Feminist Judgments in International Law

Loveday Hodson, Troy Lavers, Loveday Hodson, Troy Lavers

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509946716
• eBook ISBN: 9781509914432
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Winner of the ASIL Book Awards Certificate of Merit 2020 The emergence of feminist rewriting of key judgments has been one of the most interesting recent developments in legal methodology. This unique enterprise has seen scholars collaborate in the 'real world' task of reassessing jurisprudence in light of feminist perspectives. This important new volume makes a significant contribution to the endeavour, exploring how key judgments in international law might have differed if feminist judges had sat on the bench. This collection asks whether feminist perspectives can offer meaningful and viable alternatives to international law norms; and if so, whether that application results in distinguishable differences in outcomes. It answers these questions with particular reference to sources of international law, the public and private divide, State responsibility, State immunities, treaty law, State sovereignty, human rights protection, global governance, and the concept of violence in international law. This landmark publication offers a truly innovative reassessment of international law. Winner of the 2020 ASIL Certificate of Merit for a Preeminent Contribution to Creative Scholarship.

part i

Introduction

1

Feminist Judgments in International Law: An Introduction

LOVEDAY HODSON AND TROY LAVERS

I.Beginnings

As feminists who have been engaged in international law scholarship for a number of years, we are constantly driven to think creatively and optimistically of ways that we might do international law differently. We are among a growing number of academic feminists who are challenged by our students and by our own ethical and political commitments to push the discipline in new directions; simply put, many of our discussions focus on the question of how the theory and practice of international law might be done better. International law scholarship is prone to utopian thinking that can often contrast cruelly with the reality of its daily application.¹ Yet feminists have insisted that imagination, hope and activism have a crucial role to play in the study, understanding and application of international law.² We have also witnessed first-hand the remarkable creative energy generated, and the insights that emerge, when a group of feminists with an interest in international law are brought together and given space to strategise, critique, encourage and reflect. This book is borne from a paradoxical position that encompasses both optimism about international law’s transformative potential and frustration at its frequent failure to bring about meaningful change.

The process of writing Feminist Judgments in International Law began a number of years ago. The project from which this book evolved – a project we referred to as the feminist international judgments project (FIJP) – brought together almost 50 international legal scholars and some activists, and asked them to collaborate in the task of (re-)writing key international judgments from a feminist perspective. Participants were asked to imagine what those international judgments might look like viewed through a feminist lens. Applying theory in such a practical way required us to consider the concrete ways in which feminist perspectives can change international law. This book, then, is the result of a collaborative exercise that involved demonstrating the practical application of alternative (feminist) values to international law practice. During the incredible journey that culminated in this collection, our positions have been challenged and our understanding of the value of feminist thinking in international law has deepened.

In undertaking this project, we have followed in the footsteps of some remarkable feminist legal scholars. The idea of a project in which key legal judgments are re-written from a feminist perspective can be traced to the Women’s Court of Canada, in which six academics individually re-wrote a Supreme Court judgment.³ That Canadian project was followed by a larger-scale English/Welsh project that generated considerable interest among legal scholars and beyond, resulting in a high-profile collection of published judgments.⁴ Interest in the methodology has now generated a significant number of domestic projects. An Australian collection of feminist judgments was published in 2014;⁵ a Northern/Irish feminist judgments project in 2017;⁶ and a New Zealand one followed also in 2017.⁷ In the US, a series of collections is being written, each focussed on a particular area of law.⁸ Scottish,⁹ Indian¹⁰ and African¹¹ projects are currently underway. These projects have enriched thinking about how feminist theory might serve to influence legal outcomes and, to some extent, have also raised questions about the significance that can be attached to women judges.¹² Importantly, they are also generating a network of feminist legal scholars across jurisdictions: in 2017, for instance, organisers of various projects met at the International Institute for the Sociology of Law in Oñati, Spain, to share our experiences and to consider ways in which the methodology might develop.¹³ Unexpectedly, then, embarking on a feminist judgments project brought with it from the outset a comforting sense of being supported by a loose network of feminists sharing a creative academic endeavour.

II.Towards an International Law Project

Motivated by the English/Welsh project, we recognised that the methodology of re-writing judgments could have particular importance in an international law context. While feminist scholarship and activism is rich in its complexity and diversity and does not represent a single unified approach, feminists are increasingly at the forefront of critical international legal scholarship. Inspired by the ground-breaking work of MacKinnon in Towards a Feminist Theory of the State¹⁴ and Chinkin, Wright and Charlesworth’s 1991 article ‘Feminist Approaches to International Law’¹⁵ and subsequent monograph,¹⁶ the challenge of laying bare the patriarchal structures upon which the discipline is founded and its consequent blind-spots has been taken up enthusiastically by a growing number of international scholars.¹⁷ However, feminists have discovered that the obstacles they face are considerable. Their work brings into question the very structure of international law, its methods and values. Decision-making in international law traditionally prioritises abstract logic and hard (formal) law, thereby reducing the potential importance of conciliation, negotiation, soft law and equity.¹⁸ Traditional scholarship in international law also has the State as its key focal point, raising questions about the power of the State, the sovereignty of States and the use of force by States. Consequently, issues of importance to women all too often fall into the blind spots of international law’s gaze. Hilary Charlesworth, for example, has wondered why there is ‘a whole series of treaties obsessed with straddling stocks, when the use of breast milk substitutes, which is a major health issue for women in Africa, remains subject to voluntary W.H.O. codes?’¹⁹

A feminist international judgments project was therefore both timely and relevant. Indeed, frustrated by the confines of traditional international law, feminists have frequently sought to create alternative spaces in which to express their perspectives. There is a long tradition of feminists responding creatively to the discipline’s narrow confines by reaching beyond them, perhaps most famously in the form of women’s tribunals that aim to address the devastating failure of more formal fora to address crimes and gross human rights violations against women.²⁰ Other examples that have particularly inspired us include Buchanan and Johnson’s use of popular film to expose the binaries created in traditional approaches to the sources of international law,²¹ and the work of Yoriko Otomo, whose poetry includes Her proper name: a revisionist account of international law, which relates an imagined (absent) account of the signing of the Treaty of Westphalia from the perspective of Maria von Helfenstein (Lady Landgravine):

Lady Landgravine, they call me. Madame the Landgravine. They gift me so they can guarantee Manne’s humanity, Law’s masculinity. Their passage to Life and Immunity seduces with promises of Security. But for me? What Virtue is left with no body to keep?²²

Adopting inventive methods has been a crucial part of feminist attempts to disrupt and challenge the discipline’s normative foundations. While the creativity and vision that feminists demonstrate in their engagements with international law continue to inspire and encourage us, in practice, feminists’ work has arguably struggled to make an impact on mainstream international law and in judicial thinking. International law as a discipline is deeply rooted in patriarchal thought, and it is notoriously dominated by male perspectives. This collection adopts an innovative approach – one that at once engages with and side-lines law’s authority – in order to join those efforts that aim to produce a counter-narrative. The weight of international law’s norms is such that the simple yet powerful fact that the law might be otherwise can frequently be overlooked. In re-writing key international judgments, we aimed to demonstrate in accessible and meaningful ways possible alternatives to the structural inequalities of traditional international law.

Simply creating a space in international law that is dominated by women is remarkable. Aside from the scholarly dominance of male voices, it is very apparent that women are excluded from international decision-making and, in particular, are frequently being overlooked for appointment to international courts and tribunals. According to recent research by Nienke Grossman:

[O]n nine of twelve international courts of varied size, subject-matter jurisdiction, and global and regional membership, women made up 20 percent or less of the bench in mid 2015. On many of these courts, the percentage of women on the bench has stayed constant, vacillated, or even declined over time. Women made up a lower percentage of the bench in mid 2015 than in previous years on two-thirds of the courts surveyed.²³

As Grossman rightly concludes, such disparity brings the legitimacy of international tribunals’ decision-making into question.²⁴ To some extent, this judgment re-writing project touches on the question of what other tangible differences would follow if gender parity on international benches were achieved, and we acknowledge that women’s participation is a vital subject for international lawyers to address. Nonetheless, this project is premised on the idea that it is not enough to call for gender parity: in seeking decisions that make a tangible difference and that address injustice, we pinned our hopes on self-consciously adopting feminist approaches to international law and judging as a driving force for meaningful change.²⁵

A further motivation for commencing this project was the opportunity it offered to explore the question of how far (international) law is amenable to feminist ends.²⁶ From Carol Smart’s caution that ‘law is so deaf to core concerns of feminism that feminists should be extremely cautious of how and whether they resort to law’,²⁷ feminists have not been uncritical of law’s potential to bring about radical change. Smart’s specific concern is that ‘in accepting law’s terms in order to challenge law, feminism always concedes too much’.²⁸ As coordinators of a project that places formal legal process at its centre, we were alive to these concerns yet persisted in the hope that feminist theory and methodology could offer alternative perspectives that illuminate pathways to doing law differently.

III.Designing the Project

As stated above, the aim of the project in straightforward terms was to take the feminist re-writing methodology and apply it to the decisions of international tribunals. Feminist judgment projects, as Hunter has written, provide an important platform for scholars and others to come together and challenge legal doctrine though the process of ‘telling the story differently’ and highlighting law’s silences through the use of contextual materials.²⁹ In the words of the coordinators of the English/Welsh law project: ‘The [project] challenges the notion that judgment-writing is or ought to be an expertise confined to judges, and seeks to develop the practice of writing judgments as a form of critical scholarship.’³⁰

In many respects, the value and innovation of this current collection lies in its replication of the feminist judging re-writing methodology and applying it in a novel (international law) context. However, it goes without saying that each jurisdiction presents its own questions and challenges for feminists; consequently, the FIJP took a unique form.

Beyond the innovation of its jurisdictional context, the current project contributes to the development of the feminist judgment re-writing methodology in two specific respects. The first contribution of our project to the judgment-writing methodology is the way in which participants have been encouraged to adopt a reflective stance. The format of other (domestic law) projects has been to include a commentary written by someone other than the author of the judgment. In this collection, participants were asked to reflect and write on their experience of the judgment-writing process and the project itself. The aim of specifically encouraging reflective practice in this project was to disrupt the apparent finality of the judgment-writing process: reflective practice suggests a continual process of learning, un-learning and change.³¹ In the words of Brooke Ackerly and Jacqui True: ‘Feminist theory has made empirical work particularly challenging because feminist theories reveal the politics in every aspect of the research process. Feminist theories commit feminist researchers to exploring absences, silence, difference, oppression and the power of epistemology.’³²

Consequently, they argue, the ‘feminist research ethic is a commitment to inquiry about how we inquire’.³³ Reflection and reflexivity can also reveal the ways in which power – including our own situatedness – shapes the research process and knowledge formation (and, in this case, judgment-writing), which opens up the possibility of mitigating its abuse. In this context, it can therefore help to underline the value-laden nature of legal judgment-writing. In this collection, participants’ reflections form the final section of their chapters and provide insight into the judgment-writing process.

Secondly, this project adds to the judgment-writing methodology by foregrounding a collaborative approach. Whereas earlier projects have generally adopted an individual approach to judgment-writing in which the feminist judgment acts as a separate and additional voice that is ‘added’ to the original judgment, the international project foregrounded a collaborative methodology. As all of the feminist judgments to date have emerged from common law jurisdictions, the blueprint they provided us with required some re-thinking when applied outside of that legal context. Tribunals such as the European Court of Human Rights typically issue one joint judgment, while leaving open the possibility of individual judges delivering separate or dissenting judgments in their own name.³⁴ Others, such as the Court of Justice of the European Union, leave no scope at all in their procedures for delivering individual judgments. When embarking on this project, our perspective was therefore somewhat different from those that preceded us: collectively writing a single judgment, which effectively stands in place of the original judgment, seemed to be an obvious approach to take.

With the exception of two separate decisions written by individual judges (Burden v the United Kingdom and Prosecutor v Radovan Karadžić), the judgments in this collection were written by chambers composed of two to four judges. We anticipated that working in this way would enable participants to experience more closely the ‘real-world’ nature of international judgment writing, where judgments are generally written in a collective voice and the views of individual judges are not identified. In their contributions, several participants reflect on the nature of delivering judgment and some examine its (in)compatibility with feminist methodology. The very nature of judgment-writing appeared to set us on a quest for a ‘single truthful narrative’ that sat uncomfortably with many participants. In all cases where a judgment was written jointly, our participants, bringing to the chamber their own feminist views, were faced with the compromises inherent in the process of their individual voices becoming subsumed into a group output. Each met this challenge in different ways. Chambers’ reflections on the judgment-writing process show that for several of our groups the answer was to reveal more overtly the contingent nature of their decisions and to face head-on the politics informing them. For some, a degree of ‘incoherence’ was viewed as a feminist tool that disrupted the ‘rationality’ and ‘neutrality’ of typical judgment-writing that conceals the choices made and the politics at work in reaching those decisions. In the words of Hilary Charlesworth, ‘Feminist methods emphasize conversati...

Table of contents

• Cover
• Dedication
• Title Page
• Foreword
• Acknowledgements
• Contents
• Notes on Contributors
• PART I: INTRODUCTION
• PART II: GENERAL INTERNATIONAL LAW
• PART III: HUMAN RIGHTS
• PART IV: INTERNATIONAL CRIMINAL LAW
• PART V: CONCLUSION
• Index
• Copyright Page