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Descriptive representation of women in international courts

2021; Wiley; Volume: 52; Issue: 4 Linguagem: Inglês

10.1111/josp.12445

1467-9833

Cathrine Holst, Silje Aambø Langvatn,

Human Rights and Development

Should those who represent and govern us be similar to us? Several legal scholars have recently argued that the composition of international courts needs to better reflect the different experiences and social cleavages in society at large and called for measures to ensure increased descriptive representation. The idea is that when the composition of office holders in a governing institution does not "mirror" the distribution of certain descriptive features in the population at large, connected for example to gender, race or ethnicity, it may be justified to introduce policies to increase the presence of these features, such as fixed quotas, or requirements of having at least one person with the feature in question on a ballot or recruitment list. Normative political theorists were for long less enthusiastic about descriptive representation, and emphasized rather the shortcomings of quota thinking and policies (see for example Pennock, 1979, but also Kymlicka, 1995; Young, 1997). However, Jane Mansbridge (1999) turned the table with her seminal article "Should Blacks represent Blacks and Women Represent Women? A Contingent 'Yes'". While recognizing many of the potential "costs" of descriptive representation, Mansbridge argued that descriptive representation measures may have "benefits" as well, for example in contexts where there is mistrust between groups, or disbelief in some groups' "ability to rule". This article re-visits Mansbridge's approach in light of recent discussions of women's representation in international courts. Mansbridge develops her arguments with parliaments in mind—do her arguments hold for international courts? Are the costs she lists equally costly, and the benefits equally beneficial, given the different aims and functions of an international bench? And are descriptive representation measures more easily justified in some courts than in others? What is the normative relevance of the varying empirical features of courts? The article offers a comprehensive framework for assessing descriptive representation in international courts that addresses a wider range of normative concerns than previous contributions; that is "function-sensitive" in the sense of avoiding considerations of costs and benefits irrespective of institutional aim and function (Erman, 2018); and that specifies the relationship between normative assessment and factual scope conditions, linking normative theorizing on the need for "diversity" in courts to empirical research questions. It does so with a focus on the distinctive case of women's representation at the international bench; however, with proper adaptations the proposed framework is relevant for assessments of other claims for descriptive representation as well, pertaining for example to race or ethnicity. The first part of the article gives a brief overview of legal scholars' discussion of the "sex on the bench" issue in the context of international judiciaries (Grossman, 2012, p. 647). We argue that this literature would profit from a more systematic treatment of the different costs and benefits of descriptive representation. For this purpose, Mansbridge's approach provides a good starting point. In the second part, we discuss the role of the international benches. We show that several of the aims and functions of international courts bring to the fore concerns similar to those Mansbridge raised in the context of elected assemblies. Yet, a unique and primary function for the judiciary is the adjudicative function. The question is what this does to the calculus of descriptive representation. In the third part, we present and scrutinize Mansbridge's approach with this in mind. Taking into account how international judiciaries have a different set of functions than parliaments, we end up with a revised assessment of both the costs and benefits of descriptive representation of women. Generally, we find that several of the costs of descriptive representation may get costlier while some of the benefits may become less significant in the international court setting. Hence, proponents of descriptive representation measures do not always have a straightforward case. Nevertheless, several potential benefits remain depending on context, and costs could be mitigated, or considered acceptable overall. A fine-grained assessment of whether measures to promote descriptive representation of women in any particular court is recommendable or needed depends moreover on a range of empirical factors. In the article's fourth section, we list several such factors, and show how they make a difference when assessing calls for descriptive representation. The discussion draws on examples from different international courts. The final part sums up the article, notes some limitations, and outlines implications. Descriptive representation of women in international courts has been discussed in the legal literature under headings such as "sex representativeness" (Grossman, 2012, p. 654) and "identitarian representation" (Dallara & Vauchez, 2012). Early discussions on the need for more women in international courts focused on human rights courts (for a summary, see McCauley, 1994). However, the focus was soon broadened to include international courts more generally (Charlesworth et al., 1991). A standard reference on the issue today is Nienke Grossman's (2012) "Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?" (see also Grossman, 2011, 2016). Grossman's argument is that the underrepresentation of women in international courts affects both the normative and sociological legitimacy of these courts. First, because the underrepresentation endangers impartiality and introduces bias insofar as men and women judge differently (Grossman, 2012, p. 676). Second, because representativeness is an important democratic value that affects the perceived legitimacy of and trust in these courts (Grossman, 2012, p. 669). Grossman brings together legal, empirical and normative concerns in her extensive and valuable discussion. Yet, her article is symptomatic of much of the current literature in that it does not offer a systematic discussion and balancing of the various advantages in relation to the disadvantages and trade-offs that descriptive representation of women will entail for different international courts (other examples include Hale, 2001; Hunter, 2015; Tulkens, 2014, 2015).1 There has also been a paucity of systematic empirical studies on the effects of different gender compositions and of various measures to increase women's representation in international courts.2 Much of the discussion has therefore extrapolated from findings from US courts especially (Boyd, 2013; Boyd et al., 2010; Kenney, 2008), and from interviews with international female judges (Terries et al., 2007). However, more datasets with information on the role of gender in international courts are now becoming available (recently for example Shikhelman, 2017; Voeten, 2019). While results are not always conclusive, they may spark new debates about the desirable gender ratio in various judiciaries and policies that might influence it. Such debates are in need of a considered normative framework specifically adapted to this institutional context. This is what our article provides. The reasons for and against descriptive representation within a governing institution will depend on the purposes or functions of the institution. As we have indicated, Mansbridge (1999, p. 636) tailors her arguments primarily toward the "ruling assemblies" of "representative democracies", and almost all her examples are taken from elected legislative bodies (Mansbridge, 1999, p. 649). This becomes manifest by the way she formulates "the primary function" of the bodies she has in mind, which is, she says, to "represent the substantive interests of the represented" (Mansbridge, 1999, p. 630). This is no doubt the central rationale of parliaments and other democratically elected assemblies, and when considering the costs and benefits of descriptive representation in such assemblies, it seems pertinent to make interest representation the key parameter. But parliaments have other additional functions; Mansbridge highlights "the representative assembly's role in constructing social meaning" conductive to the fostering of a viable political community and equal citizenship, and in ensuring "the increased empirical (or sociological or de facto) legitimacy of the polity" (Mansbridge, 1999, p. 648, 650). Hence, assessments of the reasons for and against descriptive representation measures must consider implications for these other functions as well. However, when we move to descriptive representation in the context of international courts, the set and ranking of functions will change substantively. Most importantly, the primary function of any court is arguably not to represent citizens' interests, but to represent and apply the law. Courts are essentially adjudicative bodies that are first and foremost expected to conform to standards of proper judicial practice, including standards of legal reasoning, legal interpretation, and procedural fairness, and norms of judicial independence and impartiality. Accordingly, in the case of courts, the costs and benefits of descriptive representation measures for the fulfillment of this prominent adjudicative function must take central stage. Still, like elected assemblies, courts—and international courts more so than other courts—have a range of additional but non-trivial functions that must be considered as well. For one, judging is not a deductive mechanical form of reasoning. It unavoidably involves a degree of discretion, both in interpretation and application of the law, in weighing of legal principles, in the interpretation of the facts, and especially when filling in gaps in the law. In addition to the primary adjudicative function, courts have thus to a lesser or larger degree a law developing function. A central role for international courts is to clarify and elaborate legal rules, make treaty norms, and shape international law more generally (Alter, 2013; Squatrito et al., 2018). International courts are typically more involved in law development, and even law making, than domestic courts. One reason for this is that international treaties are often more incomplete than domestic laws, and thus leave more room for interpretation (Alter & Helfer, 2010). This law developing function is in many international treaty regimes also a result of the lack of an effective legislative body that can specify the legal norms further. This makes what Mansbridge refers to as substantive interest representation a relevant concern also for international courts: Just as parliaments in democracies must make sure they represent the relevant interests, so must courts, to the extent that courts not only decide on the basis of law, but also shape what the law is or should be. Many international courts also have the specific function of representing states. The primary addressees of international courts are most often the state signatories of their respective treaties, not private persons or the global citizenry. Arguably, this makes these courts particularly dependent on states' cooperation and trust. An expression of this is how geographic representativeness is often included in the courts' statutes (for an overview, see Shikhelman, 2017). International courts' special reliance on support from states, as well as from other central addressees, can be linked to characteristics of their constitutional and political surroundings. Domestic courts in representative democracies typically operate in a context with a division of power and functions between the judiciary, the legislative and the executive branches of government. As we know, the international domain lacks a similar clear-cut set-up, and international courts thus tend to take on more tasks than domestic courts. This includes the role as law developer and sometimes even law maker, but compared to domestic courts, these courts need also to take on executive responsibilities in the shape of a more pronounced enforcement inducing function (Alter, 2013; Shany, 2012), as the compliance and implementation mechanisms that standardly complement courts' decisions domestically are absent when we move to the international level. In other words, to induce enforcement, international courts must operate in ways that ensure the voluntary cooperation of their addressees. This becomes even more important when we bear in mind that these courts have a central dispute settlement function: Most international courts—from human rights courts to investment arbitration tribunals—serve as a dispute settlement mechanism for the international community. Clearly, these settlements have little value if involved parties regard the dispute settler as illegitimate. International courts then, no less than elected assemblies, need to function in a way that ensures their own de facto or perceived legitimacy, as well as that of the organization or regime of which they are part. Parliaments' role in expressing key social meanings for the political community also has a parallel in international courts' expressive function, i.e., the expectation that these courts express or project and help fixate certain norms of justice for the international community. This function has been highlighted for human rights courts, for example the European Court of Human Rights (ECtHR), but even more so for courts such as the International Criminal Court (ICC). The primary function of the ICC is to prosecute and punish criminals, but additional stated aims are to end impunity for international crimes, create international criminal justice, correct historical records of conflicts, and to secure justice, reparations and compensations for victims (Langvatn & Squatrito, 2016). To sum up, when we consider the advantages and disadvantages of descriptive representation of women in international courts, we cannot ignore the effects on these courts' substantive interest representation, perceived legitimacy, and expressive function. Accordingly, the functions Mansbridge elaborates for elected assemblies are also relevant and even central for international judiciaries. Yet, the primary function of such judiciaries is still adjudication, and a key question is what descriptive representation implies for this role. Mansbridge offers several reasons for and against descriptive representation (1999, see also Mansbridge, 2005). In the case of descriptive representation of women, how do these reasons hold or change, given international judiciaries' particular set of functions? We address possible costs and benefits one by one, and give attention to a potential benefit from descriptive representation of women not discussed by Mansbridge. The first cost addressed by Mansbridge (1999, p. 630) is that of lesser talent or reduced competence. It is a common criticism, she says, that representatives chosen on the basis of descriptive characteristics will be less able to perform the task of representing the citizenry's substantive interests than representatives selected for their merits. Generally, she finds this worry to be overstated. For one, critics tend to mix up "microscopic" descriptive representation, e.g., through lottery, with "selective" descriptive representation—the idea that measures should ensure an increase in the number of persons with certain descriptive characteristics among representatives, to better mirror their proportion in the constituency (Mansbridge, 1999, p. 631). Mansbridge believes microscopic representation may reduce parliaments' competence levels, since representatives that run for elections will be better trained and have higher political skills than those chosen in a random lottery. However, defenders of descriptive representation typically argue for selective representation measures. According to Mansbridge, such measures will not result in significant loss of talent or competence insofar as the descriptive characteristic in question is widely held, and the low proportion of persons with this characteristic among representatives can be explained by biased selection mechanisms (for example when stereotypes of women's "inability to rule" are allowed to affect recruitment) (Mansbridge, 1999, pp. 632–633). Considering effects of descriptive representation of women on international courts' competence levels, microscopic representation would seem costly; judges that apply for positions in international courts will most often have more relevant training and skills than a randomly selected group of people, or even of lawyers. Yet, also in the case of courts, what one has in mind is selective descriptive representation. To be a female is moreover a widely shared criterion, whereas the existence of adverse selection mechanisms such as direct or indirect discrimination against women is likely to vary between courts. Still, even when there is evidence that male bias shapes the selection of judges, reduced competence may be a cost depending on the need for specialized training and on the availability of female candidates with adequate competences in the recruitment pool. Generally, the gendered composition of the relevant recruitment pool and the required level of special skills could vary between courts. However, overall, the potential trade-off between competence and descriptive representation would tend to be larger in courts than in elected assemblies, since the requirements of expertise—in legal reasoning and practice—is typically higher in courts, while the availability of female candidates with adequate competences could be limited. In addition, international courts often have other selective descriptive representation criteria than sex, such as nationality or region, and as Mansbridge says, "adding any criterion (…) to a mix of criteria for selection will always dilute to some degree the impact of the other criteria of selection" (Mansbridge, 1999, p. 633). The next potential cost on Mansbridge's list stems from the difficulty, or even impossibility, of representing all relevant descriptive characteristics. Critics who state this worry typically assume that formulations of principle-based guidelines for groups that ought to be represented will inevitably be random and controversial (Mansbridge, 1999, p. 634). If women, why not "left-handers or redheads. What of Lithuanians? Italians? Jews? The uneducated?"3 Yet, as noted by Mansbridge, we are not without guidelines; however, these will vary, depending on whether we regard substantive interests as the outcome of deliberative or aggregative processes. For parliaments to represent substantive interests properly in deliberations, they must, Mansbridge says, include "at least one representative who can speak for every group that might provide new information, perspectives, or ongoing insights relevant to the understanding that leads to a decision" (Mansbridge, 1999, p. 634). Similarly, the idea that legitimate decisions are the outcome of the aggregation of conflicting interests in the constituency seems to require that all conflicting interests have their representatives. At the same time, there are cases where non-descriptive representatives will be more able and willing to represent the interests of a group than descriptive representatives,4 and, according to Mansbridge (1999, p. 635), non-descriptive representatives can more easily replace descriptive representatives in interest aggregation than in deliberation. Still, it will often be the case that representatives who are "existentially close" to the issue have "communicative and informational advantages" when it comes to representing interests (Mansbridge, 1999, pp. 635–636). In many cases, moreover, a single descriptive representative, or even a "critical mass" will not do, and proportionality is called for since "a variety of representatives is usually needed to represent the heterogeneous, varied inflections and internal oppositions that together constitute the complex and internally contested perspectives, opinions, and interests characteristic of any group" (Mansbridge, 1999, p. 636). As we have argued, substantive interest representation is also among international judiciaries' functions, and based on the above, descriptive representation of women could be justified, despite what may be of costs, particularly when it can be argued that women as a group systematically bring new perspectives and insights to the deliberations and decisions of the bench. Still, the extent to which there are systematic gender differences in judges' approaches and adjudication is likely to vary between issue areas and courts. An additional concern, is that other group differences also matter, for example whether there are disabled judges on the bench in a court case of proclaimed discrimination against disabled, or a religiously pluralist bench in a court case concerning religious practice, and due to how selection criteria may "dilute" one another (Mansbridge, 1999, p. 633), the importance of representing women must sometimes be weighed against the importance of representing other descriptive features. The upshot is that the optimal group composition of judges may differ across courts depending on their case portfolios. A key difference between parliaments and courts is moreover size. It is easier to include all the different relevant groups, not to mention a "heterogeneous" sample of the different groups, in large parliamentarian assemblies than in a smaller group of judges. In international courts even the "critical mass" ambition could prove difficult. That several international courts have geographic descriptive representation as an initial requirement only increases this complexity. Overall then, selection based on gender may compete with selection based on other relevant descriptive criteria, and trade-offs may become more acute in international courts than in parliaments due to the limited size of the bench, and the extent to which descriptive representation of women should take priority over the representation of other relevant descriptive features, will vary between courts. Moreover, since the primary function of international courts is adjudication, the advantages of descriptive representation as a means to improve substantive interest representation may have to be weighed against the need for high-level legal competence. The third cost of descriptive representation mentioned by Manbridge is that of essentialism, "the assumption that members of certain groups have an essential identity that all members of that group share and of which no others can partake" (Mansbridge, 1999, pp. 637–39). Essentialism makes it harder to recognize within-group conflicts and interests and is a risk for all groups that mobilize politically based on descriptive features (Mansbridge, 2005). Yet, Mansbridge argues (1999, p. 638) that essentialism can be "mitigated (…) by stressing the nonessentialist and contingent reasons" for the selection of groups, for example a particular historical situation, or when it can be shown that lack of proportional representation is due to prejudices. Once more, it is important that the representatives for the group in question are so many that they can reflect the internal variation of views. One must be aware of the challenge of essentialism, and how essentialist thinking may distort interest representation, also in the case of international judiciary bodies. We should for example not assume that elite lawyers from Europe or the US have privileged insight in gender specific experiences and interests across cultures and classes. The courts' important expressive function could also be distorted: Rather than solidifying central justice norms, essentialism contributes to confirming limiting group stereotypes. In general, however, essentialism could be mitigated with similar strategies in courts and parliaments alike; arguments for women's quotas and similar measures need to be anchored in specific analyses of historical or institutional path-dependencies and connected to the existence of persuasive discrimination patterns. Again, it is a problem with court benches that they are relatively small, meaning that there is limited scope for capturing the potentially large variation within group categories. The fourth potential problem with descriptive representation taken up by Mansbridge is weaker ties of unity. Descriptive representation may strengthen some citizens' inclination to see themselves more as members of the target group than of the political community. In the case of descriptive representation of women at the international bench, weaker ties of unity could be a challenge as well. One scenario is that judges see themselves as representing particular gendered interests in a way that reduces their loyalty to the court and the legal regime. Another scenario is that descriptive representation measures spur a perception among stakeholders that the judges have a stronger commitment to their gender than to the law. Whether "disunity" can occur as a problem would however vary between courts and depend on the strength of unifying ties and the perceived legitimacy of the legal regime, the judges' professional commitment to legal norms and proper legal practice, and the strength of in-group ties among judges along gender lines. If the latter proves to be high, and plays an undue role, the cost will tend to be more severe in the case of courts compared to elected assemblies, as this potentially affects not only interest representation, public support, and the expression of the value of political community across cleavages as a key social meaning, but also endangers the fulfillment of the court's primary function of adjudicating impartially. Finally, Mansbridge (1999, p. 640) mentions the risk of reduced accountability when the descriptive characteristics of a representative can "lull voters" into thinking, falsely, that their substantive interests are being represented. This danger of "blind loyalty" is however reduced when there are more descriptive representatives, so that the represented can compare their performances. This potential cost may seem less relevant in the context of courts, since judges are not on election and there are thus no voters that can be "lulled". However, since substantive interest representation is a concern also here, the "lulling" problem may still be salient, for example if women's rights campaigners believe their complaints are addressed properly simply because more women are recruited to the benches. It can moreover be a problem for the courts' perceived legitimacy over time if the courts' addressees regard its decision as correct, not due the quality of legal proceedings, but because judges have particular descriptive characteristics. In addition, parliaments could typically have a range of descriptive representatives, enabling comparison of performance, whereas this is more of a challenge in the smaller crowds of judges in international courts. When we turn to the benefits of descriptive representation, Mansbridge (1999, p. 641) lists first the benefit of facilitating communication between the represented and the representatives under conditions where "a history of dominance and subordination" has bred "inattention, even arrogance, on the part of the dominant group and distrust on the part of the subordinate group". In such situations, the experiences of oppression that voters and descriptive representatives share will often spur both better communication and the development of more trusting relations. Moreover, the deeper the communicative chasm, the more descriptive representation is justified (Mansbridge, 1999, p. 641); the greater the potential benefits, the more bearable the costs. Initially, it must be noted that the relationship between international court judges and the courts' addressees does not to the same extent rely on the kind of vertical communication that the representative relationship between elected and voters is utterly dependent upon. Still, as we have argued, even if impartial adjudication is courts' primary function, international courts are also dependent on trust among its addressees to ensure perceived legitimacy, and involved in the expression of central justice norms and in substantive interest representation. They thus need to communicate that all interests, including those of subordinated groups, are counted in. In the case of international courts, there can also be situations characterized by deep historical injustices and communicative chasms where descriptive representation contributes to building a needed trust. The extent to which courts operate in cultural contexts where patriarchal relations shape fundamentally distrustful relations between women and men, or whether other types of chasms are deeper, will however vary. Mansbridge (1999, p. 642) herself notes how communicative chasms between men and women certainly exists; yet may be smaller than chasms created by race, ethnicity, nationality or class. Another way in which descriptive representation can be beneficial, according to Mansbridge (1999, p. 643), is in situations where involved interests are relatively "un-crystallized", in the sense that the issues "have not been on the political agenda long, candidates have not taken political positions on them, and political parties are not organized around them". Under such conditions, the safest bet is arguably to rely on representatives with descriptive characteristics that match ones' own, assuming that people who are alike react and respond in a similar vein. Furthermore, Mansbridge (1999, p. 648) notes, being a member of an affected group will often give the representative a "certain moral force in making an argument" on these un-crystallized interests,