Feminism and International Law: Theory, Methodology, and Substantive Reform Author(s): Aaron Xavier Fellmeth Source: Human Rights Quarterly, Vol. 22, No. 3 (Aug., 2000), pp. 658-733 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/4489298 Accessed: 27-09-2017 08:40 UTC REFERENCES Linked references are available on JSTOR for this article: http://www.jstor.org/stable/4489298?seq=1&cid=pdf-reference#references_tab_contents You may need to log in to JSTOR to access the linked references. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://about.jstor.org/terms The Johns Hopkins University Press is collaborating with JSTOR to digitize, preserve and extend access to Human Rights Quarterly This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms HUMAN RIGHTS QUARTERLY Feminism and International Law: Theory, Methodology, and Substantive Reform Aaron Xavier Fellmeth* 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 * Aaron Xavier Fellmeth received a B.A. in Social Sciences from the University of California at Berkeley in 1993, focusing on psychology and anthropology of law. After studying briefly at the University of Paris (Sorbonne), he enrolled in the Yale Law School (J.D. 1997) and Yale Graduate School (M.A. 1997-International Relations). At Yale, he was Editor-in-Chief of The Yale Journal of International Law and a senior editor of The Yale Law Journal. From 1997- 2000 he practiced foreign trade law in the San Francisco office of a large international law firm. The author would like to express his gratitude to Linda J. Demaine, Robert C. Fellmeth, Amy Haddix, Laura Nader, Bijal Patel, and W. Michael Reisman for their thoughtful comments on an earlier draft of this paper. Human Rights Quarterly 22 (2000) 658-733 @ 2000 by The Johns Hopkins University Press This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 659 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 lus 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 schol- ars.' 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 concen- trate 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 1. This is not to say that the treatment of women's issues in international treaties has gone entirely unexamined. To the contrary, women's rights under international conventions are the subject of extensive analysis. For a bibliography cataloging developments and scholarship before 1990, see generally Rebecca J. Cook, The International Right to Nondiscrimination on the Basis of Sex, 14 YALE J. INT'L L. 161 (1989). 2. Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991). This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 660 HUMAN RIGHTS QUARTERLY Vol. 22 show that "the structures of international lawmaking and the content of the rules of international law privilege men; if women's interests are acknowl- edged at all, they are marginalized. International law is a thoroughly gendered system."3 Their argument posits that international law is perva- sively "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 protect- ing 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 thought4 and jurisprudence5 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 the three conceptual critiques of international law. I will first address the argument that the existence of states as the main subject of international law fails to reflect women's viewpoints and protect their interests. I will argue that feminists "overstate" the role of sovereign states in international law and that, to the extent that states do play an important role in international law, historical power dynamics and not gender bias explain their existence. Moreover, I will contend that neither the concept of states nor their practical consequences themselves reflect a "male voice" or inherently ignore 3. Id. at 614-15. 4. See generally, e.g., FEMINIST SOCIAL THOUGHT: A READER (Diana Tietjens Meyers ed., 1997); ROSEMARIE TONG, FEMINIST THOUGHT: A COMPREHENSIVE INTRODUCTION (1989); WHAT IS FEMINISM? (Juliet Mitchell & Ann Oakley eds., 1986). 5. See generally, e.g., TOVE STANG DAHL, WOMEN'S LAW (1987); FEMINIST JURISPRUDENCE: THE DIFFERENCE DEBATE (Leslie Friedman Goldstein ed., 1992); FEMINIST JURISPRUDENCE (Patricia Smith ed., 1993); Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829 (1990). This content downloaded from 143.107.252.17 on Wed, 27 Sep 2017 08:40:39 UTC All use subject to http://about.jstor.org/terms 2000 Feminism and International Law 661 women's interests. Section 11l.B critiques international law from a perspec- tive provided by Carol Gilligan's In a Different Voice.6 I will analyze how international law reflects an "ethic of justice" and an "ethic of care," and conclude that the world public order has increasingly come to reflect the latter. Section III.C reviews the criticism advanced by several feminists that international human rights law is colonialist