Still Losing: A Short History of Women in Elections (and By-Elections) for the UN International Law Commission

On 12 November 2021, the UN General Assembly held the sixteenth regular election for the International Law Commission (ILC). As the Assembly extended the mandate of the current members until the end of 2022, in response to the exceptional situation created by the pandemic, the newcomers, numbering 18, will have over a year to taste victory. Of these, three are women. This result will seem modest – and it is, by any standard, but not if set against the background of the ILC’s history. In terms of gender balance, the ILC has been lagging even further behind than the International Court of Justice (Philip Alston recently wrote about it). At the Court, women make up just over a quarter of the membership. They will be slightly more than a seventh at the ILC on 1 January 2023 and under an eighth until then. This post brings together documentary and statistical evidence that should deepen the sense of injustice in the face of such dismal a record. It also provides, by way of conclusion, a modest suggestion to increase the pace of change.

Incremental gains, lingering discrimination

As two women just got re-elected, the ILC – a men’s club for over half a century – will soon have a total of five female members, which is more than twice as many as 20 years ago, when women first entered the distinguished assembly. At this rate of progress, the world economy might be wholly decarbonised when women take over the ILC’s majority. Nevertheless, the headway just made will likely overshadow the defeats that women continue to suffer in the scramble for the ILC’s 34 seats. The fact that will go down to the annals is that women gained an additional spot compared to the previous election. However, consider these other facts. 

Until recently, the People’s Republic of China was the only permanent member of the Security Council to have nominated a woman among its nationals (Chiang Kai-shek’s China never did). The US joined the club this year by nominating Professor Evelyn Aswad (the UK co-nominated a woman, Professor Phoebe Okowa, a Kenyan national, whereas among its own nationals it chose for the twenty-first time a man). At least until 1981, the success of P5 candidates was assured by a gentlemen’s agreement (see e.g. A/4779, at 3), and it remains a relatively safe bet today. P5’s candidates failed to get elected on four occasions only, a defeat rate of about 4 per cent (which is very low considering that, except for China in the period 1967-1981, the P5 always nominated at least one of their nationals). After Aswad’s miss at the 2021 election, the defeat rate of P5’s female candidates is about ten times as high as that of their male homologues. Of course, this is a mere correlation, but correlations suggest hypotheses, especially if they point in the same direction.

Continuity of tenure is unexceptional at the ILC. Among the members who sought re-election this year, two out of three women succeeded. In contrast, only one out of 14 men failed. Compared to the previous election, the number of female candidates doubled, and yet they gained a single additional seat: 37.5 per cent of female candidates failed to get elected, against 27.5 per cent of their male counterparts. When an underrepresented gender struggles for political space with some help from the privileged, electoral misfortune does not get distributed that way. The truth is that the patriarchy is already fighting back. The number of ILC seats held by women has doubled in two decades. However, in the same period, we have also moved from a situation where women would not lose (as though a quota system were in place) to one where they lose as much as men, even though they account for just over a seventh of the nominees.

When the new commission takes office in 2023 there will have been, since 1949, ten female members against 238 male members (4.03 per cent). The imbalance is more pronounced when it comes to the number of seats won (17 against 498, or 3.3 per cent), as (multiple) re-election of male members has been customary and remains more frequent than female members’ re-election (in the 73 years since the first regular election, France has nominated a total of five men and the current French member has just been through his fourth election). Crucially, women have been getting few nominations (27 against 785, or 3.4 per cent). The figures include the two by-elections in which female candidates participated.

Nominations received this year amount to more than a quarter of those women got since the establishment of the ILC. However, just as the number of nominations spiked, women’s defeat rate, i.e., the ratio of non-elections to nominations, soared above the 2001-2021 average and is levelling off with that of male nominees, following a period of drastic decrease due to the fact no woman failed election in 2001, 2006 and 2016. Men’s defeat is slightly lower overall, i.e. in the period 1948-2021 (36.6 against 37 per cent), despite the fact that for almost twenty years men only competed among themselves, by going through four regular elections (1948, 1953, 1956, 1961) which remain those with the widest gap between the number of candidates and available seats. The 1948 election, with its 71 candidates (including four US citizens) for only 15 seats, was a massive stag party that disappointed as many as 56 gentlemen (A/576/Rev.3). The four subsequent competitions (1966, 1971, 1976, 1981) saw only 21 such failures in total, but also the exclusion of the only female contestant – a 100 per cent defeat rate that would remain unchanged until 2001. And that explains why the interval 1966-2021, which begins with the date of the first female nomination, is statistically more significant and much more clearly tells a story of women’s defeat: 28.3 against 37 per cent. The figures factor in defeat rates for elections to fill causal vacancies. Women’s defeat rate in by-elections (66,6 per cent) is higher than men’s (43 per cent), even though women rarely run in that kind of election. We should pay attention to it too, as we quickly retrace the history of women’s participation in ILC elections.

A history of exclusion and defeat

Women’s attempt to gain access to the ILC began in total defeat. That happened a long time ago, but not as far back in time as the ILC’s website says in a footnote to its ‘Membership’ section:

‘While the membership of the Commission, since its inception, has been overwhelmingly male (the first female candidates were nominated at the 1961 and 1991 elections)…’.

Pulling this thread from the UN’s digital archive unexpectedly brings up, not the first female nominee, but one of those ‘Mr. lineups’ that are so typical of ILC’s documents (A/PV.1062, at 879-880). How can the ILC be wrong about its own history? Manels are still much present in the ILC’s website. After the 2011 regular election – a debacle for women, as we shall see – the website stopped putting ‘Mr.’ and ‘Ms.’ before the members’ names (except for officers), but failed to apply the new style retroactively.

The situation did not change much with the next election. In 1966, the first female candidate, Olga Nuñez de Saballos from Nicaragua, ended up last with six votes. The winner collected 113 (there was only one list of candidates back then, whereas, since 1981, there have been separate lists, one for each of the five groups of UN member states). Somozas’ Nicaragua was not exactly anyone’s favourite, as its other candidate’s ranking shows: next to last, with eight votes. Alejandro still fared a little better than Olga (A/PV.1460, at 2).

It took a quarter of a century to see another female candidate (the ILC’s website here is reliable). There were two. In 1991, the African States Group and the Eastern European States Group nominated Mwangala Beatrice Kamuwanga (Zambia) and Renata Szafarz (Poland). The Zambian candidate ranked tenth out of 11 candidates, with nine seats available. It would have taken 16 more votes to make it to the runoff. The Polish candidate ranked fourth out of five, just one vote shy of the three-seat roster. However, since the third-placed candidate also fell short of the required majority, Szafarz had the chance to contest for the seat. The gap between the two candidates trebled in the runoff (A/46/PV.47, at 6, 8, 16).

As already mentioned, it was not until the new century that the first women entered the ILC. Interestingly, the two successful female candidates came from the two groups that had not yet nominated women: the Asian States Group and the Western European and Other States Group (WEOG). Both Xue Hanqin (China) and Paula Escarameia (Portugal) claimed a clean win, ranking respectively fourth and second in their Group (A/56/PV.39, at 3). That year, the ILC, in its annual report, ‘expressed satisfaction that the list of members elected for the … quinquennium included women.’ The report went on:

‘Noting the number of women of recognized competence in international law, the Commission anticipated that this fact was likely to be reflected in the nomination and election process for the next and subsequent quinquennia.’

Only a male-dominated institution could find it diplomatic to impliedly blame on lack of competence the decades-long exclusion of women from its ranks. What is more, the ILC’s forecast proved to be seriously flawed. The electoral process has not even come close to reflecting women’s increasingly prominent role in professional environments where international legal knowledge counts. The by-elections held in the years immediately following what the ILC itself regarded as a breakthrough illustrate this point graphically.

As per Article 11 of the ILC Statute, ‘[i]n the case of a vacancy, the Commission itself shall fill the vacancy’ having regard to the usual requirements of ‘recognized competence in international law’ (Art. 2 ILC St.) and ‘representation of the main forms of civilization and of the principal legal systems of the world’ (ibid., Art. 8). Over the years, the ILC allocated no less than 58 seats under Article 11, i.e., 11,3 per cent of the total, or the equivalent of (almost) two regular elections. Despite this, the procedure remains somewhat opaque. The documentation of the nomination process is fragmentary. Most nominations come from states, but the ILC has also allowed itself to consider proposals put forward by its members (see here, note 26). By-elections typically take place in private meetings, after which the ILC merely communicates the winner’s name without disclosing the voting record. In the interval between the 2001 and the 2006 regular elections, the ILC held by-elections to fill six vacancies, for which it assessed a total of nine candidates. All were male (see A/CN.4/522/Add.1, YILC 2002-I, at 3; A/CN.4/527/Add.1; A/CN.4/527/Add.3; A/CN.4/563/Add.1). By the way, male candidates filled all the 58 casual vacancies in the ILC’s history, except one, i.e., when Conceptión Escobar Hernández (Spain) took up the seat made vacant by Escarameia’s death (see A/CN.4/635/Add.1; YILC 2011-I, at 15).

These circumstances did not augur well for the subsequent regular elections. In 2006, women did no more than consolidate their foothold in the Commission, taking just one additional seat, much too little to fulfil the ILC’s voeux. At the 2006 election, the WEOG took on the trailblazer’s role. The Nordic states inaugurated a cycle of successful female nominations, which ended in 2021 as Norway opted for a man. A minor incident concerning Xue Hanqin’s re-election in 2006 is worth recalling due to its symbolic significance. The presence of a woman among the candidates was so unusual that the election’s record listed her as ‘Mr. Xue Hanqin’, leaving the usual ‘Mr. lineup’ uninterrupted (A/61/PV.54, at 5). The Croatian acting president (a woman) who read out the winners’ names (or was it the clerk’s fault?) was able to tell immediately that ‘Marie’ and ‘Paula’ (the other two female nominees) were female names. When faced with Hanqin, however, she must have resolved gender under some default rule. Upon Xue’s first election in 2001, the General Assembly’s acting president, a Korean, had gotten the gender right.

The 2007-2011 by-elections did not go any better than in the previous quinquennium. As already noted, Escobar Hernández was the first woman to prevail in a by-election, albeit in a way that suggested that a quota system was at work, at least within the WEOG. If it was, it certainly did not apply to China. In 2010, Xue left the ILC upon her election to the International Court of Justice. Typically, by-elections for seats previously occupied by P5’s candidates are not contested, and China presented a man as the sole aspirant (A/CN.4/632/Add.1). The remaining three by-elections were, as usual, men-only events. Thus, just before the next regular election, the ILC, with only two female members left, was back to square one. It would remain right there for another five years.

The 2011 election saw limited progress. The number of female contestants increased from three to four. More importantly, for the first time, the majority of the Groups included at least one woman in their candidates’ lists. There would have been five female candidates, coming from four Groups, had not Albania withdrawn Ledia Hysi’s nomination (A/66/88/Add.1). However, 2011 was also when women relapsed into defeat. No Group but the WEOG played the game as though a quota system existed. One could have taken this circumstance as a sign that the electoral process was evolving into an open competition that might have seen women multiply within the ILC instead of advancing one inch at a time. In any event, the 2011 election, with only two successful female nominations, both from the WEOG, marked a clear retrogression. The defeated candidates, Noor Farida Ariffin (Malaysia) and María del Luján Flores (Uruguay), arguably fared worse overall than Kamuwanga and Szafarz did in 1991 (A/66/PV.59, at 5).

A golden opportunity to regain the seat lost after Xue’s departure – and to remedy the 2011 election’s debacle – arose in 2013, when a male member resigned. Three stood for election, two of whom were women with seemingly excellent political credentials: Kathy-Ann Brown, Jamaican like the outgoing member, and Luján Flores, a candidate in the 2011 regular elections (see A/CN.4/655/Add.1; A/CN.4/655/Add.2). The ILC picked up the male candidate who had already sat in the ILC in 2007-2011 (YILC 2013-I, at 2).

Having failed to win the by-election, women had to wait until the 2016 regular election to improve slightly on what they had achieved ten years earlier. Like in 2011, four female candidates stood for election. This time, they all made it. The downside was that, for the first time since 1991, the nomination came from a single Group, the WEOG. Marja Lehto (Finland) came out on top, with the Group’s list and overall (A/71/PV.40, at 3-4). That, too, was a first.

Against this backdrop, the 2021 elections stand out for the significant but still inadequate rise in the number of female candidates (from four to eight), accompanied by a slight increase in the number of female members (well, it could not have been smaller). The gap between these two figures conjures up the spectre of defeat at a time when women’s position within the ILC is not yet sufficiently consolidated. On the other hand, the 2021 election saw the restoration of a multi-Group female component within the ILC, which had effectively disappeared after Xue’s departure. In sum, progress has been once again too slow, but this time it could bring with it the seeds of quicker change.

Continuous fight, or engaging by-elections

The key to gender balance at the ILC may lie in a dialectical reversal of the questionable practice currently followed for by-elections, the competition in which women most often lose out. One could call it “Operation Escarameia”, in memory of the first female ILC member (along with Xue). Why her? In 2008, Escarameia refused to participate in a by-election (yet another male-to-male handover) because she considered the ILC’s way of proceeding to be opaque and of dubious legality (at the time, she agreed with at least one male member, see YILC 2008-I, at 299). The five women taking office in the 2023 ILC could follow her lead.

In 2023, women will, for the first time, form a contingent spanning three Groups of states and should be numerically and politically strong enough not to determine the outcome of a by-election but to try to change at least some of the rules of the game. They could ask the ILC to formally invite states to nominate women or at least one woman for every two candidates. Should states fail to do so, female members could themselves put forward outstanding nominees. Everybody knows that there is plenty. Above all, women should forcefully demand that transparency and publicity of voting procedures be equivalent to that of regular elections. The possibility of discriminatory patterns emerging in the open should be enough to loosen men’s grip on by-elections. 

In short, there is no need to wait for the next regular election to engage a struggle for gender balance from within the ILC. And it is about time that male members join the struggle. Fighting on the by-election front, women will perhaps gain the upper hand within the ILC well before the polar ice caps melt. Not that the ILC can do much to avert catastrophe, but then, at least, humanity would have come to a less inglorious demise. We should not leave the ILC mansplaining puzzles about international legal sources and interpretation forever.