Judge Charlesworth’s Intersectionality Jurisprudence: A Landmark in Feminist Judging and Feminist Litigation

In 2024 and 2025, Judge Hilary Charlesworth introduced the feminist concept of intersectionality into the jurisprudence of the International Court of Justice (ICJ). While the ICJ has not yet adopted intersectionality-based reasoning in its judgments, Judge Charlesworth’s declaration in Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem (Advisory Opinion) (Occupied Palestinian Territory) and in her separate opinion in Obligations of States in Respect of Climate Change (Advisory Opinion) (Climate Change) mark an important moment, when it appears that intersectionality entered general public international law judicial reasoning for the first time. The application of the concept of intersectional discrimination extends international law’s protection beyond groups identified by a single characteristic to the structural factors that create specific forms of discrimination experienced by those with multiple forms of disadvantage. In Occupied Palestinian Territory and Climate Change, direct and indirect participants presented feminist arguments about the impact of Israeli policies and of climate change on women, which appear to have been influential in Judge Charlesworth’s reasoning.

Intersectionality as a Feminist Concept

Intersectionality, a key idea in third-wave feminism, states that some women experience multiple and intersecting disadvantage. It was introduced into legal scholarship by African American scholar Kimberlé Crenshaw, whose foundational work explored the failure of courts to recognise the discrimination Black women experienced, which was neither sex discrimination nor race discrimination, but a specific form of discrimination at the intersection of race and sex. Scholarship on intersectionality emphasises that such discrimination is structural rather than individual. International human rights treaty bodies and courts have used intersectionality, albeit not often, in cases involving women disadvantaged in multiple ways, including gender identity, migrant status, and poverty as well as race or ethnicity. In December 2025, the European Court of Human Rights applied intersectionality for the first time in FM v Russia. The Inter-American Court of Human Rights applied it most recently in a decision published in March 2026: Celia Ramos v Peru. Judge Charlesworth’s contributions to Occupied Palestinian Territory and Climate Change are the first examples of intersectionality being used in judicial reasoning by a general international law court.

Feminist Judges and Feminist Litigants

Introducing feminist concepts – like intersectionality – into judicial reasoning is a hallmark of feminist judging. Alternative judgments scholarship, beginning with the Women’s Court of Canada, where writers re-write judgments from the perspective of the marginalised, has explored feminist judging in most depth. Other important forms of alternative judgment writing include queer judgments, Indigenous judgments, and earth-centred judgments., Elements of feminist judging, as identified in feminist judgments scholarship, include identifying implications of apparently neutral rules for marginalised groups, contextualising judgments in women’s lived experiences, and promoting substantive equality.

Judge Charlesworth is undoubtedly a feminist scholar of note, but is she also a feminist judge? Her application of intersectionality and her focus on how the law impacts on women and other marginalised groups indicates that, at least when writing individual opinions, she brings feminism to the task of judging. In international law, the main judgment is usually the judgment of the court as a whole, without a named author. The need to agree the terms of the judgment limits the potential influence of feminist judges. Nonetheless, some international courts have made collective decisions based on feminist principles. Arguably, the Inter-American and European Courts of Human Rights judgments applying intersectionality and some international criminal law judgments on gender-based violence count as feminist judgments. Separate or dissenting opinions allow individual judges greater voice, if lesser immediate impact on the law, to judge as a feminist. Judge Charlesworth’s intersectionality jurisprudence is an example.

Feminist litigants can also be found in international courts, pursuing strategic litigation. Feminist litigants can assist feminist judges by advancing arguments based on feminist reasoning – in other words, feminist litigants can give feminist judges useful tools for reaching a feminist judgment. Feminist strategic litigation has the goal of achieving or enhancing equality – equality which should be understood as anti-essentialist and intersectional, recognising the diversity and complexity of women’s experiences. This model of equality draws on ideas of intersectional discrimination. Climate change litigation that includes a focus on enhancing equality is an example of feminist strategic litigation even if it does not directly invoke gender equality norms. For example, while the applicant organisation in Verein KlimaSeniorinnen Schweiz v Switzerland did not base its complaint to the European Court of Human Rights on discrimination, its claim for standing was based on the impact of climate change on older women, which Corina Heri has characterised as a claim of intersectional discrimination even though the Court did not.

In international law, advisory opinion procedures are particularly suitable for feminist strategic litigation, because they are often more open to non-state participants than contentious cases between states. This is especially true of the Inter-American Court of Human Rights. The ICJ allows formal submissions only from states and intergovernmental international organisations, so feminist litigants must act through a state or an international organisation. However, recent advisory opinions have shown openness to non-state interests at the borderline between intergovernmental international organisations and non-governmental organisations. In Climate Change, the ICJ allowed submissions from the International Union for the Conservation of Nature, which is a hybrid organisation with state and civil society members.

The feminist double bind limits feminist judging and litigating. The feminist double bind arises from the choice between engaging with mainstream institutions, where compromise is inevitable, and standing outside institutions to pursue ideal theory, where actions have minimal impact. Neither choice leads to an ideal solution. Instead, feminists must choose the least bad option and keep their choices open to revision. The choice to engage with international courts, mainstream institutions with often rigid and exclusionary procedures, places both judges and participants in this double bind. In most cases, feminist litigants will not face a feminist judge. In Occupied Palestinian Territory and Climate Change, participants making feminist arguments faced a judge unusually open to those arguments.

How Judge Charlesworth Applied Intersectionality in Occupied Palestinian Territory and Climate Change – and Built on Participants’ Arguments

In Occupied Palestinian Territory, Judge Charlesworth built on the ICJ’s observation in the main judgment that some members of a group can experience multiple discrimination. She begins by stating that ‘Palestinians as a group share an ethnicity, but they also have many different identities individually – for example, in terms of age, disability and gender.’ She identifies the experience of Palestinian women as intersectional discrimination, defining intersectionality as ‘the way that prohibited grounds of discrimination may intersect with and shape each other, entwining systems of domination and oppression.’ She then explains how the impact of two specific policies, access to water and the residence permit system, impact Palestinian women based on the intersection of race, nationality and gender.

In Climate Change, Judge Charlesworth, in her separate opinion, expands on the concept of climate vulnerable groups: Indigenous peoples, women, children, and people with disability. She applies intersectionality as expounded by the Inter-American Court of Human Rights in its advisory opinion on the climate emergency. Following the Inter-American Court, which noted that climate change exacerbates inequality and poverty, she states that responding to intersectional harms requires positive action by states.

In Occupied Palestinian Territory, Judge Charlesworth supports her intersectionality analysis by reference to treaty body general comments discussing intersectionality, notably the Committee on the Elimination of All Forms of Racial Discrimination’s General Recommendation No. XXV and the Committee on the Elimination of All Forms of Discrimination Against Women’s General Recommendation No. 28. The declaration does not include direct reference to submissions by participants in the advisory proceedings. However, the written submissions of Palestine, Cuba and the League of Arab States address the issues Judge Charlesworth identifies as instances of intersectional discrimination. In Climate Change, the connection between the participants and Judge Charlesworth’s separate opinion is more evident. She cites written statements by Pacific Island states: the Melanesian Spearhead Group, the Solomon Islands, Kiribati, the Cook Islands, Tonga and Tuvalu. More significantly, she quotes from testimonies from individuals and groups from Pacific Island states included in the written submissions. Several of those submissions are from women documenting the impacts that climate change has and is likely to have on their lives.

In Occupied Palestinian Territory and Climate Change, Judge Charlesworth used feminist reasoning to highlight vulnerabilities based on intersecting identities. These feminist judgments were made possible to a substantial degree by the participation of states and international organisations who brought to the ICJ the elements for constructing a feminist judgment. In Occupied Palestinian Territory, they brought evidence of the disproportionate impact of Israeli policies in the Occupied Territories on women. In Climate Change, Judge Charlesworth gave the testimonies of Pacific Islanders, especially women, a prominent place in her reasoning. In these cases, feminist judging and feminist litigation worked together to achieve a landmark in international adjudication. Judge Charlesworth’s reasoning draws from her extensive experience as a feminist scholar, but feminist litigants strengthened the potential for groundbreaking legal development.