The Boundaries of International Law: A Feminist Analysis

Erscheinungsjahr 2000
ISBN: 978-1-929446-07-0
Verlag: Juris

Buch, Englisch, 400 Seiten

The authors’ aim is to deconstruct international law, to investigate the ways in which international law has brushed aside the injustices of women's situations around the world, and to 'redraw the boundaries' of international law so that it responds to these injustices. In mounting their assault, the authors have drawn upon their depth of knowledge of international law and of feminist legal theory and their commitment to equity and justice. By exposing the elements of international law to the clear light of feminist analysis, the authors show that it suffers from defects parallel to those of domestic legal systems. Although in classical theory the subjects of international law (and those most vitally concerned in its content) are states, rather than individuals, international law, as any system of law, is the creation of human beings and its ultimate impact is on individual behavior. Whatever theory is preferred, whether international law is seen as a manifestation of the universal values of natural law or as derived from state practice, whether it is considered as a neutral set of rules impartially applied or as a process of decision-making, international law is influenced by choices between competing values and by policy considerations. Like all legal systems it is based on values and assumptions about how people should live together in society and how organized communities should relate to each other. A recurrent theme in this study is that of the absence of women from the processes of international law, starting with the organs of the state, and extending to the make up of international organizations, international courts and tribunals. It is within the power of states to change this; they have international obligations to promote equality of participation. But state action has not gone much further than their many exhortations to each other to take action on this issue. As a consequence, at least until the arrival of scholars like the present authors, women have been denied the opportunity to contribute to the shaping of international law, its goals and its priorities, The strength of this work is that the authors have used their knowledge of international law to throw new light on its underlying theories and to stimulate new ways of thinking about its traditional concepts. This feminist analysis of international law is an important contribution to the process of change and to the redressing of past wrongs. If it provokes debate and even dissension, its purpose will be well served.

Autoren/Hrsg.

Charlesworth, Hilary

Chinkin, Christine

Inhaltsverzeichnis

Table of Contents

Foreword
Preface
List of abbreviations

1 Women and the international legal system

- Introduction
- Gender and sex
- The global position of women
- International legal responses to the position of women
- The approach of this book

2 Feminist theories and international law

- Introduction
- Theories of international law
- Natural law
- Positivism
- Liberal international legal theory
- The 'New Haven' school
- 'Newstream' theories
- 'Southern' theories of international law
- Feminist theories of law
- Liberal feminism
- Cultural feminism
- Radical feminism
- Post-modern feminism
- Third world feminisms
- Using feminist theories in international law
- Essentialism
- Exploring public/private distinctions in international law
- Conclusion

3 Modes of international law-making

- Introduction
- Sources of international law
- Statute of the ICJ, article 38(1)
- Other sources
- Debates on the sources of international law
- Women's participation in international law-making
- Customary international law and 'soft' law
- General principles of law
- Subsidiary sources of law
- Broadening the sources of law
- NGOs
- International civil society
- Conclusion

4 The law of treaties

- Introduction
- The process of treaty-making
- Treaty negotiation
- NGOs and treaty-making
- Reservations
- Implementation of treaties into domestic law
- Jus cogens
- Treaty termination
- Conclusion

5 The idea of the state

- Introduction
- The concept of statehood in international law
- A permanent population
- Defined territory
- Government
- Capacity to enter into relations with other states
- Jus cogens
- The sex of the state
- Recognition and statehood
- State jurisdiction
- Immunity from jurisdiction
- State responsibility
- Self-determination in international law
- The right to self-determination
- Self-determination and Palestinian women
- Rethinking self-determination
- Recasting the state

6 International institutions

- Introduction
- International inter-governmental institutions
- Women in the UN
- Participation of women
- UN responses
- Sexual harassment
- Women's participation and representation in decision- and policy-making
- Gender mainstreaming
- Conclusion

7 Human rights

- Introduction
- The evolution of human rights law
- Feminist critiques of rights
- Women's rights in international law
- General instruments
- Women-specific instruments
- Inadequacies of human rights law for women
- Marginalisation of women's rights
- Inadequate enforcement and implementation
- The influence of cultural relativism
- The limited understanding of 'equality' in international law
- 'Human' rights as men's rights
- First generation rights
- Second generation rights
- Third generation rights
- Women and human rights law
- Invocation of international rights in national fora
- A complaints mechanism for the Women's Convention
- Gender 'mainstreaming' in human rights treaty bodies
- Conclusion

8 The use of force in international law

- Introduction
- The impact of armed conflict on women
- Rape and sexual violence
- Daily survival
- Changing roles of women in armed conflict
- Women and the use of force
- The use of force under international law
- Self-defence
- Self-determination
- Humanitarian intervention
- Conclusion

9 Peaceful settlement of disputes

- Introduction
- Identification of an international dispute
- Dispute resolution under the UN Charter
- The concept of collective security
- Peace-making
- Peaceful dispute resolution
- 'Alternative' dispute resolution and women
- Women and international dispute resolution
- Peacekeeping
- The scope of peacekeeping
- Peacekeeping: the absence of women
- Legal protection and regulation of peacekeepers
- Preventive diplomacy and peace-building
- Economic sanctions
- Conclusion

10 Redrawing the boundaries of international law

- Introduction
- Women in international criminal law
- Women's participation in the Tribunals
- Jurisdiction of the Tribunals
- International humanitarian law
- Genocide
- Crimes against humanity
- Prosecution policies and judicial interpretation
- Rules of procedure and evidence
- Has international criminal law been transformed?

Conclusion
Bibliography
Table of cases
Table of treaties
Index

Über Autor(innen)

Hilary Charlesworth is Professor of International Law and Director of the Centre for International and Public Law in the Faculty of Law at the Australian National University in Canberra. She was educated at the University of Melbourne (BA, LLB) and Harvard Law School (SJD). She has taught at the Universities of Melbourne and Adelaide, Washington & Lee College of Law and Harvard Law School. She is immediate past President of the Australian and New Zealand Society of International Law and Editor of the Australian Year Book of International Law.

Christine Chinkin is Professor of International Law, London School of Economics. She has degrees in law from the Universities of London, Yale and Sydney. She has held full-time academic posts at the Universities of Oxford, London, New York Law School, the National University of Singapore and the University of Sydney. She has also had visiting appointments in Europe, the United States, Asia, and Australia, including the Foreign Studies University, Beijing, the University of Hong Kong, University of Georgia and the University of Melbourne.