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Why Fighting Structural Inequalities Requires Institutionalizing Difference: A Response to Nienke Grossman

Part of: Nienke Grossman, “Achieving Sex-Representative International Court Benches”

Published online by Cambridge University Press:  20 January 2017

Neus Torbisco-Casals
Neus Torbisco-Casals*
Affiliation:
Graduate Institute of International and Development Studies (Geneva) & Universitat Pompeu Fabra (Barcelona)
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People ask me sometimes, when—when do you think it will be enough? When will there be enough women on the court? And my answer is when there are nine.

Justice Ruth Bader Ginsburg, U.S. Supreme Court

Nienke Grossman offers a much needed overview of the statistical patterns behind the substantial underrepresentation of women in international courts benches. As her inquiry reveals, despite the growing proportion of female qualified lawyers, sex representativeness has hardly improved in recent years. On the contrary, in the absence of special requirements in courts’ statutes or judicial selection procedures, the percentage of women judges has actually stagnated or even declined in some cases. Such acute sex imbalance cannot be attributed to the (contingent) fact that not enough qualified women are available for such highly prestigious positions. Grossman persuasively contests the plausibility of this widespread assumption. Not only is the limited-pool argument fallacious, but, as her analysis suggests, part of the problem might actually be that judicial selection procedures lack transparency and are not driven by merit. Instead, nominations of international judges are often used “to reward political loyalty or to advance political agendas”; this practice seriously impinges on the chances of women to be appointed as international judges, as politics (both domestic and international) remains very much a male-dominated sphere.

Type
Symposium on Nienke Grossman, “Achieving Sex-Representative International Court Benches”
Information
AJIL Unbound , Volume 110 , 2016 , pp. 92 - 97
Copyright
Copyright © American Society of International Law 2016

References

1 When will there be enough women on the Supreme Court? Justice Ginsburg answers that question, PBS Newshour (Feb. 5, 2015, 6:10 PM)Google Scholar.

2 Grossman, Nienke, Achieving Sex-Representative International Court Benches, 110 AJIL 86 (2016)Google Scholar.

3 Gqual; International Geneva Gender Champions.

4 For a comprehensive review see, especially, Chapters 4 (work) and 5 (power and decision-making) of the more recent UN World’s Women Report : United Nations Statistics Division, The World’s Women 2015: Trends and Statistics.

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6 Grossman, supra note 2, at 87.

7 Cecily Rose’s comment in this symposium also stresses this point, especially with regards to the limitations of article 8 of the UN Charter. See Rose, Cecily, Justifying Arguments About Selection Procedures for Judges at International Courts and Tribunals: A Response to Nienke Grossman, 110 AJIL Unbound 86 (2016)CrossRefGoogle Scholar.

8 Slaughter, Anne-Marie, Why Women Still Can’t Have It All, The Atlantic, (July/Aug. 2012)Google Scholar.

9 Torbisco-Casals, Neus & Boran, Idil, Interview with Iris Marion Young, 23 HYPATIA 173 (2008)CrossRefGoogle Scholar.

10 Id. at 175.

11 Young, Iris M., Equality of Whom? Social Groups and Judgments of Injustice, 9 J. Pol. Phil. 15 (2001)Google Scholar.

12 Id.

13 Fiss, Owen M., Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107 (1976)Google Scholar.

14 See Yoshino, Kenji, Covering, 111 Yale L.J. 769 (2002)CrossRefGoogle Scholar.

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18 Id.

19 See, also, Grossman, Nienke, Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?, 12 Chi. J. Int’l L. 647 (2012)Google Scholar.

20 See Del Mar, Maksymilian, Judging Virtuously: Developing an Emphatic Capacity for Perceptual Sensitivity, 5 Juris. 177 (2014)Google Scholar.

21 I develop this argument in: Torbisco-Casals, Neus, Multiculturalism, Identity Claims and Human Rights: From Politics to Courts, Law & Ethics Hum. Rts. (forthcoming).Google Scholar

22 Amaya, Amalia, The role of virtue in legal justification, in Law, Virtue and Justice (Amaya, Amalia & Lai, Ho Hock eds. 2013)Google Scholar.

23 See Del Mar, supra note 21.

24 Institutional theories of judicial behavior, which accentuate the relevance of “systemic,” rather than personal or apparent bias, are crucial here. Apparent bias occurs where there is sufficient evidence of personal interest of a certain judge; systemic bias, instead, focuses on whether an adjudication system is designed to systematically favor the appointment of members of mainstream social groups, which typically reproduce their shared values and prejudices.

25 Banda, Fareda, “If you buy a cup, why would you not use it?” Marital Rape: The Acceptable Face of Gender Based Violence, 109 AJIL Unbound 321 (2016)CrossRefGoogle Scholar.

26 See on this case Koren, Marina, Telling the Story of the Stanford Rape Case, The Atlantic (June 6, 2016)Google Scholar.

27 See Rocha, Veronica & Winton, Richard, Stanford rape sentence unusually light, legal experts say, L.A. Times (June 7, 2016, 12:12 PM).Google Scholar

28 The expression is borrowed from Owen M. Fiss Et Al., A Community of Equals: The Constitutional Protection of New Americans (1999).