How “gendered” is the international Law? Feminist critiques of the international legal system

Written by Avril Chanel

Law is commonly believed to be an autonomous and objective entity, distinct from the society it regulates. In reality, the political, economical, and social context cannot be separated from the legal system. Societal phenomena such as gender inequality influence the different branches of law, its actors, principles, and norms. Although perceived to be based on universal and moral values, international law is not exempt from gender bias. It is a male-dominated field that perpetuates the unequal position of women in the world. States, the primary subjects of the international legal system, and international organisations, are represented mainly by men. As a result, women’s needs, such as the prosecution of gender-based violence, are undermined by international law.

The masculine structure of the international legal system

International law is traditionally defined as the body of legal rules, customs and principles that apply between sovereign states. A state is considered as such when it possesses a permanent population, a defined territory, a government, and the capacity to enter into relations with other nations. Feminist theorists have criticized this definition which is entirely neutral to the conduct of the state^[1]BROOKS Rosa, “Feminism and International Law: An Opportunity for Transformation”, Yale Journal of Law and Feminism, Vol. 14, 2002, p. 349, URL: … Continue reading. A state could deny fundamental human rights to its population and still be considered as sovereign and allowed to maintain relationships with other nations. Saudi Arabia, for instance, is a Member state of the United Nations (UN) even though it violated women’s basic political rights by denying them the right to vote until the 2015 elections, and by still restricting this capacity with barriers including holding an identity card and conservative social pressure.

States, and increasingly international organisations, are the primary architects of the international legal system, by making, executing, applying law. However, women are either unrepresented or underrepresented inside these arenas. In 2021, 22 women were serving as heads of state and/or government, out of 193 states recognized by the UN^[2]Inter-Parliamentary Union and UN Entity for Gender Equality and the Empowerment of Women (UN Women), “Women in Politics: 2021”, 10 March 2021, URL: … Continue reading. At the global level, women accounted for 21.9% of ministers^[3]Ibid. 53 states had women speakers of parliaments and 25.5% of all parliamentarians were women^[4]Ibid.. In contrast, international organisations are making more of an effort to include women. For example, in 2019, 49.5% of staff at headquarters of the UN and its agencies were women, and 41.2% in non-headquarters^[5]UN Entity for Gender Equality and the Empowerment of Women (UN Women) and UN General Assembly, “Improvement in the status of women in the United Nations system”, 1 July 2021, URL: … Continue reading. Nevertheless, a “persistent inverse relationship continues between the representation of women and seniority – as grade levels increase, the proportion of women decreases^[6]Ibid.”.

Organisations focused entirely on the creation and application of international law are no exception in terms of the over-representation of men. In 2018, women represented 25% of the judges of international courts^[7]PILLAI Priya, “Women in International Law: A Vanishing Act?”, Opinio Juris, 3 December 2018, URL: http://opiniojuris.org/2018/12/03/women-in-international-law-a-vanishing-act/. One of the most important institutions in the development of international law, the International Law Commission, has seven women out of 229 members^[8]Ibid.. Alongside these depressing figures, women lawyers such as Rachel Saloom have complained that they are not always well received in the field of international law^[9]SALOOM Rachel, “A Feminist Inquiry into International Law and International Relations”, Roger Williams University Law Review, Vol. 12, Iss. 1, 2006, p. 172, URL: … Continue reading. Their research is often met with scepticism and their theories are rarely applied to the international system. Professor Roland Bleiker talks about “doorkeepers” who determine which theories are deemed acceptable by a society and “make sure that the discipline’s discursive boundaries remain intact^[10]BLEIKER Roland, “Forget IR Theory”, Alternatives: Global, Local, Political, Vol. 22, No. 1, Jan.-Mar. 1997, p. 63, URL: https://www.academia.edu/6476636/Forget_IR_Theory”. When feminist lawyers try to demonstrate the gendered aspects of international law or the way it perpetuates the unequal position of women, the doorkeepers quickly exclude them from the field. Thus, the international legal system is predominantly male-led and reproduces the patriarchal society found inside states. As a result, the content of international law is gendered, with issues that traditionally concern men being seen as general human matters, while “women’s issues” are silenced or relegated to a special category.

The invisibilisation of “women’s needs” under international law

Historically, international law only governed relations between states such as the use of force, trade, or diplomacy. Since 1945, this theory has gradually expanded to include individuals, with the emergence of international human rights law such as the Universal Declaration of Human Rights (UDHR, entry into force in 1948). After the Holocaust, states agreed that sovereignty had its limits and a state’s actions inside its territory could concern the international community. Although this was a breakthrough in the field, legal scholars such as Rosa Brooks have argued that the most prevalent forms of female injury and oppression are invisibilised by international law^[11]BROOKS Rosa, “Feminism and International Law: An Opportunity for Transformation”, Yale Journal of Law and Feminism, Vol. 14, 2002, p. 349, URL: … Continue reading.

The responsibility of a state arises when an act or omission is attributable to it under international law and when that conduct constitutes a breach of its international obligations. However, most crimes against women, such as gender-based violence or sex trafficking, are not usually caused by a state actor. Such acts are considered to be internal affairs of the state and the international community cannot interfere under the principle of non-intervention. Law professor Frances Olsen argues that this principle bears a striking resemblance to the protection of the “private” sphere of family from state regulation^[12]OLSEN Frances, “International Law: Feminist Critiques of the Public/Private Distinction”, Studies in Transnational Legal Policy, Vol. 25, 1993, p. 160, URL: … Continue reading. There is a universal pattern of identifying women’s concerns as private, therefore of lesser value, and immune to legal protection, whether at national or international level.

Under the right to development, for instance, aid organisations frequently omit the domestic work accomplished by women thus excluding them from these programs. Another example of this detrimental dichotomy is the importance granted to civil and political rights as opposed to social, economic, and cultural rights. For women, the second category is generally more important but is more of a “private” concern and difficult to implement. For instance, if you live in an abusive family, you may not be interested in your right to vote. The international community has long resisted putting these two types of rights on an equal footing.

Moreover, certain states have a history of blocking international organisations’ decisions related to women’s needs. For example, the UN General Assembly resolution A/RES/68/181 on women human rights defenders was adopted at the expense of any reference to the risks faced by those working on sexual and reproductive health issues^[13]OPENSHAW Eleanor, “UN adopts landmark resolution on Protecting Women Human Rights Defenders”, International Service for Human Rights, 28 November 2013, URL: … Continue reading. Another crucial paragraph was removed, calling on states to refrain from invoking custom, tradition, or religious consideration to avoid obligations related to the elimination of violence against women^[14]Ibid.. Thus, feminist legal theorists argue that the actions and inactions of the international community are gendered and perpetuate the marginalization of women and their needs^[15]SALOOM Rachel, “A Feminist Inquiry into International Law and International Relations”, Roger Williams University Law Review, Vol. 12, Iss. 1, 2006, p. 164, URL: … Continue reading. The situation is unlikely to change until women are properly represented in international law circles, but there is still work to be done in this respect, considering the figures presented earlier.

Recent legal developments and persistent structural barriers

There are some positive changes to be noted over the last thirty years. Feminist lawyers have begun to challenge the public-private dichotomy notably by arguing that typical female harm such as sex trafficking must be part of international human rights law^[16]BROOKS Rosa, “Feminism and International Law: An Opportunity for Transformation”, Yale Journal of Law and Feminism, Vol. 14, 2002, p. 352, URL: … Continue reading. Their argument is based on the fact that violence against women is possible when state structures encourage, tolerate, or consistently fail to remedy it. In other words, the definition of state inaction must be expanded to recognize deliberate passivity in order for gender-based violence that affect women to appear. These legal developments include for example the inclusion of rape as an international crime by international criminal tribunals or the increasing responsibility of non-state actors for violations of human rights law. The UN Human Rights Council has also appointed relevant independent experts to report and advise, inter alia, on “violence against women and girls, its causes and consequences” and on “the trafficking in persons, especially women and children” . Another recent example is the creation of the UN Entity for Gender Equality and the Empowerment of Women by the UN General Assembly in 2010. However, like all international organisations, they do not have the power to take legally binding decisions without the approval of all Member states.

This article could not omit to discuss women’s rights protected by treaties such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, entry into force 1981) and the more recent Convention on Preventing and Combating Violence against Women and Domestic Violence (“Istanbul Convention”, entry into force 2014). The principle of state sovereignty has limited the ability of these treaties to affect the situation of women. States have made a number of reservations modifying or excluding the legal effect of certain provisions of the CEDAW, which are the subject of much debate (e.g., Article 16, concerning the equality of women in marriage and family life, is subject to over 20 reservations^[17]Amnesty International, “Reservations to the Convention on the Elemination of All Forms of Discrimination against Women: Weakening the protection of women from violence in the Middle East and North … Continue reading). It can also be noted that states such as the United States of America have not ratified the CEDAW and Turkey has recently withdrawn from the Istanbul Convention. According to international law professors, Hilary Charlesworth, Christine Chinkin, and Shelley Wright, these examples show that “the international community is prepared to formally acknowledge the considerable problems of inequality faced by women, but only, it seems, if individual states are not required as a result to alter patriarchal practices that subordinate women^[18]CHARLESWORTH Hilary, CHINKIN Christine and WRIGHT Shelley, “Feminist Approaches to International Law”, The American Journal of International Law, Vol. 85, No. 4, 1991, p. 633, URL: … Continue reading”. Progress is seen through goodwill, education and changing attitudes rather than structural, social, or economic change for women.

International law has also been challenged by the Global South as a product of colonialism, particularly because of its European origins and its use to justify colonies. Hence, non-Western women face the burden of both colonial and patriarchal rules of international law. In addition, Northern feminists often ignore or misunderstand the demands of their Southern counterparts, thus contributing to their double marginalisation. Living as a woman in the Global South is not the same as living in the Global North. For example, what could a group of privileged white women lawyers have in common with women under the Taliban rule? Nevertheless, feminists around the world, though unevenly resourced, share a common goal of dismantling patriarchy. They must challenge the structures that exclude their voices and permit male domination, although the structures may differ from society to society.

Towards a feminist and decolonial international law

As it stands, international law cannot be separated from its social context, and is therefore a gendered and patriarchal field. Despite weak developments, the international legal order, governed mainly by states and international organisations, remains controlled by men. Consequently, the content of international law reflects male perspectives, ensuring their dominance and perpetuating the unequal position of half of humanity. The international legal system is a replication of the national apparatus as illustrated by the public-private dichotomy which renders women’s needs invisible at both levels. Even international organisations or conventions on women’s rights, which are considered to advance progressist causes, fail to change the current reality. Structural barriers persist and can be combined with other exploitative practices, especially for women in the Global South who are doubly constrained by colonial and patriarchal rules of international law. As long as the world is gendered, international law will not be free of gender bias.

To quote this article: Avril Chanel, How “gendered” is international law? Feminist critiques of the international legal system, 23.12.2022, Gender in Geopolitics Institute.

The statements in this article are the sole responsibility of the author