From 18-19 April, I attended the inaugural London International Boundaries Conference. It was a superb conference, involving excellent presentations from a variety of practitioners on technical and legal aspects of boundary delimitation. Sitting at the back of the room at one point, I was struck by the fact that the majority of the audience was made up of white men in grey suits. Boundary delimitation is a man’s world, it seemed.
A quick scan of Twitter during the conference provided some welcome news. I was very happy to read that President Obama had nominated Avril Haines as the next Legal Adviser of the State Department. If her appointment is confirmed, she will fill the vacancy created by the departure of Harold Koh, the former Legal Adviser. Koh returned to Yale Law School in January 2013 as Sterling Professor of International Law.
Avril Haines joined the White House Counsel’s office in 2010 and currently acts as Deputy Assistant to the President and Deputy Counsel to the President for National Security Affairs. Ms Haines graduated with a J.D. from Georgetown in 2001, served as a Legal Officer at the Hague Conference for Private International Law in 2001/2002 and then clerked for Judge Boggs at the U.S. Court of Appeals for the Sixth Circuit in 2002/2003. To be appointed to the position of Legal Adviser 12 years after graduating from law school is a remarkable achievement and by all accounts she is an exceptionally competent and well-qualified candidate for the post. So I can forgive her for making the rest of us look like under achievers.
Ms Haines joins a small number of female Legal Advisers at the national level, including Marie Jacobsson of Sweden and Concepción Escobar Hernández of Spain. At the international level, the practice of international law is predominantly a male affair. The International Law Commission has two female members out of a total of 34. There are three female judges at the ICJ. Only a handful of women have pleaded before the ICJ on behalf of States, including Brigitte Stern, Loretta Malintoppi and Kate Partlett. Though to be fair, the list of men who have pleaded is also somewhat limited, involving for the most part the constant presence of ten or so leading practitioners. At ITLOS, composed of 21 members, Judge Kelly of Argentina is the only female member. In a recent series of posts on this blog, I noted the appointment of arbitrators in five pending Annex VII arbitrations. Again, Judge Kelly is the only female arbitrator involved. (Incidentally, we can expect the appointment of the remaining three arbitrators in the China/Philippines arbitration by the ITLOS President in the next week, assuming the Philippines have made such a request.)
Judges of international courts and tribunals most commonly have a background as legal advisers to national governments, diplomats, academics or a combination of all of the above. Progress towards gender equality amongst government officials practicing international law is one way of progressing towards gender equality at the international level. For example, the current US judge at the ICJ, Joan Donoghue served as Principal Deputy Legal Adviser at the State Department from 2007-2010 and as acting Legal Adviser from January to June 2009. Judge Xue Hanqin of China served as Director-General of the Department of Treaty and Law at the Chinese Ministry of Foreign Affairs from 1999-2003 and as a Member of the ILC from 2002-2010. The current Under-Secretary-General for Legal Affairs and UN Legal Counsel Patricia O’Brien previously served as Legal Adviser to the Irish Government from 2003-2008.
It remains that improvements could also be made in the appointment process itself. Article 9 of the ICJ statute provides that electors of judges should bear in mind that “in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured.” Article 2 of the ITLOS statute contains a similar provision. These provisions could be amended to include a reference to gender equality, or interpreted to contain such a reference. A reference to gender was explicitly included in Article 36.8 of the Rome Statute which provides “the States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (iii) a fair representation of female and male judges.” In the meantime, the appointment of female Legal Advisers at the national level is a welcome step towards promoting greater gender equality at the international level.
As for the practice of international law by counsel, I would be interested to hear from practitioners on how they view the situation, and whether or not they have the impression that the diversity of counsel before courts such as the ICJ and ITLOS might be improving.