Descriptive Representation in International Courts

Descriptive Representation in International Courts Cathrine Holst Department of Sociology and Human Geography and ARENA Centre for European Studies, University of Oslo Silje Aambø Langvatn PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, University of Oslo Should those who represent and govern us be similar to us? Several legal scholars have recently argued that the composition of courts needs to reflect group specific experiences and social cleavages in society at large, and called for measures to ensure increased descriptive representation on the international bench. Political scientists and normative political theorists have traditionally shown little enthusiasm for the idea of designing governing institutions so the composition of position holders “mirror” central group characteristics and cleavages in the citizenry, and have rather emphasized the various costs of quota thinking and policies. Yet, Jane Mansbridge turned the table with her seminal article «Should Blacks represent Blacks and Women Represent Women? A Contingent ‘Yes’”. While recognizing a range of costs, Mansbridge argued that implementing descriptive representation can be justified in contexts characterized by mistrust between groups, un-crystallized interests, questioning of some groups “ability to rule”, and when governing bodies have low de facto legitimacy. This paper re-visits Mansbridge’s calculus and contextual criteria in light of recent discussions about women’s representation in international courts. Mansbridge’s arguments are tailored primarily towards parliaments – do her arguments hold when our case is international courts? Are the costs listed by Mansbridge equally costly, and the benefits equally beneficial, given the goods the international bench are supposed to produce? If all or some of Mansbridge’s listed costs and benefits are still relevant in this setting, how can we identify them, i.e. how do we come from abstract normative concerns to concrete indicators, and what difference do these indicators make for assessments of the gender composition of different international judicial institutions? Finally, if we find that increased descriptive representation in this or the other international court is vital, what kind of court policies should we opt for? The first part of the paper gives a brief overview of legal scholars’ discussion of the “sex on the bench” issue in the context of international judiciaries, followed by a part where we discuss the different functions of international courts. In the third part, we present and scrutinize Jane Mansbridge’s calculus when the context is institutions such as parliaments, with descriptive representation of women as our example. Taking into account the different role of international judiciaries, we end up with a re-vised assessment of both the problems and merits or descriptive representation. In the paper’s fourth section, we provide examples of how relevant assessment criteria can be operationalized, and show how reliance on these operationalized indicators affect our assessments of the gender composition of different international courts. A fifth section takes up some considerations on policies to ensure descriptive representation. The final part sums up the argument, and draws some implications.