Write On! ASIL Research Forum

(Thanks to IntLawGrrls for the opportunity to contribute this guest post, another in IntLawGrrls' Write On! series)

The American Society of International Law has launched a new initiative that may be of interest. On November 4 and 5 of this year we will be launching the first ASIL Research Forum at UCLA Law School. We hope that the Forum will become be a yearly scholarly conference on new research in international law.
Spearheading the initiative is the 2011 ASIL Research Forum Committee:
► Co-Chairs: yours truly, Laura Dickinson, Foundation Professor and Faculty Director at the Center for Law and Global Affairs, Arizona State University Sandra Day O'Connor College of Law, along with Kal Raustiala, Professor at the UCLA School of Law and Director of UCLA's Ronald W. Burkle Center for International Relations.
► Committee members: Mark A. Drumbl, Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee University School of Law, along with IntLawGrrl guests/alumnae Nienke Grossman, University of Baltimore School of Law, and Mary Ellen O’Connell, an ASIL Vice President and the Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution at Notre Dame Law School.
The idea is to hold an event that is focused around in-depth discussion of works in progress. Particularly welcome are interdisciplinary projects, empirical studies, and research that deploys new methodologies to study international or transnational law.
Proposals are due April 30, and will be reviewed anonymously.
The official call for papers is below:

Call for Scholarly Papers
The Inaugural ASIL Research Forum
November 4-5, 2011
The American Society of International Law calls for submissions of scholarly paper proposals for the inaugural ASIL Research Forum to be held at UCLA Law School on November 4-5, 2011.
The Research Forum is a new initiative of the Society aimed at providing a setting for the presentation and focused discussion of works in progress. The Spring Annual Meeting does this in part through its "works-in-progress" sessions, but the Research Forum aims to do this exclusively.
The Research Forum will be held in the fall and, as possible, coordinated as an integral part of the Fall ASIL Mid-Year Meeting. All ASIL members are invited to attend the Forum, whether presenting a paper or not.
Interested participants should submit a proposal (preferably 500, and no more than 1,000, words in length) summarizing the scholarly paper to be presented at the forum. Papers can be on any topic related to international and transnational law. Works-in-progress are particularly encouraged. Interdisciplinary projects, empirical studies, and jointly authored proposals are welcome.
Submissions should be sent to 2011forum@asil.org by April 30. Proposals will be vetted anonymously by the Research Forum Committee with selections to be announced by June 15.
At present, it is the intent of the Research Forum Committee to organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers.

Do women judges matter?

(Delighted to welcome back alumna Nienke Grossman, who contributes this guest post) Thank you to IntLawGrrls for inviting me to blog about my most recent article: “Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?” I will also be discussing this article at the International Legal Theory Interest Group session from 3 to 4:30 p.m. this Friday, March 25, in Salon IIIB of the Ritz Carlton in Washington, D.C., at the annual meeting of the American Society of International Law. (Prior IntLawGrrls posts on the meeting are available here.) For the most part, women participate in meager numbers on the world’s most important international courts. In its sixty-five year history, only three permanent women judges have ever served on the International Court of Justice. Two of them sit on the bench today. The European Court of Justice had only 15% permanent female judges in May 2010. Women were appointed to World Trade Organization panels only 17% of the time in 2009, although women constituted 43% of the appellate body in mid-2010, up from only 19% historically. At the same time, women accounted for 29% of the judges on the Inter-American Court of Human Rights, and only one woman had ever served as an ad hoc judge. No women sit on the International Tribunal for the Law of the Sea. The International Criminal Court is the only court, of eleven surveyed in my article, in which women outnumbered men on the bench. As is frequently noted, international courts are playing a growing role in both deciding international disputes and defining the content of international law. And their increasing importance has led to many serious questions about their legitimacy. Because international courts generally lack enforcement powers and guaranteed funds, without legitimacy – defined as justified authority – states and others are less likely to cooperate and comply with their judgments. Among the factors that may impact a court’s legitimacy is the ratio of the sexes, or “sex representation,” on the bench. My article suggests sex representation matters to legitimacy in at least three ways: ► First, when men and women approach the law or facts differently, both are necessary for impartiality, an important prerequisite of legitimate adjudication. Because of the low numbers of women judges on international courts, empirical studies of a gender effect are rare. But one study of sentencing at the International Criminal Tribunal for the former Yugoslavia, by Dr. Kimi Lynn King and Megan Greening, shows that female judges gave weightier sentences to defendants who assaulted women, while male judges did the same for male victims. Further, many female international court judges, including frequent IntLawGrrls guest Judge Patricia M. Wald, suggest their life experiences as women make a difference in at least some cases. ► Second, sex representation is important to legitimacy even if men and women are not inherently different because at least some constituencies seem to believe they are nonetheless. For example, as demonstrated in my forthcoming International Criminal Law Review piece, co-sponsored by IntLawGrrls, as part of its "Women and International Criminal Law" project, some non-government organizations and states sought to include female judges on post-World War II international criminal tribunals because they thought women would alter the development of facts and the direction of the law. Unisex courts would lack justified authority for them. Similarly, when a group has suffered discrimination or exclusion, it is likely to question the authority of an institution that continues to exclude it. Women’s participation in low numbers is not limited to international courts; it extends to the prestigious International Law Commission, the Inter-American Juridical Committee, and several of the United Nations treaty bodies. For many, these institutions (and international law) will face legitimacy troubles until they more accurately reflect the ratio of the sexes. ► Finally, women judges matter for reasons of democratic legitimacy. Imagine a world court with only jurists from one nation. Even if it possessed the most credentialed of benches, such a court would lack justified authority. Legitimate adjudication requires both impartial judges and judges with some link to the constituencies their rulings impact. Just as geographic diversity – a virtually ubiquitous requirement in international court statutes – strengthens international courts’ legitimacy, so too does sex representation. Consequently, perhaps the strongest argument for sex representation is that women make up almost half the world's population, and thus, an important constituency of international courts. In fact, states have already taken steps toward sex representation in the statutes of the International Criminal Court, the African Court of Human and Peoples' Rights, and for ad litem judges on the International Criminal Tribunals for the Former Yugoslavia and Rwanda." Similarly, the Parliamentary Assembly of the Council of Europe resolved to reject unisex lists of candidates to the European Court of Human Rights. The argument for sex representation is all the more compelling when female Presidents, Supreme Court Judges, and Ministers of Justice have served in a wide range of countries. Surely qualified candidates for international judgeships can be found in countries where women achieve so much. More international courts make decisions that affect our lives today than ever before. They define the scope of our human rights and decide who will be held accountable for what kind of international crimes. They determine which communities will benefit from the exploitation of oil in disputed parts of the ocean, and whether environmental harm has taken place, what reparations must be paid and to whom. They play an integral role in defining fair trade practices and whether natural resources belong to the people within a state or to multinational corporations. This article seeks to shine light on the paucity of women judges participating in these vital decisions and in defining the content of international law today. It argues that we must pay more attention to sex representation if we wish to strengthen the legitimacy of these increasingly important institutions.

Women @ ASIL (5th ed.)

As we have each year since our founding ((here, here, here, here, and here), IntLawGrrls is proud today to highlight women who will speak March 23-26 at the forthcoming annual meeting of the American Society of International Law.
This 105th gathering of the Society, entitled Harmony and Dissonance in International Law, kicks off with the Grotius Lecture by Nobel Prizewinning economist Amartya Sen, for which our colleague Kim Lane Scheppele (Princeton) will serve as discussant. Also of note are: the annual WILIG luncheon, featuring IntLawGrrl Lucy Reed, immediate past President of ASIL; an opening plenary by Michael H. Posner, Assistant Secretary of State for the Bureau of Democracy, Human Rights, and Labor; and a plenary among several international judges. I'm especially excited about the Friday lunch dialogue featuring International Criminal Court Deputy Prosecutor Fatou Bensouda (left) -- wearing my hat as an ASIL vice president, I've been given the honor of serving as discussant/moderator for her talk. (photo credit)
All events will take place at the Ritz Carlton Hotel, 1150 22d Street, N.W., Washington, D.C. (Details and registration here.)
Delighted to see from the program that, once again, there's much diversity in topics and presenters. Virtually all panels again have at least 1 woman participating, and that many have many more. Particularly proud that so many persons featured are IntLawGrrls or IntLawGrrls alumnae!
Without further ado, here's this year's honor roll of Women @ ASIL:

Wednesday, March 23, 4:30-6 p.m.
► "The Global Status of Rights": Kim Lane Scheppele (Princeton) as discussant for Grotius Lecture by Amartya Sen.

Thursday, March 24, 11:15 a.m.-12:45 p.m.
► "The Supreme Court & Arbitration Law": Lorraine M. Brennan (JAMS International).
► "Legal Origins, Doing Business and Rule of Law Indicators: The Economic Evaluation of Legal Systems": Corinne Boismain (Université de Metz).
► "International Environmental Law Making and the International Court of Justice": Malgosia Fitzmaurice (University of London) (right), Natalie Klein (Macquarie), and IntLawGrrl guest/alumna Cymie Payne (Lewis & Clark) as panelists; Caroline Foster (Auckland) will moderate.
► "International Courts and Tribunals Interest Group: Judicial Selection": Eloïse Obadia (International Centre for Settlement of Investment Disputes) and Gabrielle Kirk McDonald (Iran-U.S. Claims Tribunal) (left).
► "Commissions of Inquiry into Armed Conflict, Breaches of the Laws of War and Human Rights Abuses: Process, Standards, and Lessons Learned": Agnieszka Jachec Neale (Essex) and Heidi Tagliavini (Swiss Ministry of Foreign Affairs).
►"New Voices I: Global Health, Trade & Common Resource Regimes": Lisa Clarke (Amsterdam), Erika Techera (Macquarie), and Margaret Young (Melbourne).

Thursday, March 24, 1-2:30 p.m.
► IntLawGrrl Lucy Reed (right), immediate past President of ASIL and a partner at Freshfields Bruckhaus Deringer LLP in New York, at the annual luncheon of WILIG, the Women in International Law Interest Group.
► "Fragmentation of International Legal Orders and International Law: Ways Forward?": Nele Matz-Lück (Max Planck Institute for Comparative Public Law and International Law, Heidelberg) as panelist; Ruti Teitel (New York Law School) will moderate.
► "Responding to Nuclear Security Challenges in a Fragmented World": Asli Ü. Bâli (UCLA) and Rose Gottemoeller (Assistant Secretary of State, Bureau of Verification, Compliance, and Implementation).
► "Seamlessness or Segmentation? International Economic Governance and European Sovereign Debt": Odette Lienau (Cornell) and Ann Misback (Federal Reserve Board).

Thursday, March 24, 3-4:30 p.m.
► "Annual Benjamin Ferencz Session: Integrating the Crime of Aggression into International Criminal law and Public International Law": Teresa McHenry (U.S. Department of Justice) and IntLawGrrl Beth Van Schaack (Santa Clara).
► "The Role of International Tribunals in Managing Coherence and Diversity in International Law": IntLawGrrls guest/alumna Andrea K. Bjorklund (California-Davis) and Valerie Hughes (Legal Affairs Director, World Trade Organization).
► "Dispute Resolution Interest Group: IS ICSID Losing Its Appeal...Again?": Andrea Menaker (White & Case LLP), moderator.
► "Espionage and the First Amendment After Wikileaks": Mary-Rose Papandrea (Boston College).

Thursday, March 24, 5-6:15 p.m.
► "Decision Making in International Courts and Tribunals: A Conversation": plenary keynote featuring numerous international jurists, including Dame Rosalyn Higgins (former President of the International Court of Justice) (left) and Brigitte Stern (Université de Paris I (Panthéon-Sorbonne)).

Friday, March 25, 7-8:30 a.m.
► "Targeting with Drone Technology: Humanitarian Law Implications": Naz Modirzadeh (Harvard) will moderate.

Friday, March 25, 9-10:30 a.m.
► "Strategy and Planning Meeting for ASIL's new International Disability Rights Interest Group," about which IntLawGrrl Hope Lewis, interest group co-chair along with Stephanie Ortoleva (BlueLaw), posted yesterday.
► "International Environmental Law Interest Group: Roundtable on Research Methodologies," an all-woman panel: Cinnamon Carlarne (South Carolina), Edith Brown Weiss (Georgetown) (right) and Jutta Brunnée (Toronto) as panelists; Sara Seck (Western Ontario) will moderate.
► "International Trade Law and International Investment Law: Convergence or Divergence?": Marinn Carlson (Sidley & Austin LLP).
► "What the Kosovo Advisory Opinion Means for the Future": Anne Peters (Basel).
► "The Role of Legal Norms in Mediation and Negotiation: Views from the Field": Jennifer Lake (Legal Advisor, Independent Diplomat, an advisory group).
► "Ethical and Practical Challenges for Corporate Lawyers Advising Clients on Human Rights": Sarah Altschuller (Foley Hoag LLP), Rachel Davis (Harvard's Kennedy School), and Alexandra Guáqueta (Flinders University).

Friday, March 25, 10:45 a.m.-12:15 p.m.
► "International Criminal Law Interest Group: 'Fact Finding Without Facts': A Conversation with Nancy Combs": IntLawGrrls guest/alumna Nancy Amoury Combs (William & Mary) will speak on her book titled above, about which she posted here; discussant will be her William & Mary colleague, Linda A. Malone.
► "Intellectual Property Law Interest Group: Harmonizing International Law: An IP Perspective": Seagull Song (Renmin University); Elizabeth Chien-Hale (Institute for Intellectual Property in Asia) will moderate.
► "Recent Trends in International Investment Treaty Law": Carolyn Lamm (White & Case LLP) and Loretta Malintoppi (Eversheds LLP).
► "The Roles and Responsibilities of International Organizations": Vera Gowlland-Debbas (Université de Génève) and Daphna Shraga (Office of Legal Affairs, United Nations) as panelists; Blanca Montejo (Office of Legal Affairs, United Nations) will moderate.
► "New Battlefields/Old Laws: Shaping a Legal Environment for Counterinsurgency": Ashley Deeks (Columbia) and Sarah Sewall (Harvard's Kennedy School).
► "Elections and Ethnic Violence": Susan Benesch (World Policy Institute); Sarah Knuckey (NYU) will moderate.

Friday, March 25, 12:30-2:30 p.m.
► "Luncheon Dialogue on the International Criminal Court": ICC Deputy Prosecutor Fatou Bensouda will be the principal speaker; yours truly, Diane Marie Amann (California-Davis), will serve as moderator/discussant.

Friday, March 25, 1-2:30 p.m.
► "International Legal Research Interest Group: Greater than the Sum of Its Parts: Global Cooperation in Making the World's Laws Accessible": Hongxia Liu (World Justice Project), Marylin Raisch (Georgetown), and Roberta Shaffer (Law Librarian of Congress) (left) as panelists; Amy Emerson (Cornell) will moderate.
► "Harmony and Dissonance in Extraterritorial Regulation": IntLawGrrls guest/alumna Hannah Buxbaum (Indiana).
► "Labor and Migration in International Law: Challenges of Protection, Specialization and Bilateralism": Nisha Varia (Human Rights Watch) and Ayelet Schachar (Toronto) as panelists; Regan Ralph (Fund for Global Human Rights) will moderate.

Friday, March 25, 3-4:30 p.m.
► "International Law and the Liability for Catastrophic Environmental Damage": Monika Hinteregger (University of Graz) as panelist; Marie Soveroski (ASIL International Environmental Law Interest Group Co-Chair) will moderate.
► "New Voices II: Internationalizing & Domesticating Law": Anna Dolidze (Cornell), IntLawGrrls guest/alumna Molly Beutz Land (New York Law School), and Tonya Putnam (Columbia).
► "Are There 'Regional' Approaches to International Dispute Resolution?": Katia Fach Gómez (Fordham), Judge Nkemdilim Amelia Izuako (U.N. Dispute Tribunal), and Catherine Kessedjian (Université Panthéon-Assas).
► "International Legal Theory Interest Group: Harmony and Dissonance in International Legal Theory": IntLawGrrls guest/alumna Nienke Grossman and Helen Stacy (Stanford).
► "International Legal Implications of Israel's Attack on the Gaza Aid Flotilla": Sari Bashi (Gisha: Legal Center for Freedom of Movement); Sarah Weiss Maudi (Israel Ministry of Foreign Affairs); Naz Modirzadeh (Harvard).

Friday, March 25, 8-10 p.m.
► "ASIL Annual Dinner: A Celebration of Distinction and Promise": featuring, inter alia, award of the Goler T. Butcher Medal to IntLawGrrl guest/alumna Gay McDougall, (left), U.N. Independent Expert on Minorities; Certificate for Scholarship (Creative Scholarship) to Jutta Brunnée, coauthor with Stephen J. Toope of Legitimacy and Legality in International Law; and Certificate for Scholarship (Honorable Mention in a specialized area of international law) to IntLawGrrl guest/alumna Anne Gallagher, author of The International Law of Human Trafficking, on which she posted here.

Saturday, March 26, 9-10:30 a.m.
► "Duplication and Divergence in the Work of the United Nations Human Rights Treaty Bodies": Sarah McCosker (Office of the Australian Attorney General) and Catherine Powell (State Department) (right) as panelists; Christina Cerna (Organization of American States) will moderate.
► "Trade and Investment in Africa: Harmony and Disharmony with the International Community": Uche Ewelukwa (Arkansas) as panelist; Angela M. Banks (William & Mary) will moderate.
► "Geoengineering Climate Change: Can the Law Catch Up?": IntLawGrrl Hari M. Osofsky (Minnesota) as panelist; IntLawGrrl Rebecca Bratspies (CUNY) will moderate.
► "Author Meets Reader; International Law in the U.S. Supreme Court: Continuity and Change": IntLawGrrls guest/alumna Mary Dudziak (Southern California) and Lori Damrosch (Columbia) as panelists; Ingrid Wuerth (Vanderbilt) will moderate.
► "Transnational Piracy: To Pay or Prosecute?": Jennifer Landsidle (State Department) as panelist; Mileno Sterio (Cleveland-Marshall) will moderate.

Kudos to: ASIL President David Caron; ASIL Executive Director Betsy Andersen; the Program Committee Co-Chairs, IntLawGrrls' guest/alumna Chimène Keitner (California-Hastings), Catherine Amirfar (Debevoise & Plimpton LLP), and Tai-Heng Cheng (New York Law School), as well as Planning Committee members Kristen Boon (Seton Hall), Christiane Bourloyannis-Vrailas (EC/UN), Harlan Cohen (Georgia), Omar Dajani (Pacific McGeorge), Jennifer Daskal (Department of Justice), John Fellas (Hughes Hubbard & Reed LLP), Chiara Giorgetti (White & Case LLP), Dick Jackson (Department of Defense), Rebecca Jenkin (Debevoise & Plimpton LLP), Larry Johnson (Columbia), Erasmo Lara (Mexico Foreign Ministry), Blanca Montejo (United Nations), Michael Newton (Vanderbilt), IntLawGrrl Christiana Ochoa (Indiana), Jeffrey Pryce (Steptoe & Johnson LLP), Regan Ralph (Fund for Global Human Rights), Hina Shamsi (American Civil Liberties Union), Ingrid Wuerth (Vanderbilt), Lionel Yee (Singapore Attorney-General's Chambers), and Nassib Ziadé (International Centre for the Settlement of International Disputes)!

Write On! "Feminism Globally"

(Write On! is an occasional item about notable calls for papers.)

IntLawGrrls guest/alumna Nienke Grossman, a professor at the University of Baltimore School of Law, sends news that the law school's Center on Applied Feminism seeks submissions for its 4th Annual Feminist Legal Theory Conference, which will be held March 3 & 4, 2011, and focus on the theme of Applying Feminism Globally.

As detailed in the full call for papers, paper topics within this theme might include:

► How has feminist legal theory affected the lives of women across the globe?

► How could feminist legal theory improve women's lives in a global context?
► How does feminist legal theory differ across cultures within and outside the United States?

► What do comparative perspectives teach us about feminist legal theory?

► How could feminist legal theory from outside of the United States benefit American women and feminist scholarship?

► How do anti-essentialist perspectives on feminist legal theory apply in an international context?

► How do post-colonial perspectives on feminist legal theory apply in a domestic context?

► What can feminist legal theory contribute to the debate over universal vs. cultural specific norms and objectives?

► Is feminism still ambivalent about many areas of international law?

► What, if any, role has feminism played in the empowerment of women in international law-making?

► Can feminist legal theory improve our understanding of challenges facing immigrants within our own borders?

► What does feminist legal theory offer for indigenous peoples?

► How are human rights norms compatible with feminist legal theory?

(As described here, the Center's past 3 conferences have treated a variety of issues and featured keynotes speakers like Sheryl WuDunn, Maya Angelou, and Gloria Steinem.)
Abstracts of no more than 1 page, describing papers within the theme of the "Applied Feminism Globally" theme, should be submitted no later than October 15, 2010, via an e-mail with subject line "CAF conference submission," to Professor Michele Gilman (right), the Center's Co-Director, at mgilman@ubalt.edu. Working drafts of papers to be presented at the conference will be due no later than February 11, 2011; a select number of the final papers will be published in the University of Baltimore Law Review. Details on all aspects of the options in this call here.

Guest Blogger: Nienke Grossman

It's IntLawGrrls' great pleasure to welcome Nienke Grossman (left) as today's guest blogger.
Nienke's an Assistant Professor at the University of Baltimore School of Law, where she teaches International Law, International Environmental Law, and International Criminal Law.
Her pro bono work includes representation of Memoria Activa, a group of victims of a terrorist bombing of a Jewish community center in Buenos Aires, Argentina. She served as a consultant in two International Court of Justice cases: the Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) (prior post) and Maritime Dispute (Peru v. Chile).
Nienke was a Future Law Professors Fellow at Georgetown University Law Center, where she received her LL.M. Before that, she had represented sovereign governments before international courts and arbitral tribunals as an associate at Foley Hoag LLP, and also clerked for Judge Gerald Bruce Lee of the U.S. District Court for the Eastern District of Virginia. Nienke graduated cum laude from Harvard Law School and Harvard College.
Nienke’s current research examines the relationship between the legitimacy of international courts and sex representativeness. Her most recent article, “Legitimacy and International Adjudicative Bodies,” is set to appear this month in the George Washington International Law Review. In her guest post below, Nienke explores these issues in relation to the pending nomination of a new Justice for the U.S. Supreme Court.
Heartfelt welcome!

Women judges & judicial legitimacy

(Thank you to IntLawGrrls for inviting me to write a guest post on the most recent nomination to the Supreme Court)

Assuming the Senate confirms Solicitor General Elena Kagan (right) following hearings set to begin June 28, 33% of U.S. Supreme Court Justices will be women.
We have never had so many women on the Court before. (Prior IntLawGrrls post.)
But does the sex of the Justices matter? Would Kagan make the Highest Court somehow more legitimate? What exactly is the relationship between sex representativeness and the legitimacy of the Court? How might the presence of groups traditionally underrepresented on the Court affect perceptions of the Court’s authority and the soundness of its rulings?
The presence of women judges may affect legitimacy, if women decide cases differently from men.
In a 2009 New York Times interview, Justice Ruth Bader Ginsburg proposed that the presence of women judges

made it possible for the courts to appreciate earlier than they might otherwise that sexual harassment belongs under Title VII [as a violation of civil rights law].

Ginsburg (left) also has admitted that her womanly perspective affected her legal analysis of the strip search of 13-year old Savana Redding in Safford Unified School District v. Redding (2009).
Empirical studies seem to back up Justice Ginsburg’s claim:
► According to then-student Jennifer L. Perisie, author of the 2005 Yale Law Journal Note entitled “Female Judges Matter: Gender and Collegial Decision-Making in the Federal Appellate Courts,” plaintiffs in sex discrimination or sex harassment cases were twice as likely to prevail if at least one woman judge sat on the federal appellate panel reviewing their cases.

► A 2007 Stanford Law Review study, of which IntLawGrrl Jaya Ramji-Nogales was a co-author, found that in asylum cases, the gender of the judge appeared to be an important factor. Men granted asylum at a rate of 37.3%, women at a rate of 53.8%; that is, 44% more frequently than their male counterparts. (Prior IntLawGrrls posts here and here.)

► Similarly, a 2009 Washington University Law Review study showed that African American and White judges decide racial harassment cases differently. (“Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases,” by Pittsburgh Law Professor Pat K. Chew and Carnegie Mellon Business Professor Robert E. Kelley.)
Although judicial decision-making might vary by sex and race, the inclusion of traditionally underrepresented groups does not necessarily increase legitimacy. The presence of the underrepresented group must improve the Court’s decision-making. In other words, we have to believe the Court’s decisions are substantively better because “a wise Latina”, to quote Justice Sonia Sotomayor (right), sits on the bench. Inclusion affects legitimacy if we believe many different kinds of Justices around one conference table are more likely to produce a Just result.
The link between legitimacy and inclusion may also be tied to aspirations of the general population (or maybe just the empowered parts of the population) for representativeness on institutions important to our democracy. We simply want to see women -- or not only men -- sitting on the bench, and we question the legitimacy of a body that renders important decisions without them. Maybe we’ve reached a point in our development as a nation where, as Justice Ginsburg put it when she became the sole woman on the Court, “[i]t just doesn’t look right” to have only one woman on the Court.
But what about international courts?
Consider the 65-year-old International Court of Justice. Rosalyn Higgins (left), who retired in 2009, is the only woman ever to have served as a permanent ICJ judge. It remains to be seen if women will be considered to fill any upcoming vacancy.
Similarly, the International Tribunal for the Law of the Sea has never had women judges. Only four women serve on the twenty-six member bench of the European Court of Justice, while they make up a mere 14% of the four-year-old African Court on Human and Peoples' Rights. (Among them is Judge Sophia A.B. Akuffo of Ghana (below right), Vice President of that court.) Only 6% of arbitrators in cases at the International Centre for the Settlement of Investment Disputes were women. Women participate at higher rates on most international criminal courts and regional human rights courts, but only one court – the International Criminal Court – has reached 50% participation. (Although not international courts, the International Law Commission and the Inter-American Juridical Committee also are bodies in which notoriously few women participate.)
To borrow from Justice Ginsburg, does this “look right”?
Perhaps the debate in the United States can reignite our efforts to better understand what is happening at the international level. Why are women being left behind on most of the world’s most important international courts? What does it tell us about the legitimacy of these increasingly important institutions? I am tackling these questions in my own scholarship, and invite you to join me in considering them.