All of us who work as law professors have catchphrases that we use for our students to try to reinforce particular messages, and I am no different. One of my well-trodden nuggets is to analogise theory to a pair of glasses; to identify it as something that helps us to ‘see’ things differently and more clearly. If my somewhat crude analogy holds any water at all, Feminist Approaches to International Law is one of its finest exemplars.
By the time of this article’s publication in 1991, feminist legal theory had not only developed substantially as a body of legal theory but had become a standard and expected element in critical legal theory and jurisprudence education and scholarship. International law had, however, largely avoided its gaze. Without question, in Feminist Approaches to International Law, authors Hilary Charlesworth, Christine Chinkin and Shelley Wright exposed public international law from a feminist perspective, forcing a critical reappraisal to at least some degree. More than twenty years from its publication, an exercise in stocktaking seems appropriate.
women’s participation at the UN level, for example, may have improved since 1991 and specialised agencies been created, participation remains problematic.
This reflects three core concerns that public international law must grapple with if it is to maintain its legitimacy when interrogated from a critical perspective:
► Women remain underrepresented in domestic parliaments and lawmaking institutions from which many participants in international institutions are drawn;
► Although women’s participation in the professions and especially in professional training is generally increasing, it remains the case that the higher echelons of many professions—including especially law—remain overwhelmingly dominated by men, and it is generally from these professional strata that international professionals such as judges, Secretaries General and so on are selected; and
► International lawmaking is increasingly undertaken by the participation (either transparent or informal and undocumented) of industry, especially through transnational associations or organisations in which women’s disenfranchisement from senior executive positions across industry is replicated by lack of female representation and consequent lack of participation.
None of these trends has as of yet been convincingly addressed by international law. But all of them continue to plague its capacity to properly recognise and mitigate the gendered nature of law’s impact on human life. It would be a mistake to say that women are always more likely to take into account women’s experiences in a positive sense. But at the same time women must be represented in a meaningful way (preferably equally) in order for the institutions in question to maintain their legitimacy.
The Public/Private Divide
Feminist Approaches to International Law maps the critique of the public-private divide from domestic feminist legal theory on to international human rights law. The article identifies what is conventionally considered to be ‘private’ as a site of significant disempowerment and vulnerability for women but, in spite of this, as almost entirely untouched by public international law.
CEDAW rejection of public-private dichotomies (p. 2) has always been a matter of scrutiny for international human rights law. But in spite of that, states’ tendency to enter reservations to the core provisions persists, without the international legal system having demonstrated its capacity to effectively resist this trend. Thus, the public-private dichotomy identified by Charlesworth, Chinkin and Wright persists without effective resolution, notwithstanding significant doctrinal development in relation to domestic violence and human trafficking.
Added to that ‘traditionally problematic’ public-private divide is the persistence of public international law’s fixation on the state and its failure to properly address major private actors such as corporations. Corporations hold significant power in international relations because of both their economic capacity and their ability to influence formal and informal lawmaking and regulatory processes impacting, particularly, women and girls. This is especially so when we consider socio-economic rights and capacities and the disproportionate impact that poor environmental health, climate change, urban migration, and water shortages have on women, their patterns of activity, and the extent to which they are made physically vulnerable by these changes.
Business & Human Rights framework under the leadership of Professor John Ruggie, that framework does not clearly appreciate the particularity of women’s experiences of corporate behaviour and the economic and political structures that such behaviour shapes and supports. Even as international law begins to move into regulating so-called private actors, its method of doing so replicates structural exclusion of women’s experiences that are critiqued in Feminist Approaches to International Law, notwithstanding the increased attention paid to the implications for women and girls of the current division, exercise and concentrations of power in the international and transnational sphere.
If, as I said at the beginning of this post, Feminist Approaches to International Law exposed public international law from a feminist perspective, then that exposure has been only partially successful.
While it has helped us to see international law from a feminist perspective, and brought attention to structural and doctrinal problems within it, this ‘seeing’ is only part of the required solution.
What is required:
► Meaningful appreciation of gendered perspective,
► Gender equality within international institutions,
► Mainstreaming of feminist legal perspectives in undergraduate international law syllabi,
► Continuing development of female participation through NGOs in international processes,
► Honest and realistic appraisal of the relevant actors, including nonstate actors, in international law and relations, and creation of incentives to ensure female participation at the highest levels there,
► Acknowledgment of the particularity of women’s experiences of international law and of state and non-state action and the legitimacy crisis that persists where this particularity is incompletely responded to, and
► Respect within the international legal academy for feminist international legal theory and analysis.
Any serious reading of Charlesworth, Chinkin and Wright would lead one to recognise immediately the absolute necessity of all of these suggestions—as well as their ultimate insufficiency in the absence of an attitudinal shift towards women, gender and international law.