Feminist theories and International Law
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Published: Thu, 21 Dec 2017
Feminism is a political movement that seeks to overturn gender inequalities between men and women (Blunt and Wills, 2000: p. 90). It is concerned with the power relations that influence not only how individuals relate to each other, but how spheres of life are gendered in particular ways. Feminism is therefore, inherently linked to international law and is one of the ways in which it can be theorised. While the international legal system may be broadening in scope, it remains narrow in perspective. In particular, the boundaries and limits of international law can be seen from a critical and feminist perspective. Feminist legal theory is comprised of two broad strands. The first is to analyse and critically interrogate the implicit and masculinist assumptions of international law in theory and in practice. The second is to reform international law such that it might better serve the interests of women across the world. It has been argued that ‘feminist theories have nothing to add to the study of international law’ (Hunter-Williams, 2009). However, despite this criticism, feminist theories have much to contribute to the study of international law. The importance of feminist theories in international law can be seen through the inadequacies of traditional theories of law and also in the application of feminist theories in areas such as human trafficking and refugee law. The absence of women in international law has distorted the discipline’s boundaries and “produced a narrow and inadequate jurisprudence that has, among other things, legitimised the unequal position of women around the world rather than challenged it” (Charlesworth and Chinkin, 2000: p.1). Feminist theory acts to challenge this situation and thus offers a significant contribution to the study of international law.
Traditional theories of international law have seriously failed to address the situation of women worldwide (Charlesworth and Chinkin, 2000: p.25). Feminist theories, however, contribute to our understanding of international law and the global inequality of women. As such, the remainder of this essay will refute the claim that ‘feminist theories have nothing to add to the study of international law’. It should be stressed that there is no single school of feminist jurisprudence and the categories do overlap in some respects.
Liberal feminists typically accept the language and aims of the existing domestic legal order. Charlesworth and Chinkin explain how liberal feminists “insist that the law fulfil its promise of objective regulation upon which principled decision-making is based” (2000: p.39). Their primary goal is to achieve equality of treatment between women and men in public areas, such as political participation and representation, and equal access to and equality within paid employment, market services and education (Charlesworth and Chinkin, 2000: p.39). Liberal feminism therefore, has something to add to international law in that it seeks to achieve equality between men and women.
Charlesworth and Chinkin define cultural feminism to be “concerned with the identification and rehabilitation of qualities and perspectives identified as particular to women” (2000: p.40). Epistemologically, it is a standpoint theory in that it emphasises the importance of knowledge based upon experience and asserts that women’s subjugated position allows them to formulate more complete and accurate accounts of nature and social life (Harding, 1986: pp.24-29). In this area, the work of Carol Gilligan is particularly relevant. Gilligan investigates whether there is a distinctively feminine way of thinking or solving problems (Gilligan, 1982). She identifies a ‘different’ voice which bases decisions on the values of caring and connection in contrast to a style of decision-making based on abstract logic (Gilligan, 1982: p.24). The former is associated with women and the later with men (Charlesworth and Chinkin, 2000: p.40). Gilligan’s work has been useful to the critical analysis of legal reasoning, which lays claim to abstract, objective decision making. Accordingly, “if legal reasoning simply reproduces a masculine type of reasoning, its objectivity and authority are reduced” (Charlesworth, et al., 1991: p.615). This illustrates the contribution of cultural feminism to international legal theory.
Radical feminism explains women’s inequality as the product of domination of women by men. Catherine Mackinnon has been a consistent exponent of this view. Her view is that the law keeps women ‘out and down’ (Mackinnon, 1987: p.205) by preserving a hierarchical system based on gender and sex. Radical feminism has paid attention to the public/private dichotomies that also feature in liberal thought. The public realm of the workplace, the law, economics, politics and intellectual and cultural life is regarded as the natural province of men; while the private world of the home, the hearth and children is seen as the appropriate domain of women (Charlesworth et al., 1991: p.626). This dichotomy has led to a debate amongst feminist scholars over whether this distinction often operates to obscure or legitimate men’s domination of women. This dispute could be seen to weaken radical feminist theory. However, the awareness it raises of the domination of women by men and particularly the hierarchical system of international law outweighs its flaws.
Feminist campaigns have not only been restricted to women from the Global North. The term ‘third world feminisms’ refers to approaches developed by women from the Global South and women of colour in the Global North. These approaches explore the differences among, as well as between, men and women. For instance, Alice Walker coined the term ‘womanism’ (1984, quoted in Blunt and Wills, 2000: p. 114) because many black feminists prefer the term ‘womanism’ to ‘feminism’, as the later has been largely white and largely uncritical of its whiteness. Charlesworth et al. assess third world feminisms in terms of the notion of a ‘different voice’ (1991: p.615) in international law. The authors argue that third world states have challenged international law as either disadvantageous to them or inadequate to their needs (Charlesworth et al.: p.616). However, they also suggest that although the challenge of the ‘different voice’ of the developing nations to international law has been fundamental, it has focused on disparities in economic position and has not questioned the silence of half the world’s population in the creation of international law, or the unequal impact of rules of international law on women (1991: p. 618). Despite the limitations of third world feminisms, it still provides an important contribution to international law in that it highlights the application of Western feminist theories to third world communities and societies (Charlesworth and Chinkin, 2000: p.46).
The importance of the contribution of feminist theories to international law can be seen in practice in relation to human trafficking. In December 2000, over 80 countries signed the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol), (Doezema, 2002: p.20). The Trafficking Protocol works to conceptualise an international problem; it established the first definition of trafficking in international law and put in place a set of measures for international co-operation to address this problem (Sullivan, 2003: p.68). The Trafficking Protocol defines trafficking in persons as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion” (United Nations, 2003: p.2). Trafficking in women for the sex industry is highly profitable for those running the trade. The UN estimated that 4 million people were trafficked in 1998, producing a profit of USD 7 billion for criminal groups (Sassen, 2002). Feminists and feminist organisations were particularly involved in discussions about the text of the Trafficking Protocol (Sullivan, 2003: pp.67-68). Feminist lobbying regarding the Protocol was split into two ‘camps’ espousing differing views on prostitution. One group, the Human Rights Caucus, viewed prostitution as legitimate labour. The other, represented by the Coalition Against Trafficking in Women (CATW), considered all forms of prostitution to be a violation of women’s human rights.
Differences about the possibilities of distinguishing between free and forced prostitution divided feminists. Consequently, the definition of trafficking incorporated in the Protocol has some important weaknesses. Furthermore, the debate amongst feminists on this topic has fuelled claims that ‘feminist theories have nothing to add to the study of international law’ (Hunter-Williams, 2009). However, the Protocol does have its strengths. The Trafficking Protocol has had significant worldwide impact on the status of women. As such feminist theory should be seen as making an important contribution to the study of international law.
A further area in which feminist theories are viewed as important in international law is that of refugee law. Carving out territory for refugee women within mainstream legal realms has been one way that feminists have successfully redressed their invisibility within refugee discourse (Oswin, 2001). Efforts have largely focused on eliminating the male bias within the legal definition of ‘refugee’ in order to incorporate the experiences of refugee women into refugee status determination processes. Emphasis has also been placed upon the recognition of violence against women as a ground of persecution. Those feminists who have sought to incorporate women’s experiences into refugee law can claim success on a variety fronts. For instance, the UNHCR’s Guidelines on the Protection of Refugee Women, adopted in 1991, emphasises the fact that gender-based persecution exists and should be recognised by ‘refugee-receiving’ states as a basis for asylum (Oswin, 2001: p.350). In this way, feminist efforts have been instrumental in putting refugee women’s experiences on the agenda of international refugee law. However, it could be proposed that feminist theories have not had a substantial involvement in refugee law as feminists “have only been granted a small portion of what is already extremely finite territory” (Oswin, 2001: p.347).
A final example of the significant impact that feminist theory has had on the study of international law is that of the United Nations Security Council Resolution 1325. SC1325 is an eighteen-point resolution that develops an agenda for women, peace and security. It calls for the prosecution of crimes against women, increased protection of women and girls during war, the appointment of more women to the UN peacekeeping operations and field missions and an increase in women’s participation in decision making processes at the regional, national and international level (Cohn, et al., 2004: p.130). The resolution was unanimously adopted by the Security Council on 31 October 2000. SC1325 is highly significant because it is the first time the Security Council has devoted an entire session to debating women’s experiences in conflict and post-conflict situations. The resolution was influenced by feminist campaigners and the case highlights the growing influence of feminist theories on international law.
Women are on the margins of the international legal system (Charlesworth and Chinkin, 2000: p.48). Charlesworth and Chinkin comment that: “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” (2000: p.1). Feminist excursions into international law have been reproved for criticising the male-centredness of international law while at the same time invoking the international legal order to improve the situation for women (Charlesworth and Chinkin, 2000: p.59). The implication of this is that “feminists forfeit the right to invoke international law if they point out its biases” (Charlesworth and Chinkin, 2000: p.59). Such claims have led to assertions that ‘feminist theories have nothing to add to the study of international law’. However, the development of feminist jurisprudence in recent years has made a “rich and fruitful contribution to legal theory” (Charlesworth, et al., 1991: p.613). This is highlighted by the inadequacies of traditional theories of international law, and the important contribution of feminist ideas both in theory and in practice, such as in the Trafficking Protocol and refugee law. Consequently, feminist theory can be used to “reshape the way women’s lives are understood in an international context, thus altering the boundaries of international law” (Charlesworth and Chinkin, 2000: p.337).
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