Friday, October 19, 2012

Attending to method in Feminist Approaches

(Today IntLawGrrl Siobhán Mullally contributes to our series celebrating "Feminist Approaches to International Law")

Feminist Approaches to International Law I think, for the first time, explained clearly to me what precisely was wrong with the practice and theory of international law.
As an undergraduate law student, I had read and studied feminist legal theory, having been introduced by Professor Gerard Quinn to the work of a new generation of critical legal scholars. International law, though it was one of the few areas of law that captured my imagination as a student, seemed impervious to feminist critique. Its abstractions from context, from what one of the three Feminist Approaches co-authors, Hilary Charlesworth, described in a 2002 article described as the ‘everyday’ – la vie quotidienne – seemed to insulate this body of law from the scrutiny that had revealed the hidden gender of law in several other fields.
In the early days of my teaching career, I think I could recite much of this article by heart.
I read and re-read it so many times, heavily underlined and highlighted it, and literally excavated every word, in striving to understand both the limits of international law and the potential of feminist legal theory to push beyond its inherited traditions.
The impact of Feminist Approaches is reflected in its enduring relevance and the continuing urgency of the feminist work that it calls upon us to do. Its impact endures, because it connects, it makes sense of the world of international law that I and others have grappled with, but that seemed oddly removed from the complex and urgent questions that arise in small places, close to home.
Feminist Approaches to International Law revealed not just the need for ad hoc reforms, or a process of ‘adding women in’. It also systematically excavated the gendered nature of international law, the structures and concepts that defined the practice of international law and limited the direction of its (not always) progressive development. It pointed not only to the absence of women in the composition of many international law bodies, but also to the silencing of ‘different voices’ in international law, and to the role that gendered divisions between the public and the private played in reinforcing such silencing processes.
Here, I want to point to three of the enduring influences of Feminist Approaches that have informed my work on international law and that find resonance in much of contemporary feminist writing on international law.
► The first is the refusal to dismiss the transformative potential of human rights and of rights discourse, despite the trenchant opposition voiced by critical legal scholars dominant in the academy at the time of the article’s publication.
Citing the 1987 article ‘Alchemical Notes’, by Professor Patricia J. Williams (left), Feminist Approaches poses the challenge of rethinking and transforming the practice of rights. It recognises the symbolic force of a human rights claim – its ‘deliciously empowering’ potential – always yet to be realised. Much of my own work on ‘Reclaiming Universalism’ has sought to recognise this symbolic force, and the radical promise that underpins a universalising claim – the refusal to accept a denial of humanity that lies at the heart of a human rights claim.
► Yet, Feminist Approaches also signals the destructive potential of power, and the limits of rights, foreseeing a line of critique that was to emerge in later writing on ‘Governance Feminisms’ and the crisis governance mode of international law.

Feminism, as Charlesworth, Chinkin and Wright note, may be co-opted by nationalist projects, or by totalising movements that instrumentalise appeals to gender equality so as to expand the power of law, including through use of military force. In my current work on gender, law and migration, yielding power to law, including human rights law, can result in further restrictions on women’s migration, and in the closing of migration pathways in the name of combating human trafficking, for example.
Attention both to the limiting and transformative potential of law reform is one of the key messages of Feminist Approaches; that is, the need for attentiveness to law’s promise and to its failings, its potential to include (and perhaps to over-inclusiveness) and its potential to exclude.
► Third is the attention given to socio-economic inequalities, to the so-called ‘second-half of the human rights bill.’   
Feminist Approaches repeatedly returns to questions of distributive justice, to the politics of redistribution (to borrow from the work of political scientist Nancy Fraser (right)), as a core issue for feminism. The neglect and denial of the validity of socio-economic rights claims, and of the urgency of securing distributive justice, is highlighted as a feminist concern. How public / private divides secure the marginalisation of questions of distributive justice is revealed through analysis of opposition to the emerging ‘right to development’ and the constructed invisibility of women’s productive and reproductive labour in economic analysis, including that of the UN System of National Accounts.
My more recent work on migrant domestic workers (about which I’ve blogged here), explores the continuum of exploitation experienced by domestic workers. The structures of international human rights law – its public / private divides that allow exemptions from labour and social security standards and permit the imposition of migration restrictions – fail to challenge this continuum. (See for example, the sweeping exemptions permitted in Article 1 of the 2011 International Labour Organisation Convention on Decent Work for Domestic Workers). The resort to private ordering, and to recruitment of migrant domestic workers to meet ‘care deficits’, leaves untouched the wider questions of how to value and support care work.
The retreat from the welfare state, and the globalisation of austerity through international financial institutions and conditionality in aid, are concerns forseeen in Charlesworth, Chinkin and Wright’s reflections on the consequences for international law of categorising women as ‘nonproducers’. That categorisation, as any quick review of domestic workers’ activism reveals, produces a continuum of exploitation from the private to the public. Challenging this continuum requires ‘reimagining possibilities for change’, as it is put at page 645 of Feminist Approaches, and requires us to redefine the traditional scope of international law. In my current work, that means rethinking the sovereign territorial prerogatives that allow migration controls to define the limits of rights.
As Duke Law Professor Katharine T. Bartlett (left) reminded us, in her writing on feminist legal methods,
‘Methods shape one’s view of the possibilities for legal practice and reform.’ 
Charlesworth, Chinkin and Wright repeatedly call on feminist legal theorists to analyse international law from the standpoint of those who are silenced, marginalised or rendered invisible – as ‘nonproducers’ – by the structures of international law. This attention to method, to an epistemology of the excluded, is a powerful contribution. It challenges feminism not only to constantly question the limits of reforms secured, but also to take on the challenging task of seeking the potential for new possibilities.

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