How many women judges are enough on international courts?

Abstract

The African Court of Human and Peoples’ Rights (ACtHPR) made history on August 27, 2018. The majority of its judges were female—six of 11, and the first among international courts and tribunals (ICs) to secure sex parity—that is, numerical equality.1 This achievement is even more remarkable given that only 23% of the judges and arbitrators of the ICs are women.2 The milestone also prompts us to consider more closely what considerations of legitimacy entail about the proportion of women international judges. The present composition of ICs is clearly under legal, social, and political control, and ICs have profound effects. The persistent underrepresentation of women is especially striking since not only civil society groups, but also the states who nominate and establish election procedures have agreed several treaties that require or urge a balance of gender representation.3 So it would seem that the parity achieved by the ACtHPR should be applauded. However, that IC may now be even more gender equal than we may have reason to require of a legitimate IC—or so this article argues. A less egalitarian composition within a “parity zone” of approximately 40% of either of the main sexes seems to suffice. The present reflections considers various possible arguments offered concerning the impact of gender inequality on the international bench, drawing in part on studies of domestic judiciaries, as well as on available research and reflections by practitioners and women international judges.4 Several arguments support calls to increase the proportion of female international judges—but how far? Section 2 addresses some background issues: first concerning the terms “feminism,” “sex,” and “gender,” then, the tasks of ICs that should lead us to question the present sex inequality on the international bench.