Albert Hirschman Centre on Democracy
15 September 2021

Pathways and obstacles to achieve a more diverse, democratic, and inclusive international judiciary

Neus Torbisco Casals reflects on her ongoing research for the SNF project “Diversity on the International Bench”.

Issues of structural inequalities and diversity (gender, cultural, linguistic, religious), as well as their impact on predominant conceptions of justice and human rights have always interested me and inspired my research trajectory over the years. I have been particularly drawn to exploring the relevance of minority perspectives and group claims in the context of broader public debates on democracy, equality and identity, such as those on systemic racism or indigenous peoples' right to land.

Traditional debates on political justice and rights are permeated by an individualized approach to equality, focusing on how to tackle direct discrimination to improving the situation of those at the bottom of socio-economic hierarchies. Differently from such perspectives, group-differentiated approaches focus on unveiling and tackling broader forms of societal stratification. Even if overt discriminations – such as denying political rights to certain groups – are formally proscribed, there are other equally compelling constraints to freedom and equality that arise from what Nancy Fraser calls status hierarchies. Thus, some people experience more constraints in their freedom and well-being not because of pure bad luck or poor choices - for which they should be held responsible - but because of patterns of systemic disadvantage. These constraints are of particular relevance not only for justice but also for democracy, as they make it very difficult for members of marginalised or vulnerable identity groups to exert influence in the public sphere and exercise their political agency. Democracy thus becomes a chimera if there is no attempt at breaking down – and not merely compensating – those deeply entrenched hierarchies, which are not reducible to economic disparity, but to social patterns of representation and interpretation. These include cultural domination, political alienation and non-recognition (being disparaged in stereotypical, authoritative cultural representations or stigmatized in everyday interactions), which contribute to democracy's current fragility.

Today, there is a renewed interest in the limitations of human rights discourse and practice in tackling problems of unequal power and domination in a post-colonial and deeply divided international society. Human rights are seen by many non-westerners as tools for the global endorsement of open markets, the free flow of finance capital and liberal individualistic ideas of retributive rather than restorative justice. Makau Mutua, Boaventura de Sousa Santos, Maleiha Malik, Khanyisela Moyo are only a few of the African and Muslim scholars who have called for an engagement of human rights theory and law with postcolonial and multicultural conceptions. Likewise, numerous scholars,  among them Daniel Markovits,  Jo Littler, and Iris Marion Young, have shed light on the limitations of liberal justifications of inequality due to misconceptions about meritocracy and individual responsibility.

Building from these critical perspectives, I am interested in advancing a broader forward-looking idea of democratic inclusion that assumes that, indeed, equality matters – and matters crucially – for democracy. My current SNRF research project “Diversity on the International Bench: Building Legitimacy for International Courts and Tribunals, which I co-lead with Professor Andrew Clapham with the assistance of Justina Uriburu (Doctoral Researcher) and Juliana Santos de Carvalho (Research Assistant), builds on this contention. Our project activities and output have been focused on analysing the impact of the (lack of) sex and other forms of representation in the context of international courts and tribunals, which increasingly adjudicate on issues of global political salience. To be sure, there is a rising awareness of the need to further the inclusion of women in international institutions —and campaigns such as the International Geneva Gender Champions and the Gqual Campaign for Gender Parity in International Representation are a sign of the increasing political will to make the necessary reforms. This is because the acute sex imbalance cannot be attributed to the fact that not enough qualified women are available for highly prestigious positions. But those public initiatives may fail to instigate real change in the absence of a normative account of representation and legitimacy that so far has been relatively neglected in the realm of international institutions. Our project seeks to remedy this through research in three interwoven pillars that, overall, seek to develop a diversity-sensitive account of the legitimacy, impartiality and accountability of international courts and tribunals, which takes democratic legitimacy seriously. Besides empirically exploring the sources of the low percentage of women or minority judges in the international judiciary, we aim to sharpen the normative case for a stronger representation of these groups. For this, we are examining key aspects related to democratic accountability, trust in international justice by members in minority and vulnerable groups, as well as the effect on the outcomes and the quality of international judicial decision-making. We hope that our analysis can  contribute to delineating institutional paths to greater diversity on the international bench, and connect them with the broader scholarly and public debates on democracy and inclusion.

Although Covid-19 has slowed down our project, it has also forced us to think more creatively of alternatives to develop it in ways compatible with the difficult pandemic context. I'm particularly delighted that we could launch a monthly public lecture series, 'Women's Voices in the International Judiciary', that started last term and will run until 2022. The series has brought directly to a public audience the experiences and perspectives of prominent women in the international judiciary, who are in a privilege position to reflect on issues of inclusiveness, trust, and legitimacy. With an online format, we have been able to engage the local academic community, participants from ‘international Geneva’, as well as a broader international audience in lively discussions about representation and democracy on the international bench. We have had an incredible line-up of speakers so far, which included Françoise Tulkens (former ECtHR), Irene Khan (UN Special Rapporteur on freedom of opinion and expression), Gabrielle Kauffman-Koller (international arbitrator), and Catherine Marchi-Uhel (IIIM-Syria). We soon resume our public lectures for the Fall semester, with Navi Pillay (ICJ ad hoc judge) on the 27th of September and Silvia Fernández de Gurmendi (ASP-ICC) on the 25th of October.

We have also conducted more personal interviews with these fascinating women, turning them into the ‘Women in International Justice podcast.  Launched now on September 3rd, this podcast series continues the conversations prompted by our vibrant public lecture series, with the scope of deepening the reflections on the need for more diversity in the international justice system.

Finally, we are also organising an international workshop on ‘Rethinking Representation in the International Bench: Democracy, Inclusion, and Legitimacy’, which will take place from 19 to 20 November this year. The workshop will bring together academics from various scholarly traditions and backgrounds. We aim to enable a rich conversation about the theoretical questions of representation in relation to the international bench and encourage empirically grounded reflections on the pathways and obstacles to achieve a more diverse, democratic, and inclusive international judiciary.



LINK to the project’s new podcast series

READ the article published by Neus Torbisco Casals on “Covid-19 and States of Emergency” in the special issue of Global Challenges produced by the Albert Hirschman Centre on Democracy