Piercing the glass ceiling at UNCLOS tribunals
By Dr Lan Nguyen
Published on 17 March 2023
While there has been progress in certain international courts and tribunals, the fact remains that female judges or arbitrators still constitute only a small minority in the international bench. The United Nations Convention on the Law of the Sea (UNCLOS) dispute settlement bodies are no exception. While the number of female judges at the International Tribunal for the Law of the Sea (ITLOS) has increased, it still has one of the lowest percentages of female judges among permanent international courts. At the time of writing, 5 out of the Tribunal’s 21 judges are female, accounting for less than 25% of the bench. Out of 20 appointments for ad hoc judges, only 1 judge so far has been female. Among the ten of candidates for the upcoming 2023 ITLOS election, there is only 1 female candidate. The picture at UNCLOS Annex VII arbitral tribunals is even bleaker. Nearly thirty years after the first case was brought before an Annex VII arbitral tribunal, no female arbitrators has been appointed to any Annex VII arbitral tribunal. In the list of nominated arbitrators for Annex VII, only 26 out of 160 nominees are female, accounting for roughly 15%.
The importance of having female judges in the field of law of the sea tribunals may seem less obvious compared to other fields such as human rights or humanitarian law, where the plight of women is much more visible, thus the call for gender diversity on the bench is more pressing. However, while it may seem that ‘gender has nothing to do with the law of the sea,’ a study called Gender and the Law of the Sea has highlighted ‘a need to question the apparent neutrality of existing rules and legal instruments.’ The necessity for enhanced female participation in the settlement of maritime disputes thus should not be easily dismissed. The more difficult question is of course how to do so. To answer this, one would need to take a closer look at the whole process for an individual to become a member of a bench, from nomination to election.
For ITLOS, candidates are nominated and elected by State parties to UNCLOS during the Meeting of State Parties (SPLOS) according to the prerequisites set out in Article 2 of the ITLOS Statute. This provision requires the members of the Tribunal to be ‘among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.’ For UNCLOS Annex VII arbitral tribunals, State parties appoint members of the tribunal, or, in cases of disagreement, by an appointing authority as per Article 3 of Annex VII. To date, the President of ITLOS—and in one case, the Vice President of ITLOS—has assumed this role of appointing authority. The arbitrators are appointed from a list of arbitrators who are nominated by the State parties and as required by Article 2(1) of UNCLOS Annex VII, they ‘shall be a person experienced in maritime affairs and enjoying the highest reputation for fairness, competence and integrity.’ For both ITLOS and Annex VII arbitrations, the requirements for candidacy does not include any specific mention of gender. More importantly, there is no official guidance or instruction on the nomination and election process that specifically addresses the issue of gender balance. Articles 2 and 3 of ITLOS Statute only require geographical diversity; Annex VII does not mention any specific requirements on diversity. The lack of attention given to the issue of gender balance both at the nomination and the election/appointment phases may play an important role in explaining the low female representation at both ITLOS and Annex VII arbitral tribunals.
To address the lack of gender diversity in international dispute settlement, several international institutions and international courts have included mechanisms to ensure gender equality which could provide some inspiration for UNCLOS tribunals. For permanent courts, these measures range from including in the constitutive instrument of that particular court an explicit requirement for ‘[a] fair representation of female and male judges’ (Rome Statute, Article 36(8), African Court on Human and Peoples’ Rights, Protocol of African Charter, Article 14(2)); establishing a panel to ‘give an opinion on candidates’ suitability to perform the duties of Judge’ before States select a candidate (Treaty on the Functioning of the European Union, Art. 255); or, requiring States which propose candidates to include at least one woman on their list of candidates (Procedure for the election of judges to the European Court of Human Rights as of 15 April 2019). The idea to include explicit requirements for sex representativeness either in UNCLOS or ITLOS Statute would require amendments to these legal instruments, which may be too much of an unrealistic expectation. However, options of a less formal nature may still be feasible.
First, as SPLOS has an explicit mandate in the election of judges of ITLOS, it would be advisable for SPLOS to issue requirements or guidance on fair gender representation for States both in the nomination of candidates as well as in the election of the judges. SPLOS could also consider establishing an advisory panel specifically to ensure that both processes pay due regard to issues of gender balance. Such a measure would still fall within the mandate of SPLOS of electing ITLOS judges. Even if it were to be argued to constitute a de facto amendment of UNCLOS or ITLOS Statute, there have been precedents in the past, such as the postponement of the dates for ITLOS election in 1995.
The second option that could be considered is for ITLOS to amend its Rules to include requirements or at least aspirational language for gender inclusivity. In 2021, ITLOS took a step in the right direction in this regard by amending references to “he” to be preceded by “she or”, and references to “him” or “his” by “her or” in the Rules. Article 19 of the Rules—which deals with choosing ad hoc judges and which only contains a requirement regarding the nationality of the ad hoc judge—could be a starting point. ITLOS could also consider amending this rule to include references or guidance for parties when choosing an ad hoc judge to consider questions of gender inclusivity. This may seem to be a modest step, however given the fact that only one woman has ever been chosen as ad hoc judge for ITLOS to date, it may still contribute to drawing attention to the problem of gender imbalance at ITLOS and set a precedent for more formal procedures in the future.
Turning to Annex VII arbitral tribunals, as appointment usually rests entirely upon States and is made on an ad hoc basis, institutional measures are more difficult to take as compared to permanent courts. Still, inspiration can be drawn from initiatives that have been taken in relation to commercial arbitration. The most significant initiative is the introduction of the Equal Representation in Arbitration Pledge—a global initiative to address the gender imbalance in arbitration. Despite the fact that nominations and appointments under Annex VII arbitrators remain mostly in the hands of the parties, Pledge has only been signed by 4 States. However, it can still provide some inspiration for action.
First, as has been mentioned, the President or Vice President of ITLOS assumes the role of the appointing authority in some cases. Regrettably to date, none of the arbitrators appointed by the ITLOS President or Vice-President have been female. It is advisable that the ITLOS President or Vice-President follow the trend set by appointing authorities in commercial or investment arbitrations—influenced by the Pledge—to appoint more female arbitrators. In practice, many of the arbitrators appointed by the President of the ITLOS have been members or former members of ITLOS, therefore, the first step could be considering the pool of ITLOS female judges for appointment.
However, all appointments have to be made ‘in consultation with the parties,’ thus, it is ultimately the States that need to be made more aware of the need for gender inclusivity both in nominating and appointing arbitrators. Although States cannot be compelled to sign the Pledge itself, certain steps can be taken to replicate the impact of the Pledge in inter-state arbitrations. For example, States are advised by law firms. Law firms which have signed the Pledge should be more mindful of the issue of gender equality in the appointment process. Admittedly, law firms are ‘risk averse’ and would therefore tend to propose candidates that have acted as arbitrators in the past. Given that no women have ever acted as an Annex VII arbitrator, this tendency perpetuates the status quo which practically prevents women from breaking into the circle of potential candidates to be appointed. One way to address this issue in the particular context of Annex VII arbitration appointment is to take note of the fact that Annex VII arbitrations are one of the dispute settlement procedures under UNCLOS, besides the ICJ and ITLOS. As judges from ICJ and ITLOS have had ample experience in dealing with maritime issues, it is not difficult to discern the opinions of the judges of these bodies, including female judges, on certain law of the sea issues. This could become the basis for law firms and States to be more open to appointing female arbitrators from the pool of female judges.
Another idea would be for international institutions to take the Pledge as an example to raise awareness of issues of gender balance. For instance, while the role of UN Secretary-General in the nomination process seems to be only administrative in nature, they could draw attention to the issue of gender parity when nominations are made in the annual the report of the Secretary-General on oceans and the law of the sea. This report is in turn considered by the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea in order to facilitate the annual review by the General Assembly. The General Assembly in its review could therefore highlight the issue of gender parity drawing from the language of the Pledge in order to call upon States to take into account gender balance on the nomination and appointment process.
In short, as compared to other international courts and tribunals, the glass ceiling is evidently much more visible for ITLOS and Annex VII arbitral tribunals. What is more regrettable is that virtually no steps have been taken to date to address this issue. The measures proposed in this contribution will hopefully be considered to promote gender balance at and ultimately the legitimacy of the UNCLOS dispute settlement system in future.