spurred a lot of discussion about “merit”. Few would deny that Charlesworth is immensely qualified. She has served as barrister and solicitor of the High Court of Australia, as well as Supreme Court of Victoria, since 1981.
As Harrison Moore Professor of Law and Melbourne Laureate Professor at the University of Melbourne, and Distinguished Professor at the Australian National University, not only does she have prior experience as an ad hoc judge of the ICJ – having tackled the Arbitral Award of October 3, 1899 in Guyana v. Venezuela) and the case of whaling in the Antarctic (Australia v. Japan: New Zealand intervening) – but her scholarship has been instrumental to making the disciplinary mainstream acknowledge feminist approaches to international law.
Her pathbreaking article ‘Feminist Approaches to International Law’ co-authored with Christine Chinkin and Shelley Wright is still actively debated by feminists in the field. One must note that female presence alone does not necessarily create a feminist space. It is very encouraging that we now have a self-identified feminist judge at a time when even domestically, ‘feminist’ judges are thought to bring unpredictability to established legal systems!
But where does this merit-based framing really get us?
Charlesworth is still only the fifth women judge in the ICJ’s history, spanning a period of 76 years (100 years if you count the Permanent Court of International Justice as well). Moreover, five women have served as ad hoc judges as compared to 123 men. There are currently 12 cases in which 19 ad hoc judges have been appointed, of which only two are women.
These are alarming statistics but perhaps unsurprising given that the ICJ was originally envisioned thus: “It would become a sort of holy place, prized and revered by thinking men throughout the world, and to which, in any danger of war between any two countries, the minds of men would turn naturally and normally”.
While today, the language of “thinking men” – implying the exclusion of women and men deemed “unthinking” on grounds of race and caste – seems jarring, the gendered dimensions of institutional cultures, habits and practices remain as exclusionary as any formally applicable rules.
The provisions of the ICJ Statute provide little guidance on the overall composition of the Court. They leave any decisions as to appropriate gender representation to the discretion of the states’ Permanent Court of Arbitration National Group, which have varying levels of independence from the Central government.
Out of the present 259 PCA national group members, only 59 members are women. Moreover, there are no formalised and detailed institutional consultation process or any interviews for candidates. Thus, nominations are often made on the basis of personal relationships. For instance, a member of India’s national group, Senior Advocate B. Sen, allegedly justified the nomination of Dalveer Bhandari by saying, “I have known him for many years, I knew he was a capable man”.
Also read: Dalveer Bhandari Hasn’t Been Elected ICJ ‘Chief Justice’, as Posts Praising PM Modi Claim
This increases the importance of informal structures and practices including the shifting norms on how merit is measured, the weight of “old boys” networks, reference identification in the process. Women simply do not have the privilege of stumbling into the attention of the individuals who comprise the national groups of the Permanent Court of Arbitration that make these nominations.
Resultantly, this limits which women get considered, if at all. Women need to adequately be a replica of the international male elite to signal their mastery of the field and suitability for the role. Contra Australia which nominated Charlesworth, predominately a Professor of International Law, there are few instances where we see an elevation of academics and people from outside the established hierarchy to domestic judicial positions, let alone international positions. Even from a strategic perspective, it is crucial to remember the Greenwood-Bhandari diplomatic saga that revealed how the entire voting process hinges on political considerations rather than any particular individual, no matter how qualified. So there really is nothing stopping states from nominating more women.
All hope is not lost. There are several immediate steps that can be undertaken to ensure greater commitment to gender equity. Internationally, minimum voting requirements can be adopted to ensure that the bench has a minimum number of judges of each gender similar to the International Criminal Court (ICC) Assembly of States Parties.
In order to prevent this minimum number being seen, effectively, as a maximum requirement, it can be clarified that this is a “soft minimum quota.” On the domestic front, national groups can be more proactive and transparent in identifying more women candidates, in consultation with both state and non-state actors, by widely disseminating information concerning vacancies and selection processes and increasing access. Second, a specific body can be created with the aim of monitoring the diversity of candidates both in terms of gender and their experiences.
Parallelly, we must pay attention to the broader institutional environment in which women will function if appointed as judges bearing in mind that and gendering institutions is not simply about putting more women in leadership positions but also questioning the implicit norms, institutional cultures, and interactions that shape the ICJ.
Shubhangi Agarwalla is an international lawyer based in Delhi and has won the Helton Fellowship by the American Society of International Law.