On Friday, Nov. 5th, the General Assembly will vote to fill an International Court of Justice vacancy, adopting Resolution 2583 (2021) setting out the terms of the election. The vacancy results from the untimely loss of the extraordinary James Crawford who served on the Court from November 2014 to May 2021. In general, when vacancies arise on the Court because of the death or resignation of a judge the practice of States has been to fill the remainder of that term with a judge of the same nationality (here Australia). That practice, though not a formal rule, has been consistently followed when in the past decade a U.S. (2010), Chinese (2010), and Japanese (2018) judge resigned from the Court before the end of their terms. It has not been followed in this election and because the replacement candidate is female — jettisoning this practice in this election rightly raises some uncomfortable questions from a gender perspective.

Australian candidate Hilary Charlesworth was nominated by Australia’s national group to serve the remainder of James Crawford’s term. She is well-known as a preeminent scholar of international law, and has also served as a judge ad hoc for the Court in two contentious rulings of the ICJ: Arbitral Award of 3 October 1899 (Guyana v. Venezuela) and Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). Unusually the Greek national group also nominated another distinguished candidate, Linos-Alexandre Sicilianos, Professor of Law at the University of Athens and a former President of the European Court of Human Rights, to produce a contested election. I will not dwell on the procedural propriety of contested elections given long-standing ICJ practice, nor on the challenges facing the ICJ as it navigates a complex caseload holding some of the most difficult and fundamental legal issues in a time of global uncertainty and realignment. Rather, drawing on previous scholarly work about gendered appointment processes to international legal institutions I want to reflect on the importance of a gender diverse bench, and how getting there matters.

There is broad agreement about the dearth of women in the most senior leadership positions at our institutional institutions. From the lack of women candidates in the election for UN Secretary-General, to the lack gender parity at the United Nations more broadly, to the multiple ways in which getting to the “top table” has proven consistently difficult for women. The International Court of Justice illustrates the leadership gap acutely as only four women have served on the Court as judges since its establishment 76 years ago. As Philip Alston has succinctly identified only 3.7 percent of the historic membership of the Court has been female. Without moving into the realm of gender essentialism (i.e. assuming that having women on international courts is desirable because they will present a specific, unified view of “women,” or take a singular “women’s rights and perspectives” with them to the Court), I claim that multiple diversities matter when we appoint 15 independent judges to the ICJ. Indeed, the selection process already demands diversity in its geographical, cultural and legal systems practices. In parallel, gender rightly matters as a fundamental diversity on the Court. It matters to its legitimacy and standing in a world where increasingly the absence of women from decision-making and leadership processes is understood as inadequate, unrepresentative and brings contestation to outcomes in sustained ways.

It’s worth stressing that one of the most considerable barriers to gender parity in leadership is the route women must travel to get there. How access to international institutional power is perceived and experienced by women and the actual barriers placed to getting there, as well as the symbolic (and real) exclusions signalled by the entry requirements and their application, fundamentally matters. So, a contested election, in a context where contestation has not been historically practised is telling us something. Not necessarily or simply about motivations, but about how the system works.

I have argued elsewhere that “international judicial appointment processes function as an extension of the institutionalized culture being accessed.”  This means that the rules in play are often designed to ensure the maintenance of the institutional status quo and serve a myriad of interests. These interests include embedded masculinity and patriarchal norms that are largely invisible, until they are not. So, when long-standing convention about how judges are appointed is changed midstream (when the candidate filling the spot happens to be a highly-qualified female jurist) we should all take note. The uncodified rules of institutional process — what has been described by feminist institutional scholars as the “social stuff” of institutions — really matters. And women do actually take note; we understand that the rule switches are not neutral but are playing out larger institutional and political preferences of which gender is an indisputable part. That is to say, when the votes are cast this week, women’s rights advocates around the world will be watching States closely. We will be watching those who say that gender matters to them and claim that a gendered approach illuminates their foreign policy, institutional, and legal practices in the international realm. For a very long time, those words have done little to change the institutional status quo in the international arena, including representation at the International Court of Justice.

This election to the International Court of Justice matters, not just because of the stakes of appointing a jurist to what has been described as “the holy place,” the highest temple of the international legal system, but because gender politics are in play, and not because feminists put them there — but precisely because the gender stakes were recognized and ultimately politicized by a process that made the question of gender central to this election.

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