Making Sense of Posthuman Feminist Theory in International Law
Feminist engagements with international law oscillate between seeking legal change from within the law and the need to look beyond that system to completely reimagine it. This well-known tension of resistance and compliance offers the framing for Emily Jones’ monograph on a posthuman feminist approach to international law. Jones demonstrates how such an approach can change international law from within, using lethal autonomous weapons systems (LAWS) and international environmental law as examples, but also how it can be used to radically challenge the current system of international law and offer guidance for rethinking it. In doing so, she analyzes the foundations of international law that maintain an unequal global order, including anthropocentrism and exclusionary humanism.
In this contribution, we attempt to locate Jones’ book in the broader discourse of feminist approaches to international law and highlight some aspects from a historical perspective.
Posthuman Feminist Theory to Re-Think All Areas of International Law
The book situates itself as a contribution to the highly heterogeneous body of scholarship on feminist approaches to international law as it emerged in the 1990s. Jones’ very compelling claim is that feminist approaches “can be used to analyse all areas of international law” (e.g. p. 6). She argues against the mischaracterization of feminist approaches by mainstream scholarship as being a niche field exclusively focused on “women’s issues” by recalling how feminist approaches initially considered a wide range of issues. However, she also critically notes that some recent feminist scholarship has limited itself to questions of “women’s lived experiences” focusing particularly on representation and participation in international decision-making processes (e.g. p. 110s). Jones credits current critical feminist engagements that analyze, for example, the predominant focus on sexual violence in international law.
Jones’ straightforward characterization of this dynamic of feminist international legal scholarship and its reception is not entirely comprehensive, as the focus on “women’s lived experiences” is not mainly based on a recent mischaracterization of feminist approaches but has a long tradition in international law. Since at least the 19th century, the construction of a militaristic, masculine international law has depended on notions of femininity. Jones refers to work from feminist international legal scholars, analyzing precisely these gendered underpinnings of areas not directly pertaining to “women’s lives”. She discusses the gendered understanding of states as an example (p. 33ss). With a posthuman feminist approach, Jones takes the claim to examine all areas of international law even further by addressing issues that at the outset are not necessarily related to questions of gender at all, for example, in her analysis of the human-machine binary.
Jones aligns herself with an anti-militarist feminist tradition and expresses some discomfort in engaging in certain regulation debates about LAWS. However, following Donna Harraway, she “stays with the trouble” and proposes possibilities of resistance within international law while also thinking beyond it (p. 85). In this part, the book actually goes further back in history and locates early feminist engagements with international law in the tradition of the Women’s International League for Peace and Freedom (WILPF), which emerged during World War I. By drawing on history, Jones aims to show the anti-militarist origin of feminist theory. The image of women as being peace-loving is thus reproduced as a narrative which is not necessarily historically accurate. For example, during the International Congress of Women in 1915, from which WILPF originated, a split in the women’s movement occurred in many of the participating countries (e.g. Germany and Great Britain) as the anti-militaristic and pacifistic notion was not a consensus.
Yet we would suggest, that in fact, her work is part of a much longer tradition. There have been feminist engagements from women with international relations and international law at least since Christine de Pizan in the 15th century. Many other individual women and international women’s organizations followed and questioned the androcentric basis of law for decades, if not for centuries. Whether one can consider all these early involvements from women with international law as feminist approaches is open to debate, but it is evident that histories of international law have so far neglected the agency of women in norm-creation processes (exceptions see e.g. here), which is why feminist approaches pre-dating the 1990s still remain in obscurity.
Challenging Binaries and Hierarchies
Jones argues that posthuman feminist theory, like other strands of feminist theory, dismantles social hierarchies constituted by gender, but also by other identity markers such as race and class. She further argues that posthuman feminist theory analyzes the anthropocentric underpinnings of international law, which is what distinguishes her feminist critique.
This approach relates to work on the relationship between nature and marginalized humans that emphasizes the common oppression of both. This is not only thought-provoking but also causes discomfort, as nature has long been used as an argument for the hierarchization of humans. Jones reflects on the dangers that can come with some ecofeminist approaches, as some strands present an essentialized notion of women as more connected to nature (p. 122ss), while she aims to dismantle binaries such as subject/object or nature/culture applying posthuman feminist theory. It appears, though, as if another strong binary persists within this theory.
By emphasizing the similar exclusion of nature and people with different attributes of discrimination, two other poles seem to be reinforced: The “heterosexual, white, middle-class, male subject” (p. 144) in opposition to all others (other humans, nonhuman subjects and matter). We wonder to what extent the complexity of mechanisms of oppression is recognized by posthuman feminist theory and what impact this has on international law in practice. As Jones highlights the importance of intersectional feminism (e.g. p. 22), the question arises how we can avoid losing the gains of these approaches by simplifying oppression.
The Martens Clause: Ethical Principles of Humanity?
In the chapters on LAWS, Jones provides enriching reflections on human-weapon relations. Posthuman feminist theory is used to examine existing provisions in international law. Additionally, Jones draws on many other scholarships like xenofeminism to think beyond the law (p. 108). She invokes the Martens Clause, arguing that it carries the potential to enable a more public and ethical debate on arms regulation. The Clause was introduced by Russian international lawyer Fjodor Martens and first codified in 1899 in The Hague Convention respecting the Laws and Customs of War on Land. It stipulates that the usages established among civilized nations, public conscience and humanity should be guiding principles for situations arising during warfare that are not explicitly provided for in the Convention.
When using the Martens Clause for arms regulation, it is necessary to consider the rather clear colonial tradition reflected in it. The meaning of “public conscience” included at least the “legal conscience” of the scholarly jurists, like Martens himself. In a broader definition, it entailed the opinion of an educated elite that could be expected to form an opinion about law.
The concept of “humanity” provided the basis for the development of human rights, of which Martens is considered a forefather. To him, the extent to which laws of humanity were observed was the measure of whether a state should be considered civilized or not. Martens connected this to women’s experiences. Considering the Russian-Ottoman war of 1877-78, for instance, he stated that the Russian army could not be accused of violating the principles of humanity, continuing, that only Ottoman irregular soldiers “were able to maltreat and murder women and children”. Even if the Clause is used without an excessive historical contextualization, the problem with principles such as “humanity” remains. Our question here would be how Emily Jones defines the “principle of humanity” and how this can be distinguished from the exclusionary humanism and concept of humanity (p. 42ss) she criticizes.
All of this is part of the difficulties of resistance and compliance, and it is exactly the great strength of the book that it takes a clear stance in such a complex field without propagating simple solutions. Therefore, it enables further engagement with this tension and is an important contribution to international legal theory.
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