2. An introduction to the volume

The volume contains 15 contributions written by 13 authors who participated in a seminar held at the Oñati International Institute for the Sociology of Law. Together, these authors present well-argued accounts of how both international law as such and feminism and international law in particular have developed over the past decades, academically and in practice.Footnote ⁴ They give an overview of the most pressing current debates in the field, show how new theoretical and practical challenges have popped up in the post-9/11 era, and propose possible future aims and methods for feminist engagements with international law. The papers are organized in three parts which deal with feminist perspectives on (i) theory and method, (ii) national and international security and (iii) global and local justice. Each part is separately introduced, showing the red threads within them and the connections between the contributions.

In the introduction, the editors clarify the main theme of the collection of papers: where does feminism and international law stand in the post-9/11 era? They situate the topic or field of legal studies somewhere ‘between resistance and compliance’. This characterization of the position of feminism and international law is also expressed in the subtitle of the volume. As summarized by Alice Edwards, this location of feminism in relation to international law means that there are two options:

For anyone who wants to start reading about feminism and international law it is recommendable to first study the section in the introduction, where ‘Three Decades of Feminist Scholarship on International Law’ are neatly summarized, including references to the most important literature in the field. From this overview it becomes clear that within feminism and international law there has been a certain specialization since the early 1990s between feminists’ engagements with international humanitarian law, with international criminal law, and with international human rights law. In all these areas, feminism and international law has

What binds all feminism-and-law enterprises is the fact that they direct their (scholarly and activist) work at three aspects of law: (a) the structure and content of legal norms, (b) the legal procedures and structures, including the lack of the presence of women therein, and (c) the (dominant) academic or scholarly discourse(s) about content and functioning of law. Although the vastness of the literature and the comprehensiveness of the field may be scary to anyone who starts afresh, having such an overview is really necessary to appreciate what this book has to offer in addition to all that has been done thus far: on what theorizing and practical experiences does it build and what new issues are raised or questions asked?

3. Feminist perspectives on theory and method

Part I contains three contributions on the theory and method of feminism and international law. For a start, there is a piece on feminist scholarship in international law by Hilary Charlesworth, one of the founders of feminism and international law in the early 1990s.Footnote ⁷ This work at that time invoked fierce negative reactions from the mainstream academic world.Footnote ⁸ It is clear that Charlesworth is very pessimistic about what has been achieved thus far. Even in the first sentence of her contribution, she complains that feminists’ (academic) approaches to international law are still marginalized: ‘feminist scholarship in international law has generated debates between feminists, but little engagement from the disciplinary mainstream’.Footnote ⁹ The relationship between feminism and the mainstream remains problematic:

Although not addressing this issue directly and in an empirical – fact-based – way, her estimation of the effects of feminists’ engagements in the practice of international law (or international institutions) are similarly pessimistic:

The editors of the book have a somewhat more positive view on the gains of feminist perspectives on international law and feminism's actual engagement with this area of law, but also clearly see the limits of this engagement:

In fact, Charlesworth's contribution is only halfway purely theoretical. After she has commented on the (internal) feminist discussions about theory and method of feminism and feminism and law,Footnote ¹³ she discusses the difficulties of positioning feminism between resistance and compliance in the context of state-building and democratization processes. Interestingly, at that point she signals a partial acceptance of feminist messages in international law (such as women's equality), but no acceptance of feminist methods (such as world travelling). Nevertheless, the paper does not end altogether pessimistically. It presupposes that feminism's engagement with international law can contribute precisely to this project of establishing a better connection between feminist messages and methods in order to really contribute ‘to real and necessary social change’.Footnote ¹⁴

The two other contributions in this first part investigate feminist perspectives on international law's potentialities at a much more abstract and theoretical level. Yoriko Ottomo deals with the construction of a discursive field in international law and international relations around concepts such as war, revolution, terror, and sovereign subjectivity. For each of these concepts, the question arises whether the way in which they are understood and applied is closed, or whether there is any space left for a different, even feminist, understanding and application of them. In her search for this space, Ottomo relies on materials that she derives from French psychoanalysis and (related) feminist theorizing. For me, the distance to (possible) feminists’ actual engagements with international law became rather wide, certainly when I read conclusions like: ‘To summarise, feminist critiques of psychoanalysis are helpful for revealing the fraternal structuration of states and making explicit the operation of sacrifice and violence within the state structure’.Footnote ¹⁵ In what way helpful? However, Ottomo herself appears to be the first to admit to the limited applicability of this theoretical work, where she writes that indeed it is questionable whether these theories can be applied in the context of international relations and international law.Footnote ¹⁶

The notions of space, spatiality, and location are also prominent in the contribution of Zoe Pearson.Footnote ¹⁷ Having stated that feminism's engagement with international law is mainly focused on international law's normative dimension, Pearson states that this project remains trapped in the restrictive structures of international law. She then argues that the attention of feminists should go to the where of international law and extensively explains the theoretical development of a feminist geography. Are there any locations in international law that offer space for change? As an example, Pearson describes the discussions that currently take place between ‘diversity and difference’ and argues that feminists should seek the spaces for setting up ‘a real dialogue process of interaction between different actors (or spaces) for managing and facilitating plurality in international law’.Footnote ¹⁸

The positive side of these contributions is that they are optimistic: however oppressive the male paradigm or discourse on international law may be, this feminist scholarship presupposes that it is not completely hegemonic. There are spaces or places that can be filled with feminist or female values, experiences, or perspectives. For example, Yoriko Ottomo argues that:

In a similar vein, Pearson highlights ‘opportunities of feminist analysis and critique to engage with such spaces as part of a resistive approach aimed at transcending the hegemonic binaries inherent in international law’.Footnote ²⁰ Nevertheless, the highly abstract character of her contribution to the volume makes it difficult to see how exactly these opportunities could materialize in the context of concrete feminist engagements with international law, be it scholarly in the setting of academic research and teaching, or in the context of their work while ‘marching through the institutions’.Footnote ²¹

4. Feminist perspectives on national and international security

The second part of the book is about contemporary, post-9/11, developments in international relations and international law that can be captured under the heading of fighting terrorism and securing safety, and feminists’ (possible) reactions to these developments. It contains contributions by Diana Otto,Footnote ²² Julie Mertus,Footnote ²³ and Maria Grahn-Farley.Footnote ²⁴ Each of these authors is very troubled by what is going on in the world, but also with what is going on in feminism. At the heart of each of these contribution lies, as Anna Grear writes it in her introduction to this part, a deep concern for the ‘colonisation of certain emancipatory feminist projects and agendas by the crisis-driven post 9/11 international legal discourse’.Footnote ²⁵ Feminists have not always kept on a feminist track, i.e. they sometimes have succumbed to crisis-talk and the subsequent actions of states and international organizations, even going as far as starting a war (against terrorism) in the name of saving oppressed women (in Afghanistan and Iraq).Footnote ²⁶ Dianna Otto's warning in that regard must be taken very seriously, not only by feminists but by anyone who wants to safe-keep fundamental standards of human rights in such times, pointing to ‘the problem that we all too readily fall into the trap of thinking that nuanced political and legal thinking must be sacrificed at times of crisis’.Footnote ²⁷ Does crisis-talk as such silence all critical voices, or is it still possible in such times ‘to seize the legal ground without simultaneously being imprisoned within it?’Footnote ²⁸ The contributions in this part clearly show that feminism – in as far as it indeed has put a foot on the ground – is in a feeble and shaky position: all of the gains of the past decades can easily be swept away when a crisis occurs and emergency rule takes over. The papers are so rich and thought-provoking that I do not even attempt to summarize them here.Footnote ²⁹ They each are critical (of international law) and self-critical (of feminism and international law) at the same time, showing how difficult it is in turbulent and urgent times, when the world's safety seems to be at stake, to stick to an independent and critical perspective, as legal scholars, as activists, and as feminists.

5. Feminist perspectives on global and local justice

The third part of the volume concentrates on issues concerning global and local justice and offers the most concrete examples of what feminists’ theoretical and methodological contributions to international law may have to offer to the development of international law as such, as well as to women. Apart from an introduction by Alice Edwards,Footnote ³⁰ it contains four papers: by Vasuki Nesiah about gender and transnational justice;Footnote ³¹ by Sari Kouvo about state building and gender in Afghanistan;Footnote ³² by Ulrika Andersson about trafficking in human beings;Footnote ³³ and by Dania Thomas about women workers’ takeovers and economic governance.Footnote ³⁴ Again, a summary of these contributions would not do justice to them. What remains of these articles in my memory is a feeling of a constant swinging between hope and despair. They show that indeed a thorough gender analysis of women's position is both necessary and possible and can indeed contribute to projects that bring more justice on the local and global levels; but at the same time they show the fragility of such feminist projects. They expose the big powers, be it state-political, military, or economic, to which we are subjected or subjugated and which cannot simply be corrected (by means of including a gender perspective) or changed (by means of adopting more international legal standards), let alone overthrown. The book, in that sense, ends in a rather pessimistic tone, where Diana Thomas on the one hand presents an example of women who take over their means of subsistence and thus gain a autonomy, but on the other hand shows how fragile their position is in the light of a state that uses civil law and all other possible means to support big capitalism.

6. Between resistance and compliance? Neatly staying within the boundaries of law?

The book under review in many places shows a deep ambivalence towards feminism and international law. The authors who have contributed to it on the one hand are proud of what has been achieved so far (in terms of both theoretical insights and actual changes in the normative and institutional framework of international law), but on the other hand are deeply frustrated about the continued marginalization of feminist legal scholars and scholarship. Or as Vanessa Munro expresses it, there is ‘frustration at the impenetrability of the discourses of knowledge and the structures of power to which the authors believe feminists have failed to secure access in international law’.Footnote ³⁵

Apart from this hovering between proudness and frustration, there is a second (probably related) hovering, or a search for a more stable position, which is expressed in the volume's subtitle: feminism and international law is situated somewhere ‘Between Resistance and Compliance’. Given feminism and law's double role of; on the one hand, criticizing law's contribution to the oppression or exclusion of women and its contribution to the construction of fixed and subordinated female gender roles or identities; and, on the other hand, the expectation that law can be reformed and can play a role in liberating or emancipating women, feminism and law has a really difficult job in finding a place between on the one side rejecting or resisting law, and on the other side compliance with law. Modern feminist engagement with international law is supposedly always situated somewhere along this spectrum. Or, as Kouvo and Pearson have described this position in their introduction:

Finding a renewed position between resistance and compliance, given the new world order after the 9/11 events, in which security has become the dominant paradigm in international relations, is the central theme of the book. Another pressing reason to reconsider the position between these two positions is the continuing critique of some outsider-feminists who do not engage with international law; for example minority and post-colonial feminists, who argue that ‘feminist scholarship on international law runs the risk of reproducing old themes of “white women saving black women from black men”’.Footnote ³⁷ Or that ‘feminism, by focussing primarily on the category of gender, misses opportunities to challenge, and runs the risk of facilitating, other global-scale inequalities and injustices’.Footnote ³⁸

The dilemma described here is as old as feminism and (international) law itself.Footnote ³⁹ Feminism and law is always in a position of resistance, i.e. of being critical, not accepting law as it stands or operates; but in the end it cannot avoid compliance because it is not really (aiming to be) subvertive, i.e., not really radical in the sense of questioning its core foundations, or – even more radical – overthrowing that very legal system. Or, as Karen Engle put it in 1992, feminist lawyers can work at the periphery of law, deconstructing the maleness of it and reconstructing an international law that does not support men's oppression of women,Footnote ⁴⁰ but they can only succeed when they save the core values and structures of that system. ‘No matter how hard we push on the core, though, we never attack its essence. We are afraid that if we push too hard, it might dissolve and become useless to us’.Footnote ⁴¹ Perhaps Engle here is overestimating the power of feminist lawyers: that, if only they pushed hard enough, they could indeed subvert international law, i.e. overthrow it, replace it with a revolutionary new system of norms and institutions that are truly feminist. Nevertheless, Engle, like everybody else, does not really consider the option of taking a break from law, i.e. of leaving law to itself, and engage – as a feminist – with different social or economic systems or with no system at all.Footnote ⁴²

The editors acknowledge that ‘no resistance comes without compliance’.Footnote ⁴³ That is, every act of resisting international law already includes the acceptance of its very existence. In other words: it is impossible to be radical or revolutionary. In fact, I think that stance is a bit too pessimistic. I therefore prefer the way in which Yoriko Ottomo rethinks and rephrases this dilemma:

7. Some notes on the internal character of the debates

So far, I have shown much enthusiasm for this book. On the downside, it has to be mentioned that its content, however rich and interesting, may be rather overwhelming and confusing, especially for readers who are not really familiar with feminism and law and its position in the field, as well as in relation to the women of the world. In other words: for those who are not already into feminism and international law, the material may be rather hard to crack. The contributors all are (sometimes explicitly, but mostly implicitly) in discussion with mainstream international law(yers), with differing or conflicting feminist approaches to international law, and with critiques from feminists who deliberately keep outside the domain of feminism and international law.Footnote ⁴⁵ In the book the first two discussions prevail. On the one hand feminist lawyers experience a constant struggle to get the attention of the dominant actors or commentators in the field;Footnote ⁴⁶ on the other hand there exists a fierce and principled internal debate about the right or correct feminist approach(es) to international law and the benefits and/or wrongs that these might produce. Feminism and international law has indeed become increasingly self-contained.Footnote ⁴⁷

Typical of the mainly self-reflective character of many of the feminist contributions to international-law scholarship and practice are the questions that are raised in the introduction to Kouvo and Pearson's volume:

These questions all centralize the content and position of feminist scholarship or activism in international law. Instead of asking questions like: where do the women of the world stand nowadays? What are their problems, needs, desires, and concerns and in what way do these ‘women's issues’ relate to law? Are they caused by laws or legal constructions or legal norms and institutions as they stand, or by the lack of them? Are they solvable by different or better or more feminist legal norms and constructions? By its mainly internal focus, feminism and international law has drifted away a long stretch from the starting point of women-and-law scholarship, as developed in the 1980s, for example in the Scandinavian women-and-law movement, which centred on such questions.Footnote ⁴⁹ Possibly (and probably?) these – often highly principled and fierce – internal debates make feminists’ contributions to academic publications about international law rather unattractive for those who are not into it. And possibly, these debates also had the effect that several feminist academics of the first hour have turned their back on feminism and/or to international law.Footnote ⁵⁰

In line with this internal orientation, feminism and international law is increasingly self-critical. This is described by the editors of the volume, where they note that this development towards scepticism and self-criticism continued in the first decade of the twenty-first century, ‘asking if and how feminism has really had an effect on international law and how international law has affected feminism’. They conclude that in that period

This self-criticism, however, is not a reason for feminism and international law to take a break from this mainly internal perspective, ‘rather it is what fuels continued feminist debate’.Footnote ⁵¹

8. Take a break from feminism and/or from feminism and international law?

The authors who contributed to the volume under review are particularly in discussion with three rather radical critiques of feminism and international law: that of Karen EngleFootnote ⁵² and Radna Kapur,Footnote ⁵³ and that of Janet Halley.Footnote ⁵⁴ Both Engle and Kapur have dared to investigate the possibility that – in spite of all good intentions – feminists’ engagement with international law, and (in that context) their focus on sexual violence, trafficking for sexual purposes, and, in particular, rape in a situation of armed conflict, may have added to the stereotyped image or position of a woman equalling a victim. But also that the inclusion of these crimes into the (international) legal system has done nothing to really challenge that system: ‘Women's rights claims based on sexual violence are forcing women into a regulatory apparatus that simply reinforces assumptions of gender, sexuality and culture. There is no challenge to the normative underpinnings’.Footnote ⁵⁵ In fact, Engle and Kapur both conclude that feminists’ involvement with international law can never challenge its core structure. With that, they doubt the potential for real resistance, something in which most authors of the volume still like to believe.

Janet Halley's critique is even more radical, stating that the very essence of feminism may be based on a false presumption, namely that (all) women by reason of the oppressive nature of predominant heterosexual relations between the two sexes are or will always be oppressed by (all) men.Footnote ⁵⁶ Halley's formula, in which she summarizes the essence of any kind of feminism in two basic elements,Footnote ⁵⁷ has become quite famous and has been much cited since she presented it. It runs as follows:

Charlesworth names Janet Halley's characterization of feminism an ‘Injury Triad’, consisting of three assumptions: ‘We have assumed the women and men are always in different situations in the international order; that women do always worse than men; and that our task is to insist that women are taken seriously’.Footnote ⁵⁹

Although not really contesting or disagreeing with this characterization of feminism, in the book under review both Hilary Charlesworth and Maria Grahn-Farley openly take a stance against Halley's conclusions concerning the negative effects that the application of (this unmodified) feminism in the area of international law may have.Footnote ⁶⁰ Charlesworth mainly protests against Halley's assertion that feminism has become a really powerful paradigm and has led to ‘Governance Feminism’, i.e. that feminism is running things in the EU and in various international institutions. This is really exaggerating the results of feminists’ interventions, according to Charlesworth. Also, she complains that ‘Halley's focus on MacKinnon as the embodiment of legal feminism overlooks feminist work in law that focuses on specific situations and acknowledges the limits of law’.Footnote ⁶¹

Grahn-Farley's protest is more fundamental; she accuses Halley of doing exactly what international law has always done: i.e. focusing on sex instead of gender and de-contextualizing sexual violence against women from any larger understanding of armed conflict.Footnote ⁶² From my own reading of Halley's work, I have deduced that she is committed to (at least) three standpoints: first, she holds that women's autonomy or agency should always take a central place or be guaranteed; second, she thinks that it is high time that feminists stop seeing sexuality as something that is (always) threatening or bad; third, she is of the opinion that being raped is not a fate worse than death. In other words: feminists should not make rape (in or outside a situation of armed conflict) into the worst thing that can happen in a human being's life. Being killed (like many men are in armed conflicts!) is really death! From this perspective, Halley (inter alia) warns against the construction of a per se prohibition of rape in armed conflict in which the element of consent is obliterated, because it is assumed that being in such a situation is enough evidence of being in a situation of coercion. This negates or excludes any possibility of a woman saying yes to having sex with a man who (officially) is the enemy in that conflict.Footnote ⁶³ In particular Halley's concern for women's agency has a strong appeal. Having a high regard for women's own choices is indeed a feminist stance in my view. This means that women should be empowered to make their own choices and to voice them, and that their voices should be heard. However, according to Grahn-Farley, Halley makes the mistake of leaving the element of power out of her analysis of the situation of women in armed conflict. According to her, Halley takes a wrong and detestable stance, since her ‘project has nothing to do with these invisible women and their excluded voices’ but instead ‘relies on the voice of Mister Kunarac, the man convicted of torture for raping Bosnian women’. She then analyses the (indeed) superficial and incomplete reading of the Kunarac judgement by Halley. Grahn-Farley, it appears, is not only very critical of Halley's method of analysis, but also extremely angry at her. An emotional response that may be understandable, considering the fact that the topic under discussion – rape in a situation of armed conflict – concerns a serious human rights violation for which until recently there was hardly any legal remedy available, but may also prevent seeing the value, and perhaps even the necessity, of rethinking the feminist contribution to criminalizing this particular phenomenon, and asking oneself the question whether indeed – as presumed in most of the feminist work concerning this issue – women are always oppressed by men, that rape is a fate worse than death, and how precisely that position may contribute to inciting that very offence and even to other wars and conflicts. ‘What are the costs of ignoring the ideological discourses that surround rape?’ is what Halley asks, inter alia. And: ‘What are the downsides of ratifying the idea that rape in war is a fate worse than death? Could the special condemnation of rape weaponise it?’Footnote ⁶⁴ These are fundamental and very worrying questions that are rightfully raised by Halley, but disappear behind Grahn-Farley's anger.