An Inclusive International Court of Justice
Still a Long Way to Go?
On the 24th of October, the Information Department of the International Court of Justice (‘ICJ’ or ‘the Court’) published a press release, announcing that the Court had amended its Rules, the Resolution concerning the Internal Judicial Practice, and the Practice Directions to render their “provisions gender inclusive”. This reform aligns with changes already implemented long time ago by other international judicial bodies (see, for instance, the reform of the Rules of Procedure of the Inter-American Court of Human Rights, in its Spanish version). The changes, enacted both in the French and English version of the ICJ’s documents, are not easy to detect. Unlike what is usually done in these documents, the amended provisions are not marked one by one with an asterisk. However, modifications are indicated by disclaimers at the bottom of the documents. Particularly of interest is the French version of the disclaimer which illustrates how the Court has addressed the challenges of drafting a gender-inclusive document in French. It, indeed, states:
“Le genre grammatical masculin est employé dans sa valeur générique, sans marque de genre social ou biologique”.
In essence, in these circumstances, the Court, while unable to shift to a gender-sensitive terminology in French, nevertheless wanted to emphasize that it took the matter into account and gave relevance to it. As acknowledged by President Donoghue before the General Assembly, the Court recognizes “the importance of language in shaping viewpoints and beliefs on gender equality and inclusion”.
In this piece, I take the changes enacted by the Court on the Rules, the Resolution concerning the Internal Judicial Practice, and the Practice Directions as an opportunity to explore the ICJ’s role as an inclusive institution, reflecting on the amendments made and their broader impact for the Court’s institutional image.
Beyond Gender: Inclusivity as a Concern for the World Court
The decision to adopt these modifications needs to be placed in the broader institutional and political context where the Court operates. As highlighted by President Donoghue in her recent speech before the Sixth Committee of the General Assembly, pronounced on the 25th of October, current discussion on ICJ’s reforms are lively and numerous proposals have been made to amend the Statute (which are subject to the strict procedure of its Articles 69 and 70), and the Rules of the Court. As she reported, some of the reform’s proposals were aimed at changing the election procedure of judges, introducing the non-renewability of terms, some others were directed at fostering broader participation, for instance by opening the possibility to international organizations to submit contentious cases. Some proposals focused precisely on the need to render the Court a more inclusive forum for international adjudication. On this point, President Donoghue said:
“Finally, I call attention on two categories of amendments that seem essential if the Court is to deserve its nickname of the ‘World Court’. First, the Statute needs to be stripped of verbiage that suggests that some States are ‘civilized’ while others are not, as it implied by the current wording of Article 38. Second, it is time to redraft the Statute and, indeed, the entire Charter, in a gender-inclusive manner. In fact, the Court itself has just completed the process of updating the Rules of Court, the Resolution concerning the Internal Judicial Practice of the Court and the Practice Directions to use gender-inclusive formulations in both our official languages, French and English. Our efforts in this regard could serve as a model for similar amendments of the Statute itself”.
Interestingly enough, the communication office of the Court, when announcing on the social media accounts of the ICJ that the speech was delivered, decided to highlight the presence in the room of women sitting in key institutional roles, underscoring the symbolism and significance of the moment from a gender perspective.
The changes enacted on the basic functioning documents of the Court on one side and the speech of President Donoghue on the other side demonstrate that the ICJ is aware of one of the main problems that afflicts the Court: the lack of inclusivity. Critiques have been raised in this regard, not only from a gender-based perspective, but also from a Global South point of view (see here and here), often resulting in forms of backlash or distrust. Considering this, while changes in the text of the documents should be appreciated as a positive development, one is left wondering whether this can truly effect substantial change in an environment where achieving inclusivity has historically been a significant challenge, or if it simply constitutes a communication and image-related move made by the Court.
Problems clearly still persist: it would be naïve to assume that an alteration in a text formulation or a mere disclaimer can suddenly change an institution.
Inclusivity at the World Court does not only have a gender dimension, but also, as highlighted by President Donoghue, a cultural and identity one. While the judges-election system, mixing rules and traditions, aims at ensuring geographical representations, doubts arise on whether this result has been always concretely achieved. Some (partially past) traditions (like, for instance, the need to have P5 national judges) have shaped immensely the composition of the bench over the years, consequently embedding practices and precedents in the life of the Court. In addition, in practical terms, not all states have the necessary political strength that is needed to support a candidate to the ICJ. Moreover, even when asked to nominate an ad hoc judge, small states often feel the pressure to indicate the name of people coming from other jurisdictions, that might be seen as having more expertise on the work of the Court or might simply represent big names in the international arena. The narrative related to elections also might be seen as marginalizing. For instance, on the ICJ’s website page, that explains the composition of the Court, and that delibaretly replicates the language of Article 9 the Statute of the Court, it is written that “the Court as a whole must represent the main forms of civilization and the principal legal systems of the world”. This sentence might raise many questions: who is civilized and who is not? On the basis of what criteria can we distinguish a “principal” legal system from possibly a less important one? Such assertations surely do not contribute to show a more inclusive image of the Court.
Under this perspective, the Court has recently made an effort to try to bring more inclusivity, at least in terms of diversity of staff members. Indeed, a Trust Fund has been created to support applicants from developing countries to the Judicial Fellowship Programme with the aim of “improving and guaranteeing the geographical and linguistic diversity of the participants in the programme”, as explained on the Court’s website.
Elections and representativity are not the only issues to consider when discussing inclusivity and the ICJ. This problem, indeed, can also be examined from the perspective of legal reasoning. This is a matter not only of drafting judgments and advisory opinions using inclusive terminology (an element, that, until now, has received little attention), but also of incorporating different perspective within legal documents. From a gender-based approach, this has been significantly highlighted by the Feminist Judgments project that has shown how the ICJ (and other international courts) judgments could have been written had a feminist perspective been included in the discussion and drafting process. Thinking about lack of cultural inclusivity, it also worth noting that often legal reasoning in ICJ’s judgments do not take into account the different juridical traditions of the parties appearing before the Court, privileging a standardized way of reasoning.
After reading these reflections, that have underscored some of the challenges that the Court will still need to face in the future, one might be left thinking that there is not much hope for the Court. Indeed, rather than having a practical impact, the changes enacted by the Court on some of its documents most likely constituted an image-related move. Still, language plays a key role in directing the institutional perception of a judicial body. This is true not only for constitutive and regulatory documents, but also for judgments, and means of communication, such as social media accounts and the website. In this perspective, it can be confidently said that the ICJ is certainly taking small steps to improve its image and to move in a more inclusive direction, and these efforts certainly deserve recognition. However, it is more than fair to acknowledge that there is still a long way to go.