The boundaries of international law

A feminist analysis, with a new introduction

Hilary Charlesworth, Christine Chinkin

• Publisher: Manchester University Press
• Year: 2022
• ISBN:
  9781526163561
• Topic: Jura
• Subtopic: Völkerrecht

In the first book-length treatment of the application of feminist theories of international law, Charlesworth and Chinkin argue that the absence of women in the development of international law has produced a narrow and inadequate jurisprudence that has legitimated the unequal position of women worldwide rather than confronting it. The boundaries of international law provides a feminist perspective on the structure, processes and substance of international law, shedding new light on treaty law, the concept of statehood and the right of self-determination, the role of international institutions and the law of human rights. Concluding with a consideration of whether the inclusion of women in the jurisdiction of international war crimes tribunals represents a significant shift in the boundaries of international law, the book encourages a dramatic rethinking of the discipline of international law. With a new introduction that reflects on the profound changes in international law since the book's first publication in 2000, this provocative volume is essential reading for scholars, practitioners and students alike.

1

Women and the international legal system

Introduction

This book is about why issues of sex and gender matter in international law. Its central argument is that the absence of women in the development of international law has produced a narrow and inadequate jurisprudence that has, among other things, legitimated the unequal position of women around the world rather than challenged it. In this sense, the absence of women in international law is a critical feature of the traditional canon – its boundaries depend upon it. Our aim is to encourage a rethinking of the discipline of international law so that it can offer a more useful framework for international and national justice.

The scope of international law has increased significantly throughout the twentieth century. It now pervades international relations and national political and legal systems. International law is a mechanism for distributing power and resources in the international and national communities. It offers a wide range of normative prescriptions: from regulating coercive behaviour between states, and between states and non-state actors, to the allocation and control of space and territory from Antarctica to the high seas to outer space; from the protection of human rights, the global environment and endangered species to the management of the international system of trade and finance. However, while the international legal system may be broadening in scope, it remains narrow in perspective. Its constraints could be analysed in many different ways, for example from the perspectives of those states that have played little role in its development, or of non-governmental organisations (NGOs), or of individuals that seek access to it. This book examines the boundaries and limits of international law from a critical and feminist perspective. Women form over half the world’s population, but their voices, in all their variety, have been thoroughly obscured by and within the international legal order. This book attempts to give expression to some of those voices.

In this opening chapter, we describe, in very broad terms, the conditions of women’s lives. The picture that emerges is that the quality of women’s lives globally is consistently different from and lesser than men’s. We then consider why the international legal order has paid comparatively little attention to the position of women. Finally, we outline the book’s general structure and aims.

The categories ‘women’ and ‘female’ are contentious when used to make general points, especially in an international context. The use of an undifferentiated classification such as ‘women’ imposes the appearance of homogeneity that conceals real differences in the lives of women. These include race, ethnicity, indigeneity, religion, class or caste, wealth, familial status, geographic location, education, sexuality and age. In many situations it would be fruitless, as well as inaccurate, to assume that the lives of, for example, a young Afghan woman refugee, a middle-class Canadian housewife and an older Zimbabwean woman agricultural worker are subject to similar pressures and influences. However, because international law claims general, global application and draws no conceptual distinction between its human subjects (nor indeed its primary subjects, states), employing the category ‘women’ can be a valuable method of highlighting the commonality of the marginalisation of all women in the international legal system.¹ In fact, the international legal system fails all groups of women whatever categorisation is adopted. In this book, we attempt to be specific in using the terms ‘women’ and ‘female’ in particular contexts, but we acknowledge that there is inevitably some oversimplification. It is striking that a parallel problem with the use of the categories ‘men’ or ‘male’ rarely prompts any question. Men and maleness are assumed to be the norm from which women and femaleness are to be differentiated. Women are construed as the ‘other’, the deviant from the norm.

We also use a variety of other terms in this book that might be criticised for their generality and lack of specificity. For example, we refer to ‘developing’ and ‘developed’ or ‘industrialised’ states, ‘the West’, ‘the North’ and ‘the South’ (terms that make little geographic sense), ‘first world’ and ‘third world’. Such categories gloss over significant differences between states and the changes that have taken place within and between them. Over thirty years have passed since the decolonisation of many states,² especially within Africa, Asia, the Pacific and the Caribbean, and the specificities in their post-colonisation histories cannot be captured by such labels. Nevertheless we employ these broad terms because they are part of the existing vocabulary and concepts of the international legal system that we aim to assess critically from feminist perspectives.

One characteristic that all adult women share is that they have been girls. There is a growing international legal literature on the rights of the child,³ which occasionally differentiates between girls and boys. Our primary focus is on adult women rather than on girl-children.⁴ However, much of our discussion may have relevance to both girls and women: first, because the age of transition from girlhood to womanhood is fluid; second, because womanhood is prematurely imposed upon many girls, for example through sexual abuse, child marriage, trafficking and genital mutilation; and third, because the situation of women has a direct bearing on the situation of girls.

Gender and sex

This book uses the categories of both gender and sex in its analysis of international law. What do they mean and how do they differ? Feminist investigations of different areas of knowledge frequently concentrate upon gender as a category of analysis. The notion of gender captures the ascribed, social nature of distinctions between women and men – the excess cultural baggage associated with biological sex. ‘Gender’ draws attention to aspects of social relations that are culturally contingent and without foundation in biological necessity. The term also has the advantage of particularly emphasising relationality, that is the connection between definitions of masculinity and femininity,⁵ thereby avoiding the implication that only women should be involved in an investigation of gender. Sex, on the other hand, is typically used to refer to biological differences between women and men.

Much theoretical writing about gender assumes that sex is a fixed, immutable characteristic and that it is a given, rather than a contestable category. Indeed, it has been argued that terms such as ‘sex’ or ‘sexual difference’ carry with them the resonance of biological determinism and thus should be avoided.⁶ Jane Flax has pointed out, however, that the separation of ‘gender’ and ‘sex’ in feminist inquiry rests on problematic and culture-specific oppositions such as nature/culture and body/mind.⁷ If we attend to the constitutive role of the law and society in forming the ‘naturally’ sexed person, the concepts of ‘sex’ and ‘biological difference’ can be seen to have constructed, contingent and political elements.⁸ The major difference between the notions of ‘gender’ and ‘sex’ is in their focus on different elements of dichotomies such as body/mind and nature/culture. Sexing draws attention to body and nature while gendering emphasises mind and culture. The two approaches are in this sense complementary and both are invoked throughout the book. Particular understandings of both gender and sexual differences help construct the ‘realities’ of international law.

The global position of women

Although its forms differ significantly across societies and cultures, the phenomenon of women’s subordination is found worldwide. Throughout the world women are economically, socially, politically, legally and culturally disadvantaged compared with similarly situated men. These disadvantages operate on a number of levels, international, regional, national, local, communal and familial. While these areas can be usefully separated out for the purposes of analysis, they are interconnected and mutually reinforcing. Indeed, as is discussed in chapter 2, the very categories used – ‘economics’, ‘society’, ‘politics’, ‘law’, ‘culture’ – are defined by reference to male lives and male experiences. Although many men also suffer forms of oppression that reduce their public autonomy and affect the quality of their lives, it remains true that a category of elite men monopolise all secular, religious, national and international institutional forms of power. This monopoly means that men’s interests are defined and accepted as apparently objective and neutral categories, to the ultimate benefit of all men.

One of the consequences of the United Nations (UN) Decade for Women, 1976–85, has been pressure for the generation and analysis...