Identity and Diversity on the International Bench

Who is the Judge?

Edited by Freya Baetens

International Courts and Tribunals Series

Critically investigates the impact of the overrepresentation of judges and arbitrators from certain backgrounds on the outcomes and legitimacy of international dispute settlement
Analyses the experiences and impact of judges and arbitrators from underrepresented groups during their time spent on courts and tribunals
Examines a wide variety of identity features, including gender, nationality, ethnicity, religion, legal culture, education and professional background
Contributions from scholars, practitioners, international judges, arbitrators, and State officials, providing a breadth of insight into the issues at hand

Identity and Diversity on the International Bench

Who is the Judge?

Edited by Freya Baetens

International Courts and Tribunals Series

Description

International courts and tribunals hold the power to decide on questions involving sovereignty over territory, grave human rights violations, international crimes, or millions of euros' worth of economic interests. Judges and arbitrators are the 'faces' and arguably the drivers of international adjudication. Yet certain groups tend to be overrepresented on international benches, while others remain underrepresented.

Although international courts and tribunals differ in their institutional make-up and functions, they all rely in essence on the judgement of a group of individuals, each with their own background and experience. Even if adjudicators' identity is not the only, and may not be the decisive, influence on their decision-making, the relative lack of diversity has an effect on the judicial process and its outcomes, which in turn entails broader implications for the legitimacy of international law.

This book analyses the implications of identity and diversity across numerous international adjudicatory bodies, focusing on a wide range of factors. Lack of diversity within the judiciary has been identified as a legitimacy concern in domestic settings, and the last few years have seen increasing attention to this question at the international level as well, making the book both timely and topical.

Identity and Diversity on the International Bench

Who is the Judge?

Edited by Freya Baetens

International Courts and Tribunals Series

Foreword
Navanethem Pillay
List of Abbreviations
List of Contributors

1. Identity and Diversity on the International Bench: Implications for the Legitimacy of International Adjudication
Freya Baetens

PART I: TOWARDS THE INTERNATIONAL BENCH
2. The Smurfette Principle: Reflections about Gender and the Nomination of Women to the International Bench
Liesbeth Lijnzaad
3. Generating Incentives to Appoint Women to the International Bench: Experiences with State Practice
Rolf Einar Fife
4. Justifications for the Promotion of Religious Diversity on the International Bench 60
David M Bigge
5. Judges Ad Hoc at the International Court of Justice: A Means for Enhancing Regional and Legal Systemic Diversity in the Composition of the Court?
Paolo Palchetti
6. The Party- Appointment Process: Addressing Barriers to Equal Opportunities for Women in the Appointment of Ad Hoc Adjudicators
Catherine Drummond
7. African Women's Paths to the International Bench: How to Overcome the Hurdles
Rebecca Emiene Badejogbin
8. Analysing Appointments in International Arbitration: Nationality, Ethnicity, Race, and Legal Training of Arbitrators
Monika Prusinowska
9. Legitimacy of Investor- State Arbitration: Addressing Development Bias Among International Arbitrators
Jamal Seifi
10. Fifty Years of Women at the European Court of Human Rights: Successes and Failures of the Council of Europe's Gender Agenda
Helen Keller, Corina Heri, and Myriam Christ

PART II: ON THE INTERNATIONAL BENCH
11. The Identity Conundrum: Legitimacy and Doubt on the International Bench
Catharine Titi
12. Judicial Education and International Courts: A Proposal Whose Time has Come?
SI Strong
13. Additional Opinions and Judicial Diversity at the International Court of Justice: A Research Methodology
Hemi Mistry
14. Citing Religious Texts in Individual Opinions to Judgments of the International Court of Justice: How Judges Incorporate Their Religious Identity in Judicial Decision- Making
Mubarak A Waseem
15. A Question of Impartiality: Who are the Dissenting Arbitrators in Investment Treaty Arbitration?
Szilárd Gáspár- Szilágyi and Laura Létourneau- Tremblay
16. Adjudicating International Trade Cases in the World Trade Organization: Does Gender Make a Difference?
Valerie Hughes
17. The Contribution of Women Judges and Prosecutors to the Development of International Criminal Law
Teresa Doherty
18. The Contribution of Female Judges to the Victim Jurisprudence of the International Criminal Court
Juan- Pablo Pérez- León- Acevedo
19. Judicial Legal Culture and Victim Procedural Status at the Special Tribunal for Lebanon and Extraordinary Chambers in the Courts of Cambodia
Juan- Pablo Pérez- León- Acevedo
20. Appearing Before and Sitting With Female Adjudicators: Reflections from Practice
James Crawford

PART III: BEYOND THE INTERNATIONAL BENCH
21. Diversity and Legitimacy of the World Trade Organization's Bench
Cosette D Creamer and Zuzanna Godzimirska
22. Ethnicity, Religion, and Diversity at the International Criminal Court: Is More Too Much?
Solomy Balungi Bossa and Gilles Landry Dossan
23. The Significance of Religious Diversity in International Human Rights Adjudication
Kristen Hessler
24. Diversity on the Bench of the European Court of Human Rights: A Clash of Paradigms
Angelika Nußberger and Freya Baetens
25. Peru's 'Intercultural Law' Proposal: Promoting Ethnic Diversity in the Administration of Justice
Clara María López Rodríguez
26. Keeping Gender on the Agenda for International Benches: A Case Study of the African Court on Human and Peoples' Rights
J Jarpa Dawuni

Epilogue Diversity, Inclusion, and Legitimacy in International Courts and Tribunals: Insights from Within, Perspectives from the Periphery— An Island Girl Speaks
Janet M Nosworthy
Index

Identity and Diversity on the International Bench

Who is the Judge?

Edited by Freya Baetens

International Courts and Tribunals Series

Author Information

Edited by Freya Baetens, Professor of Public International Law, University of Oslo

Freya Baetens (Cand. Jur./ Lic.Jur. (Ghent); LL.M. (Columbia); Ph.D. (Cambridge)) is Professor of Public International Law at the PluriCourts Centre (Faculty of Law, Oslo University) and affiliated with the Europa Institute (Faculty of Law, Leiden University). As a Member of the Brussels Bar, she regularly acts as counsel or expert in international and European disputes.

Contributors:

Navanethem Pillay
Freya Baetens
Liesbeth Lijnzaad
Rolf Einar Fife
David Bigge
Paolo Palchetti
Catherine Drummond
Rebecca Emiene Badejogbin
Monika Prusinowska
Jamal Seifi
Helen Keller
Corina Heri
Myriam Christ
Catharine Titi
SI Strong
Hemi Mistry
Mubarak Waseem
Szilárd Gáspár-Szilágyi
Laura Létourneau-Tremblay
Valerie Hughes
Teresa Anne Doherty
Juan Pablo Pérez-Léon-Acevedo
James Crawford
Cosette Creamer
Zuzanna Godzimirska
Solomy Balungi Bossa
Gilles Landry Dossan
Kristen Hessler
Angelika Nußberger
Clara M López Rodríguez
Josephine Jarpa Dawuni
Janet M. Nosworthy

Identity and Diversity on the International Bench

Who is the Judge?

Edited by Freya Baetens

International Courts and Tribunals Series

Reviews and Awards

"The impression is often given that the interpretation and application of international laws is a matter of mechanics. It is not, as this fine collection of essays demonstrates with clarity, force and balance. This work could not be more timely or significant." - Professor Philippe Sands QC, UCL; Matrix Chambers

"This volume provides the most wide-ranging and thorough examination of the implications of identity and diversity of judges for the legitimacy of international courts and tribunals to date." - Dr. Olufemi Elias, Mechanism for International Criminal Tribunals

"The book traverses a broad panorama of international and regional courts and tribunals and is a valuable contribution to the jurisprudence on the subject." - Judge Neeru Chadha, International Tribunal for the Law of the Sea

"In pursuit of justice, the practice of international adjudication itself must be subjected to constant scrutiny. Who is the Judge? is not a simple question, as the answer to it ultimately determines the credibility of the whole institution. Discussions in this book are insightful and thought-provoking." - Vice-President Hanqin Xue, International Court of Justice

"This collection ... offers a rich set of insights into how factors such as gender, geography, ethnicity, legal culture, race and religion affect adjudicators and shape international procedure and jurisprudence ... This is a challenging and thought-provoking volume." - Professor Hilary Charlesworth, University of Melbourne