The feminist approach to international law (FtAIL), coined by eminent scholars Charlesworth and Chinkin, serves as a critical lens through which the inherent gender biases within the international legal system are brought to the forefront. At its core, the theory posits that international law inadequately addresses the distinctive challenges faced by women, because it is constructed upon the male experiences that dominate its historical foundations (Chimni, 2017).
Critics of FtAIL argue that the very language and conceptualizations embedded in international law contribute to the marginalization of women. The dichotomies present in international law, such as objective/subjective, logic/emotion, and public/private, inherently prioritize "male" characteristics, relegating women to the periphery (Charlesworth, Feminist Methods in International Law, 1999). This contrast is reflected not only in the legal frameworks but also in the public perception and understanding of women's issues.
A poignant example of this disconnect lies in the treatment of women's rights within international law. The literature on women's rights is often dismissed as non-binding soft law, reflecting a broader reluctance within the international community to address gender concerns with the same urgency and commitment as other issues. The UN General Assembly (UNGA) Declaration on the elimination of violence against women becomes a microcosm of this resistance, highlighting the challenges faced by feminist advocates in translating women's rights into legally binding instruments (General Assembly, 1993).
The root cause lies in the gendered nature of the sources of international law (Charlesworth, 2000). The conceptualization of women as primarily associated with the private sphere, while men dominate the public sphere, is deeply ingrained in these sources. The consequence is the perpetuation of a gendered regime, in which the public realm, dominated by men, takes precedence over the private domain occupied by women.
Missed Opportunities and Narrow Perspectives
UN Secretary-General António Guterres' New Agenda for Peace policy brief has emerged as a promising avenue for advancing the Women, Peace, and Security (WPS) agenda within the international community (United Nations, 2023). However, feminist scholar Cynthia Enloe critically observes that the bold language within the policy brief, calling for the dismantling of patriarchal power structures, lacks concrete proposals and fails to address complicity within existing power structures.
Furthermore, the policy brief's framing of gender-based violence (GBV) and its linkage to peace and security dynamics raises concerns. While acknowledging the priority of eliminating gender-based violence under the WPS recommendations, it inadvertently perpetuates a divide between political violence (seen as public and significant) and gender-based violence (often relegated to the private realm). This limited understanding of GBV contradicts feminist perspectives that view it as a form of political violence intricately linked to broader political dynamics.
The policy brief's silence on Sustainable Development Goal 5 on gender equality under Action 4 is a notable omission. This absence is particularly significant given the well-established link between gender inequality and both internal and international violence. The lack of emphasis on gender equality within the broader sustainable development framework highlights a missed opportunity to address structural issues that contribute to the marginalization of women globally.
The paradox within the feminist approach to international law, as articulated by Charlesworth and Chinkin, centers on the recognition of women's roles but confines them to a narrow sense, primarily as mothers requiring protection. This absurdity is exemplified in legal provisions such as Article 27 of the Fourth Geneva Convention, which ostensibly places an obligation on states to protect women from international armed conflicts that threaten their "honour". This protectionist approach has also been observed by the International Center for Research on Women (ICRW) which noted that, throughout his leadership, Secretary-General Guterres has used, “language that prioritized the protection of women, as opposed to their autonomy, participation, and active consultation in the design and implementation of solutions” (Donnelly, 2023). A closer examination reveals that such protection is rooted in traditional gender roles, where crimes against women are framed as attacks on their role as mothers or daughters.
Moreover, the historical treatment of rape in international law serves as a stark illustration of the restricted outlook on women in the global arena. While recent developments acknowledge rape as a grave human rights violation, the criteria set by the Rwanda Tribunal in the Akayesu case — that rape constitutes an act of genocide only if committed with the intention to destroy a particular group — underscores the limited perspective (International Criminal Tibunal for Rwanda, 2001). International law recognizes rape as wrong not because it is a manifestation of male dominance or a violent crime against women but rather as an attack on the community defined by its ethnic, racial, religious, and national composition.
Challenges, Opportunities, and the Way Forward
The challenges outlined within the feminist approach to international law are multifaceted, ranging from the conceptual foundations of legal frameworks to the practical implementation of policies. The lack of sensitivity towards women, which is evident in the interchangeable usage of "sex" and "gender" in international statutes, reflects a broader issue of overlooking the socio-cultural nuances that define gender roles.
A distinct category of silence persists when it comes to acknowledging women's influence on decisions regarding the use of force. Women, who bear the highest burden of normalizing post-conflict relations and navigating the challenges of conflict-induced medical and food shortages, often find themselves marginalized. Cultural norms further exacerbate the situation, as women suffer from malnutrition due to the prioritization of men in times of food scarcity.
The call to respond the marginalization of women in peace-building is not only an acknowledgment of their contributions but also a demand for a paradigm shift in international legal obligations. This change necessitates increased awareness, allocation of adequate resources, and the establishment of sanctioning powers for those who fail to uphold gender equality within their realms of influence.
In essence, while international law has made strides in recognizing the role of women, the challenges persist. The lack of sensitivity, the absence of nuanced discussions on gender, and the perpetuation of traditional gender roles highlight the need for a paradigm shift within the international legal system. The feminist approach to international law serves as a critical tool for unraveling these complexities, offering insights into the structural changes required to create a truly inclusive and equitable global legal order. As the discourse moves forward, it is imperative to acknowledge the interconnected nature of gender, capitalism, and power structures, in order to lay the groundwork for a more comprehensive and just international legal framework.
Bibliography
Charlesworth, H. (1999). Feminist Methods in International Law. American Journal of International Law.
Charlesworth, H. (2000). Boundaries of International Law: A feminist analysis.
Chimni, B. (2017). International Law and World Order: A Critique of Contemporary Approaches (2nd edition).Cambridge University Press.
Donnelly, P. (2023, September 11). WPS in the New Agenda for Peace: Seeing Patriarchy but Missing Innovation. Tratto da IPI Global Observatory: https://theglobalobservatory.org/2023/09/wps-in-the-new-agenda-for-peace-seeing-patriarchy-but-missing-innovation/
General Assembly. (1993, December 20). Declaration on the Elimination of Violence against Women. Tratto da United Nations: https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women
International Criminal Tibunal for Rwanda. (2001, June 2001). The Prosecutor v. JEAN-PAUL AKAYESU.Tratto da https://www.un.org/en/preventgenocide/rwanda/pdf/AKAYESU%20-%20APPEAL%20JUDGEMENT.pdf
United Nations. (2023, July). A New Agenda for Peace. Tratto da https://www.un.org/sites/un2.un.org/files/our-common-agenda-policy-brief-new-agenda-for-peace-en.pdf
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