Chapter 9 Gender Equality in the Judiciary – with an Emphasis on International Judiciary

In: Gender Equality in the Mirror
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Catherine Kessedjian
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1 Introduction

According to the World Economic Forum, if all goes well, 2234 will be the year in which the economic gender gap will be filled. I have not calculated whether the same year will see the gender gap in the judiciary vanish, but I have a sense that this may not be the case. This is because the present picture seems quite gloomy, even though 143 out of 197 United Nations Member States have included gender equality in their constitution1 and, at the UN level, diversity, gender equality, and inclusion are among the 17 Sustainable Development Goals adopted in 2015.

Before I go further into the analysis, I must clarify that I am not a gender scholar. Some of my colleagues have become specialists in gender issues in international law. I am not one of them. I am a generalist in international law, having studied both public and private international law, but my specialty is international private law, international dispute resolution, arbitration, and mediation. This is the background I come from.

Why did I become interested in gender issues? As Anna Calman (the young Ingrid Bergman) says in the movie Indiscreet: ‘I am a woman, you know’. Well, I became interested in gender issues because I am a woman! More seriously, when I was invited to give the first Hague Academy Winter Session General Course and had decided to reflect on Neutrals in International Law,2 it became self-evident that I had to discuss the manners in which judges and arbitrators are chosen, who they are and whether they are representative of the population of the world. Hence diversity became one of the focuses of the Hague lectures.

The scope of this chapter is limited to gender diversity.3 This does not mean other diversity issues are of no interest to me. By ‘other diversity issues’, I mean: culture, colour, religion, and ethnicity, among others. Because international law, as we know it now, was shaped by and large by occidental scholars and actors in the xixth century, mostly with the rise of the Industrial Revolution, it is all too easy to forget that the whole world does not resemble this fairly small club. This is why general studies – such as the one conducted by Freya Baetens4 or, for racial diversity in arbitration, by Benjamin Davis5 – are essential to the full understanding of the subject matter.

This chapter is divided into four sections each of which addresses one of the following questions:

  1. 1.Why is gender equality so important in rendering justice?
  2. 2.What is the present situation for women in international courts and tribunals?
  3. 3.What are the reasons for the present situation?
  4. 4.What can we do to improve the situation?

2 Why Is Gender Equality So Important in Rendering Justice?

I can only quote from former President of the UK Supreme Court, Lady Hale of Richmond:

I take the view that “difference” is important in judging and that gender diversity, along with many other dimensions of diversity, is a good, indeed a necessary, thing for several reasons. The principal reason is democratic legitimacy – the judiciary should reflect the whole community, not just a small section of it; the public should be able to feel that the courts are their courts, that their cases are being decided and the law is being developed by people like them, not by alien beings from another planet; and this should enhance rather than undermine public confidence in the law and the legal system.6

I could not have put it better. However, this statement must be backed by some context. It is crucial that justice is rendered by people who represent a cross-cutting sample of society at large because of the unique role judges and justice have taken in our society. It has always been true that justice was an essential part of a society matrix. However, it has become the keystone (la clef de voûte) of the construction of the law. Legal rules have become essential to our modern societies: they have become so complex, as well as being complicated by additional standards and soft law rules, that no one can pretend any longer to ‘know the law’ as the old saying goes.

In addition, there is a strong argument for considering the judiciary as a counter-power to the other two pillars of democracy, namely the executive and the legislative powers. The judiciary, being the third pillar of democracy, must be independent, strong, and representative, particularly because most judges are not elected. Even if they are elected, like for the International Court of Justice, the election takes place within the community of States, which do not always represent an example of diversity themselves. Arguably (at least some of the) decisions rendered by the International Court of Justice (icj) have an impact on millions of citizens around the world. Consequently, if one wants to ensure respect for their decisions, judges rendering these decisions must represent a cross-section of the communities at large. This is a matter of trust in the judiciary. The same analysis applies to arbitration whether in investment matters7 or in commercial cases.8

However, I am not implying that one should only be judged by one’s peers. Or that judges must resemble on all fronts the people addressed by their decisions. This would be contrary to my conception of diversity, impartiality, neutrality, and lack of bias. But there must be enough diversity on the bench to be representative of the society for which that particular court or tribunal was formed. In the end, this is a matter of legitimacy.

3 What Is the Present Situation for Women in International Courts and Tribunals?

Before we turn to the present situation, I will provide a brief broad-brush overview of history. Contrary to what is often believed, women were not prevented from rendering justice at all times. The Bible mentions Deborah who was active in resolving conflicts between the sons of Israël.9 She is often portrayed as sitting under a palm tree (symbol of peace)10 between Ramah and Bethel in Mount Ephraïm. She is a prophetess, an advisor, a judge, an arbitrator, and a mediator. But, more ambiguously, she is also a warrior when need be.

This promising beginning was ended by the Corpus juris civilis11 whereby women were banned from the city governance because they were considered as weak persons. From that time on they could not be appointed as arbitrators. This situation persisted for many centuries. This is why ‘[m]algré les textes égalitaires des Evangiles, la femme est tenue enfermée dans un étroit carcan juridique à l’époque médiévale, sa capacité juridique étant opacifiée par celle de son mari. Elle trouve cependant grâce aux yeux de certains auteurs de droit savant ou de droit coutumier qui admettent qu’elle peut trancher en équité et non pas en droit. Elle ne peut jouer ce rôle que dans trois cas: lorsqu’elle possède le droit de juger, ou est autorisée par la coutume, ou est une personne d’un rang social éminent’.12 It was not until the xiiith century, with the papal authorisation, that women acquired the right to be appointed arbitrators.13

Jumping ahead to modern times, it is no wonder that there are so few women in the judiciary. Indeed, in order to render justice, a woman needs to enjoy her civil rights. Women acquired these rights very late. To take only the example of France, after a short period thanks to the 1789 Revolution, women had to wait until 1945 to be allowed to vote. In Switzerland, 1971 is the date at which the right was granted at federal level, although some cantons provided for women’s voting in 1959.14

Also, if one wants to become a judge, one needs first to be trained as a lawyer. And this is not so easy. To take one example from the United States, in 1869 the Supreme Court of Iowa decided that the State could not prevent Arabella Mansfield from taking the bar exam just because she was a woman.15 However, four years later, the Supreme Court of the United States decided in the opposite direction by upholding a decision from the Supreme Court of Illinois forbidding a woman from taking the bar exam. A quote from the concurring opinion reveals the prejudices: ‘16 The paramount destiny and mission of woman (sic) are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases’.17 Barring women from practicing law was prohibited in the USA only in 1971.18

To make my point, I only need to recall that it was as late as 1981 that the first woman was appointed as a judge at the Supreme Court of the United States (Sandra Day O’Connor)19 and not until 1982 for the Supreme Court of Canada (Bertha Wilson). The first female juge en chef of the Supreme Court of Canada was appointed in 2000 (Beverley McLachlin).20 The French Cour de cassation has had only two women as Premier Président: one in 1984 (Simone Rozès) and one in 2019 (Chantal Arens).21 The overall statistics are not so bad in France. Indeed, in 2015, 66% of all judges were women. However, this number deserves a closer look. The Ecole de la magistrature (the principal avenue to become a judge in France) shows that 80% of the students are women. However, when one looks at the statistics of judges appointed to the bench, in the age group 30–34 years, only 29% of judges are women. The higher in the hierarchy one looks, the worse the situation becomes. Only 30% of judges at the Cour de cassation are women; four are at the head of a Court of Appeals and only 89 out of 390 Presidents of Courts and Tribunals are women.22

For the international judiciary, the situation is similar or perhaps somewhat bleaker. Concerning the icj,23 despite a complete renewal of the judges between 1945 and 1969, no woman was elected until 1995 (Dame Rosalyn Higgins). In 2021, three women out of a total of 15 are on the bench: (by order of election) Joan E. Donoghue (2010), now the President, Xue Hanqin (2010), and Julia Sebutinde (2012). There are almost no women ad hoc judges at the icj.24 The Tribunal for the Law of the Sea (Hamburg) is composed of 21 judges, five of whom are women. At the International Criminal Court, the situation has worsened: at the initiation of the court there was an equal number of women and men. However, in 2019 women accounted for only one-third of the bench. A decrease has also been seen at the European Court of Human Rights despite the policy announced by the Council that it would not be acceptable for Member States to propose a list that does not include at least one woman.25 The World Trade Organization (wto) panel members did not include a woman until 2003.26

Some signs of positive evolution are evident in arbitration; however, the road is still long for tribunals. For the first time in its history, the International Chamber of Commerce (icc) Court of International Arbitration achieved gender equality in 2018.27 In 2015, the Court appointed or confirmed 136 female arbitrators and in 2016 the number was 209. They represent only 14.8% of all arbitrators appointed under the icc regime even though the percentage has doubled since 2011. Co-arbitrators appointing a chair only chose a woman in 12.4% of cases. But women make up one-third of emergency arbitrators.28

The proportions of male and female mediators/conciliators and arbitrators appointed by the Secretary-General at the International Centre for Settlement of Investment Disputes (icsid) are also fifty-fifty. However, the picture is less bright when one considers the lists of conciliators and arbitrators appointed by Member States. Very few States achieve equality. Only one State29 has appointed only women on its list, while many States (56 out of 155) have no women on their list.30

4 What are the Reasons for the Present Situation?

Historical, cultural, and traditional stereotypes are hard to combat. By their very nature, because they are fixed in people’s beliefs without nuance, stereotypes influence people’s judgement and function as an unconscious bias that influences our actions. If one adds to stereotypes the fact that people who are already in place have no incentive to change a system that benefits them,31 improving the situation will take more time and effort than one may think at first.

Biology is also pertinent to the importance of culture, life experience, and the social environment in the way each one of us appraises a given situation. At birth only 10% of neurons are connected. This means that 90% of neurons are connected thanks to social interaction.32 Consequently, the difference between girls and boys is constructed little by little, all through childhood and early adulthood, giving substance to the well-known statement by de Beauvoir ‘on ne naît pas femme on le devient’.

Psychology, sociology, and related cognitive sciences would be helpful in assessing why equality between men and women is so difficult to achieve, particularly when the positions at stake include power and high pay.

  1. (a)Cognitive sciences teach us that women are less assertive than men.33 Their education leads to that outcome. Boys are encouraged, at an early age, to speak, particularly in public. Studies show that those who are used to speaking in public assume leadership roles more easily.34

    Women need nudging in order to put themselves forward as a candidate for any high-level position. And often, women do not have the kind of network that would give them that nudge. Men do not hesitate to put themselves forward, sometimes even overestimating their capacities (whereas women tend to underestimate them).

  2. (b)Because of childbearing and tradition, women assume the primary responsibility for children and family. This explains why women’s careers advance more slowly than those of men on equivalent career paths. Therefore, once the children are older and less demanding, and women themselves attain the age at which they might be considered for appointment to leadership roles, they have not reached the level where they can compete for higher positions.

    It is true that men are increasingly undertaking a larger share of the family duties to facilitate their wife’s career, but such examples are far from being the majority. I would venture to say that it is the exception that confirms the rule. This has been reaffirmed during the 2020–2021 coronavirus pandemic, particularly in France, during which time women had to work from home, home school their children, and continue to shop and produce meals.35 The extra duties falling to women prevent them from spending time networking, which is vitally important if one wants to assume higher positions.

  3. (c)Women are more transparent, sincere, and authentic when it comes to the information they communicate about themselves and their experience. They are more concerned about objectivity and that trait increases (+5%) with experience.36 When one knows becoming a member of an international court or tribunal usually happens after the second phase of one’s professional life, it shows that a level playing field for competition is not guaranteed. In addition, ‘women are more modest than men (17%)’ and the more mature they become the more modest they get (an additional 12%).37
  4. (d)More flexible and having a greater capacity to listen to arguments that run counter to their own ideas, women are the best mediators and problem solvers.38 However, when it comes to defending their own position, they are more readily convinced to withdraw from competition.
  5. (e)Stability is more important to women than men.39 They have a greater sense of respect for the institution and a safe work environment. This would function as a deterrent to mobility when mobility (particularly international mobility) is often the price to be paid for higher positions and a change of work environment. In addition, when the ratio at senior management level is 1 to 3 in favour of men, the majority of women think they are well represented and an even greater majority of men think likewise.
  6. (f)Women demonstrate greater emotional sensitivity than men.40 In a group, they are likely to show more empathy to their colleagues. When it comes to defending their own interests, this characteristic may become a handicap. In the same vein they are more interested in others’ wellbeing than their own and would rather help somebody who needs it than first consider whether it may have a counter-effect on their own position.
  7. (g)Women are respectful of rules and have difficulties when they need to act in an environment where rules are obscure, paths are all but straight, politicking and manoeuvring are a necessary course of action.41 In one of many films produced about the life of the late Ruth Bader-Ginsburg, she would say that her appointment from academia to judgeship was made possible thanks to her husband’s networking for her, whereas he would say that it was possible because of her highest level of expertise and integrity. They were both correct.
  8. (h)Life events do affect women more than men. And when these life events require that someone in the family must take leave of absence, it is more often the woman who does so. However, taking leave of absence is likely to have a bigger negative impact on a woman than on her male equivalent. Studies show that while paternity leaves have increased in the past decade or so, maternity leave has been stagnant.42 Work–life balance is more important for women than for men. Therefore, women may hesitate to apply to positions that might entail sacrifices in their personal life that they may not be ready to make.
  9. (i)Power is still the prerogative of white men aged over 50 years. They have no reason to give up a system that has worked to their advantage for decades. In other words, white men are privileged but they are privilege-blind. Most of them would be the proper vehicle for change.

5 What Can We Do to Improve the Situation?

As seen in section 3, in many cases, the absence of women is deeply rooted in psychological and social history. Hence, the most needed change concerns education.

And this must be an effort that continues throughout women’s professional life. The McKinsey study I cite above shows that companies need to focus their efforts earlier in the pipeline to make real progress.43 The role of corporations is essential. The Commitment to Diversity published by the Coca Cola Company on 28 January 202144 addressed to its outside counsels is a testimony to concrete steps that can be taken towards more diversity in the workplace.

Another example of concrete actions may be found in the Equal Representation in Arbitration Pledge adopted in 2015 that had gathered 3757 signatories as of November 2019. It is valuable to reproduce here the text of the Pledge:

As a group of counsel, arbitrators, representatives of corporates, states, arbitral institutions, academics and others involved in the practice of international arbitration, we are committed to improving the profile and representation of women in arbitration.45 In particular, we consider that women should be appointed as arbitrators on an equal opportunity basis. To achieve this, we will take the steps reasonably available to us – and we will encourage other participants in the arbitral process to do likewise – to ensure that, wherever possible:

  1. committees, governing bodies and conference panels in the field of arbitration include a fair representation of women;
  2. lists of potential arbitrators or tribunal chairs provided to or considered by parties, counsel, in-house counsel or otherwise include a fair representation of female candidates;
  3. states, arbitral institutions and national committees include a fair representation of female candidates on rosters and lists of potential arbitrator appointees, where maintained by them;
  4. where they have the power to do so, counsel, arbitrators, representatives of corporates, states and arbitral institutions appoint a fair representation of female arbitrators;
  5. gender statistics for appointments (split by party and other appointment) are collated and made publicly available; and
  6. senior and experienced arbitration practitioners support, mentor/sponsor and encourage women to pursue arbitrator appointments and otherwise enhance their profiles and practice.46

But numbers are not enough. The pledge should stress equal opportunity and fairness in the work environment, work–life flexibility, and a safe respectful workplace. This last point is crucial to allow greater diversity among those occupying the highest positions of society. Organising the workplace so as to cater for women’s needs, particularly at a younger age, is essential to secure a better gender balance at a later stage. This necessitates a very coherent policy as well as the engagement of the highest authorities in the work environment.47 It includes a diversity plan actively supported by the highest authorities in the organisation, together with reporting procedures and grievance mechanisms.

Mentorship programmes are crucial to this effort. Big Sister (or Brother) mentorship and sponsorship is essential. As an arbitrator, I rarely witnessed a male senior partner distributing pleading roles to his female team members and sharing the podium with them. This has happened only a few times. I can testify, however, that following the careers of the women who benefited from such a sponsorship shows that this is the kind of mentorship that would help women climb the ladder.

Changing the way judges, arbitrators, and mediators are appointed could be another useful measure. However, this may prove trickier to organise. This immediately raises the question: Do we need quotas? It is known that if one gets over the famous ‘smurfette or Snow White principle’48 and appoints women in cohorts, so that they form a significant percentage of the workforce, they advance more successfully to the top of their profession. Consequently, as a temporary measure, quotas may be necessary in order to overcome the obstacles that women experience when they want to advance.49 This goes hand in hand with the need for numbers (and the evolution thereof) to be continuously monitored and published so that everyone concerned can understand the effect of the measures taken. It is noteworthy that none of the international courts publish any figures on diversity in the workplace. It would be interesting to have these figures, not only for judges (which are easy to count), but also for all the employees of the court.

6 Conclusion

As I was finalising this contribution in May 2021, I was heartened by the many positive signals received from the business environment. Even though there is still plenty of room for improvement, more women are reaching the top management of companies. If that trend continues, these women will want to work with more female lawyers and encourage the firms with which they work to appoint women at the top management level. Having had that kind of an experience, these lawyers will be more likely to increase their public profile and therefore be considered for judicial functions, particularly in countries where judges are selected from practising attorneys. It is to be hoped, therefore, that more female judges will be able to join the ranks of the international judiciary. Rendez-vous is taken for 2234!

Postscriptum

As we were going to press, we were informed that Prof. Hilary Charlesworth was elected at the icj making her the fifth woman only in the entire history of the Court.

1

Institut du Capitalisme Responsable, ‘6 Mesures Concrètes pour Accélérer la Mixité dans les Organisations’ (2020) L’Observatoire de la Mixité <www.capitalisme-responsable.com/wp-content/uploads/2020_OMix_livre_vert_10122020-2.pdf> accessed 18 June 2021. ‘L’Observatoire de la Mixité’ is a body composed of experts and representatives of different institutions with competences in the field of gender equality, which proposes solutions to quickly achieve gender equality in companies.

2

Catherine Kessedjian, ‘Le Tiers Impartial et Indépendant en Droit International – Juge, Arbitre, Médiateur, Conciliateur’ (2019) Recueil des Cours 409.

3

International Council for Commercial Arbitration, icca Reports No. 8: Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings (icca & Kluwer Law International 2020).

4

Freya Baetens (ed), Identity and Diversity on the International Bench – Who is the Judge? (oup 2020).

5

Among others, see Benjamin Davis, ‘The Color Line in International Commercial Arbitration: An American Perspective’ (International Arbitration Committee, Association of the Bar of the City of New York, 2004) <http://aria.law.columbia.edu/racial-diversity-in-international-arbitration/> accessed 29 November 2021.

6

Lady Hale of Richmond, ‘How Diverse are Judges?’ in Jeremy Cooper (ed), Being a Judge in the Modern World (oup 2017) 184. See also Vanessa Ruiz, ‘Le Rôle des Femmes Juges et d’une Prise en Compte des Questions de Genre pour Assurer l’Indépendance et l’Intégrité du Système Judiciaire’ (2019) onudc <www.unodc.org/dohadeclaration/fr/news/2019/01/the-role-of-women-judges-and-a-gender-perspective-in-ensuring-judicial-independence-and-integrity.html> accessed 29 November 2021.

7

The electronic list of arbitrators and conciliators maintained by icsid shows 791 names out of which 469 have been appointed in at least one icsid case. Among that group, only 54 are women: see <https://icsid.worldbank.org/sites/default/files/publications/ICSID10.pdf> accessed 20 August 2021. For a brief analysis, see Gus Van Harten, ‘The (lack of) Women Arbitrators in Investment Treaty Arbitration’ (Columbia fdi Perspectives No. 59, 6 February 2012) <https://ccsi.columbia.edu/content/columbia-fdi-perspectives> accessed 29 November 2021.

8

See Queen Mary University and White & Case, ‘International Arbitration Survey’ (2021) <https://www.whitecase.com/publications/insight/2021-international-arbitration-survey/appendices> accessed 29 November 2021. See also the controversy that arose after the appointment by the European Union of the Comprehensive Economic and Trade Agreement (ceta) and other bilateral trade agreement arbitrators. They can be searched in the online database italaw at <https://www.italaw.com/> accessed 29 November 2021. See also Arbitration Institute of the Stockholm Chamber of Commerce (scc), the ‘Temperature Check on Diversity in Arbitration’ (2021) <https://sccinstitute.com/about-the-scc/news/2021/new-scc-report-temperature-check-on-diversity-in-arbitration/> accessed 29 November 2021.

9

See the ‘Book of Judges’ in The Hebraïc Bible (also called the Old Testament by Christians), chapter iv-4: ‘Deborah, a prophetess, the wife of Lappidoth, was leading [1] Israel at that time. She held court under the Palm of Deborah between Ramah and Bethel in the hill country of Ephraim, and the Israelites came to her to have their disputes decided’.

10

See also the tree as a symbol of justice in many epochs.

11

Justinian Code, vie siècle – C.ii.6.56.

12

‘Despite the egalitarian texts of the Gospels, woman is kept in a tight legal straitjacket in the medieval period, her legal capacity being opaque to that of her husband. However, she finds favour with some authors of soft law or customary law who admit that she can decide in equity and not in law. She can only play this role in three cases: when she has the right to judge, or is authorized by custom, or is a person of eminent social rank’ (translation provided by the author); Yves Jeanclos, ‘La Pratique de l’Arbitrage du xiie au xve Siècle – Eléments d’Analyse’ (1999) 3 Revue de l’Arbitrage, 445.

13

ibid 446. See the examples mentioned by Jeanclos.

14

The latest date for cantons was 1990. A few States were pioneers: New Zealand 1893, Australia 1901, Finland 1906, Norway 1913, Denmark 1915, Russia 1917, USA 1920 (xixth amendment of the Constitution but only for white women), Brazil 1932. For an exhaustive timeline, see Encyclopaedia Britannica, ‘Women’s suffrage’ <https://www.britannica.com/topic/woman-suffrage> accessed 29 November 2021.

15

See Kristin Corey, ‘Arabella (Belle) Babb Mansfield’ (Iowa Department of Cultural Affairs) <https://iowaculture.gov/history/education/educator-resources/primary-source-sets/government-democracy-and-laws/Arabella> accessed 20 August 2021.

16

Bradwell v Illinois 83 US 130 (1873).

17

ibid 141–2.

18

See The American Bar Association, ‘In their Own Words – Experienced Women Lawyers Explain why they are Leaving their Law Firms and the Profession’ (April 2021) <www.americanbar.org/groups/diversity/women/initiatives_awards/long-term-careers-for-women/in-their-own-words/> accessed 29 November 2021.

19

Brian P. Smentkowski, ‘Sandra Day O’Connor’ (Encyclopaedia Britannica) <https://www.britannica.com/topic/judge-law/Professional-judges-in-the-common-law-tradition> accessed 25 August 2021. Ratified in 1920, the Nineteenth Amendment granted women the right to vote. During this time, women began assuming judgeships, through both appointment and election. One such woman was Mary O’Toole, who became the first woman municipal judge of the United States when she was appointed Judge of the Municipal Court of Washington, DC by President Harding in 1921. See Minnesota now, ‘US Judicial Women Firsts’ (10 April 2021) <https://www.britannica.com/topic/woman-suffrage> accessed 25 August 2021.

20

See Canadian Chapter of the International Association of Women Judges, ‘Women Chief Justices of Canada’ <https://iawjcc.com/women-in-the-spotlight/chief-judges/> accessed 29 November 2021.

21

This is the case even though women have been authorised to become judges since 1946. In France, the first female (Charlotte Béquignon-Lagarde) who wanted to take the ‘agrégation’ (the highest competitive exam to become a full university law professor) had to ask for the authorization of her husband. She was born in 1900, the year when women were authorised to become a pleading attorney. In 1931 she became the first woman ‘agrégée’ (private law). She later (in 1946) became the first and only female judge at the Cour de cassation. In public law, the first woman ‘agrégée’ was Suzanne Basdevant-Bastid. See Gwenola Joly-Coz and Sophie Tardy-Joubert, ‘L’Institution Judiciaire a Effacé les Traces des Premières Femmes Magistrats’ (Actu-Juridique.fr, 21 August 2020) <https://www.actu-juridique.fr/professions/linstitution-judiciaire-a-efface-les-traces-des-premieres-femmes-magistrats/> accessed 29 November 2021.

22

The numbers in the UK are similar: In 2015, 8 out of 38 Court of Appeals judges and 21 out of 108 judges at the High Court were women. In the USA, women counted for 20% of the Circuit Judges (Federal Court of Appeals): see Yoann Demoli and Laurent Willemwz, ‘Les Magistrats: Un Corps Professionnel Féminisé et Mobile’ (2018) 161 Infostat Justice, Bullettin d’Information Statistique 1.

23

There was no woman on the Permanent Court of International Justice, the predecessor to the present court.

24

Out of 19 positions in current cases only 2 are held by a woman. Many of the male ad hoc judges are repeat players. See Peacewomen, ‘ICJ International Court of Justice’ <https://www.peacewomen.org/content/international-court-justice> accessed 25 August 2021.

25

At the echr, out of the six senior positions, only two are held by women. The Court has never been presided over by a woman. In 2021, out of the 47 judges (one judge per Member State) only 15 are women.

26

A survey on the female composition of international courts and tribunals was carried out by gqual in 2015. See the results of the survey at gqual, ‘The Current Composition of International Tribunals and Monitoring Bodies’ (14 September 2015) <http://www.gqualcampaign.org/1626-2/> accessed 29 November 2021.

27

International Chamber of Commerce (icc), ‘ICC Celebrates 5 Years of Progress Since Arbitration Gender Pledge’ (19 May 2021) <https://iccwbo.org/media-wall/news-speeches/icc-celebrates-5-years-of-progress-since-arbitration-gender-pledge/> accessed 29 November 2021.

28

icc, ‘ICC Court Sees Marked Progress on Gender Diversity’ (31 May 2017) <https://iccwbo.org/media-wall/news-speeches/icc-court-sees-marked-progress-gender-diversity/> accessed 29 November 2021.

29

The Bahamas, see icsid, ‘Members of the Panels of Conciliators and of Arbitrators’ (26 August 2021).

30

See Arbitral Women, ‘Latest Designations to ICSID Panels: A Mixed Bag for Gender Parity’ (22 February, 2020) <https://www.arbitralwomen.org/latest-designations-to-icsid-panels-a-mixed-bag-for-gender-parity/> accessed 29 November 2021 and Meg Kinnear and Otylia Babiak, ‘International Investment Arbitration Needs Equal Representation’ (Centre for International Governance Innovation, 9 April 2018) <https://www.cigionline.org/articles/international-investment-arbitration-needs-equal-representation/> accessed 29 November 2021.

31

In order to write this section, I benefited from diverse sources of information: for my 2019 Hague Lectures, I reviewed a number of sociological studies. During my stay in the Hague in January 2019, I was invited to give a lecture at the icc and the critical discussion that followed helped me understand a number of issues faced by women working in the international judiciary. I also benefited from discussions with women working in a challenging high-level environment, notably in large corporations. I consulted a study (published in February 2020) conducted by a French human resources tech company (edhec) that mapped out more than 65,000 tests taken by candidates between 2017 and 2019: edhec NewGen Talent Centre, ‘Femmes & Carrière Quels sont Leurs Atouts et Leurs Motivations?’ <https://careers.edhec.edu/news/etude-femmes-carriere-quels-sont-leurs-atouts-et-leurs-motivations-fevrier-2020-edhec-newgen> accessed 20 August 2021. These tests were taken by 54% women and 46% men. They tested 28 aspects of the respondents’ personality. I also consulted a study started in 2015 by McKinsey & Company and Leanin.Org, for corporate America: McKinsey & Company, ‘Women in the Workplace 2019’ (October 2019) <www.mckinsey.com/~/media/McKinsey/Featured%20Insights/Gender%20Equality/Women%20in%20the%20Workplace%202019/Women-in-the-workplace-2019.ashx> accessed 29 November 2021. I thank Hélène Boulet-Supau for having called my attention to these two studies and more.

32

Riita Hari et al., ‘Centrality of Social Interaction in Human Brain Function’ (2015) 88 Neuron 181.

33

See Emily T Amanatullah and Michael W Morris, ‘Negotiating Gender Roles: Gender Differences in Assertive Negotiating are Mediated by Women’s Fear of Backlash and Attenuated When Negotiating on Behalf of Others’ (2010) 98 Journal of Personality and Social Psychology 256.

34

See also, Maria de Paola et al., ‘Do Women Shy Away from Public Speaking? A Field Experiment’ (2021) Institute of Labor Economics Discussion Papers 12959 <https://ideas.repec.org/p/iza/izadps/dp12959.html> accessed 18 June 2021.

35

This tour de force may also be explained by the fact that women are more efficient than men: when confronted with many tasks to be accomplished, they plan and organise better than their male counterparts.

36

See edhec NewGen Talent Centre (n 31).

37

ibid 19.

38

ibid 7.

39

This is also because women are more likely than men to accept a change of location if that would help their spouse progress in their profession.

40

Fischer AH et al., ‘Gender Differences in Emotion Perception and Self-reported Emotional Intelligence: A Test of the Emotion Sensitivity Hypothesis’ (2018) 13 (1) PLoS one.

41

See also Rolf Einar Fife, ‘Generating Incentives to Appoint Women to the International Bench. Experiences with State Practice’ in Baetens (ed) (n 4).

42

McKinsey Study (n 31).

43

This is also one of the conclusions to be drawn from Rolf Einar Fife’s contribution to Baetens (ed) (n 4).

44

‘Commitment to Diversity, Belonging, and Outside Counsel Diversity’ (28 January 2021)<www.coca-colacompany.com/media-center/bradley-gayton-on-commitment-to-diversity> accessed 20 August 2021.

45

The pledge is somewhat modest as it does not require gender equality in terms of of actual numbers but as a matter of “equal opportunity” showing the influence of John Rawls’ writings.

46

See the whole text of the Pledge at <www.arbitrationpledge.com/take-the-pledge> accessed 29 November 2021.

47

This is one of the six measures advocated by the French Observatoire de la Mixité (n 1) because among the 32 measures that have been tested in France to determine their effects on gender diversity in companies, these are the ones that work best to ensure a change in women’s place in the company.

48

The ‘smurfette principle’ occurs when one woman is appointed to the top, is alone in a group of men so that she is cornered in the position of “faire valoir” (something like being a foil for the men). See Liesbeth Lijnzaad, ‘The Smurfette Principle. Reflections about Gender and the Nomination of Women to the International Bench’ in Baetens (ed) (n 4).

49

The report published by the Institut Montaine (a French private think tank maintained mostly by large corporations that opines on public affairs) in 2019, promotes a form of quotas with a reasonable component to it, see: Institut Montaigne, ‘Agir pour la Parité, Performance à la Clé’ (July 2019) <www.institutmontaigne.org/publications/agir-pour-la-parite-performance-la-cle> accessed 20 August 2021. See also the measures advocated by the Observatoire de la Mixité (n 1).

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