Highlight 2/2022 – Can we aspire for a more equitable gender representation in the International Law Commission?
Rosa Maria Ysobel Pareja, 11 January 2022
The International Law Commission was established by the United Nations General Assembly to undertake the responsibility to “initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification” as stated under Article 13 of the UN Charter. On 12 November 2021, at the 76th session of the General Assembly, the ILC elected 34 new members to serve a five-year term beginning on 1 January 2023, following the extension of the current membership due to the COVID-19 pandemic.
General Assembly Resolution 36/39 of 18 November 1981, paragraph 3, laid out the allocation of seats for better geographical representation as follows : 9 seats for African States, 8 seats for Asia-Pacific, 3 seats for Eastern Europe, 6 from Latin America and the Caribbean and 8 from Western Europe and other States (Resolution ). Since its formation in 1947, 229 members have served in the Commission.
However, out of the 229 members, only seven have been women, a paltry 3%, with the first two, Paula Escarameia of Portugal and Xue Hanqin of China being elected in 2001. Considering that the body has been in existence for over 70 years, the fact that the first women elected to the body came after 54 years is inexcusable and not isolated. The international law fora severely lack women representation and to an extent the UN system in general. The International Court of Justice, the main judicial arm of the UN, has had likewise only 4 female judges out of the 109. It is unfortunate that bodies created under the UN system which itself aims for and promotes gender parity at all levels, cannot lead by example. There has been some improvement with the adoption of the Resolution 73/341 of 2019 encouraging Member States to nominate more women candidates. As the General Assembly was able to bring about proportional geographic representation through Resolution 36/39 of 1981, there is hope that it may bring about a resolution calling for better gender representation within the Commission.
Article 2, paragraph 1 of the statute of the International Law Commission provides that members “shall be persons of recognized competence in international law.” In 2021, out of the 49 candidates for election into the Commission, only 8 are women. Why is there a shortage of female candidates? Do Member States not have enough qualified women to be considered for nomination? Doubtful. The American Bar Association released a report in 2018 on how women outnumber men in law school applications. However, there are still fewer women who hold more powerful legal positions and governments must work harder to address this issue.
Gender equality is listed as one of the Sustainable Development Goals (SDG #5) and further, Target 16.7 (under SDG #16 Peace, Justice & Strong Institutions) calls for ensuring “responsive, inclusive, participatory and representative decision-making at all levels” which includes proportional representation of sexes in national and local institutions including the judiciary. Governments must then ensure that women have the same access as men to opportunities that would equip them with the knowledge and skills necessary to represent their country in international fora. Furthermore, governments should support their women candidates to gain recognition in international law, nominate them for positions in international commissions and lobby for other states’ support of female candidates in upcoming elections. Doing so would also be in line with Article 8 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) according to which states must ensure that women have the same opportunities as men to represent their government at the international level and in international organizations.
There is still a long way to go to achieve gender parity in the Commission (and other international organizations). The increase in the number of nominations of women in previous years (albeit slow) shows that progress is being attained. The challenge then is to sustain and intensify this movement. The elected women in the body may use their platform to call on Member States to aim for more equal representation, perhaps even pushing for each region to nominate a set number of women. Equal representation of genders in the ILC is significant. It legitimizes the organization as women can bring innovative positions and a different perspective to a body bearing the heavy task of codification. Having more women representation in the ILC could bring about novel ideas as the body is tasked with the “progressive development of international law”. As Secretary General Antonio Guterres said :
« Gender parity at the United Nations is an urgent need – and a personal priority. It is a moral duty and an operational necessity. The meaningful inclusion of women in decision-making increases effectiveness and productivity, brings new perspectives and solutions to the table, unlocks greater resources and strengthens efforts across all the three pillars of our work. »
Rosa Maria Ysobel Pareja, Highlight 2/2022 – Can we aspire for a more gender equal representation in the International Law Commission?, available at www.meig.ch
The views expressed in the MEIG Highlights are personal to the author and neither reflect the positions of the MEIG Programme nor those of the University of Geneva.