Abstract
During the 75 years of its existence, there have been only eleven women members of the International Law Commission. The pace of progress has been dismally slow and there are frequent calls to increase the representativeness of the Commission. This article addresses the central question of what more can be done to tackle this lack of diversity. It reviews the past elections to the Commission, not only in the UN General Assembly, but also the filling of casual vacancies by the Commission. It traces the contributions of women to the work of the Commission and addresses the extent to which the lack of gender diversity affects the authority and legitimacy of the Commission. It concludes by suggesting approaches which may assist in addressing this imbalance, including the need for a transformative approach. It is time to open the door to the Commission wider so more women can enter.
1 Introduction
The United Nations (UN) is driving global efforts towards gender equality and the empowerment of women.1 The UN Gender Parity Strategy targets equal representation of men and women at all levels of the organisation.2 Yet one
The lack of gender diversity in the nominations and outcome of elections for the International Law Commission is not a new issue.4 It occasioned comment at the 70th anniversary of the Commission under the catchphrase ‘Seven in Seventy Years’.5 More generally the lack of gender diversity in judicial institutions has given rise to studies focussed on establishing the lack of representativeness and offering some explanations as to why there is such a lack of diversity.6 There are also stories and personal reflections of women in
Feminist critiques have been a driving force behind calls for gender representativeness, including on the international bench.12 The conceptual framework
In this work, I was assisted greatly through interviews with past and present female members of the Commission. While I have sought to maintain necessary confidentialities, the insights they have provided from their experiences have enriched my understanding of the hurdles faced by women in the nomination and election process and during their tenure on the Commission. Although many of these hurdles are not unique to women and are relevant to all that aspire to be members of the Commission, the hurdles seem to be higher for those persons who are already marginalised within the international legal profession. This suggests two caveats. First, this article is focussed on the number and contribution of women to the International Law Commission. There are other aspects of diversity which warrant attention, including racial and sexual diversity. Although the focus here is on women, some of the observations specific to women have a wider application to other marginalised persons.15 Second, any examination such as this is inevitably framed by one’s own experience and perspectives. Although I have sought to remain objective, I acknowledge that part of my frame of reference is as a member of the Commission.
Following this introduction, Section 2 provides an overview of the formal requirements for elections to the International Law Commission and the implementation of these requirements in practice. It introduces the issues of representativeness and gender diversity by providing some statistics on the number of women in the Commission. This provides context for a consideration of the challenges faced by women seeking election to the Commission. Section 3 seeks to identify the contributions and influence that women members have made to the work and functioning of the Commission. The question
2 Elections to the International Law Commission
The election of members of the International Law Commission is governed by the Statute of the Commission. This section considers first the formal requirements for election of members of the Commission, including the question of ‘representativeness’. The discussion turns to the women elected to the Commission, and to the filling of casual vacancies by the Commission itself. It outlines some of the real and perceived impediments to the election of women to the International Law Commission.
2.1 Formal Requirements for Election to the International Law Commission
The Statute of the International Law Commission (ilc Statute) provides the legal basis for the election of members of the Commission. It consists of 34 members who are ‘persons of recognized competence in international law’.16 Art. 8 of the ilc Statute, which mirrors Art. 9 of the Statute of the International Court of Justice,17 requires electors to bear in mind that persons elected to the Commission ‘should individually possess the qualifications required’ and that ‘in the Commission as a whole representation of the main forms of civilization and of the principal systems of the world should be assured’.
It was recognised relatively early in the establishment of the Commission that representation of ‘the main forms of civilisation and of the principal legal systems of the world’ could only be ensured by means of equitable geographical
With no guidance given to the Commission in its Statute on the procedure to be used for filling casual vacancies, the Commission initially adopted an ad hoc approach. In 1952 when the first such vacancies arose, the Commission members proposed and elected members themselves.25 The public display of the nomination and election process in the Commission was dispensed with at next occasion in 1954. Since then, with only one exception in 1995,26 the filling of vacancies has been undertaken by the Commission in private, with only the results announced publicly. In contrast to the provisions in the Statute on elections in the General Assembly,27 there is little information available on the process for submitting the nominations to fill casual vacancies.28 In general States make nominations, although Commission members may also propose candidates for election.29 Since 1960 the Secretariat has circulated the curriculum vitae of nominees as an addendum to a paper advising members of the vacancy. Some vacancies, in particular those of nationals of the permanent members of the UN Security Council, have not been contested and moreover
The filling of casual vacancies by the Commission itself is unique in the procedures for election to judicial bodies. In 1955 the General Assembly invited the Commission to consider whether the General Assembly should be involved in the filling of casual vacancies.31 In response the Commission justified adherence to its existing practice on the basis that the timing of General Assembly meetings would result in delay in the filling of a vacancy. The Sixth Committee decided not to press the matter in light of the position of the Commission.32 It was notable, however, that the views of the members of the Commission were
The Commission is an independent body and members of the Commission sit in their personal capacities, and not as representatives of their governments.35 The role is also a part-time one, with between 10 and 12 weeks of each year spent in Geneva, the seat of the Commission. Members of the Commission come from a variety of legal backgrounds, including government diplomatic and legal service, international legal service and academia. The prevalence of government lawyers on the Commission has been the subject of critical comment, including by members of the Commission.36 The concern is that this may compromise the independence of members of the Commission.37 The current membership of the Commission is fairly evenly split between academics and those members with either a present or past association with government legal service.38 Inevitably members bring to the Commission not only their expertise in international law, but their national and regional perspectives which have been shaped by their life experiences. It is the variety of those experiences that serve to enrich the discourse and debate that takes place in the Commission.39 This provides the context for the following sections on the
2.2 The Election of Women to the International Law Commission
It was not until 1966 that the first woman candidate was nominated for election to the Commission. Olga Nuñez de Saballos of Nicaragua was the first woman to graduate as a lawyer and notary public in Nicaragua and was the first female deputy in the National Assembly of Nicaragua.40 Yet, she received the lowest number of votes in the election for the Commission (six).41 Twenty-five years later in 1991, there were two women nominees: Mwangala Beatrice Kamuwanga (Zambia) from the African Group and Renata Szafarz (Poland) from the Eastern European Group, neither of whom were elected.42
Eventually, fifty-six years after the establishment of the International Law Commission, the first women were elected as members of the International Law Commission in 2001: Paula Escarameia of Portugal and Hanqin Xue of China. Following the 2006 elections they were joined by Marie Jacobsson of Sweden. The elections in 2011 saw four women nominees: Marie Jacobsson (Sweden), Concepción Escobar Hernández (Spain),43 Noor Farida Ariffin (Malaysia), and María del Luján Flores (Uruguay). Of these four candidates, two were elected to seats in the Western European and Other Group (weog) – Marie Jacobsson and Concepción Escobar Hernández. The tide of election losses turned in 2016 and all four women nominees for the eight weog seats (Marja Lehto, Patrícia Galvão Teles, Concepción Escobar Hernández and Nilüfer Oral) were elected. Although other regional groups had nominated women candidates in the past, the weog led the other regional groups in achieving gender parity for the first time in 2016. This was short lived. In the 2021 elections there were five women candidates for weog seats, three of whom were elected (Patrícia Galvão Teles, Nilüfer Oral, and the author). There were three women nominees each for three other regional groups, two of whom were elected (Phoebe Okowa of Kenya and Vilawan Mangklatanakul of Thailand).44 This brought the number of women Commission members elected by the General Assembly in the Commission’s 75-year history to ten.
The pattern of filling casual vacancies by the Commission in its lack of gender diversity mirrors General Assembly elections. It was not until 1985 that the first woman – Alison Burns Quentin-Baxter – was nominated by New Zealand to fill the vacancy arising from the death of her husband, Robert Quentin-Baxter. There were nine candidates for the three weog seats, and she was not successful. It took until 2011 for the second woman to be nominated to fill a casual vacancy caused by the death of Paula Escarameia.46 The seat was uncontested and Ms. Concepción Escobar Hernāndez was elected. Two years later in 2013 there were three candidates nominated to replace Mr. Stephen Vasciannie of Jamaica who had resigned from the Commission. The sole male candidate, who had previously been a member of the Commission, was elected.47 However, there was a break with the past in 2024 with the election of Ms. Alina Orosan of Romania to fill the casual vacancy caused by the election of Mr. Bogdan Aurescu to the International Court of Justice. There were three candidates nominated and the sole female candidate was elected.
2.3 The Challenge of the Election Process
It is apparent from this brief review that women face obstacles in being nominated and elected to the International Law Commission irrespective of
There are a range of factors which influence the results of an election to the Commission, extending from the nomination process, through the campaign and on to the election itself. There may be structural impediments which disadvantage women in reaching the upper echelons of the international legal profession as well as other potential ‘self-imposed’ barriers which combine to make it difficult for women to be nominated and elected to the Commission. What follows is partly based on interviews with women members of the Commission. This is not to say that men do not face these same difficulties. But the impact may fall unevenly on men and women and on different nationalities.
Each State has its own process for nominating nationals to international positions. States rarely run a selection process for nominations to the International Law Commission, although there are exceptions.50 Nominations to the Commission tend to be internally driven by the legal divisions of foreign ministries or by senior officials in those countries. This favours those potential candidates who are known and connected to decision-makers. Kalantry argues that a lack of these connections is an impediment as ‘women are typically less connected to these appointment and selection mechanisms than are their
Rolf Einar Fife has accurately described the process of campaigning for election to judicial bodies.52 When it comes to campaigning and elections to the International Law Commission, it is essential to meet the requirement of having ‘recognised competence in international law’. Expertise and experience are therefore prerequisites for election. Given the role of the Commission in the codification and progressive development of international law, academic credentials are seen as important, while at the same time experience in government is seen as bringing a practical perspective to the work of the Commission.
Expertise is particularly important when the Commission is sometimes seen as a stepping stone to high judicial office, in particular the International Court of Justice.53 Yet women are often hamstrung by what Tallgren describes as the ‘marginalisation of women in international law’.54 For example, in spite of Suzanne Bastid’s eminence in international law, she was never nominated to the International Law Commission or any other judgeship.55 It has also been difficult for women to gain admittance to the Permanent Court of Arbitration, the Institut de Droit International, or to the Hague Academy Curatorium, all of which are seen as preeminent international legal bodies.
Women in ‘assisting roles’ are also often marginalised.56 The example of New Zealander Alison Quentin-Baxter is illustrative of this phenomenon. She was the wife of Robert Quentin-Baxter, a member of the International Law
All women members of the Commission that were interviewed were keen to be elected to the Commission, but the influence of serendipity sometimes also played a role. One interviewee referred to ‘happenstance’ another to being
Women also appear to have more self-doubt and hesitancy in putting themselves forward for office. There are broader socio-economic influences on such willingness. As I have noted, membership of the Commission is a part-time position. Members therefore have other professional responsibilities which may conflict with the sessions of the Commission. They must therefore negotiate with their employer for time off or if self-employed must forego income-earning opportunities. Women academics may have a harder time negotiating with their academic institutions so they can be released from their teaching responsibilities for the sessions of the Commission. Such professional responsibilities have been cited as one reason for ‘absenteeism’ of members of the Commission.66
Members of the Commission also have private reasons for not wishing to put themselves forward for the Commission. While both women and men have caring responsibilities, these often fall more heavily on women.67 Two women members of the Commission had teenage children when elected but the other woman members had either no children or children who were adults by the time they were nominated. The challenges of being away in Geneva at
A description of the history of the election of women to the International Law Commission does not paint a pretty picture. There are structural challenges to the prospects of women for election due not only to institutional and decision-making structures that usually favour men, but also to self-imposed impediments that see women sacrifice their advancement for others. The women that have been elected to the Commission benefitted from having supportive governments, colleagues, friends and families that have helped them to break through the glass ceiling.
3 Contribution and Influence
Election to the Commission is just one hurdle to be faced by women members of the Commission. Once elected to the Commission women are actively engaged in its work and in the codification and progressive development of international law. This section outlines the engagement of women members of the Commission and the influence that women have had on the Commission and its work. First, a word of caution. The Commission is a collegial body whose outputs are those of the Commission as a whole, not of its individual members. It is therefore difficult, and sometimes regarded as inappropriate, to single out particular members for their contribution to the work of the Commission. Without abusing that sentiment, I have sought to look beyond the veil of anonymity to glean the extent of the influence of women on the Commission.
3.1 Contribution of Women to the Commission
The contribution of women members of the Commission is demonstrated in part by their roles as Special Rapporteurs, Co-Chairs and as members of the Bureau of the Commission. Special Rapporteurs are responsible for preparing reports and outcomes and generally guiding a topic through the Commission. It has been said that ‘on any given topic, the Special Rapporteur is more equal than other members’.69 The Commission also has official representatives on
Three women have been Special Rapporteurs: Marie Jacobsson and Marja Lehto for the topic ‘Protection of the Environment in Armed Conflict’ and Concepción Escobar Hernández for the topic ‘Immunity of State Officials from Foreign Criminal Jurisdiction’. This equates to three women out of a total of 65 Special Rapporteurs. Since 2001 when women were first elected to the Commission, there have been 26 Special Rapporteurs, with the proportion of women constituting a respectable 11.5 percent.70 If one includes the two female Co-Chairs of the Study Group on Sea-Level Rise, the proportion increases to 17.8 percent – well in excess of the 9.7 percent of the representation of women in the Commission over the same period.
Representation on the Bureau of the Commission is another indicator of contribution to the Commission. Hanqin Xue of China was the first female Chair of the Commission for part of the 2020 session.71 In another ‘first’, two women, Patrícia Galvão-Teles and Nilüfer Oral were Co-Chairs of the Commission in 2023: sharing the position over the first and second halves of the session. In each quinquennium since 2002, women have held positions on the Bureau. Over the four quinquennium from 2002 to 2023, women have served 11 times on the Bureau. In 2024, there are three female representatives on the Bureau representing Africa, Asia and the weog. To date, therefore, nine of the eleven women on the Commission have been members of the Bureau,72 and two have represented their regional groups on the Bureau three times.73
3.2 Influence of Women on the Commission
In this section I explore the influence of women on the Commission from a three-fold perspective: their influence on the substantive outputs of the Commission, their contribution to gender issues, and their influence on the conduct of the Commission. This exploration also serves to illuminate some of the challenges women face on the Commission. It is based on a review of the documents and Summary Records of the International Law Commission as well as interviews of women members. In attempting any such examination there is always the danger of subjectivity, over-simplification and over-generalisation as well as bias from one’s own context and frame of reference. I have, however, tried to be as objective as possible. I also note that contributions may have as much to do with personalities, as well as experience and expertise, as anything else. As mentioned, the Commission is also a collegial body and its products are those of the Commission as a whole. Identifying individual contributions is therefore destined to be a fraught exercise. It is even more difficult to attempt to identify the contributions of women as a group because in a sense all members of the Commission are ‘invisible’. Nevertheless, I have therefore tried to provide a snapshot of how I see women’s influence on the Commission.
It goes without saying that the women Special Rapporteurs and Co-Chairs of the Study Group on Sea-Level Rise have substantially influenced their topics. However, that influence arises from their positions as Special Rapporteurs and Co-Chairs, not from their sex. I have therefore sought to identify other instances of specific contributions.
Women bring to bear their experience and perspectives, and what has been termed a ‘gendered sensibility to the process of decision-making’.74 Female judges have, for example, contributed to international criminal jurisprudence on gender-based crimes and played an instrumental role in ensuring there is sensitivity towards victims of sexual crimes.75 Women members of the
In early discussion on the topic of ‘Protection of Persons in the Event of Diasters’, Marie Jacobsson pointed out the need to take a gender perspective to disaster assistance and that gender aspects were increasingly being mainstreamed in humanitarian assistance.79 The following year the importance of the protection of women, children and the elderly arising from disasters was incorporated into the commentary.80 Yet, three years later, Marie Jacobsson expressed regret that the issue of gender seemed to have been forgotten, and that a gender-sensitive approach, like other elements such as the need to take cultural diversity into account, was essential to ensure an adequate response to a disaster.81 Later in that session it was suggested that a proposal to include a reference to applying a gender-based perspective would expose the compromise text to proposals ‘to include other sensibilities’.82 While it was intended that the commentary to the draft articles would emphasise the importance of adopting a gender-based approach,83 this was diluted. For example, the draft text of the commentary which referred to women and girls being ‘more likely’ to suffer the effects of disasters was amended to women and girls ‘often’ suffer the effects of disasters.84
The need for the involvement of women in decision-making on matters that concern them was raised in the context of the Draft Principles on the Protection of the Environment in the Time of Armed Conflict. Principle 22 provides that the parties to an armed conflict should, as part of the peace process, address matters relating to the restoration and protection of the environment damaged as a result of the conflict. The commentary included reference to ‘the right of women to full and equal participation in decision-making, planning and implementation regarding the restoration and protection of natural resources and the environment’.87 The need for full and equal participation of women in peace processes following armed conflict had been adopted in the UN Security Council’s resolutions,88 and was present in, but not a focal point of, the comparable work of the Commission.
The Commission expressed satisfaction that the list of members elected for the current quinquennium included women. Noting the number of women of recognized competence in international law, the Commission
anticipated that this fact was likely to be reflected in the nomination and election process for the next and subsequent quinquennia.95
This statement was itself a compromise. An earlier draft led to much discussion which highlighted the sensitivities over gender issues in the Commission.96
Women members of the Commission have been at the forefront of voicing concern over the need for greater gender representation in the Commission. When Concepción Escobar Hernández was welcomed as the first woman Special Rapporteur, her response was to express the hope that the composition of the Commission in the future ‘would more closely reflect the proportion of women in the community of lawyers of international law which was significantly higher’.97
It is also illustrative to consider how women were perceived by their peers on the Commission. There is little public expression of this except for two instances where male members of the Commission expressed their views on women members of the Commission: the death of Paula Escarameia, and the decision of Marie Jacobsson not to stand for re-election. Escarameia was complimented as an advocate for ensuring the protection of the most vulnerable and for human rights, gender equality and humanitarian causes, who had a profound impact on the Commission.98 Marie Jacobsson was applauded for her ‘unfailing commitment to the respect and protection of human rights and dignity, the development of humanitarian law and environmental protection’.99
Interviews with women Commission members suggest a perception that women and their views may be given less weight than those of their male colleagues – and that subconsciously men are taken more seriously. This may result from the lack of a critical mass of women in the Commission which fosters a perception that women are the ‘exception’. There is also a sense that women have contributed to the Commission in another way, through their approach, which tends to be more collegial, less confrontational, and focussed on solutions and finding compromise. This alludes to a suggestion by James Crawford that women (judges) seem more flexible and open to differing arguments than their average male counterpart.100 However like Crawford, I recognise the
Nevertheless, women members of the Commission have had an influence in the Commission, not only because of their experience and expertise, but also because they have had a sensitivity towards the protection of vulnerable groups. They have taken the lead in promoting the value of gender diversity in the Commission. However, they have not been alone in this endeavour.
4 The Impact of Gender Diversity on Authority and Legitimacy
This section examines the impact of the lack of gender diversity on the authority and legitimacy of the International Law Commission and its work.101 The formal authority of the Commission has its genesis in Art. 13 of the Charter of the UN and its role in the codification and development of international law. The extent to which the Commission’s work is recognised as authoritative and as contributing to the development of rules of international law depends on its perceived legitimacy.102 There are different notions of legitimacy depending on the context in which it is explored. In this discussion, I examine the lack of gender diversity in the International Law Commission from the perspectives of legal, normative and social legitimacy.
More specifically, the lack of women in international legal institutions implicates Art. 8 of the 1979 Convention on the Elimination of Discrimination Against Women (cedaw) requiring States parties to ensure that women, on equal terms as men, have the opportunity to participate in the work of international organisations.105 Little attention has been paid to this to date, but the UN cedaw Committee is preparing a draft of a future General Recommendation 40 on women’s equal and inclusive participation in decision-making systems, which calls for gender parity in appointments to international organisations.106 There is a separate argument espoused by Nienke Grossman that the lack of women on the international bench calls into question compliance with Art. 8 of the UN Charter which requires that the UN ‘shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs’.107 Despite its open-ended
This shifts the focus of attention away from legal arguments to policy considerations and the question of the normative and social legitimacy of the
There are various sources of legitimacy and authority that are relevant to the Commission. Here I wish to highlight factors which seem to pull in opposite directions. On the one hand, legitimacy stems from the Commission’s professionalism and expertise in international law.117 The Commission has professional authority due to the content of its outputs,118 and the extent to which its work is referred to by the International Court of Justice and arbitral tribunals.119 In this regard, what matters is expertise and experience, not one’s gender.120 As a former member of the Commission has said, ‘[t]hey had been elected not for their gender but for their competence’.121
On the other hand, there are institutional and procedural factors,122 which may also be said to constitute democratic values,123 which imbue a law-making body with authority, including representativeness, participation and transparency. Just as the requirement for geographical representation on the Commission serves to reinforce the authority of the Commission, gender representation also strengthens legitimacy by reflecting the population subject to the authority.124 Greater diversity ensures that the institution is more
Women are well-represented among the graduates of law schools, in academic institutions and in government legal service across the globe. However, women are lacking in the upper echelons of the international legal profession. With a few exceptions, women rarely appear before the International Court of Justice.126 Having a healthy proportion of women in domestic legal and political positions could generate a trickle-down effect on diversity in international law.127
It follows that at its most basic level both normative and social legitimacy will be enhanced through bringing diverse perspectives to bear on the work of the Commission.128 ‘Severe underrepresentation’ undermines normative legitimacy while appointments of women improve legitimacy.129 Even though there is value in diversity itself,130 diversity of perspectives has other benefits. From an internal perspective it increases the quality of discussions with competing views enriching the outcomes. From an external perspective it increases representation and trust.131
This raises the issue of the balance between expertise and representativeness. There is a lingering concern among some that increasing gender representation will come at the cost of the professional legitimacy of the institution. I regard this concern as over-stated. Indeed, as Nienke Grossman concludes,
Finally, it has been suggested that the Commission is not responsible for the lack of women representation on the Commission.133 However, the Commission cannot abdicate its responsibility to encourage and support greater representativeness and gender diversity in the Commission. Both the Commission and States have a role to play in ensuring that the number of female and male members of the Commission are sufficient to enhance the legitimacy of the institution without compromising the quality of its outputs.
5 Approaches to Addressing the Gender Imbalance
Having addressed the need for greater gender diversity, this section looks to the future. Various options have been advocated to address gender diversity in legal institutions, ranging from the more ambitious establishment of quotas or thresholds, to establishing general legal requirements, and to making aspirational statements that encourage States to nominate and elect women members. Other strategies have concentrated on addressing the ‘pipeline’ issues that prevent women from being nominated in the first place. Among the women members of the Commission, there is a sense of realism that the change needs to be a transformative one that addresses the key obstacles to ensuring gender diversity.
At the ambitious end of the spectrum, one option is to draw inspiration from some other judicial bodies that have mandated gender representation, or which have quotas or thresholds for the representation of women. States proposing judicial candidates for the European Court of Human Rights (ECtHR) must include at least one woman (and at least one man) on their list of candidates, unless exceptional circumstances apply. The Council of Europe has set 40 percent as the threshold below which a sex is considered to be underrepresented.134 In the selection of judges for the International Criminal Court,
There appears to be little support for amending the ilc Statute to introduce quotas.137 Quotas or thresholds can be a double-edged sword. While bringing about gender diversity, they may encourage a perception that ‘enough women have been appointed’.138 This may have been behind the 2021 election result where three of the five women candidates for election to the Commission for the weog seats were elected. Such perceptions are usually not overt but there is a need for some caution so as to avoid any impression that nominations and elections are not merit-based. Indeed, as argued by Cecily Rose, meritorious selection would open the way for both the best male and female candidates.139
Without imposing a quota, Art. 8 of the ilc Statute could be amended so that gender balance in the Commission is assured. In 2002, Paula Escarameia proposed an amendment to Art. 8 of the ilc Statute to urge electors to bear in mind a number of criteria for nomination to the Commission, including gender balance.140 Its demise may have been symptomatic of the prevailing views in the Commission at the time, but it is unlikely to be any more successful today.
More generally there is a view that States should be encouraged to nominate and elect women to be members of the Commission.145 However, it is not simply a matter of States nominating and electing more women. To be elected women need the requisite exposure to decision-makers and the right balance of skills and experience to be an electable candidate. As noted by Rolf Einar Fife, a member of the Commission, the election process commences well before nomination and involves the process of gaining qualifying skills and experience and access to international exposure.146 There are structural impediments which prevent women from being elected because they may not have followed a traditional career path nor had the right kind of opportunities open to them. The identification of the pathways by which persons are nominated and elected to the Commission and improving the access of women to these pathways will help to remove these structural impediments.147
There are mechanisms which can be used to encourage greater gender balance in the Commission. Political will is needed to reform the current processes. At its most fundamental, a transformative approach is required to address the structural impediments to women who aspire be members of the Commission. The challenge is to examine and expose the hidden social assumptions that prevent women from participating fully in the international legal sphere, including in the Commission. There is, however, no ‘quick fix’. The end goal requires patience, a steady hand at the helm, and the necessary sensitivity to avoid backlash which will make the objective more difficult to achieve in the long run.
6 Conclusion
At the 70th Anniversary of the International Law Commission, hopes were expressed that gender parity in the Commission might be achieved at the 80th anniversary of the Commission.150 At the mid-point period, gender representation on the Commission is still sadly lacking. Inroads have been slowly made, but there is still a long way to go. Adequate gender representation is a goal that can be met by increasing the number of nominations and election of women
Most women members of the Commission entered the Commission with a sense that they were elected due to their expertise, experience and ‘recognised competence in international law’, and not because they were women. But, when women find themselves in a minority, as in the Commission, the presence of gender issues becomes heightened. Women on the Commission have therefore supported the cause of gender diversity, not only in the Commission but in other legal and judicial institutions. In short, gender issues have become more pervasive for women members of the Commission than they would have been if they had not been a member of the Commission. In a sense, being treated as a minority makes one more aware that one is a minority.
It is time for the current situation to change. Women have knocked at the door of the Commission seeking entry. A few have succeeded in entering, but the door is still closed to many other highly qualified women. The Commission can help to articulate the need for gender balance and to encourage States to open the Commission to more women, including through taking substantive action to improve gender diversity. When all is said and done, both the Commission and States should actively push at the door to open it wider.
‘United Nations Entity for Gender Equality and the Empowerment of Women (UN-Women): Strategic Plan 2022–2025’ (12 July 2021) UN Doc. unw/2021/6.
‘System-Wide Strategy on Gender Parity’ (6 October 2017) The United Nations, available at <
‘Membership: Present and Former Members of the International Law Commission’ The International Law Commission, available at <
See M. Pinto, ‘The Authority and the Membership of the Commission in the Future’ in United Nations (ed.), Seventy Years of the International Law Commission: Drawing a Balance for the Future (Brill Nijhoff 2021) 366–374; P. Pillai, ‘Women in International Law: A Vanishing Act’ (3 December 2018) Opinio Juris, available at <
UN ola, ‘Seven Women in Seventy Years: A Roundtable Discussion on Achieving Gender Parity at the International Law Commission, Opening Remarks by Mr. Miguel de Serpa Soares, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel’ (24 May 2018), available at <
See for example N. Grossman, ‘Shattering the Glass Ceiling in International Adjudication’ (2016) 56 Virginia Journal of International Law 339–406; N. Grossman, ‘Achieving Sex-Representative International Court Benches’ (2016) 110 American Journal of International Law 82–95; S.D. Franck et al., ‘The Diversity Challenge: Exploring the Invisible College of International Arbitration’ (2015) 53 Columbia Journal of Transnational Law 429–506; R. Mackenzie et al., Selecting International Judges: Principle, Process, and Politics (Oxford University Press 2010).
See in particular I. Tallgren (ed.), Portraits of Women in International Law: New Names and Forgotten Faces? (Oxford Academic Books 2023); A. Kuenyehia and J.J. Dawuni (eds), African Women Judges on International Courts: Untold Stories (Routledge 2017); N. Grossman, ‘Julia Sebutinde “An Unbreakable Cloth”’ in A. Kuenyehia and J.J. Dawuni (eds), African Women Judges on International Courts: Untold Stories (Routledge 2017) 41–62; F. Baetens (ed.), Identity and Diversity on the International Bench (Oxford University Press 2020) and various chapters therein, including L. Lijnzaad, ‘The Smurfette Principle: Reflections about Gender and the Nomination of Women to the International Bench’ 29–49; and H. Keller, C. Heri, and M. Christ, ‘Fifty Years of Women at the European Court of Human Rights: Successes and Failures of the Council of Europe’s Gender Agenda’ 179–205.
K. Knop, ‘Foreword: Looking at Portraits’ in I. Tallgren (ed.), Portraits of Women in International Law: New Names and Forgotten Faces? (Oxford Academic Books 2023) vii–xviii, at vii; H. Charlesworth, ‘Epilogue: Exit Through the Gift Shop’ in I. Tallgren (ed.), Portraits of Women in International Law: New Names and Forgotten Faces? (Oxford Academic Books 2023) 513–516, at 514.
Lijnzaad, ‘The Smurfette Principle’, at 30–31. This refers to a series of Belgian comic books which were turned into an animated children’s television series about small blue people living in a mushroom village in the middle of a large forest. There are 100 Smurfs in the village, and only one of them is a girl: Smurfette.
See for example, J. Powderly and J. Chylinski, ‘The Women Judges: Leading the Line in the Development of International Law’ in W.A. Schabas and S. Murphy (eds), Research Handbook on International Courts and Tribunals (Edward Elgar 2017) 143–180.
Grossman, ‘Achieving Sex-Representative International Court Benches’, at 85–86.
For literature on gender and international law, see in particular H. Charlesworth, C. Chinkin, and S. Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613–645; H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester University Press 2000); D. Otto, ‘Feminist Approaches to International Law’ in A. Orford and F. Hoffmann (eds), Oxford Handbook of the Theory of International Law (Oxford University Press 2016) 488–504; H. Charlesworth, ‘Talking to Ourselves? Feminist Scholarship in International Law’ in S. Kouvo and Z. Pearson (eds), Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Hart 2011) 17–32.
C. Elkayam-Levy, ‘A Path to Transformation: Asking “The Woman Question” in International Law’ (2021) 42 Michigan Journal of International Law 429–477.
Elkayam-Levy, ‘A Path to Transformation’, at 476.
While I have focussed here on women, I acknowledge the importance of the diversity of sexuality, and of transgender, non-binary, and non-determinate genders.
Art. 2(1) Statute of the International Law Commission, adopted by the General Assembly in Resolution 174 (ii) of 21 November 1947, as amended by Resolutions 485 (v) of 12 December 1950, 984 (x) of 3 December 1955, 985 (x) of 3 December 1955 and 36/39 of 18 November 1981 (‘ilc Statute’). Art. 2 also provides that no two members of the Commission shall be nationals of the same State and in the case of dual nationality, candidates are deemed to be a national of the State in which they ordinarily exercise civil and political rights.
Art. 9 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) xv uncio 355.
See unga Sixth Committee, ‘Agenda Item 59: Question of Amending Article 2 of the Statute of the International Law Commission to Increase the Membership of the Commission’ (27 November 1956) UN Doc. a/c.6/sr.484, statement of Mr. Glaser (Romania), at para. 36.
unga, ‘Question of Amending Article 2 of the Statute of the International Law Commission to Increase the Membership of the Commission’ (5 December 1956) UN Doc. a/3427, at para. 13. In addition to the three seats allocated to nationals from Asia and Africa, one was allocated to a national from Western Europe, one to a national from Eastern Europe and one alternating between nationals of Latin America and a national of the Commonwealth countries not otherwise included in a regional grouping.
unga, ‘Enlargement of the International Law Commission’ (26 October 1961) UN Doc. a/4939, at paras 8–12; unga Res. 1647 (xvi), ‘Enlargement of the International Law Commission: Amendments to Articles 2 and 9 of the Statute of the Commission’ (6 November 1961).
unga, ‘Enlargement of the International Law Commission’ (26 October 1961) UN Doc. a/4939, at para. 11. Concern over the efficacy of the ‘gentlemen’s agreement’ was at the forefront of the Commission’s deliberations in 1977 over filling the casual vacancy caused by the death of Mr. Edvard Hambro of Norway. Mr. Abdul Hakim Tabibi of Afghanistan was elected by the Commission to fill the vacancy. See UN ilc, Yearbook of the International Law Commission 1977, vol. i, UN Doc. a/cn.4/ser.a/1977, at 40.
unga Res. 36/39, ‘Enlargement of the International Law Commission: Amendments to Articles 2 and 9 of the Statute of the Commission’ (18 November 1981). Under this amendment, Africa is entitled to eight seats, Asia and the Pacific are entitled to seven seats, Eastern Europe has three seats, Latin American and the Caribbean States are allocated six seats, and the weog has eight seats. Two additional seats would rotate between Africa and Eastern Europe and between Asia and the Pacific and Latin America and the Caribbean.
F. Baetens, ‘Identity and Diversity on the International Bench: Implications for the Legitimacy of International Adjudication’ in F. Baetens (ed.), Identity and Diversity on the International Bench (Oxford University Press 2020) 1–26, at 13–14.
Due to the exceptional situation relating to the Covid-19 pandemic, the term of the members for 2016–2021 was extended by one year. However, the election was held as scheduled in 2021, with the term of members commencing in 2023.
UN ilc, Yearbook of the International Law Commission 1952, vol. i, UN Doc. a/cn.4/sr.136, at 3.
UN ilc, Yearbook of the International Law Commission 1995, vol. i, UN Doc. a/cn.4/ser.a/1995, at 2.
Arts 3–7 ilc Statute.
For an explanation of the filling of casual vacancies, see ‘Membership’ The International Law Commission, available at <
According to the website of the International Law Commission this occurred in 1952, 1959 and 1985: ‘Membership’ The International Law Commission, available at <
In 1952 Rau (India) was replaced by Pal (India), Brierly (UK) was replaced by Lauterpacht (UK), and Korestsky (ussr) was replaced by Kozhevnikov (ussr); in 1954 Parker (US) was replaced by Edmonds (US); in 1955 Lauterpacht (UK) was replaced by Fitzmaurice (UK) and Cordova (Mexico) was replaced by Padilla Nervo (Mexico); in 1961 Schelle (France) was replaced by Gros (France), Yokota (Japan) was replaced by Tsuruoka (Japan), and Fitzmaurice (UK) was replaced by Waldock (UK); in 1964 Gross (France) was replaced by Reuter (France); in 1970 Amado (Brazil) was replaced by Sette Camara (Brazil); in 1974 Bartos (Yugoslavia) was replaced by Sajovic (Yugoslavia); in 1979 El-Erian (Egypt) was replaced by Boutros Ghali (Egypt); in 1981 Schwebel (US) was replaced by Aldrich (US); in 1982 Bedjaoui (Algeria) was replaced by Mahiou (Algeria), in 1985 Zhengyu Ni (China) was replaced by Jiahua Huang (China) and Stavropoulos (Greece) was replaced by Roukounas (Greece); in 1990 Reuter (France) was replaced by Pellet (France); in 1994 Jiuyong Shi (China) was replaced by Qizhi He (China); in 1995 Vereshchetin (Russia) was replaced by Lukashuk (Russia), in 1999 Bravo (Italy) was replaced by Gaja (Italy); in 2003 Rosenstock (US) was replaced by Matheson (US) and Kuzentsov (Russia) was replaced by Kolodkin (Russia); in 2008 Brownlie (UK) was replaced by Wood (UK); in 2009 Yamada (Japan) was replaced by Murase (Japan) and Hanqin Xue (China) was replaced by Huikang Huang (China); in 2015 Gevorgian (Russia) was replaced by Kolodkin (Russia); in 2018 Kolodkin (Russia) was replaced by Zagaynov (Russia); and in 2024 Huikang Huang was replaced by Xinmin Ma. Of these, the elections in 1952, 1954, 1955, 1961, 1974, 1981, 1990, 1995, 2008, 2009, 2010, 2015, 2018 and 2024 were uncontested. The by-elections in 1958, 2006, 2011 and 2021 were also not contested. See UN ilc, Yearbook of the International Law Commission, vol. i various years.
unga Res. 986 (x), ‘Question of Amending Article 11 of the Statute of the International Law Commission Relating to the Filling of Casual Vacancies in the Membership of the Commission’ (3 December 1955). See also unga, ‘Report of the International Law Commission on the Work of Its Seventh Session: Report of the Sixth Committee’ (17 November 1955) UN Doc. a/3028, at paras 21–26.
unga, ‘Report of the International Law Commission on the Work of Its Eighth Session: (a) Final Report on the Regime of the High Seas, the Regime of the Territorial Sea and Related Problems, the Question of Amending Article 11 of the Statute of the International Law Commission Relating to the Filling of Casual Vacancies in the Membership of the Commission; (c) Other Matters’ (6 February 1957) UN Doc. a/3520, at paras 94–100.
See UN ilc, Yearbook of the International Law Commission 1956, vol. i, UN Doc. a/cn.4/ser.a/1956, at 3, paras 4–15; 16–17, paras 42–50.
The issue, and in particular consistency with Rule 140 of the Rules of Procedure of the General Assembly, was raised by Commission member Paula Escarameia in 2008. See UN ilc, Yearbook of the International Law Commission 2008, vol. i, UN Doc. a/cn.4/ser.a/2008, at 299, para. 4.
This followed the recommendations of the 1947 Committee on the Progressive Development of International Law and its Codification: see Y. Liang, ‘The General Assembly and the Progressive Development and Codification of International Law’ (1948) 42(1) American Journal of International Law 66–97, at 80. See also UN ilc, ‘Report of the Working Group on Review of the Multilateral Treaty-Making Process’ in Yearbook of the International Law Commission 1979, vol. ii (Part One) UN Doc. a/cn.4/ser.a/1979/Add.l (Part 1) 183–212, at 186, para. 4.
D. Tladi, ‘The International Law Commission, the Institut and States’ (2023) 117 ajil Unbound 231–235, at 232–233; L. Lee, ‘The International Law Commission Re-Examined’ (1965) 59 American Journal of International Law 545–569, at 549.
Pinto, ‘The Authority and the Membership of the Commission in the Future’, at 369. See also Lee, ‘The International Law Commission Re-Examined’, at 550 who notes the acceptance of this as ‘a fact of life’.
It is difficult to be definitive as there are members of the Commission with a past association with government who are primarily academics.
Dire Tladi, former member of the International Law Commission and judge of the International Court of Justice notes that ‘our legal positions are also driven by normative and policy considerations, which are significantly shaped by our backgrounds’ which include our culture, education, and experience: D. Tladi, ‘Representation, Inequality, Marginalization, and International Law-Making: The Case of the International Court of Justice and the International Law Commission’ (2022) 7 uc Irvine Journal of International, Transnational, and Comparative Law 60–90, at 83.
‘Olga Núñez Abaunza’ Wikipedia, available at <
unga, ‘Agenda Item 19: Election of the Members of the International Law Commission’ (10 November 1966) UN Doc. a/pv.1460.
unga, ‘Election of the Members of the International Law Commission’ (14 November 1991) UN Doc. a/46/pv.47.
Concepción Escobar Hernández was an incumbent member of the Commission at that time, having filled a casual vacancy in 2011.
The female candidate for the Eastern European seat was not elected.
Gradoni, ‘Still Losing’. The only exception was the General Assembly elections in 2016, when all female candidates were elected.
For a ‘portrait’ of Paula Escarameia, see A.C. Fouto et al., ‘Paula Escarameia: Envisioning the Humane Face of International Law in the Twenty-First Century’ in I. Tallgren (ed.), Portraits of Women in International Law: New Names and Forgotten Faces? (Oxford Academic Books 2023) 263–271.
There were three candidates: Kathy-Ann Brown (Jamaica), Marcelo Vázquez-Bermúdez (Ecuador) and María del Luján Flores (Uruguay). Marcelo Vázquez-Bermúdez, who had previously been a member of the Commission from 2007–2011, was elected to the Commission. See UN ilc, Yearbook of the International Law Commission 2013, vol. i, UN Doc. a/cn.4/ser.a/2013, at 2; UN ilc, ‘Filling of Casual Vacancies in the Commission’ (10 August 2012) UN Doc. a/cn.4/655/Add.1; UN ilc, ‘Filling of Casual Vacancies in the Commission’ (17 September 2012) UN Doc. a/cn.4/655 Add.2.
UN ilc, Yearbook of the International Law Commission 1977, at 4, para. 13.
UN ilc, Yearbook of the International Law Commission 2008, at 299, paras 3–4.
This is in contrast, for example, to elections to the European Court of Human Rights where many States follow a selection process. See S.H. Vauchez, ‘More Women – But Which Women? The Rule and the Politics of Gender Balance at the European Court of Human Rights’ (2015) 26 European Journal of International Law 195–221.
S. Kalantry, ‘Women in Robes’ (Summer 2012) Americas Quarterly 83–88.
R.E. Fife, ‘Generating Incentives to Appoint Women to the International Bench: Experiences with State Practice’ in F. Baetens (ed.), Identity and Diversity on the International Bench (Oxford University Press 2020) 50–61, at 54–55.
Tladi, ‘Representation, Inequality, Marginalization, and International Law-Making’, at 76; Fife, ‘Generating Incentives to Appoint Women to the International Bench’, at 58, fn. 43.
I. Tallgren, ‘Re-Curating the Portrait Gallery of International Law: The Objectives, Process, and Floorplan of the Exhibition’ in I. Tallgren (ed.), Portraits of Women in International Law: New Names and Forgotten Faces? (Oxford Academic Books 2023) 1–44, at 34–35.
I. Tallgren and A. Buchet, ‘Suzanne Bastid: The First of the “Firsts”’ in I. Tallgren (ed.), Portraits of Women in International Law: New Names and Forgotten Faces? (Oxford Academic Books 2023) 221–233, at 233.
Tallgren, ‘Re-Curating the Portrait Gallery of International Law’, at 34–35.
V. Hallum, ‘The “Lawyer-Diplomat”: The Legal Division of the Ministry of Foreign Affairs and Trade’ in A. Hertogen and A. Hood (eds), International Law in Aotearoa New Zealand (Thomson Reuters 2021) 579–629, at 584.
The notion of the ‘firsts’ is explored in Tallgren (ed.), Portraits of Women in International Law, see Tallgren, ‘Re-Curating the Portrait Gallery of International Law’, at 38–39.
V. Hallum, ‘My Tribute to Dame Alison Quentin-Baxter’ (6 October 2023) University of Auckland New Zealand, available at <
‘A Legacy Enshrined in Constitutional Law’ Celebrating 125 Years: Victoria University of Wellington, available at <
Personal communication.
Hallum, ‘My Tribute to Dame Alison Quentin-Baxter’.
‘A Legacy Enshrined in Constitutional Law’.
Baetens, ‘Identity and Diversity on the International Bench: Implications for the Legitimacy of International Adjudication’, at 9.
Kalantry, ‘Women in Robes’, at 85.
T. Franck and M. ElBaradei, ‘The Codification and Progressive Development of International Law: A unitar Study of the Role and Use of the International Law Commission’ (1982) 76 American Journal of International Law 630–639, at 634; Lee, ‘The International Law Commission Re-Examined’, at 546; B. Graefrath, ‘The International Law Commission Tomorrow: Improving Its Organization and Methods of Work’ (1991) 85(4) American Journal of International Law 595–612, at 608, who raises the issue of absenteeism. I note, however, that the extent of absenteeism has reduced considerably in recent Commission sessions.
In stating this I do not seek to reinforce the view that only women having caring responsibilities but project the reality that these burdens often fall more heavily on women, including because that is a woman’s choice.
See H. Charlesworth, G. Heathcote and E. Jones, ‘Feminist Scholarship on International Law in the 1990s and Today: An Inter-Generational Conversation’ (2019) 27 Feminist Legal Studies 79–93, at 90–91.
Tladi, ‘Representation, Inequality, Marginalization, and International Law-Making’, at 81: ‘Yet there is no question that on any given topic, the Special Rapporteur is more equal than other members’. See also Pinto, ‘The Authority and Membership of the Commission’, at 370–371.
See ‘Special Rapporteurs of the International Law Commission’ The International Law Commission, available at <
Ms. Xue was elected Chair at the beginning of the 2010 session on 3 May 2010, and resigned following her election to the International Court of Justice on 29 June 2010: UN ilc, Yearbook of the International Law Commission 2010, vol. ii (Part Two) UN Doc. a/cn.4/ser.a/2010/Add.1 (Part 2), at 11, para. 4.
The only exceptions were Ms. Marja Lehto, who was Special Rapporteur for the topic ‘Protection of the Environment in Armed Conflict’, who was therefore a member of the Extended Bureau, and Ms. Alina Orosan who was elected to the Commission in May 2024 after the 2024 Bureau had been elected.
Ms. Xue was First Vice-Chair in 2004, Rapporteur in 2006 and Chair in 2010. Ms. Galvão-Teles was Rapporteur in 2018, Chair of the Drafting Committee in 2021 and Chair of the Commission for the second half of the session in 2023.
R. Hunter, ‘More than Just a Different Face? Judicial Diversity and Decision-Making’ (2015) 68 Current Legal Problems 119–141, at 124.
N. Grossman, ‘Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?’ (2012) 12 Chicago Journal of International Law 647–684, at 658. N. Pillay, ‘Foreword’ in F. Baetens (ed.), Identity and Diversity on the International Bench (Oxford University Press 2020) vii–viii.
UN ilc, Yearbook of the International Law Commission 2002, vol. i, UN Doc. a/cn.4/ser.a/2002, at 137, para. 76.
Ibid., at 137, para. 85.
UN ilc, Yearbook of the International Law Commission 2006, vol. i, UN Doc. a/cn.4/ser.a/2006, at 91, para. 24. See also UN ilc, Yearbook of the International Law Commission 2006, vol. ii (Part 2) UN Doc. a/cn.4/ser.a/2006/Add.1, at 29–30, commentaries to Draft Article 4, paras 3 and 6–7.
UN ilc, Yearbook of the International Law Commission 2012, vol. i, UN Doc. a/cn.4/ser.a/2012, at 89, para. 53.
UN ilc, Yearbook of the International Law Commission 2013, at 232, paras 59–60.
UN ilc, Yearbook of the International Law Commission 2016, vol. i, UN Doc. a/cn.4/ser.a/2016, at 28–29, para. 90.
Ibid., at 168, para. 34.
Ibid., at 168, para. 34.
Ibid., at 367, para. 49.
International Committee of the Red Cross, ‘Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’ (2017) 30ic/07/R4 annex, at Article 4, para. 3(a).
UN ilc, ‘Draft Articles on the Protection of Persons in the Event of Disasters’ in Yearbook of the International Law Commission 2016, vol. ii (Part Two) UN Doc. a/cn.4/ser.a/2016/Add.1 (Part 2), at commentary to Article 6, para. 9.
UN ilc, ‘Draft Principles on the Protection of the Environment in the Event of Armed Conflict’ in ‘Report of the International Law Commission: Seventy-Third Session’ (18 April–3 June and 4 July–5 August 2022) goar 77th Session Supp. 10 (a/77/10), at commentary to Principle 22, para. 7.
In particular, unsc Res. 1325, ‘Women and Peace and Security’ (31 October 2000).
UN ilc, ‘Subsidiary Means for the Determination of Rules of International Law’ in ‘Report of the International Law Commission: Seventy-Fourth Session’ (24 April–2 June and 3 July–4 August 2023) goar 78th Session Supp. 10 (a/78/10), at 63, fn. 215 (Draft Conclusion 5).
Ibid., at 63, fn. 215 (Draft Conclusion 5).
UN ilc, ‘Subsidiary Means for the Determination of Rules of International Law, Report of the Drafting Committee’ (14 August 2023) UN Doc. a/cn.4/sr.3642, at 6.
UN ilc, Yearbook of the International Law Commission 2001, vol. i, UN Doc. a/cn.4/ser.a/2001, at 193, para. 63; UN ilc, Yearbook of the International Law Commission 2001, vol. ii (Part Two) UN Doc. a/cn.4/ser.a/2001/Add.1 (Part 2), at 206, para. 258.
UN ilc, Yearbook of the International Law Commission 2002, vol. i, at 222, para. 38; UN ilc, Yearbook of the International Law Commission 2002, vol. ii (Part Two) UN Doc. a/cn.4/ser.a/2002/Add.1 (Part 2), at 102, para. 522.
UN ilc, Yearbook of the International Law Commission 2002, vol. i, at 222, para. 38.
UN ilc, Yearbook of the International Law Commission 2002, vol. ii (Part Two), at 9, para. 4.
UN ilc, Yearbook of the International Law Commission 2002, vol. i, at 221–222.
UN ilc, Yearbook of the International Law Commission 2012, at 135, para. 18.
UN ilc, Yearbook of the International Law Commission 2011, vol. i, UN Doc. a/cn.4/ser.a/2011, at 1, para. 2; and 7–8. See also A.C. Fouto et al., ‘Paula Escarameia’, at 271.
UN ilc, Yearbook of the International Law Commission 2016, vol. i, at 259, para. 59.
J. Crawford, ‘Appearing Before and Sitting with Female Adjudicators: Reflections from Practice’ in F. Baetens (ed.), Identity and Diversity on the International Bench (Oxford University Press 2020) 412–424, at 416–417 (citing D. Feenan, ‘Women Judges: Gendering Judging, Justifying Diversity’ (2008) 35 Journal of Law and Society 490–519, at 509).
This discussion draws on the works of authors who have studied the legitimacy of international courts and tribunals. See N. Grossman, ‘Legitimacy and International Adjudicative Bodies’ (2009) 41 George Washington International Law Review 107–180; N. Grossman, ‘The Normative Legitimacy of International Courts’ (2013) 86 Temple Law Review 61–105; Grossman, ‘Achieving Sex-Representative International Court Benches’; D. Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’ (1999) 93 American Journal of International Law 596–624. For a general discussion of legitimacy in international law, and its relation to legality, see, inter alia, T.M. Franck, The Power of Legitimacy among Nations (Oxford University Press 1990); J.E. Alvarez, ‘The Quest for Legitimacy: An Examination of The Power of Legitimacy Among Nations by Thomas M. Franck’ (1991) 24 New York University Journal of International Law and Politics 199–209; J. Brunée and S. Toope, Legitimacy and Legality in International Law (Cambridge University Press 2010); J. Crawford, ‘The Problems of Legitimacy-Speak’ (2004) 98 Proceedings of the asil Annual Meeting 271–273.
This draws on the concept of legitimacy, articulated by Bodansky as ‘a quality that leads people (or states) to accept authority […] because of a general sense that the authority is justified’. See Bodansky, ‘The Legitimacy of International Governance’, at 600; and Grossman, ‘Legitimacy and International Adjudicative Bodies’, at 115.
Z. Trávníčková, ‘The International Law Commission and the International Law Codification Market’ in United Nations (ed.), Seventy Years of the International Law Commission: Drawing a Balance for the Future (Brill Nijhoff 2021) 352–365, at 357.
Charlesworth and Chinkin, The Boundaries of International Law, at 308.
Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 unts 13. Art. 8 provides: ‘States Parties shall take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations’.
UN cedaw Committee, ‘Draft General Recommendation No. 40 on the Equal and Inclusive Representation of Women in Decision-Making Systems’ (18 July 2023), which is expected to be adopted in October 2024 and available at <
Grossman, ‘Achieving Sex-Representative Court Benches’, at 87. The League of Nations Covenant was even broader stating that ‘[a]ll positions under or in connection with the League, including the Secretariat, shall be open equally to men and women’; Art. 7 Covenant of the League of Nations (signed 28 June 1919, entered into force 10 January 1920) 108 lnts 188.
Lijnzaad, ‘The Smurfette Principle’, at 34–36.
C. Rose, ‘Justifying Arguments About Selection Procedures for Judges at International Courts and Tribunals: A Response to Nienke Grossman’ (2016) 110 ajil Unbound 86–91, at 87–88.
N. Torbisco-Casals, ‘Why Fighting Structural Inequalities Reviews Institutionalizing Difference: A Response to Nienke Grossman’ (2016) 110 ajil Unbound 92–97, at 93; Rose, ‘Justifying Arguments About Selection Procedures for Judges at International Courts and Tribunals’, at 86–88.
S. Wittkop, ‘Article 8’ in M.A. Freeman, C. Chinkin and B. Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (Oxford University Press 2012) 221–232, at 224.
UN cedaw Committee, ‘Draft General Recommendation No. 40 on the Equal and Inclusive Representation of Women in Decision-Making Systems’, at paras 15–17.
unsc Res. 1325, ‘Women and Peace and Security’, operative paragraph 1. The resolution was adopted unanimously.
‘Sustainable Development Goal 5: “Achieve Gender Equality and Empower All Women and Girls”’ The United Nations Department of Economic and Social Affairs, available at <
Fife, ‘Generating Incentives to Appoint Women to the International Bench’, at 51.
Daniel Bodansky considers that legitimacy has both a sociological and a normative dimension with the former being described as ‘popular attitudes about authority’: Bodansky, ‘The Legitimacy of International Governance’, at 601. See also Rose, ‘Justifying Arguments About Selection Procedures for Judges at International Courts and Tribunals’, at 89. See also, Grossman, ‘Legitimacy and International Adjudicative Bodies’, at 121.
Trávníčková, ‘The International Law Commission and the International Law Codification Market’, at 358.
Ibid., at 357.
See Pinto, ‘The Authority and the Membership of the Commission in the Future’, at 372–373.
Trávníčková, ‘The International Law Commission and the International Law Codification Market’, at 358.
UN ilc, Yearbook of the International Law Commission 2002, vol. i, at 222, para. 43, per Xue.
Anne Peters has noted the importance of other institutional and procedural factors which render the requisite authority to make law, such as representativity, participation, and publicity: A. Peters, ‘Realizing Utopia as a Scholarly Endeavour’ (2013) 24 European Journal of International Law 533–552, at 539.
Nienke Grossman highlights the relevance of democratic values to international courts’ legitimacy. These democratic values may include transparency, accountability, participation, and representativeness: Grossman, ‘Sex on the Bench’, at 669.
Ibid., at 668.
Ibid., at 670–674. Although Grossman looked at representation on international courts, the same would apply to the International Law Commission.
S. Kumar and C. Rose, ‘A Study of Lawyers Appearing Before the International Court of Justice 1999−2012’ (2014) 25 European Journal of International Law 893–917, at 917.
Franck et al., ‘The Diversity Challenge’, at 478.
Baetens, ‘Identity and Diversity on the International Bench: Implications for the Legitimacy of International Adjudication’, at 21. See also Crawford, ‘Appearing Before and Sitting with Female Adjudicators’, at 419.
J. Resnik, ‘Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure’ (2005) 26(2) Cardozo Law Review 579–658, at 644; Grossman, ‘Sex on the Bench’, at 675; Franck et al., ‘The Diversity Challenge’, at 496–499 noting the justifications for great representativeness include increased legitimacy.
D. Tladi, ‘The Authority and the Membership of the Commission in the Future – Art, Science and Economics: A Comment on Trávničková and Pinto’ in United Nations (ed.), Seventy Years of the International Law Commission: Drawing a Balance for the Future (Brill Nijhoff 2021) 375–384, at 383.
Fife, ‘Generating Incentives to Appoint Women to the International Bench’, at 55; Torbisco-Casals, ‘Why Fighting Structural Inequalities Reviews Institutionalizing Difference’, at 97; Kalantry, ‘Women in Robes’, at 87 (if courts are representative, one can count on greater trust and confidence from the public at large).
Grossman, ‘Sex-Representative International Court Benches’, at 94.
Trávníčková, ‘The International Law Commission and the International Law Codification Market’, at 358; Tladi, ‘The Authority and Membership of the Commission’, at 379.
Council of Europe, Committee of Ministers, ‘Guidelines of the Committee of Ministers on the Selection of Candidates for the Post of Judge at the European Court of Human Rights’ (29 March 2012) Resolution cm(2012)40-final. See also Vauchez, ‘More Women – But Which Women?’, at 200–209; Baetens, ‘Identity and Diversity on the International Bench: Implications for the Legitimacy of International Adjudication’, at 14–16.
Art. 8(a) Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 unts 90: ‘The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges. In addition, at least one third of the Court’s 18 judges are required to be from each sex’.
African Union’s Assembly of Heads of State and Government is required to ‘ensure that in the Court as a whole there is representation of the main regions of Africa and of their principal legal traditions’, as well as ‘adequate gender representation’; Art. 14(2) and 14(3) Protocol to the African Charter of Human and Peoples’ Rights on the Establishment of an African Court of Human and Peoples’ Rights (adopted 10 June 1998, entered into force 25 January 2004). Five of the eleven judges of the African Court on Human and Peoples’ Rights are women.
See Tladi, ‘The Authority and Membership of the Commission’, at 379.
S.J. Kenney, ‘Choosing Judges: A Bumpy Road to Women’s Equality and a Long Way to Go’ (2012) Michigan State Law Review 1499–1528, at 1509.
Rose, ‘Justifying Arguments About Selection Procedures for Judges at International Courts and Tribunals’, at 90.
UN ilc, Yearbook of the International Law Commission 2002, vol. i, at 222.
R.E. Badejogbin, ‘African Women’s Paths to the International Bench: How to Overcome the Hurdles’ in F. Baetens (ed.), Identity and Diversity on the International Bench (Oxford University Press 2020) 122–141, at 131; Grossman, ‘Achieving Sex-Representative International Court Benches’, at 84.
unga Res. 33/143, ‘Personnel Questions’ (20 December 1978).
J.L. Corsi, ‘Legal Justifications for Gender Parity on the Bench of the International Court of Justice: An Argument for Evolutive Interpretation of Article 9 of the icj Statute’ (2021) 34 Leiden Journal of International Law 977–1000, at 986.
Ibid., at 994–995.
Pinto, ‘The Authority and the Membership of the Commission in the Future’, at 370; C. Grossman, ‘Concluding Remarks by Claudio Grossman Guiloff’ in United Nations (ed.), Seventy Years of the International Law Commission: Drawing a Balance for the Future (Brill Nijhoff 2021) 333–345, at 342.
Fife, ‘Generating Incentives to Appoint Women to the International Bench’, at 58.
Lijnzaad, ‘The Smurfette Principle’, at 42–48 (where this proposal is made in relation to international courts and tribunals).
It is noted that a more transparent approach was adopted to the filling of the 2024 casual vacancies at the suggestion of the UN ilc Bureau, a majority of whom were women.
Badejogbin, ‘African Women’s Paths to the International Bench’, at 134–135.
‘Statement by Burhan Gafoor’ in United Nations (ed.), Seventy Years of the International Law Commission: Drawing a Balance for the Future (Brill Nijhoff 2021) 405–407, at 406. See also the Opening Remarks of Mr. Miguel de Serpa Soares, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, expressing the goal that ‘by 2030, equal representation on bodies like the Commission will be not only a reality but the norm’: UN ola, ‘Seven Women in Seventy Years’, at 4.
