Equality in the judiciary has historically been unbalanced, including at the International Court of Justice (ICJ), the main judicial body of the United Nations.
The first woman elected as a member of the ICJ in 1995 was Dame Rosalyn Higgins, who in 2006 also became the court’s first female president.
Today at the ICJ, also known as the “World Court”, four out of 15 judges are women, including the Court’s President Joan E. Donoghue. In total, the Hague-based court has had five female judges in its history, compared to 106 male judges.
Women’s participation in the judiciary is essential to ensure that courts reflect the make-up of society and address the concerns of citizens. Female judges enhance the legitimacy of the courts and send a powerful message that they are open and accessible to all who seek justice.
To mark International day, the UN in Western Europe interviewed three of the court’s judges: Hanqin Xue, judge of the ICJ since 2010 and vice-president from 2018 to 2021; Hilary Charlesworth, judge at the ICJ since November 2021; and Dame Rosalyn Higgins, Judge of the ICJ from 1995 to 2009 and President from 2006-2009.
“The fight for women’s emancipation has been going on for a long time. Still, the court didn’t have a female judge until 1995. That’s late. It is high time to recognize women’s achievements, women’s contributions and their skills and talents in the international arena,” said Judge Hanqin Xue.
Find the full version of this interview herewhich was originally published by the United Nations Regional Information Center for Western Europe (UNRIC).
UNRIC: How would you describe the development of gender equality at the ICJ, or more generally in the judiciary?
Hanqin Xue: So far, not even a third of (ICJ) judge members are women. It is high time to recognize the achievements of women. The UN has played a key role and is a driving force in promoting gender equality. People need to be constantly educated about gender equality to counter the traditional prejudice against female professionals. It’s not a matter of numbers, it’s a matter of attitude. If you have three or five or half of the members who are female judges, it doesn’t make much difference. When people no longer pay attention to the number of female judges, it means that it is no longer an issue. And currently we still have a void to fill.
Hilary Charlesworth: In the 28 years since Dame Rosalyn Higgins was first elected to the court, four more women have been elected, including me. This indicates rather slow progress. There are elections to the court this year, but it’s likely that the number of female judges will either decrease or remain the same, so I don’t think progress is certain that way. In the future, I would like to see a faster rate of change. The UN system is committed to 50-50 equality at all levels, and I would like to see the Court achieve that. Of course, it is not up to the court itself, but on national groups responsible for nominating judges and the states that support those nominations. In the longer term, I would like to see the day when the election of women judges to the court is not a comment, when it is just taken for granted.
Dame Rosalyn Higgins: For women to be able to get to that position, they have to be extremely hard working and very capable. But I’m for quality and if the best person is a woman that’s great, if the best person is from an ethnic minority that’s great, but I’m not looking for gender equality. The public expects a court that makes judgments that may affect them, or their relatives, or matters they care about, to be made by people who look no different than themselves. There needs to be diversity to reflect society, not on a parity or percentage basis, but to represent the population more generally by having the most capable people out there.
UNRIC: What kind of initiatives could be implemented to ensure that States Parties take all appropriate measures to ensure that women, on equal terms with men, can participate in the judicial work and in the work of the Court?
Hanqin Xue: To see more women judges elected to the court, it is important to start at the national level, as the national groups nominate candidates. Every national group should have equality in mind. It is high time we put this at the top of the agenda at the state level. And secondly, it is necessary that due consideration be given to competent female candidates at the UN level, where members (of the ICJ) are elected by Safety advice and the general assembly.
Hilary Charlesworth: Articles 7 and 8 i The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) are two important provisions that call on states parties to the treaty to ensure women’s equal access to public life nationally and internationally. Article 8 expressly calls on States to make every effort to ensure equal opportunities for women to participate in the work of international organizations. This is very relevant to the court. In addition, the Sixth Committee of the General Assembly, the Judiciary Committee, could encourage states to nominate more women for election to international courts and tribunals.
Dame Rosalyn Higgins: Part of the answer lies with the convention states. During the early part of my time at the Court, the Secretary-General made a formal statement that states, where they saw the opportunity, should recommend a woman for a higher post, if the woman was of comparable quality. He spoke not only of courts but of the UN system in general. The second part of the answer lies in education. The problem goes all the way back to opportunities and development in the school years, if women are to emerge later on the basis of quality. It is important that girls have the same advantages in school as boys. So that women at a later stage can get through the best law schools.
UNRIC: Did you ever feel, as a female judge, that you had to prove yourself more because of your gender, to reach your position?
Hanqin Xue: Definitely, all the time. Never take it for granted. When a woman takes a high position, people tend to doubt first before acknowledging her role and competence. Such an attitude, consciously or subliminally, exists.
Hilary Charlesworth: When women are in the minority in an environment like this, they stand out more, which sometimes generates more scrutiny of women in international courts and tribunals. Many people, when referring to female judges, will often state “female judge”, but male judges are not identified as such. We just assume that being a male judge is the norm. I hope we can get to a point where we are not called women judges, but just judges.
Dame Rosalyn Higgins: No, I have not had to overcome anything when I went to the ICJ. But they had to build a separate ladies room for me and they had to be reminded that I needed a towel and soap, but that’s the worst thing that’s happened.
UNRIC: How would you describe the significance of your role as a female judge at the ICJ?
Hanqin Xue: Whether you are a woman or a man, the role of judicial work is the same for every judge. But as I observed in my career, female professionals always have to work much harder to achieve success. In addition to gender bias in the workplace, they also have to overcome the challenges of family responsibilities and career development. I hope that our role as a female judge at the ICJ will change people’s mindsets and give more encouragement to female professionals.
Hilary Charlesworth: During the covid pandemic, quite a few studies examined good decision making. I was struck by one particular article that stated that the best decisions were made when a range of perspectives from different backgrounds were represented around the table, and that problems would arise with decision-making when one had a monocultural mindset. Therefore, the first aspect of importance of having – maybe not enough, but – some women around the table, is the diversity of perspectives we get.
Second, the court’s statutes and state practice are cognizant of the need for geographic diversity. Although this is very important, it is necessary to look at other forms of diversity as well. And of course gender is just another form of diversity, there are many others. Third, the importance of having more women around the table is symbolic, it sends a powerful message about the status of women.
Dame Rosalyn Higgins: In general, people see my role in equality more important than I do. I was simply delighted to be elected a judge and then delighted to be elected President.
UNRIC: What message would you like to convey to the next generation of female judges?
Hanqin Xue: I would encourage young female lawyers to work hard and strive for excellence. Yet it depends not only on effort, but also on a bit of luck to have the opportunities. With so many promising young international women lawyers, I am confident that we will see an increasing number of women judges in international and national courts.
Hilary Charlesworth: My message would be “do your best in everything you do”. I encourage people to avoid grand strategies and rather think about more short-term trajectories and perform to the best of their ability. It is also very important to try to have a work-life balance, which will help you both in your profession and in your life.
Dame Rosalyn Higgins: I remember being told “it’s hard as a career anyway, it will be harder as a woman, but try”. Nobody told me “don’t try”, “don’t do it”. So my advice is: don’t be put off so easily. Try what you want to do in life and don’t think for a minute that your gender is a disadvantage. You have to concentrate on giving it your all, never take “no” for an answer.