Representing the first book-length treatment of the application of feminist theories of international law, The boundaries of international law argues 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 confronted it. With a new introduction that reflects on the profound changes in international law since the book’s first publication in 2000, this volume is essential reading for scholars, practitioners and students alike.
This new introduction reflects on developments in the two decades since the publication of the book in 2000. It describes the profound changes in the international legal sphere, notably the terrorist attacks of 11 September 2001, intractable conflicts that have weakened the authority of multilateral institutions and the growth of right-wing populism. The chapter questions the overall optimism about the power of international law to improve the lives of women manifest in the book and emphasises the ambivalence of the international legal order for women. The chapter starts by considering the meaning of the term ‘feminist analysis’ and then moves on to review some of the history of feminist engagements with international law, observing that the international sphere has long provided a beacon of hope for women. Its focus is an area that had barely emerged when Boundaries was published: the UN Security Council’s ‘women, peace and security’ (WPS) agenda, which commenced with resolution 1325 adopted in October 2000. This field illustrates a pattern of apparent normative progress, which is undermined by gendered institutional cultures. The most acceptable feminist ideas internationally have been increasing the participation of women and combating violence against women, although these have faced many hurdles. It has been even more difficult to achieve normative and cultural change to support transformative equality for women, or an international legal order where issues of sex and gender and other structural inequalities are given sustained attention and adequate resources for achievement.
This chapter considers why issues of sex and gender matter in international law. It introduces the main argument of the book – that the absence of women in the development of international law has generated a narrow and impoverished jurisprudence. Among other things, this jurisprudence has legitimated the unequal potion of women rather than challenged it. The aim of the book is to encourage a rethinking of the discipline of international law so that it can provide an adequate framework for international justice with respect to women. The chapter offers a snapshot of the conditions of women’s lives globally, showing that the quality of women’s lives around the world is consistently different from and inferior to men’s. It examines why the international legal order has paid such little attention to the position of women.
This chapter introduces a range of feminist theories and considers their value in understanding the field of international law. It starts by outlining the theoretical underpinnings of traditional international legal thinking, starting with the Treaty of Westphalia in 1648. It surveys natural law, positivist and liberal theories of international law. It then describes more recent theories such as those of the ‘New Haven’ school, the critical ‘Newstream’ in international law and the ‘Third World Approaches to International Law’. The chapter sketches a variety of feminist theories including liberal feminism, cultural feminism, radical feminism, postmodern feminism and Third World feminisms. It concludes that all can be useful in investigating the foundations of international law, endorsing the concept of ‘world travelling’ as a feminist methodology. The chapter sets out the theoretical and pragmatic goals of the book, acknowledging the tension between them.
This chapter investigates a number of modes of international law-making to uncover the interests and perspectives that they support. It focuses on the formation of customary international law, the category of general principles of law and the content of ‘subsidiary sources’ of international law, referenced in the Statute of the International Court of Justice. The chapter presents a case study of the international legal response to violence against women to indicate both the problems and potential of the sources of international law for women.
This chapter addresses the law of treaties using feminist lenses. It acknowledges the significance of treaty-making in modern international law and the increasing role of non-government organisations in this field. It then examines some of the gendered aspects of treaty law and the problems inherent in using this mechanism to improve the position of women. The chapter observes that international treaty law can be, however, a valuable yardstick to measure responses of national decision-makers with respect to women’s lives.
Statehood is fundamental to traditional international legal doctrine. This chapter investigates the international legal notion of statehood, the doctrine of recognition, aspects of statehood, such as jurisdiction and state responsibility, as well as the concept of self-determination as a way to acquire statehood. It points to the invisibility of women in the formation and application of these legal principles and studies their impact on women’s lives. The chapter examines self-determination and Palestinian women. The chapter challenges the standard idea that the state is a neuter, without a sexed identity and argues that the paradigm state is constructed in a gendered way, as male, with female features only in specific contexts. It considers ways in which the state could be reconceived using feminist ideas.
The chapter examines how international institutions reinforce the gendered character of international law. It documents the invisibility of women at senior levels in international intergovernmental institutions and discusses critically measures taken over the years to ameliorate the situation. It asks whether the gender imbalance in international institutions is significant and argues that women’s absence from such bodies affects how ‘women’s issues’ are treated and more generally all matters of international concern.
The chapter investigates the ways in which international human rights law recognises and promotes women’s concerns and critically examines its potential for the advancement of women’s interests. It outlines the evolution of human rights law and the inclusion of women within it and feminist critiques of rights. It looks in detail at women-specific human rights instruments and discusses why these have failed to guarantee women protection against the abuses they experience in their lives. It concludes by looking at developments that suggest the potential of human rights law to protect the ‘rock-bottom’ of women’s lives.
The chapter outlines the international legal prohibition of the unilateral use of force in international relations in pursuance of the maintenance of international peace and security. It considers the particular ways that armed conflict impacts upon women. It examines the self-defence exception to prohibition against the use of force and other contested exceptions – self-determination; humanitarian intervention – and argues that the gendered nature of the international regime makes it inadequate to deal effectively with the realities of their lives for women in conflict-affected societies.