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We Must All Engage with Feminist Approaches to International Law

Old Questions, Old Answers, New Subjects

10.03.2022

In course of the last few weeks, my Twitter feed displayed three different trending news with varying degrees of urgency: Ukrainian responses to the Russian armed attack, a record complaint of rape and sexual assault in the United Kingdom and Wales, and growing tensions between state and private interest in tribal lands of central India. Any contemporary account of international law is likely to read these as three separate and recurrent patterns of how international law ‘happens’. The first is a pattern of state-centric territorial dispute with emphasis on securitization-based responses. The second is a data driven account of legal subject making – vulnerable objects of violence with a focus on sexual violence. And the third, nestled under transnational corporate legality, is the story of regulating land ownership in the language of private capital.

Each of these, despite their seemingly separate spheres of operation in international law, are deeply entangled in fundamental ways. The relationships between legal subjects and institutions of international law have been subjected to critique and analysis through various discourses of power before. However, Feminist Approaches to International Law (FtAIL), oscillating between the prescriptive and the analytic, enables a very different, enmeshed mode of relational engagement with these institutions and subjects. One that is rooted in discomfort, self-awareness and affect. In the following sections I discuss two significant turns in FtAIL; the ways in which these turns have engendered the production of particular feminist pedagogical approaches, and some ways of ‘doing’ of them.

What are Feminist Approaches to International Law? Old Question, New Answers

Revisiting this old question is necessary not to attempt to provide a definition, but to indicate shifts in FtAIL’s perception in the mainstream writings. Some of these approaches include conversations on feminist pedagogy and the visibility of scholars such as myself who espouse a distinct ambivalence towards international law’s masculine format of academe and ‘expertise’. Earlier iterations of FtAIL, through Chinkin, Charlesworth and Wright’s now classic intervention have been around international law’s treatment of the ‘woman question’. From liberal feminisms essentializing to radical feminism’s restructuring, the questions asked were centered around the absence of women in international law and how to best intercept this figure as an essentialized legal subject. This narrative took a turn for a certain form of contingency with transnational and post-colonial feminism calling attention to extremely differential conditions and forms of alliances for women of the Global South. Their interactions led to two things. The first was the formation of an ensemble feminism that seems to espouse some characteristics of post-colonial criticality while reposing faith in liberal feminism and mainstream international law in a particular way. Pedagogically, I call this the turn of didactic discomfort.

The second has been a contemporary and assertive call to center feminisms that emerged parallelly, marginally and somewhat apposite to the mainstream narrative of feminism and previous feminist positions in international law. In this account, if ‘woman’ was a multifaceted, socially produced category, then FtAIL became a structural (and structured) critique of international law’s institutions and practices with special focus on questions of labour, land ownership, and legal subjecthood as sites of analytical and prescriptive enquiries. This approach uses female subjecthood and subjection to analyse the ways in which international law produces and sustains structural inequalities and ways to subvert them. In moving away from the gender question to the colonial gendering question FtAIL became a heuristic that implicates and benefits everything and everyone rather than the previously presumed“women speaking about women”paradigm. This, I note as the pedagogical turn to entanglements.

While the turn to didactic discomfort has led to academic deconstructions of the category of women and an effort to provincialize dominant feminist approaches, the turn to entanglements have led to epistemological questions around structures and praxis of international law and its knowledge systems. Both of these can be presented through ideas of relationship politics and relationship making where we give form to discomforts and epistemic alterities by examining relationships between institutions, others and selves.  In the following section, I employ these two pedagogical approaches to think about international law differently, as an idea of relational politics through a) its teaching and b) knowledge production and sites of knowledge.

Some ways of doing FtAIL: Relational Politics and Relationship Making in International law

There are many ways to do feminisms and FtAIL and none of them are/should be prescriptive in an inflexible way. The ones I discuss below centre academia and teaching as sites of dialogic praxis. Using the two pedagogical turns stated above, I offer certain feminist interventions that ask us to turn the gaze on ourselves as agents of international law and then, to contemplate it as a project, where we co-constitute its elements and (are compelled to) move as an interconnected unit rather than disparate features and systems. A unit, where excesses are coded into structures that sustain inequalities and imbalances.

FtAIL as a relational project in teaching

Through this approach, teaching is foregrounded as a social process with social actors, where the teaching and teachers of international law embody differential politics as well.  The core requirement is twofold – first, to turn the gaze on ourselves as knowledge interlocutors occupying striated positions, so that we can recognize where we are placed in relation to institutional knowledge making. Accordingly, we locate ourselves as social actors in the process of teaching international law where we may or may not find ourselves reflected in the discipline. And second, we subject the teaching itself to uncover similar relational arrangements. Moving away from the mainstream international law’s traditional depiction of itself as ‘regulations that govern states’, this feminist approach is grounded in identifying and teaching the various relationships that under-gird the international legal project. In contradistinction to the theories of statehood and sources of law, the basis of this approach is drawing out and examining the different forms of relationships in international law. For instance, is there a relationship of continuity between Eurocentric sovereignty and post-colonial sovereignty? What is the arrangement of power between the sovereign states and its various subjects? What are the linkages between human rights and the neoliberal market? Are sources of international law distinct from the states that make them?

Let us unpack two such arrangements transversally and conceptually. Transversal, in this instance, is apprehending existing ideas of international law with critique but not disregarding them. Teaching a feminist account of sovereignty could entail a relational study of how the European sovereign state (and its post-colonial successor) securitize law to set normative notions of heterosexual relationships and family. For instance, the Women Peace and Security Resolution 1325 can be taught through exploring the forms and roles of womanhood it assumes in relation to the roles played by women in public and private places. Its emphasis on sexual vulnerability can also be contemplated in relation to other forms of gendered structural vulnerabilities such as labour, land ownership, recognition that do not feature in the ‘woman question’. The relationship between securitization and other forms of non-state interventions to address crisis can also be examined in relation to this paradigm. Similarly, the teaching of sources of international law could be approached by analyzing how the colonial distinction is written into formal and informal sources of customary international law. Once the coding is made visible, we are also able to notice how the binaries of formal and informal sources are identical to feminist analysis of international law’s false binary of public and private distinctions; a relationship between who is erasing and what is erased.

In more conceptual forms, these could be reimagining the relationship between law and imaginations of land as property at the site of women’ tenuous relationship to land ownership. For instance, through indigenous iterations of land and law as cosmic artefacts that ‘own’ humans, we can move away from notions of hierarchical ownership as well as exploitative behaviour towards land. By challenging international law’s core element of territorial sovereignty as simply an idea in relation to many others, we can soften the fear that arises from ceremonial narratives of state power and law power and other such imperatives. When taught in this manner, international law becomes a charged, fragile project of hierarchical relationships instead of a transcendental truth, making its own myth of contingency invisible. Most importantly, in this form of teaching, we are able to see ourselves as active agents (individually and collectively) in a living social process as opposed to distantly studying institutions that seem far beyond our reach. The emphasis on relational politics also allows us to imagine new relationships and generative accounts of law, beyond the mainstream.

FtAIL as a Relational Project in Knowledge Making

While knowledge making and pedagogy are not distinct enterprises, the notion of knowledge extends beyond classrooms, texts, and institutional legacies of expertise. Much like teaching, the relational politics and relationship making approach helps us make paradigm shifts in registers of traditional and non-traditional knowledge. In knowledge making, one of our biggest discomforts has been to engage seriously with knowledge that is not defined as “scientific” in relation to European Enlightenment. In international law, this impulse tends to pathologize law/law-making that is not Eurocentric, black letter or positivist. The relational politics paradigm, when applied to different ideas of law and law-making can serve to unmask the processes that legitimizes Eurocentric law at the expense of others. It can help discern our tendencies to assume that knowledge produced ‘from whiteness’ is better than knowledge produced elsewhere. Similarly, it can help interrogate the relationship between textual, sensory, and somatic forms of knowledge in law making/performing – in asking us to think of law as something that happens to us in places outside of courts and statutes. Through our fear of immigration policies, our right to work as foreign nationals, our instinct to differentiate between European refugees and ‘others’ and our conflicted relationship to human rights as an emancipatory project.

Within institutionalised academia, the relational approach can highlight how the myth of the individual knowledge producing European male academic sustains itself on the invisible and collaborative labour of other colleagues (not white and/or male) as well as within their own domestic spheres of everyday. In the former, an interrogation of these ‘experts’ of international law has material bearing on where its institutions go looking for expertise. For instance, a deconstruction of what constitutes highly qualified publicists under Article 38(d) of the ICJ statue. Similarly, by unpacking the relationship between a scholar’s identity and the declaration (or lack thereof) of positionality, it is possible to decentralise ideas that impose themselves as universal from such places. Outside of institutional knowledge making, relational politics carries even greater disruptive possibilities. Recognising the relationships between domestic labour, the conditions it facilitates for neoliberal knowledge economy and the knowledge economy itself can be a long-term critical project to interrogate knowledge itself. The conditions that facilitate such knowledge production carry within themselves other ways of knowing. For instance, much like the food made for me nourishes me to be able to produce this text, the ecosystem of making this food, however minute within the sphere of my home, is an equally potent epistemological premise. The latter does not just enable the former, it is a core way to experience international law’s mechanics of regulating domestic labour and organising against it.

Epilogue

In the reflections above, I highlight some of the possibilities of FtAIL as an extensive pedagogic process. And true to its ethos, I end with a call to embrace a version of FtAIL, in which we meaningfully collaborate by recognising our existing relational configurations and making new ones to disrupt some of them. And if we are unable to do either, we should make space for others who can.

 

Author’s note: This text, like all my other work, is a product of collaborative thinking and collaborative labour from different quarters. Ideas do not belong to individuals and neither do their textual representations. 

Author
Rohini Sen

Rohini Sen is an Assistant Professor at the Jindal Global Law School, O.P Jindal Global University and is pursuing her PhD from the School of Law, University of Warwick as a Chancellor’s Scholar. Rohini’s broad research interests are Critical Approaches to International Law (CAIL), critical pedagogy, queer feminist methods and approaches, decolonial and post-colonial theories and porous intersections of law and social sciences.

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2 Comments
  1. After reading the article, I am surprised at the noble garb in which soft sexism can be disguised these days. As a (male) student, concepts such as freedom of teaching or intellectual property were present in my mind from the very beginning. Things that I consider essential in a society.
    Basically, it shines through that the male teaching of the IPL is the problem. There are references here and there to male experts, of course, the expert only in quotes. But what is the the male way of teaching IPL? After all, aren’t experts just experts because of their environment and the sources of knowledge that surround them? Doesn’t that make their idea ours, considering that those around them have also been influenced by others, and possibly by ourselves?
    A nice view, didn’t I have a part in the treaties of Lisbon? – In any case, I was already born then.

    • I am not sure I understand this comment in entirety, however, it seems to make two broad points on a) ideas of pre-existing concepts such as academic freedom, intellectual property etc and b) the “naturally” constructed notion of expertise. Both of these are assumptions, at best, and have been extensively discussed in feminist approaches, decolonial thinking and other critical interventions.

      Given the scope and limit of a blog post, one cannot speak to any of these things at length. However, here are two reading lists that are good primers on how to questions such assumptions:

      1. A reading list I recommend to anyone looking to learn about feminist approaches: https://internationallawandtheglobalsouth.com/rohini-sens-reading-list-feminist-approaches-to-international-law/

      2. This is an illuminating reading list on the erroneous construction of knowledge and authorship as an individual endeavour https://case.edu/affil/sce/authorship/syllabus.html

      If after engaging with all these ideas in good faith the questions and observations remain, then, perhaps we can take it from there.

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