On 5 November 2021, Professor Hilary Charlesworth AM FASSA FAAL was elected as a member of the International Court of Justice (ICJ). She is the first Australian woman to serve in the position and fifth female judge of the Court. Judge Charlesworth succeeds the late Judge James Crawford, who served from November 2014 to May 2021. She will fill the remaining term until 5 February 2024.
Members of the ICJ are elected by the United Nations General Assembly and Security Council. When a judge of the ICJ is unable to complete their term, they will typically be replaced by a judge of the same nationality. This happened with the elections of Judge Yuji Iwasawa from Japan (replacing Judge Hisashi Owada), Judge Joan E Donoghue from the United States (replacing Judge Thomas Buergenthal), and Judge Xue Hanqin from China (replacing Judge Shi Jiuyong). However, there is no formal rule requiring this. When Judge Mohammed Bedjaoui from Algeria and Judge Awn Al-Khasawneh from Jordan resigned in 2001 and 2011 respectively, they were replaced by judges of different nationalities (Judge Nabil Elaraby from Egypt, and Judge Dalveer Bhandhari from India).
Along with Judge Charlesworth’s nomination by Australia, Greece nominated Linos-Alexandre Sicilianos, a former president of the European Court of Human Rights. Judge Charlesworth was elected with an absolute majority of votes in both the United Nations General Assembly and Security Council.
Judge Charlesworth is an eminent international law scholar. She also previously the Harrison Moore Professor of Law and Melbourne Laureate Professor at the University of Melbourne and Distinguished Professor at the Australian National University. She has further already served as an ad hoc Judge for the ICJ in the Arbitral Award of 3 October 1899 case, which concerns a territorial dispute between Guyana and Venezuela over the Esequibo territory, and the Whaling in Antarctica case, which concerned a complaint by Australia that Japan was conducting an unlawful whaling program. While the majority judgment in the Whaling case refrained from engaging with developing areas of international environmental law, Judge Charlesworth in her Separate Opinion was more willing to consider these questions. For example, she held at paragraph  that treaties dealing with the environment should be interpreted in light of the precautionary principle, whereas the majority did not rule on this approach.
Judge Charlesworth is a pioneer of feminist jurisprudence in international law. This status was in part catalysed by the first academic conference on feminist approaches to international law, held at the Australian National University in 1990. There, participants were warned against alienating their male colleagues, including visiting lecturer Professor Oscar Schachter. Judge Charlesworth described these events in an article entitled ‘Alienating Oscar? Feminist Analysis of International Law’.
In 1991, Judge Charlesworth, along with Christine Chinkin and Shelley Wright, published ‘Feminist Approaches to International Law’ in the American Journal of International Law. The article is considered to have introduced feminism to mainstream international legal academia. It argued that the structures and content of international law privilege men and marginalise women, if acknowledging women at all. This formed the basis for The Boundaries of International Law, authored by Judge Charlesworth and Professor Chinkin, a seminal work of feminist legal studies which was awarded the American Society of International Law Certificate of Merit for ‘preeminent contribution to creative scholarship’. Parenthetically, Professor Chinkin was appointed as the first female Chair of the International Law Association on 13 November 2021, succeeding Lord Mance.
With Judge Charlesworth’s appointment, four out of the 15 ICJ judges are women, including its current President, Judge Donoghue, who is only the second female judge in ICJ history, after Dame Rosalyn Higgins. Now, five out of a total of 110 ICJ judges have been women. The Court, as with most international legal institutions, has a long way to go to achieving gender representation. The International Criminal Court has similarly been criticised for its ‘Boys’ Club’ culture. However, Judge Charlesworth’s appointment is a very welcome step in the right direction. As Judge Charlesworth and Professor Chinkin wrote in The Boundaries of International Law (at 81), the election of women to the ICJ has an ‘educative and symbolic effect by underscoring the validity of the presence of women in the most prestigious and visible positions within international judicial fields’.
The ILA Reporter congratulates Judge Charlesworth on her election.
Isabelle Peart is an Assistant Editor of the ILA Reporter.