Disordering the Binaries of International Law

Together with Staggs Kelsall and others, I co-lead a transnational feminist project to create gender equality for the judiciary of the International Court of Justice (ICJ). These efforts call for a ‘disordering of international law,’ because the order of things since the ICJ’s establishment has been that almost all ICJ judges are men. On the one hand, what we advocate constitutes a significant change, for example, by inviting key political players to commit to a gender equal bench. On the other hand, both our critiques and our calls to action have reproduced the Western liberal vocabulary of the ICJ and of public international law (PIL) that Staggs Kelsall in her article rightly critiques. Further, our efforts have reproduced the binaries inherent not only in this vocabulary but also in the politics and practice of ICJ judicial elections.

This problem is not unique to our work; others have noted that the reproduction of categories and the harmful inequalities in these categories often plague equality efforts [see, e.g., critical diversity studies literature such as Zanoni et al (2010); Risberg & Pilhofer (2018)]. It is also nothing new for feminists to note the dilemma of reproducing othering and marginalisation in their efforts to reduce inequality. Indeed, it is common for feminist projects to replicate inequalities such as regarding race, class, disability, or colonialism. Because our work is funnelled into several pre-determined ‘forms’ of public international law (PIL), whether doctrinal law, diplomatic language, or the state and UN based structure of ICJ judicial elections, we face challenges in avoiding these reproductions and their harms. In this blog post, I’ll critically reflect on two of these binaries: the gender binary and the state/non-state binary. I’ll also examine the ‘forms’ they take in our work and in PIL, and how we might address these reproductions and mitigate their negative impacts.

To quote from Gamze Erdem Türkelli’s contribution to this symposium, ‘[t]he task of ontological overhaul must start with questions about what is central to the order’. Exploring this task, first, I will give a summary of this project. In the spirit of Staggs Kelsall’s frame of praxis, I will reflect upon my position in this movement and the ways in which my critique of gender inequality on the ICJ bench have reproduced paradigms that foster this and other inequalities. Next, I will discuss the structures and legacies that drive the replication of these binaries. In our efforts for gender parity on the ICJ bench, both the gender binary and the state/non-state duality are central to the court’s ‘order’ and the ‘order’ of the PIL we reference when we call for change. Striking a balance between pragmatism focused on the structure of ICJ elections and aims for broader inclusion is, to quote Staggs Kelsall, ‘a messy and complex task’ (Kelsall, p. 759).

Woven throughout my discussion of these two binaries is an exploration of the theme of ‘form’ articulated in Kelsall’s response to the symposium as well as in her EJIL article. Using ‘form’ to reflect on the form, formalism, and conformity that our work takes, I’ll analyse how this is an example of the tension between PIL practice and PIL critique. Reflecting on contributions such as Burgis-Kasthala’s ‘Palestine, Israel and the (Dis)ordering of International Law’, I will consider whether, as a Working Group, we can have recourse to ‘suspending the presumption of the state,’ given that we are civil society members seeking to influence states. I will reflect upon Burgis-Kasthala’s question, ‘amid Gaza’s wholesale destruction, do we engage with international law?’, in which she queries whether to save Gaza, we ‘double down’ on statehood and sovereign equality, or instead reflect on moving beyond these paradigms. In the context of ICJ judicial gender equality, I am asking, do we continue to appeal to the extant law that privileges states and upholds the gender binary? Or, does true equality mean moving beyond this?

Ongoing Efforts for a Gender Equal ICJ Judiciary

Almost ten years ago in London, England, I met a group of women working to create gender parity in international courts, including the women that run GQUAL, a campaign for gender parity in international institutions. Excited by their efforts and energised by the possibilities for change that they discussed, I joined their mission. In 2017 at a GQUAL conference in the Hague, I co-led a workshop on how to elect more women judges to the ICJ. We produced a discussion paper on the subject, and I felt enthused to continue the work. In 2021, the Leiden Journal of International Law (LJIL) published my article arguing that legal obligations compel relevant United Nations (UN) organs and UN Member States to create a gender equal ICJ bench.

While I value the final publication, I feel uneasy that I am complicit in reproducing through the publication the ‘statist assumptions’ regarding ‘what counts as international law’ (Kelsall, p. 746). Further, I can see how and why I reinforced both the Western liberal vocabulary governing ICJ elections and the gender binary of the law on gender equality within the UN system. Because the article proposes specific steps to achieve gender parity for the ICJ bench, it references the ‘statist’ procedures for judicial nominations and elections governed by the ICJ statute. These recommendations rely on states and state based institutions to give them effect.

At the same time, I aimed for the article to have a disrupting sensibility (maybe even a “disordering sensibility” (Kelsall, p. 731) , in several ways. I centred civil society as much as possible, a common feature of transnational equality movements, as Judith Resnik showed in her important work on CEDAW. To address gender beyond the binary, I called for gathering more data regarding, recognition of, and international law addressing people who live beyond the binary. I stated (fn2, p 978) that ‘[i]t will be necessary for parity policies to explicitly recognize the representation of non-binary persons and for law and data gaps regarding non-binary persons to be addressed by governments and the UN moving forward’; that ‘[b]eyond the binary of women and men or girls and boys, the concept of gender also applies to transgender people, intersex people, and multi-gendered or gender-fluid people’; and I wrote that ‘[w]omen as used in this article means any person that identifies as a woman, regardless of biological sex at birth.’

Figure 1

To help translate the technical legal arguments of the article into information that a broader range of people could understand, I worked with a graphic designer to visually represent the article via two infographics (see Figure 1). On the theme of the form our PIL critique takes, it was important to me that the message of the article reaches outside academia and practitioners. I believe that the ICJ is – or can be – ‘The World Court’. For that to be true beyond a statist model, broader awareness about both the role of the court and the inequalities at the court must be communicated in more accessible ways to the general public. While my academic article focused on an evolutive interpretation of extant law, I wanted to use the infographics to communicate transnational, intersectional feminist politics. I aimed that both the text and the art communicated gender beyond the binary and PIL beyond a Eurocentric focus. I had a non-binary person from the global majority review various iterations to help ensure that the infographics might speak to an audience beyond AFAB white, Western women.

It didn’t feel like enough at the time, and it still doesn’t. The continued exclusion of people beyond the gender binary is just as much an equality problem as the persistent exclusion of women from key institutions. As we call for more women judges on the ICJ, we can also invite a rethinking of PIL’s approach to gender. At the same time, working within dualities and constraints that shape the ‘form’ our work can take if it is to influence key players, we must be pragmatic and strategic in our efforts. It is an uphill battle to elect more women judges to the ICJ. For many states and civil society organisations, discussions of gender beyond the binary are a bridge too far. In international diplomacy, slow, incremental progress can be the norm. It took 50 years to elect the first woman judge to the ICJ and almost 80 to achieve a court where four out of the fifteen permanent judges are women. How long will it take to incorporate gender beyond the binary into representation on the bench? If we have both a moral and a legal obligation to end all discrimination now, where does that leave us when faced with political and strategic barriers?

The Gender Binary in Public International Law

One of Stagg Kelsall’s disordering techniques is to question the Eurocentric, dualist origins of PIL. PIL’s (re)production of the gender binary is part of this lineage. There is ample evidence that the gender binary is a Western construct (see e.g. Costello 2020). In contrast, globally, indigenous societies have historically recognised more than two gender identities (see e.g. Driskill et al 2011; Mirandé 2016; Hunt 2018). PIL’s (re)production of the gender binary cannot be separated from the racist and colonial legacies that critical PIL scholarship such as TWAIL renders more visible (see e.g. Shiwy 2007; Shiwy 2013; Hunt 2018; O’Sullivan 2021 regarding efforts of colonising powers to erase nonbinary indigenous gender concepts). When we work to increase gender diversity on the ICJ bench, we therefore risk reproducing this colonial legacy and its erasure of colonised people. We also accept excluding people who exist outside the gender binary. These risks arise in various ways, such as when we frame our arguments in the vocabulary of existing PIL and doctrine.

To be sure, legal arguments grounded in extant PIL can strengthen our efforts to achieve gender parity on the ICJ bench. Yet, for the most part, PIL divides the world into women and men, with little formal recognition for the many people that exist outside this binary. In my 2021 article, I explain that UN Charter Law obligates the UN organs and UN Member States responsible for ICJ judicial nominations and elections to ensure a gender equal ICJ bench (Corsi, pp. 988-993); I also argue that UN practice demonstrates that gender parity is necessary to fulfil gender equality (Corsi, pp. 982-988). The sources of law that I relied on reinforce the gender binary. For example, the UN Charter and the ICCPR enshrine ‘the equal rights of men and women.’ Key legal authorities, such as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), and essential organisations and actors, such as Working Group on The Issue of Discrimination against Women in Law and in Practice as well as the UN Commission on the Status of Women reproduce the gender binary, including in their crucial work to ensure gender equality in the international judiciary. Important supranational gender equality law such as the Istanbul Convention explicitly defines gender (Art 3(c)) as regards ‘women and men,’ and the International Criminal Court’s (ICC’s) Rome Statute (Art 7(3)) states that ‘“gender” refers to the two sexes, male and female.’

One the one hand, it is critical to ensure that the barriers that keep women from participating in public life are removed. Extant law that reproduces the gender binary can be an essential tool for doing so, including at the ICJ (for example, the announcement by several states that they would challenge the Taliban’s current gender persecution in Afghanistan by asking the ICJ to enforce CEDAW’s prohibition on gender discrimination). By current counts, women simultaneously comprise over half of the world’s population and yet remain the minority in key global institutions like the ICJ. Like the references to pragmatism and presentism in the EJIL podcast discussion of Staggs Kelsall’s article, there are often good reasons to focus on one type of discrimination at a time. These reasons can include that adequately addressing different forms of inequality might require unique approaches. My goal to recommend evidence-based strategies led me to suggest a numerically precise, penalty backed rule as the most assured way to achieve 50/50 gender parity on the ICJ bench (Corsi, pp. 980-982). When drawing on existing data and scholarship regarding what has and hasn’t worked at other courts, there were no formal, binding sources of public international law that addressed gender beyond the binary. Instead, gender parity was defined as 50/50 women and men, and I was relying on the UN gender parity policy to make my arguments, given that the ICJ forms part of the UN system. On the other hand, 50/50 gender parity approaches are in tension with intersectional lived experience, and the concept of 50/50 gender parity erases those who exist outside of the binary. Calling for parity using the frame of ‘the two sexes’ may help us elect more women judges to the ICJ. It also raises the question of whether this achievement erases those who live outside such dualism.

While most of the PIL corpus continues to reproduce and reinforce the gender binary, there has been some movement towards inclusivity. Non-binding instruments such as the Yogyakarta Principles by the  International Panel of Experts in International Human Rights Law and on Sexual Orientation and Gender Identity recognise diverse gender identities, discrimination that people face due to these identities, and the inherent human rights and equality of such persons. The Yogyakarta Principles also note the ‘significant value in articulating in a systematic manner international human rights law as applicable to the lives and experiences of persons of diverse sexual orientations and gender identities’ and ‘that this articulation must rely on the current state of international human rights law and will require revision on a regular basis in order to take account of developments in that law and its application to the particular lives and experiences of persons of diverse sexual orientations and gender identities over time and in diverse regions and countries.’

At the time of writing, there have been few supranational legal responses to this invitation, predominantly at the regional level. The Inter-American Court on Human Rights cited both the Yogyakarta Principles and the Yogyakarta Principles +10 (Additional Principles and Additional State Obligations) in their Advisory Opinion to Costa Rica regarding gender identity and same-sex rights. The European Court of Human Rights reinforced the rights of transgender people through such judgments as X and Y v Romania and A.M. and Others v Russia. These important developments expand the meaning of gender and gender identity for key regional human rights instruments. At the international level, despite the calls from scholars for key instruments like CEDAW to go beyond the gender binary, the reproduction of the gender binary in fundamental PIL remains intact (for example, regarding the aforementioned gender persecution in Afghanistan). Like a gender equal ICJ bench, PIL beyond the gender binary requires the political will of states. The penultimate section of this blog post briefly outlines some of the ways in which the state-centred structure of PIL reinforces gender inequality and the gender binary.

State/Non-State Dualism as a Source of Continued Gender Inequality

When we call for a gender equal ICJ bench, we reproduce the state/non-state binary, because ICJ judicial elections are largely state based. The state/non-state dualism includes the essential roles that the UN General Secretary’s office and the UN General Assembly and Security Council as well as the PCA national groups play in ICJ elections, because these institutions are linked to and influenced by states. Indeed, actions we have taken as a Working Group to date include calling directly upon states, such as when we wrote a letter to all UN missions applauding the election of two women judges to the ICJ in November 2023, asking states to do more to create a gender equal ICJ bench, and communicating that we are eager to work with states on this shared objective.

The state/non-state binary reinforces the gender binary, in part because both gender and gender equality continue to be controversial for, and opposed by, many states (for example, the infamous number of reservations, understandings and declarations (RUDs) to CEDAW; politicisation of and withdrawal from the Istanbul Convention; controversies regarding ‘gender’ in the Rome Statute; and more). States without political will for a gender equal bench, and states that exclude women from public life more generally, often oppose not only many forms of gender equality but also concepts of gender beyond the binary. In essence, the state-based nature of ICJ judicial elections allows various social, political, religious, and cultural positions taken by states to reinforce both the gender binary and a range of gender discriminatory positions.

Staggs Kelsall calls our attention to how our critiques of PIL often reinforce Western liberal ideas. This issue not only shows up in our ICJ judicial gender equality work but is further complicated by the distance between some state positions regarding gender and a ‘liberal’ understanding of gender and gender equality. For example, some states known to score low on gender equality indexes have judiciaries devoid of women, or have recently purged their judiciary of women and sent these women judges fleeing for safety. Some states in the ‘Western liberal’ category and that profess to uphold gender equality nevertheless have notably gender unequal benches. This distance between understandings of gender and gender equality at the domestic level and a Western liberal understanding of gender equality creates a climate in which calling for more women judges at the ICJ is itself disordering. Considering this, doing so while simultaneously challenging the gender binary presents an additional conundrum. In this state-based system, experts have advised us to choose diplomacy and to stay within the bounds of what is most acceptable to the maximum number of states. We are left wondering the best way forward, and how we can achieve true gender equality without leaving anyone behind.

Conclusions

A gender equal ICJ bench would be ‘a disordering,’ and not just as a sensibility, but literally and tangibly. Similarly, moving beyond the gender binary of PIL would mean a disruption equal to if not greater than ‘changing the picture’ of the ICJ bench. Gender beyond the binary divides many movements seeking gender equality, and our efforts for ICJ judicial gender parity have not escaped this challenge. Just as the definition of ‘woman’ currently splits groups focused on women’s equality and women’s rights, so too does the question of approaching gender equality beyond the gender binary continue to be an unresolved issue for our working group. Rather than view this as a problem, we could borrow Staggs Kelsall’s notion of ‘opportunity for juris-generative pathways…beyond the liberal framing of the international legal order’(Kelsall, p. 732) and see it an invitation to grow, learn, and do better.

Türkelli asks ‘how do we disorder’? We reflect on this question often in our Working Group. While our requests rely on states and state-based institutions to give them effect, we utilise the long-standing practice of transnational civil society organising to accomplish this. We are a network or scholars and practitioners, lawyers, diplomats, and political scientists. Our efforts build upon diverse and impactful scholarship such as by Baetens, Badejogbin, Dawuni, Heathcote, Martin, Grossman, Hennette Vauchez, Hodson, Hunter, Ní Aoláin, and previous civil society efforts to elect more women judges to the ICJ. We are committed to inclusivity, to praxis, and to challenging our own assumptions and biases. Inevitably, we will reproduce harmful binaries and Eurocentric colonial practices as we work. We will continue to reflect, readjust, and try again. We will continue to navigate the tensions of these binaries inherent to PIL.