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6 The objective: large proportions of both genders, and how to get there

The upshot of these objections is that several arguments appear to support calls to increase the proportion of female international judges – assuming that the requisite empirical claims are credible. It also seems appropriate to take steps to elect more judges who are sensitive to women’s concerns, broadly defined – both men and women. The valuable effects on outcomes and procedures may often also be secured by “women sensitive” male judges. However, the argument to ensure status equality, and the law developing tasks of ICs, both support a large proportion of both genders – in effect something like the ‘parity zone,’ though not gender parity. These

arguments appear to withstand objections to other arguments in favour of similar conclusions.

What might then be done? Some of the findings may be briefly summarized thus.

One conclusion seems to be that

In future nomination battles, there is a strong argument that feminists concerned about promoting gender equality at the level of substantive legal outcomes, not just symbolism or internal professional organization, should focus directly on the demonstrated commitment of a particular judicial nominee—whether male or

female—to certain substantive feminist ideals”100

Statements and formal requirements to include both genders in nominations and appointments seem to have an impact101 – though some selection bias may be possible. And even a required quota may be ignored, as in the Malta saga. Legal requirement to nominate and elect a gender balanced slate seem appropriate.

Grossman notes that “For courts where states were required by statute to take sex into account when nominating or voting for judges, a higher percentage of women sat on the bench in mid 2015.”102 This would seem especially appropriate as long as a a main challenge to increase the proportion of female international judges is the preferences of the nominating states:

In the field of international law, the states are the bastions that pose most resistance to various forms in which the concept of gender can be taken into account.103

Transparency about nomination and election procedures may also contribute to publicity about the de facto qualifying stepping stones such as being noticed by the appropriate civil servants,104 membership on the International Law Commission.105 etc.

a lack of transparency and the closed nature of nomination processes on most international courts may depress the percentage of women on the bench over-all.By contrast, institutionalized screening after nomination may increase balance on the bench.106

Domestic and international screening committees may enhance the quality control and de facto reliance on standards,107 such as the systems for election of ECtHR judges including domestic and Council of Europe bodies. International screening committees appear to increase the number of women judges.108

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1 Six women and five men, http://www.african-court.org/en/index.php/news/press-releases/item/245-three-new- judges-elected-to-the-african-court-on-human-and-peoples-rights-vp-justice-ben-kioko-re-elected-for-second-term

2 Madhavi McCall and Michael A McCall, "How Far Does the Gender Gap Extend? Decision Making on State Supreme Courts in Fourth Amendment Cases, 1980–2000," The Social Science Journal 44 (2007), 68.

aAs of 2015, international tribunals had 72 members of which 12 women; regional courts 62/12; regional human rights tribunals 64/22, hybrid courts 57/13, WTO Appellate Body 7/1 in total 262/60

(http://www.gqualcampaign.org/1626-2/); cf Nienke Grossman, "Achieving Sex-Representative International Court Benches," American Journal of International Law 110 (2016), 83.

4 Christine Chinkin, "Feminism, Approach to International Law," Max Planck Encyclopedia of Public International Law (2010), section 24.

5 Cf www.gqualcampaign.org; www.coalitionfortheicc.org/document/better-balance-better-justice-improving-gender-equality-international-criminal-court.

6 Chadra Talbade Mohanty, "Under Western Eyes: Feminist Scholarship and Colonial Discourses," boundary 2 12/13 (1984); Hilary Charlesworth, Christine Chinkin, and Shelly Wright, "Feminist Approaches to International Law," American Journal of International Law 85, no. 4 (1991); Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000), Kerry Rittich, "Review of Hilary Charlesworth and Christine Chinkin: The Boundaries of International Law: A Feminist Analysis," Leiden Journal of International Law (2001)

7 Francoise Tulkens, "More Women - but Which Women? A Reply to Stephanie Hennette Vauchez," European Journal of International Law 26, no. 1 (2015).

8 (Joseph Raz, "The Problem of Authority: Revisiting the Service Conception," Minnesota Law Review 90 (2006) – CUT reference to Raz? Why?

9 Theresa Squatrito et al., eds., The Performance of International Courts and TribunalsCambridge: Cambridge University Press,2018).

10 Xinyuan Dai, "Why Comply? The Domestic Constituency Mechanism," International Organization 59, no. 2 (2005).

11 This is a slight revision of the phrase in Chinkin 2010, section 3.

12 Dianne Otto, "Feminist Approaches to International Law," in The Oxford Handbook of the Theory of International Law, ed. Anne Orford and Florian Hoffmann (Oxford: Oxford University Press, 2016).

13 Chinkin 2010, Section 25.

14 Ibid.

15 Mohanty 1984, 74; cited in Chinkin 2010.

16 Otto 2016, 492; Chinkin 2010, section 13.

17 Otto 2016,493.

18 P. Collins, K. Manning, and R Carp, "Gender, Critical Mass, and Judicial Decision Making," Law and Policy 32, no. 2 (2010).

19 Rosabeth Moss Kanter, Men and Women of the Corporation. (New York: Basic Books, 1977); D Dahlerup,

"From a Small to a Large Minority: Women in Scandinavian Politics," sCandinavian Political Studies 11, no. 4 (1988), 276-296; for a critical overview cf Sarah Childs and Mona Lena Krook, "Critical Mass Theory and Women's Political Representation," Political Studies 56, no. 3 (2008).

20 Anne Marie Goetz, Who Answers to Women? Gender and Accountability (United Nations Development Fund, 2008). This usage thus deviates from that of the use ‘critical mass’ for 40%; that usage deviates from Council of Europe Parliamentary Assembly, "Working Papers 2006, Ordinary Session," (2006), 131.

21 CEDAW Art 17. Cf the ICC Statute, which holds that “States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children” United Nations, Rome Statute of the International Criminal Court (Entered into Force 2002), A/Conf.183/9 (1998), Art 36 8 (b). – men may have such expertise.

23 Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: University of Chicago Press, 1981).

24 Cf. Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004). For tensions among these values, cf. Jeffrey L. Dunoff and Mark A. Pollack, "The Judicial Trilemma," American Journal of International Law 111 (2017).

25 Joost Pauwelyn and Manfred Elsig, "The Politics of Treaty Interpretation: Variations and Explanations across International Tribunals," in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (2012); Alec Stone Sweet and Thomas L. Brunell, "Trustee Courts and the Judicialization of International Regimes: The Politics of Majoritarian Activism in the European Convention on Human Rights, the European Union, and the World Trade Organization," Journal of Law and Courts 1, no. 1 (2013).

26Charlesworth and Chinkin 2000.

27 Protocol on the establishment of the ACtHR, Art 14.

28 … a requirement not all states comply with (Tulkens 2015) cf the case of Malta.

29ICC Statute Art. 36 (8) (a) (iii).

30 Otto 2016.

31 Adam N. Glynn and Maya Sen, "Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women's Issues?," American Journal of Political Science 59, no. 1 (2015), 43.

32Rittich 2001; Rosemary Hunter, "More Than Just a Different Face? Judicial Diversity and Decision-Making,"

Current Legal Problems 68, no. 1 (2015), 136.

33 Susan Moller Okin, "Is Multiculturalism Bad for Women?," in Is Multiculturalism Bad for Women, ed. Joshua Cohen, M. Howard, and M. C. Nussbaum (Princeton: Princeton University Press, 1999)

34 Christina L. Boyd, Lee Epstein, and Andrew D. Martin, "Untangling the Causal Effects of Sex on Judging,"

American Journal of Political Science 54, no. 2, April (2010); for such patterns for two women US Supreme Court judges – otherwise voting more according to political party patterns, cf Palmer 2002 (ref).

35 Marie-Claire Belleau and Rebecca Johnson, "Judging Gender: Difference and Dissent at the Supreme Court of Canada," in Women in the Judiciary, ed. Ulrike Schultz and Gisela Shaw (London: Routledge, 2012).

36 Prosecutor V Anto Furundžija,(1998), para 164-186); Prosecutor V Dragoljub Kunarac Et Al,(2001)paras

violations of international law (Patricia Viseur Sellars, "The Prosecution of Sexual Violence in Conflict:

The Importance of Human Rights as Means of Interpretation," Office of the United Nations High Commissioner for Human Rights (OHCR) (2008)). Judges at the Tokyo Tribunal included among war crimes “murder, rape, and other cruelties” The Complete Transcript of the Proceedings of the

International Military tribunal for the Far East, 22 Vols., R. Pritchard and S. Zaide (eds.), 1981, vol. 1 at 1029 (cited by Sellars)..; rape is mentioned in the governing statutes of the International Criminal Court for the former Yugoslavia (ICTY) art 5 (g) as crime against humanity; likewise the International Criminal Court for Rwanda (ICTR), art 3 (g). The Rome Statute of the ICC: Article 7 (1)(g) lists rape, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, other forms of sexual violence of comparable gravity as crimes against humanity;..

37 Prosecutor V Zejnil Delalić Et Al (“Čelebići”),, para 475-496; for the ECtHR: Aydin V Turkey,(1997): rape of an inmate constitutes torture.

38 The Furundzija case and in the Kunarac, Kovac and Vukovic case. See in general

http://lusakavoice.com/2013/04/19/justice-florence-mumba-reflects-on-womens-rights-and-gender-justice/

39 Charlesworth and Chinkin 2000; Chinkin 2010, Hilary Charlesworth and Christine Chinkin, "The Gender of Jus Cogens," Human Rights Quarterly 15 (1993), 75; Otto 2016.

40 Hunter 2015, 123 refers to the House of Lords Constitution Committee; Sally J. Kenney, Gender and Justice:

Why Women in the Judiciary Really Matter (Routledge2013); Kate Malleson, "Justifying Gender Equality on the Bench: Why Difference Won't Do," Feminist Legal Studies 11, no. 1 (2003).

41 ——— 2003.

42 Andreas Follesdal, "Constitutionalization, Not Democratization: How to Assess the Legitimacy of

International Courts," in The Legitimacy of International Courts ed. Nienke Grossman, et al., Cambridge Studies on International Courts and Tribunals (Cambridge: Cambridge University Press, 2018).

43Kofi Annan, Secretary-General's address to the General Assembly, 2004,

https://www.un.org/sg/en/content/sg/statement/2004-09-21/secretary-generals-address-general-assembly

44 Tulkens 2015; Charlesworth and Chinkin 2000.

45Resolution 1366 (2004) on Candidates for the European Court of Human Rights,

46 Para 14 of report by rapporteur, and Advisory Opinion on Certain Legal Questions Concerning the Lists of Candidates Submitted with a View to the Election of Judges to the European Court of Human Rights.

,(2008).

47ICC Statute Art. 36 (8) (a) (iii).

48 Grossman 2016, 94.

49 Hunter 2015, 123, ref to Brenda Hale, "Equality and the Judiciary: Why Should We Want More Women Judges?," Public Law (2001); Judith Kelley, "Who Keeps International

Commitments and Why? The International Criminal Court and Bilateral Nonsurrender Agreements," American Political Science Review 101, no. 3 (2007).

50 Neus Torbisco-Casals, "Why Fighting Structural Inequalities Requires Institutionalizing Difference: A Response to Nienke Grossman," AJIL Unbound 110, no. 92 (2016).

51 Grossman 2016, 88-89.

52 Leyla Sahin V. Turkey (Gc), 44(2007) dissenting opinion para 12; and cf C. L’Heureux-Dube, "Making a Difference: The Pursuit of a Compassionate Justice," Canadian Journal of Family Law 14 (1997), 103.

53 Julie R. Agnew et al., "Who Chooses Annuities? An Experimental Investigation of the Role of Gender, Framing, and Defaults," THe American Economic Review 98, no. 2 (2008); but cf Rakesh Sarin and Alice Wieland, "Risk Aversion for Decisions under Uncertainty: Are There Gender Differences?,"

Journal of Behavioral and Experimental Economics 60 (2016). Lex Borghans et al., "Gender Differences in Risk Aversion and Ambiguity Aversion," Journal of the European Economic Association 7, no. 2-3 (2009)

54 For some challenges and responses, cf. Boyd, Epstein, and Martin 2010.

55 Jennifer Peresie, "Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellatecourts," Yale Law Journal 114, no. 7 (2005).

56 Testing of this hypothesis is urged by ibid., 1786.

57 P. Oliver and C. Marwell, "Whatever Happened to Critical Mass Theory? A Retrospective and Assessment,"

Sociological Theory 19 (2001); Kanter 1977.

58 Jo Winter, "The Role of Gender in Judicial Decision-Making," International Journal of Evidence and Proof 8,

58 Jo Winter, "The Role of Gender in Judicial Decision-Making," International Journal of Evidence and Proof 8,