How far beyond Tokens? What gender justice on the international bench requires - Parity, Critical Mass, Gender sensitive judges...
PluriCourts Lunch Seminar with Andreas Føllesdal.
Does a commitment that institutions should treat all with equal concern require all legitimate ICs to achieve gender equality on the bench – complete parity? Or might a ‘critical mass’ of 15-25%, or a ‘parity zone’ of 40% of each of the two prevalent genders suffice? How well do various such arguments withstand criticisms that they ‘essentialize’ gender, or assume that elitist female international judges can represent all other women, or lead to a slippery slope where ICs must also ‘mirror’ a myriad of characteristics of the affected populations and constituencies?
The many reasons to lament various unjust forms and levels of inequalities counsel different, only partly overlapping objectives. The composition and workings of ICs must satisfy the norms of impartiality independence and procedural fairness, especially because the ICs are tasked to uphold these very norms. There are also arguments that the international bench must be representative of those subject to it. While empirical evidence on international courts is scarce, cautious extrapolation may (for now) indicate the following:
Mechanisms of compassion, epistemic competence; and expressions of status equality seem to favour a high threshold of both the prevalent genders, beyond a ‘critical mass,’ in a ‘parity zone.’ And several of the arguments entail that more judges - regardless of their own gender – should be ‘gender sensitive.’ But – even with the paucity of empirical studies - there seem to be few sound arguments for complete equal proportions of men and women –‘gender parity.’ Several arguments against the call for a large critical mass and gender distribution within a parity zone withstands objections concerning essentialism, representativity and ‘mirroring’.
The draft paper is available here.
PluriCourt Seminars are a forum for pluridisciplinary discussion of core issues relating to international courts and tribunals. PluriCourts scholars or invited speakers present new and ongoing research or comment on current questions. The seminars are open to everyone.