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Hovering between Resistance and Compliance, or Time to Take a Break from International Law?

Published online by Cambridge University Press:  24 January 2014

RIKKI HOLTMAAT
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Extract

Some books present such a wide variety of perspectives and so many interesting themes and topics in a particular area of law that it is rather difficult to write a comprehensive but at the same time concise review article about them. Consequently, such books run the risk of remaining unobserved or unattended, however valuable may be their contribution to the development of that area of law. Something like that threatened to happen to the volume of papers that was edited by Sari Kouvo and Zoe Pearson and published in 2011. Writing the book review remained for rather a long time on my to-do list, because reading it had incited me to reconsider my own answers to some foundational questions about feminism, about law, and about the ‘and’ that seems so firmly situated between these two concepts. In fact, feminism and law have been at the core of my professional activities since I finished law school in 1983, so for some thirty years for me these two things were closely connected. I thought that I knew very well what I was doing and why! Reading this book – and having agreed to review it – made these questions manifest and urgent to answer. The book, in short, invokes much (self-critical) thinking about the why and how of any engagement with feminism and (international) law, which is a first reason to recommend it to anyone who stands open for such an endeavour. After a brief description of its structure and content, I will discuss just a few of the many thought-provoking materials in this volume and some of my preliminary reactions to them.

Type
REVIEW ESSAYS
Information
Leiden Journal of International Law , Volume 27 , Issue 1 , March 2014 , pp. 283 - 296
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

1 I owe much to the suggestions for reading materials made by the members of the Feminist Legal Theory Reading Group that has existed in Leiden Law School since 2010, and to the animated discussions that take place there. In particular I want to thank Christine Tremblay for her critical reading of a first version of this article.

2 As has been the case for so many feminist lawyers, this career has been double-edged, combining critical academic work with participation in and contributions to advocacy work in the areas of international human rights law (in particular CEDAW), European Union Law (in particular the EU Sex Equality Directives), and national Dutch law (in particular social law and national equal treatment legislation).

3 ‘Preliminary’ in the sense that I feel that the book and the questions that it raises deserve much more thinking before I can arrive at any kind of definite conclusions, if these exist at all!

4 In fact there is no singular feminism and international law movement or caucus. See, for a description of the wide variety of feminisms and law: Lacey, N., ‘Feminist Legal Theory and the Rights of Women’, in Knop, K. (ed.), Gender and Human Rights (2004), 17Google Scholar.

5 Edwards, A., ‘From the Margins to the Mainstream and Back Again: Problems and Paradoxes of Feminist Engagement in Global and Local Justice’, in Kouvo, S. and Pearson, Z., Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (2011), 133Google Scholar. On this positioning, see infra, section 6.

6 Kouvo and Pearson, supra note 5, Introduction, at 3.

7 Hilary Charlesworth is co-author of the publication generally seen as the kick-off for feminism and international law: Charlesworth, H., Chinkin, C., and Wright, S., ‘Feminist Approaches to International Law’, (1991) 85 American Journal of International Law 613CrossRefGoogle Scholar.

8 These reactions were described, inter alia, in Charlesworth, H., ‘Alienating Oscar: Feminist Analysis of International Law’, in Dallmeyer, D. (ed.), Reconceiving Reality: Women and International Law (1993)Google Scholar. In the introduction to this essay she explains this title by describing a scene at a conference on international law in Australia in 1990, where feminist speakers had somehow outraged the eminent guest, Professor Oscar Schachter. The personal tone of the speeches, the topics chosen, the non-academic style of presenting evidence, had all seriously offended the few male academics that had attended this session.

9 H. Charlesworth, ‘Talking to Ourselves? Feminist Scholarship in International Law’, in Kouvo and Pearson, supra note 5, at 17. See also Charlesworth, H., ‘Feminist Ambivalence about International Law’, (2005) 11 International Legal Theory 1Google Scholar, at 2: ‘Feminist theories seem to remain in a scholarly ghetto, at most a brief footnote, in international legal scholarship’. See also, in a similar vein, Otto, D., ‘The Exile of Inclusion: Reflections on Gender Issues in International Law over the Last Decade’, (2009) 10 Melbourne Journal of International LawGoogle Scholar.

10 See Charlesworth ‘Talking to Ourselves’, supra note 9 at 17–18.

11 Ibid., at 23. D. Otto, in her contribution to the volume, expresses these doubts more sharply, while commenting on the situation in Iraq and Afghanistan: ‘I have been astounded at the ease with which women's participation has come to serve as the Trojan horse of crisis government’. D. Otto, ‘Remapping Crisis through a Feminist Lens’, in Kouvo and Pearson, supra note 5, 75, at 86.

12 Kouvo and Pearson, supra note 5, ‘Introduction’, at 4–5.

13 See also below in section 8 of this article, where I discuss Charlesworth's reaction to the work of Janet Halley.

14 Y. Ottomo, ‘Searching for Virtue in International Law’, in Kouvo and Pearson, supra note 5, 33, at 33, thus characterizing Charlesworth's project.

15 Ibid., at 40.

16 Ibid., at 40, note 34.

17 Z. Pearson, ‘Feminist Project(s): The Spaces of International Law’, in Kouvo and Pearson, supra note 5, 47.

18 Ibid., at 63.

19 As summarized by the editors in their Introduction to the volume, at 7.

20 Ibid.

21 This expression was much used in the 1970s and early 1980s by feminists who thought that in order to achieve any change in favour of women, they had to get access to the main legal and political institutions and fight themselves into positions of power. Later, the expression and policy was changed into mainstreaming gender. Both strategies presuppose that it is possible to change the existing legal and political system from within. The purported changes do not always – perhaps do not even often –challenge the systems’ foundations and the (conceptual and practical) structures that keep them intact and that contribute to maintaining the status quo. Feminists who have achieved a position within have a vested interest in not subverting that system. Feminists’ achievements in this regard are sometimes seen as detrimental to the feminist cause. For example J. Halley (in Halley, J.et al., ‘From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism’ (2006) 29 Harvard Journal of Gender and Law 335Google Scholar) speaks of ‘Governance Feminism’, thereby heavily criticizing the negative effects of feminists’ interventions in the international legal system. See also section 8, infra.

22 See Otto, supra note 11, at 75–96.

23 J. Mertus, ‘Road Blocks, Blind Spots, Speed Bumps: A Feminist Look at the Post 9/11 Landscape for NGOs’, in Kouvo and Pearson, supra note 5, 97.

24 M. Grahn-Farley, ‘The Politics of Inevitability: An Examination of Janet Halley's Critique of the Criminalisation of Rape as Torture’, in Kouvo and Pearson, supra note 5, 109.

25 A. Grear, ‘Three Feminist Critiques of Varying Feminist Capitulations to Crisis-Hegemony’, in Kouvo and Pearson, supra note 5, 71, at 71.

26 ‘Clearly feminist ideas are able to serve diverse purposes including those of crisis governance, as in this case, by helping to legitimate the extension of the ideological and military dominance of the US and its allies.’ Otto, supra note 11, at 84.

27 Ibid., at 77.

28 Ibid., at 78, citing Graven, M.et al., ‘We are Teachers of International Law’, (2004) 17 Leiden Journal of International Law 363Google Scholar, at 366.

29 See section 8, infra.

30 See Edwards, supra note 5, at 133–6.

31 V. Nesiah, ‘Missionary Real for a Secular Mission: Bringing Gender to Transnational Justice and Redemption to Feminism’, in Kouvo and Pearson, supra note 5, 137.

32 S. Kouvo, ‘Taking Women Seriously? Conflict, State-Building and Gender in Afghanistan’, in Kouvo and Pearson, supra note 5, 159.

33 U. Andersson, ‘Trafficking in Human Beings: Vulnerability, Criminal Law and Human Rights’, in Kouvo and Pearson, supra note 5, 177.

34 D. Thomas, ‘Women Workers Take over Power at the Margins: Economic Resistance, Political Compliance’, in Kouvo and Pearson, supra note 5, 193.

35 V. Munro, ‘Navigating Feminisms: At the Margins of the Mainstreams or Elsewhere?’, in Kouvo and Pearson, supra note 5, 13 at 13–16.

36 Kouvo and Pearson, supra note 5, at 5. It is interesting to see that in this quote ‘women’ in one instance is placed between quotation marks, as to show that the content of this term is contested or constructed, while at the end of the citation they simply use the word as if it is non-contested. One of the main debates in feminism, whether we can still use the word ‘women’, is exemplified here.

37 Kouvo and Pearson, supra note 5, Introduction, at 5, citing Spivak, G. C., ‘Can the Subaltern Speak?’ in Williams, P. and Chrisman, I. (eds.), Colonial Discourse and Post-Colonial Theory: A Reader (1994)Google Scholar.

38 Kouvo and Pearson, supra note 5, Introduction at 6.

39 One of the earlier contributions that also fundamentally questions the instrumental potential of law or of feminism and law is that of C. Smart, The Power of Law (1989). See also C. Smart, ‘The Women in Legal Discourse’, (1991–2) Social and Legal Studies 29.

40 The programme of feminism and international law as (according to Kouvo and Pearson, supra note 5, at 5) designed by Charlesworth and Chinkin in The Boundaries of International Law: A Feminist Analysis (2000).

41 Engle, K., ‘International Human Rights and Feminism: When Discourses Meet’, (1992) 13 Michigan Journal of International Law 517Google Scholar, at 605. The quotation is derived from Kouvo and Pearson, supra note 5, Introduction, at 5.

42 In other words: take a break from law, to vary on Halley's notorious title. Taking a complete break from law is hardly an option for legal professionals where they derive an income from their engagement with law, whatever form these activities may take and even when they do these activities with the best (feminist) intentions.

43 Kouvo and Pearson, supra note 5, Introduction, at 8.

44 Ottomo, supra note 14, at 34.

45 ‘This collection represents a “stock-take” of where feminist perspectives on international law are today vis-à-vis women of the world and the mainstream of international legal scholarship and practice.’ Kouvo and Pearson, supra note 5, at 1.

46 See supra, section 3, where I discuss the contribution by Hilary Charlesworth.

47 This development has been going on for some time now. See Knop, supra note 4, Introduction, at 2.

48 Kouvo and Pearson, supra note 5, Introduction, 1 at 2.

49 T. S. Dahl, Women's Law: An Introduction to Feminist Jurisprudence (1987).

50 Janet Halley points out that in feminist academic work a brain drain has taken place in the last decade: ‘Many key intellectual figures in feminism have decamped to other endeavours’. See J. Halley, ‘Taking a Break from Feminism’, in Knop, supra note 4, 57 at 65.

51 Kouvo and Pearson, supra note 5, Introduction, at 4.

52 Engle, K., ‘Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina’, (2005) 99 American Journal of International Law 778CrossRefGoogle Scholar.

53 Kapur, R., ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International Post-Colonial Feminist “Legal Politics’”, (2002) 15 Harvard Human Rights Law Journal 1Google Scholar; see also Chapter 4 in R. Kapur, Erotic Justice: Law and the New Politics of Postcolonialism’ (2005). A contribution that in my view is equally critical of the negative effects of seeing female sexuality as a cause for women's oppression and as something negative, but that is completely overlooked in the papers in Kouvo and Pearson, supra note 5, is Franke, K. M., ‘Theorizing Yes: An Essay on Feminism, Law and Desire’, (2001) 101 Colombia Law Review 181Google Scholar.

54 Halley, supra note 50, at 57–82. J. E. Halley, Split Decisions: How and Why to Take a Break from Feminism (2005). J. Halley et al., supra note 21 Halley, J., ‘Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict’, (2008) 9 Melbourne Journal of International Law 78Google Scholar.

55 Kapur, ‘The Tragedy of Victimization Rhetoric’ supra note 53, at 114.

56 This goes back on the early work of Catherine MacKinnon. As summarized by Radna Kapur: ‘Heterosexuality has institutionalised the construction of male sexual domination and female sexual submission. Thus sexuality becomes the lynchpin of gender inequality’. Kapur, Erotic Justice supra note 53, at 102.

57 Halley makes a proviso, stating that she talks about feminism in the United States today. US feminists have had an active and dominant role in the area of feminism and international law, but are not the only ones acting in that field. There certainly is a dominance of Anglo-Saxon legal feminists in this area. This is visible in the list of authors who contributed to Kouvo and Pearson, supra note 5, from which only a few do not originate from or have their current base in an Anglo-Saxon country.

58 Halley, supra note 50, at 61. Here m and f may stand for male/female, referring to sex as a biological category, or for maleness/femaleness, referring to a gendered construction of these two categories. In her work, Halley clarifies how this way of constructing the feminist cause is linked to a perception of relations between the (two/bipolar) sexes that are always dominated by heteronormativity and oppressive heterosexual relations. This construction goes back on the (at least in the USA) very influential work of Catherine MacKinnon, laid down in inter alia Feminism Unmodified: Discourses on Life and Law (1987). For a critique of the way this construction and this kind of feminism excludes any positive perception and appreciation of female sexuality, see Franke, supra note 53.

59 Charlesworth, ‘Talking to Ourselves?’ supra note 9, at 23.

60 Ibid.; and Grahn-Farley, supra note 24, 109–29. See also Nesiah, supra note 31, 137–57, at 150.

61 Charlesworth, ‘Talking to Ourselves?’ supra note 9, at 24.

62 Grahn-Farley, supra note 24, at 113.

63 Cf. the title of Franke's piece, ‘Theorizing Yes’, supra note 53. See also Halley, ‘Rape in Berlin’ supra note 54.

64 Halley, ‘Rape in Berlin’, supra note 54 at 78.