Descriptive representation of women in international courts

Abstract

Should those who represent and govern us be similar to us? Several legal scholars have recently argued that the composition of international courts needs to better reflect the different experiences and social cleavages in society at large and called for measures to ensure increased descriptive representation. The idea is that when the composition of office holders in a governing institution does not “mirror” the distribution of certain descriptive features in the population at large, connected for example to gender, race or ethnicity, it may be justified to introduce policies to increase the presence of these features, such as fixed quotas, or requirements of having at least one person with the feature in question on a ballot or recruitment list. Normative political theorists were for long less enthusiastic about descriptive representation, and emphasized rather the shortcomings of quota thinking and policies (see for example Pennock, 1979, but also Kymlicka, 1995; Young, 1997). However, Jane Mansbridge (1999) turned the table with her seminal article “Should Blacks represent Blacks and Women Represent Women? A Contingent ‘Yes’”. While recognizing many of the potential “costs” of descriptive representation, Mansbridge argued that descriptive representation measures may have “benefits” as well, for example in contexts where there is mistrust between groups, or disbelief in some groups' “ability to rule”. This article re-visits Mansbridge's approach in light of recent discussions of women's representation in international courts. Mansbridge develops her arguments with parliaments in mind—do her arguments hold for international courts? Are the costs she lists equally costly, and the benefits equally beneficial, given the different aims and functions of an international bench? And are descriptive representation measures more easily justified in some courts than in others? What is the normative relevance of the varying empirical features of courts? The article offers a comprehensive framework for assessing descriptive representation in international courts that addresses a wider range of normative concerns than previous contributions; that is “function-sensitive” in the sense of avoiding considerations of costs and benefits irrespective of institutional aim and function (Erman, 2018); and that specifies the relationship between normative assessment and factual scope conditions, linking normative theorizing on the need for “diversity” in courts to empirical research questions. It does so with a focus on the distinctive case of women's representation at the international bench; however, with proper adaptations the proposed framework is relevant for assessments of other claims for descriptive representation as well, pertaining for example to race or ethnicity. The first part of the article gives a brief overview of legal scholars' discussion of the “sex on the bench” issue in the context of international judiciaries (Grossman, 2012, p. 647). We argue that this literature would profit from a more systematic treatment of the different costs and benefits of descriptive representation. For this purpose, Mansbridge's approach provides a good starting point. In the second part, we discuss the role of the international benches. We show that several of the aims and functions of international courts bring to the fore concerns similar to those Mansbridge raised in the context of elected assemblies. Yet, a unique and primary function for the judiciary is the adjudicative function. The question is what this does to the calculus of descriptive representation. In the third part, we present and scrutinize Mansbridge's approach with this in mind. Taking into account how international judiciaries have a different set of functions than parliaments, we end up with a revised assessment of both the costs and benefits of descriptive representation of women. Generally, we find that several of the costs of descriptive representation may get costlier while some of the benefits may become less significant in the international of descriptive representation measures not have a several potential benefits on and costs be or A assessment of measures to descriptive representation of in is or on a range of empirical In the we several such and show how a when assessing for descriptive representation. The discussion on from different international courts. The part up the some and representation of in international courts in the legal literature such as “sex (Grossman, 2012, p. and discussions on the need for more in international courts on courts a However, the focus to international courts more A on the issue is on the Women to the of (see also is that the of in international courts both the normative and of these courts. the and as and (Grossman, 2012, p. is an that the of and in these courts (Grossman, 2012, p. empirical and normative concerns in her and Yet, her article is of of the literature in that it does not a systematic discussion and of the in to the and that descriptive representation of for different international courts also a of systematic empirical on the of different and of measures to increase women's representation in international of the discussion from from courts and from with international However, more with on the role of in international courts are for example While are not may about the in judiciaries and policies that are in need of a normative framework to this institutional This is what article The for and descriptive representation a governing institution on the or functions of the we have Mansbridge p. her arguments the of and her are from elected p. This the she primary of the she in she to the of the p. This is the of parliaments and other elected and when the costs and benefits of descriptive representation in such it to representation the parliaments have other Mansbridge role in social to the of a political and and in increased empirical or of the p. assessments of the for and descriptive representation measures for these other functions as However, when we to descriptive representation in the context of international the set and of functions the primary function of is not to represent but to represent and the are adjudicative that are first and to to of proper of legal legal and and of and in the case of the costs and benefits of descriptive representation measures for the of this adjudicative function elected international courts more so than other a range of but functions that be as For is not a of It a of both in and of the in of legal in the of the and when in in the In to the primary adjudicative courts have to a or a function. A role for international courts is to and legal and international more courts are more in and than courts. for this is that international are more than and more for This function is in many international also a of the of an that the legal This what Mansbridge to as representation a relevant also for international as parliaments in represent the relevant so to the that courts not on the of but also what the is or international courts also have the function of The primary of international courts are the of not or the this these courts on and of this is how is in the an on from as as from other be to of and political courts in in a context with a of and functions between the the and the of we the international a similar and international courts to on more than courts. This the role as and but to these courts need also to on in the of a more function as the and that are when we to the international In other to international courts in that ensure the of This more when we in that these courts have a international courts to as a for the international these have the as courts less than elected need to function in a that or as as that of the or of are role in social for the political also a in international the that these courts or and certain of for the international This function for for example the of but more so for courts such as the The primary function of the is to and but aims are to end for international international of and to and for when we the and of descriptive representation of in international we the on these representation, and function. the functions Mansbridge for elected are also relevant and for international Yet, the primary function of such judiciaries is and a question is what descriptive representation for this Mansbridge offers several for and descriptive representation also In the case of descriptive representation of how these hold or given international set of We costs and benefits one and to a potential from descriptive representation of not The first Mansbridge p. is that of or It is a she that on the of descriptive be less to the of the than for Generally, she this to be For to up descriptive representation, with descriptive idea that measures ensure an increase in the of with certain descriptive to better in the p. Mansbridge representation may that for be better and have political than those in a However, of descriptive representation argue for representation to such measures not in significant of or as the descriptive in question is and the of with this be example when of women's to are to of descriptive representation of on international representation would that for in international courts have more relevant and than a of or of Yet, also in the case of what one in is descriptive representation. be a is a the of such as or is to between courts. when there is that the of may be a on the need for and on the of with in the recruitment Generally, the composition of the relevant recruitment and the of between courts. However, the potential between and descriptive representation would to be in courts than in elected the requirements of legal and in while the of with be In international courts have other descriptive representation than such as or and as Mansbridge to a of for to some the of the other of p. The potential on Mansbridge's from the or of relevant descriptive who this that of for that to be be and p. not or What of The Yet, as we are not however, these on we as the of or For parliaments to represent in Mansbridge least one who for that or relevant to the that to a p. the idea that are the of the of in the to that have the there are where be more and to represent the of a than descriptive to Mansbridge p. more easily descriptive in than in it be the case that who are to the issue have and when it to In many a descriptive or a not and is called for of is to represent the and that the and and of p. we have representation is also international and on the descriptive representation of be what may be of when it be argued that as a bring and to the and of the the to there are systematic in and is to between issue and courts. is that other also for example there are on the in a case of or a in a case and to how may one p. the of be the of other descriptive The is that the composition of may courts on case A between parliaments and courts is It is to the different relevant groups, not to a of the different groups, in large than in a of In international courts the several international courts have descriptive representation as an this on may with on other relevant descriptive and may become more in international courts than in parliaments to the of the and the to descriptive representation of the representation of other relevant descriptive features, between courts. the primary function of international courts is the of descriptive representation as a to representation may have to be the need for legal The third of descriptive representation is that of that of certain have an that of that and of it to and and is a for that on descriptive features Yet, Mansbridge p. that be the and for the of groups, for example a or when it be that of representation is to it is that the for the in question are so many that reflect the of be of the of and how thinking may representation, also in the case of international judiciary We for example not that from or the have in experiences and and The function also be than to In however, be with similar in courts and parliaments arguments for women's and similar measures need to be in of or institutional and connected to the of it is a with that are that there is scope for the large The potential with descriptive representation up Mansbridge is of representation may some to more as of the than of the political In the case of descriptive representation of at the international of be a as is that as in a that to the and the legal is that descriptive representation measures a that the have a to than to the as a would between courts and on the of and the of the legal the to legal and proper legal and the of the to be and an the to be more in the case of courts to elected as this not representation, and the of the of political cleavages as a social but also the of the primary function of Mansbridge p. the of when the descriptive of a into that are This of is when there are more descriptive so that the This potential may less relevant in the context of are not on and there are that be However, representation is a also the may be for example women's are more are to the benches. It be a for the the as not the of legal but have descriptive In parliaments have a range of descriptive of this is more of a in the of in international courts. we to the benefits of descriptive representation, Mansbridge p. lists first the of between the and the where of and on the part of the and on the part of the In such the experiences of that and descriptive both better and the of more the the the more descriptive representation is justified p. the the potential the more the it be that the relationship between international and the does not to the on the of that the relationship between elected and is as we have is primary international courts are also on to ensure and in the of and in representation. need to that those of groups, are In the case of international there also be and where descriptive representation to a The to courts in contexts where between and or other of are Mansbridge p. how between and may be than ethnicity, or in descriptive representation be beneficial, to Mansbridge p. is in where are in the sense that the not on the political have not political on and political are not such conditions, the is to on with descriptive that that who are and in a similar Mansbridge p. a of an the a in an on these in the and in such with it be to have a of from the descriptive in question in the case of international the with be and have a on the in the sense descriptive representation be for the representation such courts are and descriptive representation have costs that be as as to an of the international primary adjudicative function be It also to have a of of from the descriptive present a of descriptive representation may be in contexts where of social have to example the to and where in these more or less a or In such it is to from the that in these not or to a of the that are not to p. it is to and more of who are and to p. descriptive representation be a that from more into and to However, Mansbridge p. how this be and It is not to of the have on of and In it be that descriptive representation, potential is to other of in the of need to be also when we to the context of international courts. the of the of is and it is that descriptive representation to of women's to this does not descriptive representation in a at a costs are large, and of are international be less to the for and this may the descriptive on the of social in descriptive representation of to international courts have significant on and the recruitment more easily to as to and those who for have that the idea that are not to be descriptive representation as a of social be not in light of to that both and but also an of the adjudicative function that recruitment on the of descriptive representation be when governing from and those from with descriptive are more to have have the to the and relevant to the This potential we to Mansbridge's from the about how that are are more to in with In the context of international may have and in where have to be and in legal in that women's on with representation of be not for these role in representation and for other but also it the and and of the this with case are to needs to be in context of the potential costs of descriptive representation. In when we from Mansbridge's context of elected to case of descriptive representation of in international we that the and benefits Mansbridge lists are relevant to This is so in part parliaments and courts have functions when it to representation, and of and in part descriptive representation also the primary function of in with proper legal is that several of the costs of descriptive representation may be more in the context of international as there is a between the adjudicative function and concerns for descriptive representation, and courts are than the elected Mansbridge in mind. may the of there are contexts where descriptive representation of have several of the benefits with international This does not that descriptive representation in international courts is and However, it is a that case or in discussions we have also how some such as the of to have when we from the to that of the international The that the be into that concerns are of descriptive to an for proper representation, and so for one of but from the of international of one of the benefits of descriptive representation of Mansbridge more how of may assessments of the of and more of who are and to be to ensure recruitment of with the legal is the not up that in issue where are may be better courts more to or the to and arguments in the from the discussion is how a assessment of the costs and benefits of descriptive representation of with empirical or In the that we on some empirical The of is but are from this and show how descriptive representation of in different international courts be more or less on the on these what we present is not to a assessment of descriptive representation of is justified in of the courts. The is to some and show how for such A first to is that of the legal or other representation of may a on the of the and experiences for the to function international courts have and for The for office for at the for example that be of and that the for to office or be of both and would to these However, other courts and experiences of a more The a of of with in international and the of the the an more for have in and and the relevant as or in other similar in or in relevant such as international and the of and in a legal courts international where the and are more and where there is to that as This is not to that representation on or other descriptive be but requirements of increase the of a between and However, the of the recruitment also be into A proper of primary adjudicative function is more to from descriptive representation measures there are with the relevant descriptive and the of the of is Yet, a recruitment be a for courts where the are rather In The of a that a at least one on the that present for the of at the the in the of argued that of to the of the other a lists in both and that there were The a of the in an to the and it for to from the composition in for example have for the the recruitment is large, however, it is that descriptive representation of on there a to recruitment as an for (Grossman, in where the for office of the of is is between and of at the for of are (Grossman, p. and and a is that the of from a of women. However, a recent that of the are in such there is to a between descriptive representation of and a proper of the adjudicative in a with and However, a third the of the also be discussion to the there are several for the of may several of the costs of descriptive representation more in courts than in elected assemblies. are to represent the of the descriptive in it is to that some descriptive features are in a that more to and the of also The potential benefits of descriptive representation in contexts of also on a of from the However, the of courts as The of for This the scope of of the is a there more than on the and the who have represent from and from the courts are The of of the for but in of or The while are in with or in a with for both between and descriptive in courts the and the is that have representation, so that the of is to or to the of In a large of international courts have a fixed of where a but is not to have a a a who several of the and as This the of on the may be the that are the of the but also the and and how the the relevant representation of be more or less on and on other are as or more for a proper of the For of are women. from different legal and legal and also in and some with from from the or the such a or other of on the are or descriptive concerns pertaining to be given more be in to the the composition with the focus and of the an in to the and that be more or less set of that discussion as for considerations about descriptive representation of to features of the case there are at least to it be a and or part of the of (Grossman, p. Yet, in are to between issue and between courts on more courts up where are but or with a of where are more and is a to be for descriptive representation of in the first of for in approach to an is that when a with women's and and example in these are and the are Yet, some have also to be more than in and recent and from some courts that in be than A of the not that are more but also and who such as what so show about it would that descriptive representation of more easily be justified in courts that with such as and but also other This be international and but also courts that have a range of of on such as the such as The of the of the on the other would to have a where in to less of a role what we so for courts that where relevant concerns and may be but in that are to be the and other courts that with of may in have raised a range of with and it is that to and the to that and approach However, it be that would to be significant when up in a wider range of for example in international or are to be this is to (see also This be an for descriptive representation of and other relevant in a set of on the calculus of set of the of or treatment of women. are for example that were have how and and of In contexts where are descriptive representation in courts and other to the of more social and there be or in recruitment to courts that may proper an of the primary adjudicative function. descriptive representation of be a to for It from the first that the case for descriptive representation of is in international courts that where and In courts at least some with this courts. or not descriptive representation of is to be in the set of courts where a significant role in some or more on the for the about treatment of there is a in the literature to the presence of as a of of for and so to as a of for and also However, the composition of international courts is a of a range of different recruitment given and case where or may a or more courts that are be as not function of the that as a for Yet, empirical is to the to a presence of to functions of and representation of discussion also the or the in and of the legal as a relevant to be in the calculus of or not descriptive representation of is in given at a measures to increase descriptive representation of may to the of the several of the costs of descriptive representation are in part at the measures to increase descriptive representation of also increase in where have to and and where considerations are to and the issue be A first would be to the of for a legal For in the case of the and the there are of the of in and both and courts. A second would be to how descriptive representation policies or other policies in courts in different and different population on as as these be be in light of a more it be that measures to increase descriptive representation of in international courts is some of and may increase a legal this not other normative and arguments in of descriptive representation. This article argued that on the need for more descriptive representation of at the international would profit from a more systematic treatment of the different and costs and benefits of descriptive representation in a on an of international set of the article as of the calculus of descriptive representation Jane Mansbridge in the context of elected and it to the international from parliaments to international we that several costs of descriptive representation measures may get costlier while some of the may become less We this to the of to elected but also to the different functions of parliaments and function is other functions such as representation are but several potential benefits equally in both and costs be or a range of empirical such as a features of the of the the issue and the normative assessment of measures to increased descriptive representation of in a given at a given discussion some this article offers a framework for costs and benefits of descriptive representation of in the context of international but does not on be descriptive representation we have but set the question of when descriptive representation may be to a and a We have also the question of some measures of descriptive representation are to be the article to discussions of how to the that to increase the costs of descriptive representation in international such as recruitment policies increase the of and who are for and such we have revised and Mansbridge's but some potential For one descriptive representation of there may be that are equally or more and with For it is the case that descriptive representation measures on representation in courts and parliaments other measures may be more on Mansbridge's as we have also to some questions. For we focus in this article on the different arguments that be in discussions of descriptive representation. We set the question of there are to of in governing as as This article offers an approach to be and some that we to normative discussions of women's representation in international courts. of about a of approach the of between normative theorists and scholars in the of international courts. While systematic normative arguments and to empirical of the normative assessments of the composition of in different courts on a range of empirical and more there we a between the in the of international courts and some of the empirical that are to the normative on descriptive representation of women. on features of recruitment and of and of in different courts and issue are and of these the better to the normative of and to on a more to We are for the and to an of this from and an and from the at the of at the in in and at the in in in and is of at the of her research are normative political and is research at the for in with the What is a good and is and at the of she at for the of the of the of research on political and and