Counsel in international adjudication - Still dominated by Western, white men

The lack of diversity risks diminishing important perspectives from women and from the non-west, according to Professor James Gathii from Loyola University Chicago School of Law.

Illustration photo of two anonymous male lawyers discussing a case

Still a male dominated profession: Few of the counsel in international adjudication are from developing countries and almost all, regardless of nationality, are male. Illustration photo from Colourbox.com

Professor Gathii visited Oslo to hold PluriCourts’ Annual Lecture on the 1st of July. The lecture focused on the importance of diversity within the legal teams representing Parties in international adjudication. This is a group of rather homogenous individuals in terms of their background. Most of them are from developed countries and almost all, regardless of nationality, are men.

Often, this pattern runs counter to the geographical distribution of cases. At the International Court of Justice (ICJ), non-OECD countries constituted the majority of both applicants and respondents in all contentious cases between 1998 and 2018. Despite this, very few lawyers or law firms from non-Western countries appeared before the court on a regular basis. The gender imbalance is also massive, with 819 men among the overall 1049 lawyers sampled by Professor Gathii.  

  •  - A personal endeavor

  • According to Professor Gathii, this over-representation of white males in legal counsel is problematic in several ways. He fears that it might entrench Western-centric international law and that it risks diminishing important perspectives from women and from the non-West that are relevant and needed in international adjudication.

    Yet the lack of diversity is also a question of equal opportunities for everyone, regardless of their gender or national origin.   

  • For me, this is not merely an academic pursuit but a personal endeavor as an international lawyer, Professor Gathii argued.
  • Photo of Gathii
    Lack of diversity has consequences: Professor Gathii fears that the lack of diversity might diminish important perspectives from women and the non-west. Photo: Hanna Jarstø Ervik
  • A deep-rooted lack of diversity

  • Several factors could explain the lack of diversity at the ICJ, Professor Gathii explained. Historically, there is a legacy of exclusion of non-white people and women from the international legal profession, which to this day may still affect the composition of the legal teams. These patterns may be further entrenched by the strong influence of an elite group of individuals that appears regularly before the ICJ, most of whom are white, male and have their academic and professional backgrounds from specific elite universities and international law societies. In addition, leading firms may also find it in their interest to use sophisticated lobbying methods to exclude certain views or specific people.

    Yet developing states’ own actions might also contribute to the lack of diversity. In the cases handled by the ICJ, stakes are often extremely high for the parties involved. A strong loss aversion might push non-OECD states to seek lawyers that already have a substantive track record of winning, rather than building up their domestic counsels’ capacity. In some ways, the immediate goal of winning a case could thus run counter to the more long term capacity building that is needed to create a more inclusive and diverse system.

Photo of Gathii during the lecture
An engaged audience: Many PluriCourts members took part in the lively discussions after Professor Gathii's lecture. Photo: Hanna Jarstø Ervik

    PluriCourts’ annual conference 2022

    After his lecture, Professor Gathii received elaborate comments from Professor Alain Zysset and Assistant Professor Theresa Squatrito, who gave comments from philosophical and political science perspectives. Afterwards, there was also a lively discussion with the rest of the PluriCourts team.  

    The lecture took place the day after PluriCourts’ annual conference, which gathered PluriCourts members as well as members of PluriCourts’ Scientific Advisory Committee. The two-day conference provided opportunities to receive input on PluriCourts’ ongoing research projects, and facilitated for elaborate discussions on topics such as whether international courts could save democracy and deference by international courts.

     

    By Hanna Jarstø Ervik
    Published July 15, 2022 9:22 AM - Last modified July 15, 2022 9:24 AM