CERD shoehorn fails to fit

Shoehorning the conflict between the Republic of Georgia and the Russian Federation into a race discrimination claim always seemed a bit of a stretch.
Not to say there's no ethnic animus amid the tension that heated into armed conflict a while back. (Prior IntLawGrrls posts available here.) Just that there seemed to be a lot more going on. Still, Georgia's CERD shoehorn -- its effort for secure International Court of Justice review on the basis of the Convention on the Elimination of All Forms of Racial Discrimination -- was creative lawyering. The kind of thing that just might work.
In the end, however, not enough judges were persuaded.
The ICJ has ruled against Georgia in the case known as Application of the Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). Of initial note in the judgment, available here, is the division among judges on the issues presented:
► On Russia's claim that no dispute under CERD Article 22 existed, the vote was 12 judges in favor of the objection, 4 against (among the latter, new Judge Xue Hanqin, of China).
► On Russia's claim that Georgia had not satisfied procedural requirements set out in CERD Article 22, the vote was 10 judges in favor of the objection, 6 against (among the latter, newest Judge Joan E. Donoghue, of the United States).
► On the ICJ's finding that it had no jurisdiction, the same 10 judges voted aye and the same 6, including Donoghue, voted no.
Comment on the full judgment awaits careful reading.

2 women judges sworn in at ICJ

At 10 Central European Time this morning, Joan E. Donoghue of the United States and Dr. Xue Hanqin of China were sworn in as the newest Judges on the 15-member International Court of Justice (right) at The Hague, Netherlands.
Judges old and new then began a planned week of public hearings in the Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). Pending since 2008, the dispute arose out of events that year in 2 provinces of the Republic of Georgia, South Ossetia and Abkhazia. (Prior IntLawGrrls posts available here.)
Today is the 1st in history that the 65-year-old ICJ bench was not composed of 14 or more men.
As posted, the only other women ever to have served was Rosalyn Higgins (left) of Great Britain, an ICJ Judge from 1995 to 2009 and ICJ President the last 3 years of that tenure.
Xue had been elected on June 29 by the U.N. Security Council and U.N. General Assembly; those bodies elected Donoghue just this past week, on September 9.
Each woman is filling out the term of a retiring judge, and each is eligible thereafter to run for election to a full term.
Both the newest members have devoted their careers to diplomacy.
Xue (left), who will celebrate her 55th birthday this Wednesday, was born in Shanghai. At Beijing University she earned her 1st law degree, a diploma in international law, a field in which she's published widely. Xue then earned an LL.M. and a J.S.D. at Columbia University School of Law in New York. As detailed at her ICJ webpage, she has held a myriad of positions in China's Ministry of Foreign Affairs and has represented China before many international organizations; most recently, as China's Ambassador to ASEAN, the Association of Southeast Asian Nations. She's served as the President of the Asian Society of International Law since 2009.
As we've posted, Donoghue (left) holds a double B.A. with honors in Russian Studies and Biology from the University of California, Santa Cruz, and a J.D. from the University of California, Berkeley, School of Law. She's been a Visiting Professor there, and also has held positions at the Council on Foreign Relations, Georgetown University Law Center, and the George Washington University School of Law. Save for 2 stints in the Treasury Department and at Freddie Mac, she's practiced at the U.S. State Department since 1984. She'd been serving as Principal Deputy Legal Adviser at the time of her nomination to the ICJ. Donoghue is a member of the American Society of International Law, which, as shown in the video below, held a June 2010 event that featured comments by Donoghue, by current State Department Legal Adviser Harold Hongju Koh, and by Koh's immediate predecessor, John B. Bellinger III.

American woman at ICJ?

Talk about action.

No sooner had we signed off on the post below respecting women judges at The Hague than we heard word that another soon may be donning robes.

Rumor has it -- most likely an accurate rumor, given the source is our OJ colleague Roger Alford -- Joan Donoghue has been chosen to fill the U.S. vacancy at the International Court of Justice, located in the Peace Palace pictured at left.

Said to have been chosen by the U.S. national group, Donoghue, Principal Deputy in the Office of the Legal Adviser at the Department of State, would be poised to join that court along with another woman, diplomat Xue Hanqin, whom, as noted below, China's nominated to fill its vacant seat.

Donoghue's photo couldn't be found on the web. Her bio doesn't appear on the State Department weblist, though she's been with State Department for more than a decade. A web search indicates that back in 1994, as Assistant Legal Adviser for African Affairs, she was involved in State's efforts to define "genocide" in the context of massacres in Rwanda. In 2008, she gave testimony before a Senate committee on international regulation of doping in sports. Now a top aide to Legal Adviser Harold Hongju Koh, she served as Acting Legal Adviser early in the Obama Administration, while Koh's nomination was pending. On account of that title, her name also crops up in lots of early 2009 Guantánamo-related cybertraffic.

Roger reports that Donoghue was chosen over IntLawGrrls' own Lucy Reed and our colleague David D. Caron, respectively the immediate past and current Presidents of the American Society of International Law.

Judge Vaz stands alone (for now)

IntLawGrrls is a frequent site for discussions about gender, women judges, and international justice. It was a theme in our recent Kampala series, of course, and the central consideration in posts by guests like Patricia M. Wald (here) and Nienke Grossman (here).
In that light, this bears note:
As is evident from the photo array available here, Andrésia Vaz of Senegal (right) is currently the lone woman out of 16 permanent judges at the International Criminal Tribunal for the former Yugoslavia (logo above left).
Even that's better than the status quo elsewhere at The Hague.
As we've posted, the International Court of Justice (logo above middle) is a male-only bench, as it has been from its inception save the years that Rosalyn Higgins, now retired, served. In a recent ASIL Insight, our colleague Natalya Scimeca laid out the process by which the 2 ICJ vacancies are to be filled. In so doing, she noted that China's national group "has apparently nominated Madam Xue Hanqin [left], who is currently the Chinese Ambassador to the Association of Southeast Asian Nations (ASEAN) and a member of the International Law Commission," to replace the departing ICJ judge from China. No word yet on the nomination by the U.S. national group. Scimeca, who clerked for Judge Thomas Buergenthal, retiring after a decade on the ICJ, made this comment about the possibility that no woman might be chosen for either ICJ vacancy:

This would be unfortunate at a time when the Court's supporters seek to justify its continuing relevance and its unique status within the international legal realm.

(See news update in post above)