On this episode of Women in International Justice, Judge Francoise Tulkens shares the memories of her first steps in the European Court of Human Rights.
On this episode of Women in International Justice, Judge Francoise Tulkens shares the memories of her first steps in the European Court of Human Rights. The doubts that plagued her colleagues, the people who inspired her and her thoughts on the future of the international Judiciary system.
Inspired by the words of Justice Ruth Bader Ginsburg, Judge Tulkens gives us a fascinating take on diversity, what it really means, and, more importantly what it can bring to the legitimacy of courts.
Find out more about diversity on the international bench here: www.graduateinstitute.ch/diversityintlbench
Judge Tulkens 0:01
When we arrived, I shouldn't say that we're not very welcome but we are not so very welcome in when I arrived, it was only one was woman, it was Elizabeth Palin from Sweden, which we are hired, eight of us, which was a little bit better. But then the number was growing. And so it was easier. It was easier.
Michelle Olguin Flückliger 0:25
These words describe lady Francoise tokens experience on that fateful day in November 1998, when she became a judge of the European Court of Human Rights, accompanied by only one other woman. As Tolkien's goes on to say that number gradually rose, and with 15 female judges serving on the European Court of Human Rights in 2021. improvements are visible. These changes came after the experience of some pioneers, like tokens herself. On this episode of women in International Justice Francoise Tulkens discusses these experiences with professors Andrew Clapham, and Neus Torbisco Casals
Neus Torbisco Casals 1:17
Looking at your background, we see that un degree in criminology and a doctorate in law at the Catholic University of Louvain, and except for a short period of practising law, you were appointed a professor and then pursued an academic career before becoming a judge at the European Court of Human Rights. We wonder how was to be a woman as student and then a young academic in the 60s and 70s in Europe, and whether they were some particular woman or legal personality that maybe had an influence as a role model or, you know, or shape the direction of your career
Judge Tulkens 1:57
A long time ago, let me refresh my memory from that time. Yes. And that time, we were not so many women at university not at all girls and boys who were divided, were divided the boys were of in one part of the girls, the girl the other part. No, it was not so easy. So as we were 10 of 25 out of 300, and now we say what are we doing there? And why do you do that? Yes, you are there to look for her husband? No, no, no, no, no, no, no. I should say it was difficult and not difficult, difficult, because nobody took care of you. You were really not persona non grata. But like there was an accident, clearly as an accident but there are a lot of people that play an important role. I was coming from the University of Louvain. And there it was, I don't know if you know, this professor, his name was Francois Rigot. And you know, that time he was able to teach at the same time family law and international law. For me, it was fascinating, because in family law and even your Catholic University, he started saying that we have to try marriage before getting married. Of course, he was explaining exactly a very scientific way but he was really progressive. Having looked to the future he was so intelligent. I love this teacher I love and when I finished my study there, I went to see him in a way that would be interested in being an asst University, excellent idea, the after it was done, you know. So we go, he plays an important role in in the way he was reconciling scientific approach, and very organic, or to say, very involved in the reality. He was a old Conseiller de court de Cassation. I love him. Why? Because all the time is said to me, I don't understand you, but I will support you. And when I start being a defence lawyer was very impressed by another woman knew your name is Elianne Vogel Polsky. And she was really fascinating because I was a young lawyer. And she explained to us this type of woman in a big factory of arms, it was called the Fabrique nationale d'armes de guerre. And she explained to us how this woman were then working as slaves as slaves in a situation. Unbelievable. And she was paid, of course, a different salary from for men, and then to starting this movement for equality, equality in salary to equal work, equal salary, and I was really impressed by it then became fantastic.
Andrew Clapham 4:29
My question relates to what what made you get interested in human rights and think that it might be interesting to apply to become a judge of the European Court of Human Rights,
Judge Tulkens 4:40
my relation I should say, with human rights is better coming back from the end of the 60's when I had to choose my study for the university, and at that time, I had the opportunity to attend some conference given by defence lawyer for the people of the FLN, I was a teenager and they came to Belgium to explain That there was torture in Algeria. People say no, come on, you're exaggerating. It's not true. Yes. Just explain to us. I couldn't imagine that. And then I say, okay, because I was willing to study History or Physics, I don't remember. And then I said, Well, no, we thought too low. And I want to be a defence lawyer. From the very beginning for me, you might say no, to allies, to allies to companions, and you cannot divide one for the other.
Andrew Clapham 5:27
And what made you think about the Strasbourg court and that you would like to be a judge, though?
Judge Tulkens 5:32
I didn't think about that. I was interested in the court. Of course, that was interest. That's all. Because in criminal law, you're, of course interested in the court, that I never never, never imagined that I will be a judge. It was not a "plan de carrière" as we say Claude you know, in Belgium in 1997, because such a turmoil, also, the government decided to be a little bit more transparent. And then for the first time, first time in the history of the court, it was an advertisement in the Official Gazette. They said there is a vacancy, the European Court of Human Rights, oh, I will apply. You know, for a woman, you cannot wait until people ask you to do something, then you ask you were waiting all your life.
Andrew Clapham 6:21
Do you think that feelings changed over time? Do you think it's easier these days for the women judges?
Judge Tulkens 6:27
When we arrived? I shouldn't say that. We're not very welcome. But we are not so very welcome. you know, especially people critique from the old code.what are you doing here for a little bit that you know? exactly the same job as you. What can I say? To be a judge as you!
Neus Torbisco Casals 6:50
we wanted to go back to the lecture series that you inaugurated? We dedicated the series to Ruth Bader Ginsburg, you know, famously, she
RBG 6:59
said, These people ask me sometimes, when will will there be enough women on the court? And my answer is when there are nine.
Judge Tulkens 7:08
I love it. I know I repeat it all the time. All the time, you know, instead of going in depth quota, no quota? No, no, no nine. I was really moved with that to dedicate the lesson to her because when I was at the court, we contacted the US Supreme Court. So I was happy to be in the delegation. So we went there. And we have a discussion fair. So I met with ginsburg here. She was a small porcelaine. And she was a very small woman. But was really fascinating. So to see what can be up there, in the Supreme Court itself said that was failure. Very important, namely,
Neus Torbisco Casals 7:47
so I don't know how you explain the persistence. You know, after all, this time, there are even more women who study law than men. In fact, in many, at least in my experience, I hear in Barcelona, and we have the consolidation of women's rights and women's activism, and women are still excluded from institutions, global institutions, like like the international judiciary.
Judge Tulkens 8:11
in order to accommodate to reconcile, you know, you have to change the culture. So it takes time it takes I should say, not only months, years, decades, and a little bit generations as well. We are not close to equality. And I should say, even the country, yes to have more women, woman in the judiciary, not in the international judiciary system. In 1998. I was the only woman when I left in 2012, Belgium, it's clear that it was exceptional circumstances, you know, the usual excuse, and Belgium presented an all male list in 2012. And you know, there was an excellent woman. Excellent. She's the best woman in human rights. No, she was not put on the floor. So that's why we have to continue to fight. We have to continue.
Neus Torbisco Casals 9:10
You know, but this still you can you know, if you describe yourself as a feminist it still evokes in people's mind, this type of, you know, suspicion,
Judge Tulkens 9:21
Yes. To me, this argument saying that if more women are on the bench, the risk is to lose impartiality. That's for me, it's completely nonesense. Typical machist argument, because either we are, impartial or not. Often some judge some colleague to the says to a woman "don't be too emotional". Men, are as emotional as we are on this topic. Know the argument impartiality for me is dangerous. The danger of this argument, is because it looks like the simplest one but it isn't.
Andrew Clapham 10:06
So I mean, as you know, an International Criminal Court, they have rules that there has to be a certain number of women judges. I mean, always that specific to the type of court that maybe is dealing with sexual violence. What are your thoughts?
Judge Tulkens 10:19
My thoughts about that? is a little bit challenging, of course, on the pure intellectual aspect. Quotas is not a good thing, that's for sure. But no, I realised that, really, we want to achieve equality and parity? Sometimes we should put something more solid in place. I think it's important. We cannot wait any more. We cannot wait any more so, I think it's important to, to fill this gap. I think for international judiciary it's the same. It's absolutely the same because all the arguments, we know by now their argument, the question of the woman are not competent. Oh my god. Forget about that. Men are not competent either. I think it's important to say no, it's so we have to do with we have to do that. And we have to adopt some goal to to achieve that.
Andrew Clapham 11:17
Yeah thank you. And then switching topics and taking you back to 2005. And the Sahin case, and that famous dissent, which put women's voices at the centre of the courts. And I don't know if you remember, but at the time you gave the lecture for us, it was just the week when Switzerland was voting to ban face coverings otherwise known as the burqa ban.
Unknown Speaker 11:43
On a day after International Women's Day and on Sunday, Switzerland took a landmark decision to officially ban the burqa, and the niqab, a proposal to outlaw the traditional Islamic garment was narrowly backed in a nationwide referendum with 51% of Swiss supporting the bed
Andrew Clapham 12:00
it's all presented as a question of security. It's about Islam more generally towards society. And I wondered if you had any thoughts about this rather, if I might say strange manoeuvre now in Switzerland to introduce legislation in the constitution?
Judge Tulkens 12:16
I haven't changed my mind. I would have taken exactly the same position Exactly. And there is a myth that we for legislation, if we ban that everything will be solved. That's an illusion. Because a question of the veil is a question first of all, against Islam, for sure. We, of course have to say no, no, no, no. Whether it's neutrality, in France they are speaking about Laicité. I don't know which one do you use in Switzerland? No, no, no, no, it's a question of free to be as the one too. To ban the veil. It's really, it's one constraint against another one. That's exactly that. With legislation, it will be clear? no, it will be ugly, which is difficult to to convey this message.
Neus Torbisco Casals 13:10
Switching to the question of many people see now as there is a backlash against international courts international to education and human rights, to which extend you think that there is a future international adjudication?
Judge Tulkens 13:25
They're very, very critical question and very important question. Because there is a backlash, that's for sure. There is a backlash, not only for code, but for human rights, which is, of course, more important people do not believe in human rights anymore at all. Is it the reality? Or is it a kind of reconstruction of the reality by some politician? That remains to be seen. Because when we are discussing with people, you don't hear the same discourse. Not at all.
Unknown Speaker 13:53
They took our sovereignty, our dignity, the very essence of our Britishness and what has the European Convention of Human Rights ever done for us in return? Apart from the right to a fair trial, the right to privacy of freedom of religion, freedom of expression, freedom from discrimination, freedom from slavery, and freedom from torture, evading treatment, and degrading treatment?
Judge Tulkens 14:19
I do there is a future for international jurisdiction. That's for me, really, it's more than a question mark. It's really an existential question for me, because I have no insight or no idea how to rethink the international jurisdiction. When I was at the court. It was we discussed from from 1990 to 2012. When I left the court, we're already discussing about reform. Reform to what? To have subsidiarity in the preamble, as we will have in a few weeks? To imagine your representation in the preamble? We cannot say that it's a new vision of to punish for the future, just to see the new margin of appreciation. But today, today it was a judgement against Italy, concerning sexual violence in the family, because it determines. It expressed, really a feminist point of view is that G and against Italy. So as you know, I see that some people said that's exaggerated, because the German is very, very strong against the Court of Appeals in Italy saying, you use stereotypes or being too many saying that I haven't seen such a strong judgement concerning women. You know, we have that case with good cases, of course, with the court as any other institution. To rethink of us we have to to examine what we're doing. That's very important but the court was too busy, we conduct the question of too many cases, instead of having a vision of the supranational control of the human rights, and that's, for me, that was a little bit frustrating.
Neus Torbisco Casals 16:00
just continuing with this thing about how to re legitimise the court, for instance, African states have criticised it so much. And you know, this has also been a clear backlash against you know, we don't recognise anymore the authority of this court. For me, I think this is where I see also another value of representation of diversity, not just gender diversity, but not having enough minority judges, so that people can own the institution. And that's why I see another value, you know, but on diversity, but I don't know what you think, you know, which would be the birth to that diversity could bring, you know, to increase the authority and legitimacy of courts,
Judge Tulkens 16:48
I think, is part of the problem. It's really part of the problem. Because when you are talking about legitimacy, legitimacy means that people, there is a twist in the call. That's very important. And it's not to be a blind trust, not a tool, it should be digital trust, that this link knows where this where the toys disappear. Why, why why why if the population is people, people who are at a critical value nation, with the core ingredient, which kind of remedy can be assigned to them. Of course, we can see we have to be judged too far from the people. That's true. They are too far and do not understand the reality. diversity in this aspect is only an important remedy. In fact, important. It should be a good vaccine against a nation. We have to do everything we can as ga For me it was very important with I was at the court I tried to explain the convention report to anybody people. This has been a young people coming from the college because my team asked me if I can receive it the core son, he was 11 year old. And then he came with his class little tiny, tiny remedy to discuss move and move and move abroad. Because when we see it when people see you, the situation is coming different.
Neus Torbisco Casals 18:12
if you had to give an advice or a message to some, you know, young woman aspiring to be judges today,
Judge Tulkens 18:21
But I am not a career counselor huh! Do exactly what you believe in it. That's probably the most important thing. Don't try to correspond to what our expectation when you do exactly what you were I was always a little bit marginale. So do exactly what to like, people accept people do not accept decision price. Continue even if people have nothing to believe. But don't then expect recognition. And so because that's you know, a lot you're becoming crazy.
Andrew Clapham 18:53
And in terms of stimulating our listeners, after this after they switch this off, is there a book or a story or a poem or something you'd like to just pass on to? The listeners
Judge Tulkens 19:05
I am more inclined to music. Oh there are so many pieces of music for inspiration... it's so important in my life music yes yes, oh there are many pieces. Now is the Queen Elizabeth competition in Brussels. So you have the opportunity to listen every evening to beautiful concept. The second concerto. Oh I love, I love music because I didn't have enough time when I was an adult to study it, so I joined a choir. You know it's so nice. Then you are only a small alto in a group of 80 people. I love that.
Michelle Olguin Flückliger 19:50
Thank you so much for listening to this episode of women in International Justice. Don't forget to subscribe and stay tuned for more conversations with The outstanding women who are rethinking representation in the international bench. If you'd like to hear more about diversity in the international judiciary system, go to graduate institute.ch forward slash diversity I NCL bench, or follow the link in the show notes below and follow the lecture series on diversity and International Justice organised by the Albert Hirschman Centre for democracy.