Feminism and International Law: Theory, Methodology, and Substantive Reform

Contents

I. Introduction	659
II. Background to Feminist Jurisprudence	662
III. Feminist Conceptual Challenges to International Law	667
A. The Public/Private Distinction and the State-Centric Model	668
1. The Public/Private Critique and Its Uses	668
2. Significance of the International Public/Private Divide for Women	675
3. The State as Protector of Women's Human Rights	680
B. The Westphalian Model and the UN Charter Model Through a Feminist Optic	681
1. Masculine and Feminine Ethics in International Law	684
2. "Rights" Discourse and Feminism	686
C. The Postmodern Feminism and International Human Rights Law	688
1. The Challenge to Feminist Theories of Human Rights	688
2. Reconciling Respect for Culture and Respect for People Under International Law	696
IV. Feminist Procedural Challenges to International Law	698
A. Unequal Representation in International Organizations	698
B. Is International Law Procedurally Biased?	701
C. Solutions to Gender Inequality in International Rule Making	704
V. Feminist Substantive Challenges to International Law	707
A. Gender Bias and Human Rights	707
B. Gender Bias in Ius in Bello	713
VI. Nonenforcement of Women's Rights	716
A. Enforcement Against Public Violations of Women's Human Rights	716
B. Enforcement Against Private Violations of Women's Human Rights	722
C. Priorities of the World Community and International Law	725
D. Solutions to Gender Bias in International Law	728
VII. Conclusions	730

I. Introduction

Until recently, international law went unexamined by feminist legal scholars. ¹ While feminists have applied manifold theories of jurisprudence to the formal and informal legal systems of the United States and many other countries from New Guinea to Saudi Arabia, rarely have they directed their attention to the procedures and substance of the international legal system. Among those authors who have studied the subject, most tend to concentrate solely on women's rights as an aspect of international human rights law, although a few, such as Judith Gardam and Robin Teske, have ventured into international humanitarian law and the law governing the conduct of armed conflict (ius in bello). Yet the broadest treatment of the subject remains the first. In 1991, Hilary Charlesworth, Christine Chinkin, and Shelley Wright jointly attempted a general feminist critique of international law in The American Journal of International Law. ² Their purpose was to show that "the structures of international lawmaking and the content of the rules of international law privilege men; if women's interests are acknowledged at all, they are marginalized. International law is a thoroughly gendered system." ³ Their argument posits that international law is pervasively "gendered" or, more specifically, "male gendered," conceptually, procedurally, and substantively--assertions that have been repeated by feminists many times since.

I take for granted that women everywhere suffer from some degree of gender oppression in one form or another, that the distribution of power and economic resources worldwide enormously favors men, and that the laws of most states are strongly gender biased in both substance and enforcement. These injustices are so overt and widespread that it is difficult to peruse any conventional news source without finding evidence of them. However, gender inequalities do not necessarily speak to a significant gender bias in international law. The purposes of this article are to analyze the claims, advanced by feminists, that international law disfavors women's interests and viewpoints conceptually, procedurally, and substantively; to identify the obstacles to international law recognizing women's voices and protecting their interests; and to suggest possible solutions.

This article is divided into five main sections. I will first provide a general background to feminist jurisprudence in Section II. Much more complete introductions to feminist thought ⁴ and jurisprudence ⁵ are readily available; the purpose of this overview is merely to provide the uninitiated with some idea of how the feminist movement has been applied to jurisprudence.

Section III of the article discusses feminist challenges to the conceptual underpinnings of international law. In that section, I analyze...