Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?

Abstract International courts are playing an increasingly important role in deciding international disputes and in defining the content of international law. Yet women make up only a meager percentage of international court judges. This Article explores the relationship between the paucity of women judges and the legitimacy of international courts. After providing statistics on women's participation on eleven of the world's most important courts and tribunals, the Article argues that under-representation of one sex affects the normative legitimacy of international courts because it endangers impartiality and introduces bias when men and women approach judging differently. Even if men and women do not "think differently," a sex un-representative bench harms sociological legitimacy for constituencies who believe they do nonetheless. For groups traditionally excluded from international lawmaking or historically discriminated against, inclusion likely strengthens sociological legitimacy, while continued exclusion perpetuates conclusions about unfairness. Finally, sex representation is important to the normative legitimacy of international courts because representation is an important democratic value. Sex representation may endanger sociological legitimacy, however, for constituencies who associate authority with male judges or if women judges are unqualified or perceived as less qualified. Table of Contents I. Introduction 648 II. Women on International Courts: The Numbers. ...652 III. Sex Representation Matters to Normative Legitimacy When Men and Women "Think Differently" 654 IV. Sex Representation Matters to Sociological Legitimacy Because People Believe Men and Women "Think Differently" ......... ...660 A. The International Criminal Tribunals 661 B. Traditionally Discriminated or Excluded Groups and Perceptions of Bias.. 664 V. Sex Representation, Democratic Values, and Legitimacy 668 VI. Conclusion 675 I. INTRODUCTION On September 13, 2010, Xue Hanqin and Joan E. Donoghue were sworn in as judges on the International Court of Justice (ICJ). For the first time in its sixty-five year history, two women judges are serving simultaneously on the fifteen-member bench.1 Only one woman - Rosalyn Higgins - precedes them.2 The appointment of the second and third woman ever to serve on the Court is an important milestone, but women still make up only 13 percent of the ICJ's bench.3 The paucity of women judges is not unique to the ICJ. Although women account for almost half of the world's population,4 they rarely make up even close to 50 percent of judges on the world's most important international adjudicative bodies.5 Until Elsa Kelly's appointment on October 1, 2011, no female judge ever served on the twenty-one member bench of the International Tribunal for the Law of the Sea (ITLOS).6 Only four women serve on the twenty-seven member bench of the European Court of Justice (ECJ).7 In 2009, only 9 percent of arbitrators in International Centre for Settlement of Investment Disputes (ICSID) arbitrations were women.8 Strikingly, of eleven courts surveyed,9 women outnumbered men only on one: the International Criminal Court (ICC).10 Reflecting the general population's sex ratio - or "sex representation" - on international court benches may matter for any number of reasons. This Article explores the relationship between sex representation and legitimacy of international adjudication. …