Towards FIEL-ine (Feminist International Economic Law) Legalities

From Femina Economica …

Recently, several measures in international economic law emerged with the aim of promoting women’s economic empowerment (examples here, here and here). Though broadly welcomed by both policy-makers and scholars, their largely hortatory effects lead some to query whether this “gender turn” fully recognises – and can meaningfully address – the pre-existing structural obstacles to women’s full participation in economic life.  In this article, I explore whether the “gender turn” might be leveraged for deeper critical engagement with the project of international economic law (IEL). Such engagement could expose the “interest convergence” which this gender trade measure ignores (example here); articulate anew the economic violence to women and other marginalised communities that IEL continually, structurally underpins; and ultimately invigorate a debate on the possibilities of a dedicated intersectional analysis of IEL.

How might critical feminist perspectives (CFP) (underpinned by feminist values and praxis) productively engage both ‘within’ the field of critical feminist legal perspectives, and ‘without’ (with other critical theories of law and legality, and their underlying values and praxes)? How could a joint exercise of mutual, co-creative, reciprocal nourishment of critical imaginaries and pathways of analysis, animation and activation for IEL law, institutions and legalities, become more deeply attuned to how the latter silences, ignores and exacerbates the economic harms of women and marginalised communities?

As an object of study, I look at the operation of Special Economic Zones (SEZs) where we clearly see the structural reliance of international trade on people that experience several dimensions of gender inequality in addition to multiple other disadvantages deriving from their location in an emerging economy location within a wider global value chain (GVC).  In response, I re-visit the content and role of the concept of intersectionality for feminist legal thought, before I ‘plot’ (see the figure below) an engagement of a feminist-informed, intersectional legal analytic with IEL. Finally, I explore what the application of this lens might mean for how legal researchers approach their engagement with IEL’s complicity in gendered inequality.

…. To Revealing IEL’s Complicity in Women’s Low Wage Employment in Special Economic Zones…

Arguably, IEL already contains  legal provisions for developing countries  to leverage women’s economic interests, such as Special and Differential Treatment measures to promote equitable trade for ‘developing countries’, and for States to use the public morals exception in Article XX of the General Agreement on Tariffs and Trade. However, the increasing proliferation of SEZs in developing countries in response to intense competition to attract foreign investment, poses a challenge to both these objectives. SEZs are carved-out jurisdictions within a state. For UNCTAD, SEZs have (i) a clearly demarcated geographical area; (ii) a regulatory regime distinct from the rest of the economy (e.g., customs and fiscal rules, as well as rules governing foreign ownership, access to land, or employment rules), and (iii) infrastructure support. Over 5,300 SEZs now exist in more than 140 economies around the world, in almost 75% of developing economies and almost all transition economies, while several studies attest to their significance for emerging economies.

Respect for labour rights continues to remain a pressing transnational challenge in SEZs, with the ILO noting that for some states, low wages are a core pillar of SEZ development. The structural nature of this problem lies in the careful weaving of domestic labour law with IEL. Here, though the special tax rules or customs provisions for goods coming from SEZs are usually clearly elaborated in IEL instruments such as Free Trade Agreements (FTAs), the explication of the content and application of ordinary domestic  labour law to the working conditions of employees in SEZs is more opaque; can be implemented differently within the host country, and  vary in level of protection offered compared to outside the SEZ and across different countries (see here). Meanwhile, the operation of  Bilateral Investment Treaties – based investor-state arbitration over disputes arising from the modification or withdrawal of tax or other SEZ special incentives may pose additional risks to labour rights such as freedom of association and wage bargaining..

Workers in SPZs are predominantly nationals. Women constitute up to 90% of employment in some SEZs (the average is 60%), with low-paid female labour proving central to host country competitive and comparative advantage as choice locations for transnational manufacturer suppliers.  However, for women workers, while the formal employment prevalent in SEZs frequently contributes to discernible measures of familial and social empowerment derived from their economic earning power, multiple – and frequently structural – dimensions of their lived experience as workers qualifies these advances. These issues include problems arising from  job security, flexibilization and precarisation; the dynamics of a gendered (frequently male) management and authority over a predominantly feminised workforce, along with the challenges of pregnancy and motherhood, challenges to accessing health care, family care, and the more pernicious experiences of sexual harassment.

In my view, neither the “nice rhetoric” of the gender chapters in trade agreements or the adoption of a liberal, ‘rising tides,’ anti-discrimination approach in IEL advocated for by the major international economic organisations will meaningfully address the vulnerabilities and inequalities that women workers currently face in many IEL-backed SEZs, located in low-wage sectors in emerging economies. Instead, legal researchers might re-strategise their engagement with IEL’s structural underpinning of gender inequality by returning to the analytical potential offered by the concept of intersectionality.

….. To Intersectional Engagement….

Perhaps most associated with Kimberlé Crenshaw’s exposure of how anti-discrimination law in the United States failed to recognise more than one dimension of Black women’s experience of discrimination,  the concept of intersectionality calls for both a fuller understanding of multiple, overlapping marginalisations, and an explicit focus on law’s role in co-constituting these oppressions deriving from structural, political, representational and other conditions. In my reading and use of intersectionality, it centres the lived experience of Black, Brown and marginalised women at its core, while revealing how conventional legal doctrine on discrimination refuses to recognise the layered harms they experience. Thus, as McKinnon notes, intersectionality is not a liberal legal approach to identity-centred discrimination law that selects certain identities for recognition of protection. The potency of intersectionality, thus, lies in its calling of anti-discrimination law’s ‘promise of justice’ to account, while holding out the invitation to law to “… see(s), witness(es) and even willingly inhabit(s) the social locations of the multiply marginalized.” (Nash 2019: 127).

While an intersectionality lens has been utilised in other fields of international legal analysis (see for example here, here, and here), its potency as an anti-essentialist analytical approach remains curiously underexplored within IEL. How might intersectionality’s analytical potential be harnessed to better understand and critique IEL’s failure to recognise and address its role in instrumentalising both gender wage disparity and inequality and the structural location of “emerging) economies” (Third World states) as subsidiaries within GVCs?

… With(in) International Economic Law

The image below seeks to ‘plot’ the ingredients and dynamics of this potential engagement, focusing on the translational space between two sites of engagement. The first is the potential of a reflexive engagement of critical feminist methodologies that centre on the lived experiences of women, with feminist legal thought, a foundational strand in the field of critical legal perspectives. This engagement enables both strands of critical thinking to explore, understand – and ultimately to ‘speak back’ – to the mutual construction of the ‘female’/‘woman’ and their structural subordination in wider social life (including political and economic life) by law and instruments, institutions and practices of governance.  The second is the engagement between the field of critical legal perspectives (CLP) with IEL. CLP  is itself a field that is rich in different, distinct and sometimes overlapping strands of legal thought and legal analytical frameworks (such as feminist, TWAIL, law and political economy, critical race theory, post-human legalities, Queer legal theory and others), whose contours (within their own field) and connections (with other strands of CL thought) are constantly evolving. Several strands of critical legal engagement with IEL invite us to recognise and explore more deeply the interconnections and mutual reinforcement of several registers of ‘dynamics of difference.’ These include ongoing North-South extractive and exploitative relations; institutionalised relations of racial capitalism (example here ), along with how IEL’s form continues to compound the pace of ecological damage that has led us to surpass several planetary boundaries. These strands of thought and practice have insights and perspectives that deepen and expand our understanding of the factors that shape women’s diverse lived experiences, the artifice of their legal subjectivities and relations, and the complicity of law in the structuring of exploitative demands, dynamics and instruments of governance both of IEL and the globalised economy.

I suggest that maximising the critical potential of both may lie in the analytical site of intersectional engagement in which feminist legal thought is a key translational space. 

Plotting a Critical Intersectional Engagement with IEL

This brief intersectional, feminist, critical legal and economic analysis of the structural, economic and legal instruments and dynamics that shape women’s experiences of employment in SEZs, reveals how gender, law and transnational modes of capitalist production layer, to mutually create and reinforce several overlapping hierarchies. The first is IEL’s reliance on a twin dynamic of transnational, gendered and raced capitalism. This consists of IEL’s selective recognition of formal equality of rights for corporations of freedom of movement of goods and services and non-discrimination therein that structurally exploits and reinforces the economic position of women of colour within globalised developing countries by its failure to legally recognise how the gender wage gap and regulation of labour is exploited by corporations and states to attract foreign investment. A second shows how IEL ultimately fails to recognise and offer redress for the inequalities experienced by women workers in SEZs within developing countries, even where labour chapters exist that include recognition of gender equality in bilateral and plurilateral trade agreements. In this way, feminist-centred intersectional legal critique reveals the operation of an underlying hierarchy of rights inherent across all fields of IEL – one that privileges the rights of Northern-headquartered corporations over the rights of humans, and black and brown women, in particular. Third, it foregrounds the necessity of taking account of the compounded effects of several layers of legal subjectivity, at macro (e.g., of states, whether capital exporting or importing, or historically a colonial or metropolitan state) and micro levels (e.g., location, occupation, and gender of workers in the GVC), to any assessment of merits of IEL’s emerging approach to gender equality commitments. But beyond penetrating legal critique, how else might intersectionality help us engage with IEL?

Towards Feminist International Economic Legalities

Though the foundation of intersectionality lies in its recognition of the vulnerability and precarity caused by the situated context of the human person, and the complicity of law in institutionalising, structuring and sustaining overlapping infrastructures of economic, social and political harm to compound that vulnerability, its potential is wonderfully layered and offers much potential for further research of IEL. As example, it points to the relation between the human as a living, feeling subject, and the legal ‘human’ person/subject – and the gap therein. It may also point to the relation between the human/legal person and that of the wider web of non-human life in which human life is embedded, which law currently struggles to adequately recognise (also here). Finally, it clearly recognises the importance of the response that we (as legal scholars invested in law) chose to make to these disjunctures. Do we, for example, recommend modifications to the gender chapters in new trade and investment agreements to address the structural racial dimensions of SEZs as an appropriate response?

On the latter, I suggest that a first step could be to resist the liberal impulse to add on different categories of  ‘diverse’ women in IEL responses to gender inequalities inherent in international trade.  This identity-centred, ‘add on’ interpretation of intersectionality compounds law’s original violence of selectively constituting a decontextualised, partial human identity for recognition. Instead, using imaginative CFP-CLP engagements, promise might lie in recognising and articulating first, the vulnerable and the relational in ways that meaningfully recognise the situated complexity of women’s lives, but in ways that support their agency (not in ways that aim to speak for ‘them’), before second,  turning to how law engages, masks, intimidates, ignores, but also might ameliorate aspects of those lives. Doing so requires legal researchers to be especially attuned to the ontological politics of law, in this case how the muti-level, -jurisdictional, and multi-layered ‘Legal Institutional Complex’ engages the lived experiences of Brown and Black women workers in SEZs in developing countries that are also key sites within GVCs. That frequently exploitative relation is always there and cannot yet be severed within the current processes and activities of global capitalism. In that difficult space, we legal researchers chose to tread. To paraphrase Yeats, “I have spread my dreams under your feet: Tread softly, because you tread on my dreams.”