The Boundaries Of International Law, A Feminist Analysis: Hilary Charlesworth & Christine Chinkin
Postgraduate Research Fellow
Submitted July, 2004
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The Boundaries Of International Law
By: Hilary Charlesworth & Christine Chinkin
Paperback: 400 pages
List Price: $52.00
Publisher: Juris Publishing Inc; (December 1, 2000).
The Boundaries of International Law is about why issues of sex and gender matter in public international law. Its central argument is 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.
The first book-length treatment of the application of feminist theories to international law. This is an analysis of the international legal order from the feminist perspective. It argues that the institutions, methodologies and substantive principles of international law are outrightly biased towards women.
The authors' aim is to deconstruct international law, to investigate the ways in which international law has brushed aside the injustices of women's situations around the world, and to 'redraw the boundaries' of international law so that it responds to these injustices.
In mounting their assault, the authors have drawn upon their depth of knowledge of international law and of feminist legal theory and their commitment to equity and justice. By exposing the elements of international law to the clear light of feminist analysis, the authors show that it suffers from defects parallel to those of domestic legal systems. Although in classical theory the subjects of international law (and those most vitally concerned in its content) are states, rather than individuals, international law, as any system of law, is the creation of human beings and its ultimate impact is on individual behaviour. Whatever theory is preferred, whether international law is seen as a manifestation of the universal values of natural law or as derived from state practice, whether it is considered as a neutral set of rules impartially applied or as a process of decision-making, international law is influenced by choices between competing values and by policy considerations. Like all legal systems it is based on values and assumptions about how people should live together in society and how organized communities should relate to each other.
A recurrent theme in this study is that of the absence of women from the processes of international law, starting with the organs of the state, and extending to the make up of international organizations, international courts and tribunals. It is within the power of states to change this; they have international obligations to promote equality of participation. But state action has not gone much further than their many exhortations to each other to take action on this issue. As a consequence, at least until the arrival of scholars like the present authors, women have been denied the opportunity to contribute to the shaping of international law, its goals and its priorities,
The strength of this work is that the authors have used their knowledge of international law to throw new light on its underlying theories and to stimulate new ways of thinking about its traditional concepts. This feminist analysis of international law is an important contribution to the process of change and to the redressing of past wrongs. If it provokes debate and even dissension, its purpose will be well served.
The authors in this book examine in a broad but concise manner all topics of International law, then use these international law arguments to find out if International law is a true representation of the masculine and the fair sex. This interesting piece is divided up into ten broad chapters with each concerned with a unique appreciation of the international law concern in question ,then using these arguments to justify that the absence of women in the development of international law has produced a narrow and inadequate jurisprudence but among other things legitimised the unequal position of women around the world rather than challenged. This they do by comparing the international law norms with the actual reality and drawing the conclusion that both are biased towards women.
The beginning chapters of the book dealing with women and the international legal order, the authors critically provide that the absence of women in International law is a crucial feature of the traditional canon, and that it's boundaries depend upon it. Although in this chapter, they see international law as a mechanism for distributing power resources in the international and national communities, they however forcefully argue out that while the international legal system may be broadened in scope, it remains narrow in perspective. The chapter examines the boundaries and limits of international law from a critical and feminist perspective. This, they justify by providing that since because international law claims general, global application and draws no conceptual distinction between it's human subjects, employing the category "women" can be a valuable method of highlighting the commonality of the marginalisation of all women in the international legal system. Infact, as they put it in their own words," International legal system fails all groups of women whatever category is adopted."
They recognise the limitation of reliance on statistics alone to describe social phenemena.Emperical data however accurate their collection and collation, reveal only a partial picture of any situation and may obscure the realities of complex social and political ordering .
On internationally recognised social indicators, they observe that men's quality of life regularly rates better than that of women, whether they live within the industrialised or the developing world.
In trying to justify some of the discriminations against women, they quote as example that development assistance programmes sometimes target household heads, usually assumed to be men, or provide aid to sectors from which women are excluded. Also,they argue that women's cultural and social status are typically linked to their roles as child bearers and child carers rather than their individual capacities.Moreso,culture and custom invariably defined by reference to the male perspective become vehicles for keeping women out of the male dominated spheres of public life such as the economy and politics.
they also observe that in no country do women have equal political power to men. Political disadvantage ranges from denial of women's right to vote, through to the under-representation and low participation of women in international and national law and decision-making bodies.
They regrettably also observe that many women are treated as economic commodities. Modern forms of slavery include trafficking, forced detention and prostitution and forms of servile marriage. In times of armed conflits, women are particularly vulnerable to slavery. The aftermath of armed conflicts also often has particularly dexterous consequences for women. Successful wars of liberation or self-determination for example as a result in the assertion of a new national identity that may relegate women to a limited, private sphere, as occurred in Algeria in the 1950sand is most evident in the 1990s in Afganistan, whence the prolonged fighting in the country from the mid-1980s produced in 1997,an uneasy victory for the Islamist fundamentalists group, the Taliban. Strict clothing restriction for females, removal of female students and teachers from schools and universities, and the confinement of women and girls to the activities of working in the home and shopping have accompanied the Taliban assertion of control.
Very important too in their observations is the fact that they point out that to date, the longstanding efforts of women's organisations in the international arena have had little effect on the substance and process of international law. Infact,as they point out, the prominence of the issue of racial discrimination indeed generated new norms of international law. The clearest examples of this are the right to self-determination and colonial domination and the prohibition of racial discrimination, both of which are often designated as jus cogens-peremptory or non-negotiable norms of international law. Despite this formal acknowledgement of the seriousness of the race discrimination, the international understanding of it's content is limited and essentially confined to a colonial context. A further aspect of this narrow understanding is that the international legal efforts to eradicate racism have had no explicit sex or gender dimension. Indeed, the international focus on race discrimination and apartheid based on race has often allowed sex discrimination and apartheid based on sex to go unchallenged. The international prohibition of sex discrimination by contrast has acknowledged race and colonialism as obstacles to that goal.
At a deeper level, the very nature of international law has made dealing with the structural disadvantages of sex and gender difficult. The realities of women's lives don't fit easily into concepts and categories of international law. In this book, they argue that international law is constructed upon a particular male assumptions and experiences of life where man is taken to represent the human. The authority of international law has traditionally rested upon it's claims to impartiality and objectivity. despite their critic they are nevertheless fast to observe that the authority of international law has traditionally rested upon it's claims to impartiality and objectivity.
The second chapter of the book is on feminist theories and international law. The book use feminist theories to sustain it's claim that the absence of women in international law has distorted the discipline's boundaries. The theories used by these authors in this chapter are not feminist theories as such but rather theories that underpin traditional international law and their limited explanatory force with respect to the position of women. firstly the natural law argument according to them is to the effect that in the absence of centralised authority, natural law offered a source of directly applicable law to regulate the co-existence of nation-states. The long and short of their arguments is that natural law upheld and still upholds women's subordination vis-à-vis the men; and this is according to the freewill of states themselves because as was laid out by the PCIJ, in it's famous statement in the lotus case, that the rules of law binding upon states...emanate from their own freewill...Another important theory considered by them is the new Haven approach which rejects the idea that international law is a system of neutral rules and seeks to develop a policy science of international law, focussing on the processes by which legal decisions and policies are made. To them international law is regarded as a product of an authoritative decision-making process rather than a discrete body of rules. The southern theories of international law construe that pre-international norms were meant to justify imperialism, but with the participation of states we need a new international order, but this is not the case since the old order is still imposed on our wills.
The feminist theories of law on the other hand all tend to be concerned withy the silencing of women and the failure of traditional systems of knowledge to accommodate women's experiences these feminist theories can be presented in different ways. For instance, the theory of liberal feminism accepts the language and aims of existing legal documents as they are, and insist on the law to fulfil it's own promise of objective regulation upon which principled decision-making is based. They argue that the promise of equality as 2sameness" to men only gives women access to a world already constituted by men with the parameters determined by them.
The long and short of their arguments in the theories is that women have been almost completely excluded from international law making arenas and it's important to document this to them to Argue for the need of a proper representation and participation. They further observe that despite the high level of preparations the often in tensed negotiations and the large number of participating states, traditional international legal doctrine denies the status of formally binding law to the conclusions of these conferences.
In this interesting book, Chinkin and Charlesworth point out that many of the issues that concern women suffer a double marginalisation in terms of traditional international law-making: they are seen as the soft issues of human rights and are developed through soft modalities of law-making that allow states to appear to accept such principles while minimising their legal commitments.
The law of treaties is another area of importance for these pro-feminine authors. The major advantages of treaties as a source of international law are perceived to be the certainty of a legal text and the comparative ease of determining the parties. The low level of women's participation in national government policy formulation and decision-making bodies, especially those relating to foreign and economic policies and national security, ensures that matters considered of international concern are defined by men. Women within negotiating teams as the authors observe can find it difficult to be taken seriously and to make their voices heard.
The authors further observe that despite it's concerns CEDAW has not adopted a recommendation similar to that of the Human Rights committee with respect to reservations to the international covenant on Civil and Political rights. The Human Rights committee has challenged the exclusive competence of states parties to determine the compatibility of a reservation withy the object and purposes of the treaty, considering that the special characteristics of human rights treaties and the inadequacies of the Vienna convention regime reservations and objections justify the committee in assuming this task.
The authors have found out that there's much hypocrisy by states when it comes to concluding treaties. They thus reconsidered Judge Horwitz considerations when he found it difficult if not impossible to accept that Botswana would deliberately discriminate against women in it's legislation whilst at the same time internationally support non-discrimination against females or a section of them.
Another important consideration of this book on the law of treaties is the authors' re-statement of Bruno Simma and Philip Alston who drew attention to the priority given to civil and political rights over economic and social rights and have asked:
Whether any theory of human rights law which singles out race but not gender discrimination, which condemns arbitrary imprisonment but not death by starvation, and which finds no place for a right of access to primary health care is not flawed in terms both of the theory of human rights and of United Nations doctrine
Another interesting consideration by the authors on the topic the idea of the state is on the sex of the state. Sometimes the state as the protector (man) guards it's weaker people; at other times a vulnerable entity (woman) is protected by the men within it. One paradigm of the state is that it has clear boundaries, strong government and acts autonomously.
About self-deterination, they hold that a broadly conceived concept of self-determination will embrace the idea of a secured and fulfilled existence within a freely chosen democratic political and economic framework. The equal participation of women and the men in the choices of political and economic forms will be crucial to it's legitimacy.
About women's participation in the UN.,they realised that very little attention has been paid to the balance of women and men on national delegations by the UN itself. Given the disproportionate representation of men in national decision-making structures, it's no surprised that state's nominees for expert positions in the UN system are generally male.
About Human rights, they realised that human rights law challenges the traditional state-centred scope of international law, giving individuals and groups otherwise with very restricted access to the international legal system. But these authors have yet something to criticize. They have argued that while the formulation of equality rights may be useful as a first step towards the improvement of the position of women, a continuing focus on the acquisition of rights may not be beneficial. Women experiences and concerns are not easily translated into the narrow, individualistic language of rights, the balancing of competing rights by decision-making bodies often reduces women's power and particularly rights.
In the same line of argument, these authors successfully made plausible arguments on the bias of the law towards the women in other broad areas such as the peaceful settlement of disputes and redrawing the boundaries of international law. In the latter argument, they forcefully provide that outside the human rights context of the prohibition on sex discrimination, women's presence on the international stage is generally focussed on their reproductive and mothering roles that are accorded special protection.
Most collections, which deal with issues of this sort, bring together a variety of more or less persuasive arguments. This collection in contrast, will provide people, I think, with the means of making much better arguments about the subjected more importantly, a re-consideration of how we treat and think of the women in our laws. This I am confident, for it brings together in one beautiful volume the widest possible range of thinking about these issues. I learned a great deal from reading this volume and so will, I believe, almost everyone else interested in these issues, including those who already possess considerable expertise on the subject. Whatever your interest, whether it is to understand how different people approach boundary controversies or the law in the state, parlour or bedroom, or to figure out how to improve one's understanding of them, this collection has something special to teach you.
The entire unacceptable situation in international law as is strongly and carefully observed by Chinkin and Charlesworth is that the fundamental norms which all states must observe includes systematic racial discrimination against women, or even widespread gender-based violence.
Like archaeologists digging down into an ancient site, Chinkin and Charles worth successfully use different tools at different stages of the elevation, borrowing from a range of theories of international law.
Although much of what the two prominent female authors point out is relevant and worth considering, I have the personal conviction that they are in no way contributing to a change because the book is in itself male biased or better still male jealous. If women are seeking for redress to certain disadvantages suffered from the male folks under international law, then I think a feasible solution to this can only be sought through meaningful collaboration and joint effort with the men. Women cannot purport to do this while in opposition to the men.
About the Article: This article reflects the individual observation and opinions of the author.
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