Feminism,

Approach to International
Law
Christine Chinkin

Content Product: Max Planck

type: Encyclopedia entries Encyclopedia of Public
Article last International Law [MPEPIL]
updated: October 2010

Subject(s):
General principles of international law — Women, rights
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.

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 A. Introduction: Feminist Theory as Critical Analysis of
International Law
1 Feminism as an approach to → international law assumes the use of feminist theory as a basis
for critical analysis, that is to show how the structures, processes, and methodologies of
international law marginalize women by failing to take account of their lives or experiences
(→ Methodology of International Law; → Women, Rights of, International Protection). It works on
the assumption that sex matters. This theoretical approach has gained some foothold in
international legal discourse since the early 1990s. However this must not be taken to imply that
activism within the international institutional framework by women against their subordination has
had a similarly short history, for this dates back to at least the time of the League of Nations. Since
that time there has been a steady development of women’s campaigning for the international legal
system to address structural inequality in global political, social and economic systems and to take
account of particular concerns, for example modern forms of → slavery, → human trafficking,
→ gender-based crimes, and the → nationality of married women. The emergence of a global
women’s movement gained impetus from the International Women’s Year proclaimed by the
→ United Nations (UN) in 1975 and subsequently extended to the International Decade for Women,
1975–85. The global conferences held during the decade in Mexico (1975), Copenhagen (1980),
and Nairobi (1985) brought together women from all parts of the world, organizing through → non-
governmental organizations, networks, and alliances specifically around the conference
objectives of equality, development, and peace, a process that has continued through the Beijing
Conference (1995) and beyond. A significant feature has been the fusion of feminist activist
agendas and theorizing. Nevertheless recognition that the international legal system could be
susceptible to feminist analysis came rather later than had been the case for many national legal
systems.

2 The reasons for the late arrival of feminist critique into international law can be speculated upon.
Positivist emphasis on Statehood (→ State) and → sovereignty appears gender neutral, making
feminist inquiry apparently irrelevant, as does the subject-matter of international law—Statehood,
inter-State relations, territorial allocation, resource distribution, war, and peace processes.
International law operates in the public, male dominated world of geo-politics, the inter-State
system, and intergovernmental organization. The invisibility of women in the national public sphere
has been replicated at the international level with very low participation by women in senior
positions in international institutions—for example there has never been a woman UN Secretary-
General (→ United Nations, Secretary-General), only one woman judge in the history of the
→ International Court of Justice (ICJ) and in 2010 there are only two women in the → International
Law Commission (ILC). Further, the widely accepted realist cast of international legal theory is
inimical to feminist theory (→ International Legal Theory and Doctrine).

3 A feminist approach takes as its central concern the position of women and denotes a form of
analysis. It takes gender as its primary organizing category, places women at the centre of inquiry,
and works for an end to the oppression of and discrimination against women. This understanding
requires distinguishing between gender analysis and feminism. The notion of gender captures the
ascribed, social nature of distinctions between women and men, that is the cultural baggage
associated with biological sex. Gender emphasizes relations between women and men and draws
attention to aspects of social relations that are culturally contingent and without foundation in
biological necessity. Sex, on the other hand, is typically used to refer to biological differences
between women and men. Legal gender analysis requires examination of how social constructs of
male and female roles lead to different experiences for men and women and consideration of how
these differences should be given account in the substance, structures, and processes of law. For
example, situations regulated by international law such as war, → human rights violations, State-
building, or post-conflict reconstruction are all experienced differently by women and men,
because they are women and men. However, it is the male experiences and male knowledge that
are privileged and have shaped the framework for traditional legal inquiry and analysis. These are

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 made to appear objective, natural, and universal in contrast to women’s experiences that appear
as exceptional, deviant, and the other.

4 Many of the gendered experiences and responses to them are fashioned by stereotyping and
prejudice that attributes certain behaviours to men and women. These can be linked with the
imperatives of international law that can be stated through paired dichotomies, for example
intervention–non-intervention; sovereign–domestic jurisdiction; protector–protected; objective–
subjective; action–passivity; combatant–non-combatant. Feminist scholars have pointed to the
gendered coding of binary oppositions within many disciplines whereby the first term is associated
with more highly valued male characteristics or identity, the second female. In turn these shape the
law’s priorities and the values to be protected.

5 Feminist legal theorizing uses gender analysis as a starting point for dual objectives. First, it
seeks to expose the biases and silences of law. All legal systems privilege certain issues by
deeming them as worthy of attention while others are ignored, or considered as of little importance.
Accordingly, challenging the silences of international law and exposing the invisibility of women as
an integral part of the structure of the international legal order is an important first step in feminist
engagement. This requires asking questions about the social consequences of disempowerment
through sex—asking the woman question—and seeking answers. Second, unlike other theories of
international law, a feminist approach has an overtly political agenda for change: the advancement
and empowerment of women.

B. Feminist Theories

1. Western Feminist Theories

6 There are many different feminisms, many points of contention between feminists, and a shifting
focus in the application of feminist approaches to international law. Some feminist theories that
have become especially influential in Western jurisprudence as critiques of positivist law are liberal
feminism, cultural feminism, and radical feminism. Liberal feminism is rooted in the liberal theory of
international law. Its goal is to hold law to its promise of objective regulation upon which principled
decision-making is based. Liberal feminists seek to achieve equality of treatment between women
and men in public areas such as political participation and representation, including within the
international arena, and equal access to and equality within economic ventures, including paid
employment, market services, and education. Some versions of liberal feminism go beyond
demands for formal—legal—equality to focus on equality of opportunity and of outcome. This is the
approach of the Convention on the Elimination of All Forms of Discrimination against Women
(‘CEDAW’), the most important treaty on women within the United Nations system.

7 A central concern of liberal feminism has been to challenge the dualism between public and
private spheres of activity that has been identified as a key feature of liberal thought and to show
how it is detrimental to the interests of women. The public realm of the workplace, the law,
economics, politics, and intellectual life are regarded as the natural and proper province of men
and the private world of the home as that of women. The public/private distinction has a normative
as well as descriptive dimension, for greater legal and social significance is accorded to the public
world than to the private. The distinction drawn between the public and the private vindicates and
makes natural the division of labour and the allocation of rewards between the sexes. Its
reproduction and acceptance in all areas of knowledge have conferred primacy on the male world
and supported the dominance of men.

8 The grip of the public–private dichotomy has been criticized on a number of grounds. Concepts
of the public and private are not fixed but complex, culturally determined, and shifting. They reflect
political preferences with respect to the level and quality of governmental intrusion, rather than

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 objective criteria for the distinction. Feminist writers have argued that it has both supported and
obscured the structural subordination of women. The role of law in the public sphere is protection
from harm, while its role in the private domain is about preserving—male—autonomy. The
concentration of legal regulation on the public sphere has allowed the private to remain relatively
free from State intrusion, so that abuses committed there, for example domestic violence, can be
readily discounted. In addition, women’s location in the private realm renders them largely invisible
in public life, while ignoring that the smooth functioning of the public sector depends upon unpaid
and unregulated support from the private. At the same time, focus on the implications of the public–
private divide has been criticized by feminists from the political/economic South who see it as a
preoccupation of Northern women with little to say about their own societies.

9 The demarcation line between the public and private is as blurred and contingent in international
affairs as domestic. Nevertheless the public–private divide has had a tight grip on international law,
enhancing its resistance to feminist concerns. Art. 2 (7) → United Nations Charter makes the
(public) province of international law distinct from the (private) sphere of domestic jurisdiction; the
acquisition of Statehood or international personality confers public status on an entity with
consequences for theories of jurisdiction, representation, and ownership; the law of → State
responsibility has traditionally separated (public) actions for which the State is accountable from
those private ones for which it does not have to answer internationally and which are left to
national, rather than international, regulation. This allows laws concerning private matters, such as
the family, to be open to cultural and religious traditions that often uphold women’s domination.
Further the State can devolve some of its powers and responsibilities to centres of authority in the
private sphere that may have no concern with the unequal position of women, such as the family,
religious institutions, business, finance, security organizations, and the media. Feminist approaches
have had to overcome these public–private divisions that characterize the reality of the
→ international community.

10 Cultural feminism seeks to identify and rehabilitate qualities and perspectives identified as
associated with women. Especially influential has been the work of Carol Gilligan who identified a
different voice that bases decision-making on the values of caring and connection rather than on
abstract logic. This different voice is culturally associated with women. Some feminist lawyers have
hypothesized from Gilligan’s research that law privileges a male view of the universe and that law
is part of the structure of male domination. Accordingly, traditional forms of legal reform are of
limited utility and the language of equal rights and equal opportunities tacitly reinforces the basic
organization of society. Cultural feminist approaches have been controversial because of the
implication that women are naturally endowed with certain characteristics. Such reasoning may
underline the reiteration of the important role of women in the prevention and resolution of conflicts
and in peace-building in UN Security Council Resolutions 1325 (2000) and 1889 (2009) on Women,
Peace and Security. The importance of inclusion of women within such processes—and indeed in
all international decision-making—need not rest upon any assumption of a distinctive feminine
voice: the inclusion of women is important because they have much to offer that does not relate to
attributes of caring but rather to their different experiences and expertise. However no challenge is
offered to the mainstream legal system by a different voice appearing in various isolated areas of
the law.

11 Radical feminists explain women’s inequality as the product of patriarchy, structural domination
of women by men, and argue that inequality is political and sexual in nature.

2. Critiques of Western Feminism and Essentialism

12 No one theory has predominated in feminist critiques of international law. Rather there has
been resort to the contributions of different theories. This in turn has led to criticism of feminist
approaches, for example by Fernando Teson. Feminist approaches to international law must also
encompass those developed by women in the South and women of colour in the North. These

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 analyses have taken many different forms, responding to particular historical contexts and
frequently formed through a long history of often violent nationalist and racist struggle. In many
cases feminist theorizing is informed by other critical theories of international law such as critical
race theory and post-colonial theory (→ Critical Theory).

13 Differences between women and their lived histories raise the contested issue of essentialism.
Taking sex or gender as a point of identity and examining the consequences of that identity
assumes this to be the key defining characteristic. In reality people have multiple, intersecting
identities, for example racial and ethnic identities, nationality, age, religion, disability, sexuality,
education, and class. Sex or gender cannot be considered in isolation from these other identities,
all of which shape a person’s or a group of persons’ experiences. Postmodern feminisms question
the possibility of any universal theoretical claims and instead stress the importance of particularity,
contextuality, and multiple identities. Does sensitivity to difference collapse the possibility of a
feminist approach to international law, with its universalizing tendencies? There is a concern about
a feminist imperialism, the accusation that women from the North are seeking to civilize women
from the South without perceiving their own privileged position as closer to the centres of power
and influence. Some women remain even further at the peripheries of the international legal system
—migrant women, indigenous women, refugee women (→ Indigenous Peoples; → Migration;
→ Refugees).

A feminist analysis of international law that focuses on gender alone, without analysing the
exploitation of women in the economic ‘South’, would operate to reinforce the depoliticised
notions of ‘difference’ that founds the privileged position of the imperial feminist. (Orford
285)

14 This theoretical dilemma has had practical consequences in women’s organizing within
international arenas. There has been contestation between women from different backgrounds
over determination of agendas and priorities. Especially in the first years of the UN Decade of
Women, Northern women dominated these. Women from the South rejected Northern women’s
priorities, for example equal access to public life, paid employment and wages, and reproductive
choice, as irrelevant to their lives and sought ways to bring economic and social justice and the
feminization of poverty to the forefront.

15 Agreement has been sought through understanding that the oppression of women is
manifested in different ways across different societies and that a feminist movement must be
inclusive of all women. Feminist approaches in international law must be more multifaceted than is
necessarily the case in domestic law and must take account of the range of religious, ideological,
cultural, economic, and social interests that are at stake. In the words of Chandra Mohanty,

[w]omen are constituted as women through the complex interaction between class,
culture, religion, and other ideological institutions and frameworks. They are not ‘women’—
a coherent group solely on the basis of a particular economic system or policy. (at 72)

Whatever the context the feminist project requires identification of the sources of women’s
oppression and seeking its eradication. In forming alliances and networks women from across
different communities must be respectful of each other’s concerns, and when considering a
strategy in any particular location must take their lead from local women, or those most immediately
impacted by the issue. There can be no single feminist approach but rather the many different
viewpoints of diverse women across the globe that are rooted in their own experiences and who
present their own theoretical frameworks.
16 It is evident that no one theory has predominated in feminist critiques of international law. Other
critiques of applying western feminist theory to international law have been made by mainstream
international lawyers who have argued that this work lacks objectivity, and is unscientific and
incoherent in that it draws from different branches of feminism which are not always in agreement
with each other. In response Hilary Charlesworth has compared the feminist project in international

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 law to an archaeological dig where different methods are appropriate at different levels of the
excavation. A single theoretical construct would obscure the many different experiences of women
within the international system, as is made clear by postmodernist feminism and critical race and
post-colonial theories. Another objection is that feminist theorists both critique the structures and
processes of international law and simultaneously seek to use that law to advance women’s
equality and empowerment. This is a dilemma that women’s activists must constantly face:
international law is both a biased and weak tool for reform but in many instances it offers higher
standards than national legal systems. However advocating for its more effective implementation
does not mean that its role in upholding patriarchy should be ignored. This duality has been the
basis for the advocacy for recognition of women’s rights as human rights, discussed below.

C. Influence of Feminism on International Law

17 Feminist approaches to international law require rebuilding the basic concepts of international
law so that they do not support or reinforce the domination of women by men. The advancement of
women has been given institutional support through the UN system, in particular through the
Commission on the Status of Women, the UN Division for the Advancement of Women, the → United
Nations Development Fund for Women (UNIFEM) and the UN International Research and Training
Institute for the Advancement of Women (‘INSTRAW’). In 2009 the UN General Assembly, seeking to
strengthen the institutional arrangements for ‘support of gender equality and the empowerment of
women’, adopted Resolution 63/311 providing for the creation of a ‘composite entity taking into
account existing mandates’ (UNGA Res 63/311 ‘System-Wide Coherence’ [14 September 2009]
GAOR 63rd Session Supp 49 vol 3, 41; para. 1). Through their general recommendations and
concluding comments to States’ reports the Committee on the Elimination of Discrimination against
Women (→ United Nations Committees and Subsidiary Bodies, System of) has offered theoretical
and practical guidance on achieving equality between women and men within national jurisdictions
(→ Human Rights, State Reports).

18 Despite the structural obstacles within the international legal system to the feminist project and
differences between feminists, women have been able to claim some considerable successes and
some significant changes in international law. The following are some examples.

19 A target of feminist critique in the late 1980s and early 1990s was human rights law. The
approach of non-discrimination and equality with men as encapsulated in the human rights treaties
—including CEDAW—was asserted to be inadequate, for example where there is no male
comparator or where the harms suffered by women differ from those that occur to men (→ Equality
of Individuals). The usefulness of the apparently gender-neutral instruments comprising the
International Bill of Rights was undermined by the operation of a public–private distinction,
particularly in those civil and political rights concerned with protection of the individual from
violence. The construction of these norms obscures the most pervasive harms done to women. For
example, the right to life was traditionally understood as concerning the arbitrary deprivation of life
through public action (→ Life, Right to, International Protection). However this does not address
the ways in which being a woman is in itself life-threatening and the gender-specific ways in which
women need legal protection to be able to enjoy their right to life. From conception to old age,
womanhood is full of risks to life: of abortion and infanticide because of social and economic
pressures to have sons in some cultures; of malnutrition because of social practices of giving men
and boys priority with respect to food; of less access to health care than men; of endemic violence
against women in all States. Although the empirical evidence of violence against women is
overwhelming and undisputed, it had not been adequately reflected in the development of human
rights law. The significant documented violence against women around the world was not
addressed by the international legal notion of the right to life because that legal system was
focused on public actions by the State.

20 The silence of international human rights law about violence against women was a unifying

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 factor between women from the political South and political North in campaigns that saw success at
the → Vienna World Conference on Human Rights (1993). The conference affirmed the human
rights of women and the girl-child to be ‘an inalienable, integral and indivisible part of universal
human rights’ (Vienna Declaration and Programme of Action para. 18). The UN General Assembly
Declaration on the Elimination of Violence against Women, adopted by → consensus in 1993,
recognized the structural subordination of women world-wide and that it is a public, not private
matter (→ United Nations, General Assembly). In affirming that

violence against women is a manifestation of historically unequal power relations between

men and women, which have led to domination over and discrimination against women by
men and to the prevention of the full advancement of women, and that violence against
women is one of the crucial social mechanisms by which women are forced into a
subordinate position compared with men (UNGA Res 48/104 [20 December 1993] GAOR
48th Session Supp 49, 217)

the General Assembly articulated a major tenet of radical feminist theory. By requiring that States
should ‘[e]xercise due diligence to prevent, investigate and, in accordance with national
legislation, punish acts of violence against women, whether those acts are perpetrated by the State
or by private persons’ (Art. 4 (c) UNGA Res 48/104 [20 December 1993]) it affirmed the application
of human rights standards to → non-State actors and the State’s responsibility to ensure a legal
framework in which rights could be guaranteed. This was a significant reconceptualization of
human rights law that cut through the public–private distinction. This changed understanding that
States have obligations to protect women from violations committed in the private sphere was
recognized by the → Human Rights Committee in its General Comment No 28 (2000) on Equality of
Rights between Men and Women which required States to ‘report on measures to protect women
from practices, that violate their right to life, such as female infanticide, the burning of widows and
dowry killings’ (at para. 10). The committee also recognized structural economic violence by
seeking information on the ‘particular impact on women of poverty and deprivation that may pose a
threat to their lives’ (ibid).
21 Conceptual changes were backed by strengthening the enforcement mechanisms of CEDAW,
which by 2006 had become the second most widely ratified of the UN human rights treaties. This
was done through the adoption in 1999 of an optional protocol, establishing an individual
complaints mechanism and an inquiry procedure where there is reliable information of grave or
systematic violations (→ Gross and Systematic Human Rights Violations; → Human Rights,
Individual Communications/Complaints).

22 Another area that has proved at least somewhat receptive to feminist approaches has been
→ international criminal law. The → International Criminal Tribunal for the Former Yugoslavia
(ICTY) and the → International Criminal Tribunal for Rwanda (ICTR) have developed jurisprudence
on the legal criteria for the recognition of sexual violence as constituting → war crimes; breaches
of common Art. 3 → Geneva Conventions I–IV (1949); as a violation of the laws and customs of
war; as a crime against humanity (→ Crimes against Humanity); as constituting torture and
enslavement (→ Torture, Prohibition of); and as → genocide. Gender-based violent crimes against
women have been included within the jurisdiction of the → International Criminal Court (ICC) (Art. 7
Rome Statute of the International Criminal Court [‘ICC Statute’] concerning crimes against humanity
and Art. 8 ICC Statute concerning war crimes). Adding a new crime, or a new procedure are
important first steps towards breaking the invisibility of women within the international legal system.

23 Another concern was to redress the virtual exclusion of women from the most prestigious
international positions and to bring women into influential policy and decision-making bodies
(→ International Organizations or Institutions, Decision-Making Bodies). There has been some
progress. For example, Art. 36 (8) (a) (iii) ICC Statute requires States to take into account the need
for ‘a fair representation of female and male judges’. This was the first international court to make
such a demand and resulted in an unprecedented seven women judges out of a bench of 18 in the

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 first elections to the court (→ International Courts and Tribunals, Judges and Arbitrators). However
this was not equality and equitable geographic distribution remains more important than that based
on gender. The formal requirement of women judges in the ICC is not matched in the
→ International Tribunal for the Law of the Sea (ITLOS) or the Appellate Body of the World Trade
Organization (‘WTO’; → World Trade Organization, Dispute Settlement). This suggests that women
are more acceptable in bodies dealing with soft issues such as human rights, or international
crimes where gendered crimes are explicitly included within the tribunal’s jurisdiction, than in those
that adjudicate hard areas of international law such as trade and the → law of the sea.

24 The major tool for advancing women’s participation in international institutions and ensuring
attention to women’s interests has been gender mainstreaming. This was included within the Beijing
Platform for Action and has been proclaimed by the UN Secretary-General. Many international
institutions have introduced gender mainstreaming programmes, including the UN agencies
(→ United Nations, Specialized Agencies), the World Bank (→ International Bank for
Reconstruction and Development [IBRD]; → International Development Association [IDA]),
human rights bodies, and bilateral aid agencies. Gender mainstreaming is a process that involves
integrating concerns of gender into all the activities that are funded or undertaken by an
organization, and spreading responsibility for gender issues throughout the organization, through
appropriate guidelines and training, so that they become an aspect of the routine work of all staff.
The reinterpretation of the → International Covenant on Civil and Political Rights (1966) through
the Human Rights Committee’s General Comment No 28 is an example of successful gender
mainstreaming. However a major practical problem with the process is translating commitments into
action. Responsibility for gender issues has tended to remain with specialist staff and has
encountered sustained resistance. There is also the danger that by removing the focus from
women to gender, women will once again become marginalized and invisible. A formal commitment
to gender mainstreaming can obscure the lack of political will for achieving real change.

D. Conclusions
25 Some areas of international law have been more receptive to feminist approaches than others.
The areas where there has been most visible change are those where issues are readily
identifiable as women’s concerns, such as violence against women, reproductive rights and
gender-based crimes against women in armed conflict. But feminist approaches demand that all
areas of international law are subject to gendered analysis. This was made clear at the United
Nations Conference on Environment and Development at Rio de Janeiro in 1992 where women
mobilized around broad global agendas—economic and political justice in all contexts—that were
not immediately perceived of as appertaining to women (→ Stockholm Declaration [1972] and Rio
Declaration [1992]). There has been feminist theorizing on many areas of international law,
including the use of force (→ Use of Force, Prohibition of), international humanitarian law
(→ Humanitarian Law, International), international trade law, international economic law
(→ International Economic Law), international institutions (→ International Organizations or
Institutions, General Aspects), the concept of the State and attributes of Statehood.

26 However even where there has been some attention to feminist agendas, change has tended
to be through adding women to the existing structures—so-called add women and stir—and do not
lead to a restructuring of the system that would address the continued subordination of women.
Women have been incorporated within the system largely as victims rather than as agents for
transformative change. At the same time hard-fought-for advances are threatened by religious
extremist forces and economic → globalization. The challenge of feminist approaches to
international law is to maintain the momentum that has been generated and to seek legal reform in
order to make it more receptive to women’s lives and to continue to challenge and question its
objectivity and its gendered hierarchy.

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Select Documents
Convention on the Elimination of All Forms of Discrimination against Women (adopted 18
December 1979, entered into force 3 September 1981) 1249 UNTS 13.
Fourth World Conference on Women ‘Platform for Action’ (15 September 1995) UN Doc
A/CONF.177/20/Rev.1, 6.

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 International Covenant on Civil and Political Rights (adopted 19 December 1966, entered into
force 23 March 1976) 999 UNTS 171.
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against
Women (adopted 6 October 1999, entered into force 20 December 2000) 2131 UNTS 83.
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1
July 2002) 2187 UNTS 90.
UN Committee on Economic, Social and Cultural Rights ‘General Comment No 16: The Equal
Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights (Art. 3
of the Covenant)’ (11 August 2005) ESCOR [2006] Supp 2, 116.
UN A/Res/48/104 ‘Resolution on the Elimination of Violence against Women’ (20 December
1993) GAOR 48th Session Supp 49, 217.
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Symbiosis Law School; date: 15 March 2018