Feminism & Queer Theory

Author: Verena Kahl/Tamsin Paige

Required knowledge: Approaches to International Law History of International Law Beneficial: Women in International Law

Learning objectives: Understanding feminist and queer approaches and their particular relevance for public international law.

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A. Introduction

This chapter serves as an introduction to feminist and queer theory and its particular relevance for capturing the underpinnings of public international law. One of the main goals of this contribution is therefore to point out the added value that feminist and queer approaches to international law as forms of de- and reconstruction contribute to existing schools of thought. To this end, the chapter departs from the male and heterosexual standard and a gender-biased international legal order as the common baseline for queer and feminist deconstruction. By pointing out the commonalities of both feminist and queer theory, the contribution underscores the utility and necessity of a consolidated approach. Common terms and concepts of feminist and queer theory are then connected to some of the manifestations and specific examples of feminist and queer theory in the realm of international law. Nonetheless, this chapter should not be understood as an exhaustive overview of research and practice of queer and feminist approaches to international law. Rather it provides first insights into a school of thought, which serves as a tool of deconstruction that can be applied to each area of public international law.

I. Feminist and Queer Theory as Forms of Deconstruction

Feminist and queer approaches form part of a diverse field of schools of thought, which observe, analyze and criticize public international law from a particular perspective and, coming from this specific theoretical foundation, seek to deconstruct its object of analysis. Deconstruction in this sense can be understood as a never ending process of questioning existing and accepted structures of dominance, which are perceived as objective, neutral or natural. As a result, it reveals the existence of other competing forms of interpretation, alternative views, which have been ignored, overshadowed or suppressed, thereby opening the door to new possibilities and structures. The concept of deconstruction therefore rejects the idea of an absolute truth or natural referent, but rather searches for 'the tensions, the contradictions, the heterogeneity.' In its ability to show pluralities and different options, deconstruction creates space for (ongoing) transformation and reconstruction. With this in mind, '[it] is only through this element of endless analysis, criticism and deconstruction that we can prevent existing structures of dominance from reasserting themselves.' In this regard, feminist and queer theory aims at the deconstruction of a perceived neutral or natural international legal order that rests on a dominating masculine and heterosexual standard.

II. The Male and Heterosexual Standard

Although neither one nor 'the one' feminist and queer approach to international law exists, all of these different approaches in the realm of feminist and queer theory share a common baseline: International law has been predominantly developed and shaped by (white, cis, heterosexual) men and has been built on the assumption that men and masculinity are the (societal) norm. While this norm and, as a consequence, public international law, have largely been perceived as neutral, they neglect all those categories that deviate from this standard. In this sense, it is not just women and femaleness that are excluded as 'the other'. Rather, all deviations relating to sex, gender or sexuality, which are considered as different from or opposed to the norm, eke out a shadowy existence as their perspectives and interests are constantly ignored and bypassed.This includes, but is not reduced to, persons identifying as women, lesbian, homosexual, bisexual, transgender or intersexual, thereby expanding categories of sex, gender and sexuality far beyond a mere binary understanding.

Advanced: Cisgender and transgender

The notion of 'cisgender' refers to persons who feel that their assigned sex at birth conforms with the gender they feel themselves to be. Cisgender is often used as an opposite to the term 'transgender' and is regularly tied to the binary system of biologically anchored categories of women/men and female/male. 'Transgender' in turn refers to persons whose sense of gender identity does not correspond with the sex assigned at birth. Building on this, the term 'cis/het', which is common in queer theory literature, refers to someone who is cisgender and heterosexual.

In essence, public international law, just like domestic law, suffers from a clear gender bias, some of whose manifestations are described further below. This gender bias of international law, elevating the masculine to the norm, functions like a 'veiled representation and projection of a masculine which takes itself as the unquestioned norm, the ideal representative without any idea of the violence that this representational positioning does to its others.'

III. Commonalities of Feminist and Queer Theory

Since international law builds on a masculine and heterosexual standard that is confronted with a great diversity of systematically overlooked deviations, a joint presentation and consideration of feminist and queer approaches to international law is not only a legitimate and useful unification of perspectives in the de- and reconstruction of public international law. Instead, this holistic approach virtually imposes itself in view of common structural experiences of discrimination and injustice. Otherwise, the picture drawn by an analysis of public international law from either a feminist or a queer perspective would remain incomplete. Using a holistic approach does also justice to the principle of intersectionality and may, at least to a certain extent, counteract an oversimplification of categories and distinguishing features, such as male/female or hetero-/homosexual, even if avoiding them completely may not always succeed. In this sense, combining feminist and queer theory also means not to remain 'within the closed fields of these oppositions' and thereby perpetuate the inherent hierarchy, but rather move beyond binary structures.

B. Common Terms and Concepts

I. Sex and Gender

Two main concepts, which are deeply interrelated and essential to feminist and queer theory are 'sex' and 'gender'. The term 'sex', on the one hand, is regularly used to describe biological differences between men and women construed as binary categories related to bodies.

Advanced: Gender binary

The 'gender binary' can be described as a foundational ordering principle used to classify 'human beings into two socially and biologically distinct categories: male assigned persons who are expected to identify as boys and men and perform masculinity; and female assigned persons who are expected to identify as girls and women and perform femininity.'

'Gender', on the other hand, is often used as an opposite term in the way that it describes cultural and social imprinting of distinctions made on the basis of sex.

Advanced: Sex and Gender defined by the Human Rights Commission

Building on the aformentioned distinctions between sex and gender, the Human Rights Commission has contrasted both terms as follows: 'The term "gender" refers to the ways in which roles, attitudes, values and relationships regarding women and men are constructed by all societies all over the world. Therefore, while the sex of a person is determined by nature, the gender of that person is socially constructed.'

With this in mind, the notion of 'gender' has been described as a fluid and unstable concept and is often understood as a rejection of the biological determinism embodied in the concept of 'sex'. It is also used to relativize and break down the dichotomy and binary associated with the (biological) sex and thus to open it up to categories that go beyond woman and man. Gender identity is therefore much more complex due to the 'dynamic relationship between the body and identity which gives rise to multiple possible alignments, which can change over time, or even from moment to moment.' However, the same complexity applies to the oversimplified category of 'sex', as biology itself unveils the existence of a variety of sexes that go far beyond the socially constructed dualism. In addition, the idea that 'sex' is a natural and immutable characteristic has been increasingly challenged, for having constructed, contingent and political dimensions. As a result, the distinction between sex and gender itself has been questioned.

Example for a definiton of gender identity in the field of international human rights law: According to the Inter-American Court of Human Rights gender identity is defined as 'the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth. [...] Thus, [...] recognition of gender identity is necessarily linked to the idea that sex and gender should be perceived as being a part of the constructed identity that is the result of the free and autonomous decision of each person, and without this having to be subject to their genitalia.'

gender identity is “the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth,”so that “recognition of gender identityis necessarily linked to the idea that sex and gender should be perceived as being part of the constructed identity that is the result of the free and autonomous decision of each and without this having to be subject to their genitalia.”

In this spirit, attempts have been made within queer and feminist approaches to denaturalize both sex and gender, assuming that categories of sex and gender do not exist prior to normative discourse and regulation, which is why they 'should both be understood as the effects of performative and reiterative gender norms [...] which materialise, naturalise, regulate, and discipline sexed bodies and identifications.' It follows that the wording itself creates identity. Put in the words of Judith Butler, ‘[t]here is no gender identity behind the expressions of gender; that identity is performatively constituted by the very “expressions” that are said to be its result.’

Example for moving beyond the binary in international law: An example for moving beyond the binary in international law is the Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism from 2009. In his report, Martin Scheinin emphasized that '[g]ender is not synonymous with women but rather encompasses the social constructions that underlie how women’s and men’s roles, functions and responsibilities, including in relation to sexual orientation and gender identity, are defined and understood.'

Despite this intention to show a more inclusive and diverse picture beyond traditional understandings of masculinity and femininity, 'gender' has often been and still is frequently used as a synonym for 'women', also whithin the realm of public international law. A prominent example is the Convention on the Elimination of all forms of Discrimination Against Women, which in its Art. 1 and 5 in particular shows, to begin with, no real distinction between 'sex' and 'gender' at all and furthermore reveals a commitment to the traditional dualism of men/women. As a consequence, the male standard becomes once more the 'normal' standard for every individual, sticking to a gender binary and hierarchy in the realm of an international project whose intention was to endorse the full humanity of women. Such international protection mechanisms where women's experience is only measured against the male standard are much to the detriment of women worldwide, but particularly those of the Global South, reinfocring gender and cultural essentialism through their definition of the female subject as 'victim subject'.

Example for sticking to the sex and gender dualism in the context of CEDAW: Art. 1 CEDAW reads: 'For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.'

Art. 5 CEDAW stipulates, inter alia, that 'States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.'

Gender-based analyses have therefore to a large extent focused primarily on women as a seemingly stable (biological) category, thereby neglecting gender discrimination suffered by the many other individuals of very diverse forms of gender identity.

Advanced: Women as a presumed coherent subject

Feminist scholarship has long revolved around women as their coherent subject, which presumes a common, collective and universal identity and thus neglected in large parts 'how the category of "women", the subject of feminism, is produced and restrained by the very structures of power through which emancipation is sought'. This one-dimensional picture of identity that suggests a universal experience of discrimination and oppression has further led to ignoring the intersection of gender with other modalities of socially and culturally constructed identities, linked to notions such as 'class', 'race', 'sexuality' or 'ethnicity'.

In defiance of attempts in international law to deconstruct the category of 'women' in order to 'better reflect the racial, cultural, religious and other forms of diversity, troubling the category of women, and concomitantly, the concept of gender from within', according to Brenda Cossman 'the troubling of sex and gender, and crisis of categories [...] has not yet permeated feminist international law scholarship, let alone international law. [...] Indeed, as gender comes to be instantiated at the international level, its meaning has become rather more rigid and fixed.' International Law's predominant and persisting recognition of and holding on to dominant binary and oversimplified categories therefore ignores the many signs of gender and bodily diversity that have been present across centuries, continents, and cultures.

Advanced: The Sex and Gender (Identity) of the State

A deconstruction of international law from a feminist and queer perspective also requires a closer look at those actors that are still considered the primary subjects of international law: States. These are - despite all differences e.g. in size, wealth, geography and power - generally viewed as monolithic sovereign, independent and equal entities without a sexed identity in international law. In contrast, feminist and queer scholarship has revealed how the image of the autonomous, sovereign, protecting, power-seeking and -exerting State with clear geographical boundaries is associated with heterosexual men and maleness, while weak, invaded, colonized or failed States in need of protection are rather connected to women and femaleness, thereby creating not only shifting sexual identities of States but also corresponding power imbalances and invisibility of deviations of the 'normal' State.

II. Feminist and Queer Theory

1. Feminism and Feminist Theory

Although the feminist discourse is shaped by multiple controversies and disagreement, the common aim is to describe, analyze, explain, challenge and change gendered power relations in all spheres of life to achieve human liberty for all genders. In this sense, 'feminism is a mode of analysis, a method of approaching life and politics, a way of asking questions and searching for answers, rather than a set of political conclusions about the oppression of women.' Through the study of gender, gaining 'critical distance on existing gender arrangements' becomes possible and creates space for reassessment and alteration. While visible feminism and feminist theory have for a long time ignored the diversity and intersectionality of discrimination experiences suffered by women worldwide, it is particularly the merit of black, revolutionary feminists, such as bell hooks, Barbara Smith, Patricia Hill Collins and Kimberlé Crenshaw, who have contributed to a holistic and more inclusive (re)definition of feminism and feminist theory. Further importance should also be assigned to indigenous feminism, putting a spotlight on decolonization, indigenous souvereignty and indigenous women's rights within traditional indigenous life and culture.

Advanced: Revolutioanry definitions of feminism

An important contribution to the revolutionary (re)definition of feminism was delivered by bell hooks. She defined feminism as 'the movement to end sexism, sexist exploitation, and oppression.' Black feminist Barbara Smith had even earlier on referred to a more inclusive concept of feminism in contrast to restricted and exclusive approaches to feminism. According to her, 'feminism is the political theory and practice to free all women: women of color, working class women, poor women, physically challenged women, lesbians, old women. Anything less that this is not feminism, but merely female self-aggrandizement.' From these definitions follows a holistic feminist approach that 'is not simply about women’s issues but is a broad-based political movement that seeks freedom for all those who are oppressed.'

Advanced: Definition of Sexism

In the appendix to its Recommendation CM/Rec(2019)1 of the Committee of Ministers to member States on preventing and combating sexism the Council of Europe, the first international legal instrument to terminologically specify and combat sexism, defined sexism as '[a]ny act, gesture, visual representation, spoken or written words, practice or behaviour based upon the idea that a person or a group of persons is inferior because of their sex, which occurs in the public or private sphere, whether online or offline, with the purpose or effect of:

i. violating the inherent dignity or rights of a person or a group of persons; or

ii. resulting in physical, sexual, psychological or socio-economic harm or suffering to a person or a group of persons; or

iii. creating an intimidating, hostile, degrading, humiliating or offensive environment; or

iv. constituting a barrier to the autonomy and full realisation of human rights by a person or a group of persons; or

v. maintaining and reinforcing gender stereotypes.'

Building on these redefinitions, nowadays many if not most feminists seek to embrace the diversity of voices in the feminist discourse. As a consequence, Sandra Harding asks feminists to give up 'the goal of telling "one true story"', but instead embrace 'the permanent partiality of feminist inquiry', thereby seeking 'a political and epistemological solidarity in our oppositions to the fiction of the naturalized, essentialized, uniquely "human" and to the distortions, perversions, exploitations, and subjugations perpetrated on behalf of this fiction.'

2. Feminist Approaches to International Law

With regard to international law, feminist approaches use feminist theory as a tool for critical analysis in order 'to show how the structures, processes, and methodologies of international law marginalize women by failing to take account of their lives or experiences.' In this sense, feminist approaches to international law seek to lift the veil of an international legal order perceived as neutral and objective and reveal its underlying and omnipresent male standard constructed as the 'norm' and the 'normal' which results in a power imbalance and hierarchy between men and women and materializes in the silence of international law regarding women's experiences and interests. They therefore continue to demonstrate that international law is a 'thoroughly gendered system'. According to Charlesworth and Chinkin, feminist analyses of international law fulfill two main tasks: On the one hand, feminist approaches aim at the deconstruction of the values upon which the international legal system is constructed and thereby challenge their claim to rationality and objectivity. On the other hand, feminist approaches seek to reconstruct international law in a sense that it rebuilds 'the basic concepts of international law in a way that they do not support or reinforce the domination of women by men.' Importantly, voices in feminist approaches to international law have diversified, with many leading icons stemming from the Global South.

3. Queerness and Queer Theory

Queerness, as a term, has a complex history that centres around positioning as outsiders those who do not conform to norms and expectations of society. This led to it being a pejorative term to describe people who did not appropriately perform heterosexuality. Consequently, the term queer has been reclaimed by the QUILTBAG+ community (Queer, Unsure, Intersex, Lesbian, Trans*, Bisexual, Asexual/Aromantic/Agender, Gay, plus others outside these categories and heteronormative classification) as both a generalised shorthand for the community at large and an individualised identity for those within the community who do not feel comfortable with the constraints of more specific identity descriptors. In this way, queer acts as a generalised or collective (descriptive) noun, but also an individualised (identity) noun. This becomes more complex linguistically when considering that queer also operates as a verb, in that ‘queering’ is an action that can be taken that is underpinned by a questioning and interrogation of underlying (heteronormative) assumptions that underpin the subject of enquiry and the normative approach to the thing that is being queered. Technically, queer can also be used as an adjective; however, as the adjective use of queer is irreversibly tied to the use of queer as a pejorative this use of the word has rightly fallen out of common vernacular. While queer theory often has a focus upon queer subjects (then noun form of queer), queer theory itself is predominantly focused at a form or method level with the verb approach to queer.

4. Queer Approaches to International Law

In general, queer approaches to international law seek to include experiences and identities into the international legal discourse and the normative framework that are distinct from the 'cis/het' standard, particularly illustrated in the granting of equal rights and prohibition of discrimination on the basis of sexuality and sexual identity. In addition, Dianne Otto understands 'queering of international law' more broadly than traditional approaches of norm inclusion. In this sense, queer theory fundamentally challenges and criticizes the regime of what is considered as 'normal' with regard to human sexuality, thereby moving beyond the dominant dualism of heterosexuality and homosex. In the words of Otto, queer theory to international law is '"taking a break" from the politics of hetero-normative injury, and imagines human sexuality as much more diverse and shifting.' Quite similarly to the deconstrutionist approach of feminism, queer theory makes 'visible the [hetero] sexual ordering that is taken for granted as an underpinning of the "normal" system of international law' and discloses heterosexuality as the 'basic model for all dominant systems of societal relations.' Queering international law therefore also means to uncover the different layers of presumed 'normality' in international law and beyond: When heterosexuality is seen as the preferred, natural, normal form of sexuality, it not only shapes how society considers '"normal" interpersonal and familial relationships', but it also forms the (presumed) basis for our perception of community in general and thereby dictates our understanding of 'all forms of "normal" community, including that encompassed by the "normal" nation-state, international law's primary subject.' In essence, queer approaches to international law unveil how international law 'provides a conduit for the micromanagement and "disciplining'' of everyday lives, including sexual pleasure, despite its many rules purporting to leave these matters in the domestic realm of jurisdiction.'

Example for Queering International Law: The International Bill of Gender Rights as an expression of human and civil rights from a gender perspective is an important early momentum of queering international law. The Bill was first adopted in 1993 by the International Conference on Transgender Law and Employment Policy and subsequently reviewed and amended. It contains ten rights, which are framed as universal rights to be 'claimed and exercised by every human being regardless of their sex or gender', but which still reflect the denial and continuous infringement of human rights of those persons that define themselves or are perceived as transgender.

The rights included in the International Bill of Gender Rights are:

• The Right To Define Gender Identity
• The Right to Free Expression of Gender Identity
• The Right of Access to Gendered Space and Participation in Gendered Activity
• The Right to Control and Change One's Own Body
• The Right to Competent Medical and Professional Care
• The Right to Freedom From Involuntary Psychiatric Diagnosis and Treatment
• The Right to Sexual Expression
• The Right to Form Committed, Loving Relationships and Enter Into Marital Contracts
• The Right to Conceive, Bear, or Adopt Children
• The Right to Nurture and Have Custody of Children and to Exercise Parental Capacity

Example for Queering International Law: An important outcome of queering international law are the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity, which were developed and adopted in 2006 and supplemented in 2017 (Yogyakarta Principles plus 10) by leading human rights experts reacting to and putting a spotlight on a continuous global pattern of human rights violations that target persons based on their actual or perceived sexual orientation or gender identity. It is important to note, however, that these principles have also been criticized for ignoring social context and relying on biology and heteronormative understandings of family.

5. Frictions and Intersections of Feminist and Queer Theory to International Law

As outlined above, there is much to be said for a joint presentation of feminist and queer approaches to international law. Especially in light of the open, fluid concept of gender and the need to break down and overcome the heteronormative binary of both sex and gender, a critical analysis of international law from a one-sided feminist or queer perspective would remain patchy and incomplete. However, this is less about adding up different perspectives, but about choosing an integrative approach that attempts to map the complexity of situations and experiences of discrimination and to develop adequate methods that go beyond describing a specific issue, but respond to it by exploring possible solutions. Still, constructive dialogues between feminist and queer theory have rather been the exception than the rule, which is – according to Gina Heathcote – also due to the fact that 'mainstream feminist approaches to international law are yet to incorporate queer and trans scholarship into feminist accounts' and have mostly ignored the dialogue commenced by queer approaches to international law. Instead, feminist approaches have – intentionally or unintentionally, for pragmatic or other reasons – largely built on the heteronormativity and cisgenderism inherent in the structures they seek to criticize, resulting in the 'invisibility of individuals who do not neatly fit into the normalized gender binary' and reproducing the 'fear of undermining heteronormative social structures.' In contrast, moving beyond dualism and asymmetry would allow 'to tell a story of marginality that has not yet been told’, drawing an inclusive picture of discriminatory experiences without 'losing the precarious spaces that have been carved out for addressing women’s human rights abuses.'

III. Structural Discrimination

During the last two decades, international human rights institutions have increasingly made reference to the phenomenon of structural injustices through the lens of the concept of structural discrimination. Structural discrimination is distinct from individual discrimination which refers to the behavior of an individual belonging to a specific group that is intended to have differential and/or harmful effects on the members of another group. Typically, the differential and/or harmful behavior stems from individuals belonging to the dominant group that represents (or perceives itself as) the majority and is directed against individuals that due to specific characteristics are considered as minority or distinct which has also been described above as 'the other'.

In contrast to individual discrimination, structural discrimination refers to discrimination rooted in grown and therefore pre-existing structures and inequalities of society. It occurs when the rules, norms and policies of a society's major(ity) institutions impose and produce disproportionately disadvantageous and unjust outcomes for the members of certain salient social groups. Discrimination is thereby introduced into often unconscious societal routines and patterns of attitudes and behavior that create and maintain discriminatory practice. The applied rules, norms and policies as well as societal routines and patterns are largely perceived as neutral, because their negative outcome – the differential and/or harmful effect on certain groups – is usually not intended. As Pincus highlights the 'key element in structural discrimination is not the intent but the effect of keeping minority groups in a subordinate position.' In this sense, members of a certain group that due to the application of these rules and policies are denied equal opportunities and suffer from unjust disadvantages are put in a vulnerable position exposing them to exploitation and domination. In the context of gender inequality, MacKinnon has described structural discrimination as 'the systematic relegation of an entire group of people to a condition of inferiority.'

There are multiple forms of structural discrimination present in the realm of international law that often, but not only, mirror corresponding patterns at the domestic level. The invisibility and underrepresentation of persons belonging to or identifying as a different than the cis male gender in international adjudicating, monitoring and law-developing institutions, structural gender-based violence or persisting racism in international law (education) are some of the multiple expressions of structural discrimination in the international legal sphere, which are closely linked but not always analized in their connection to intersectionality and complex forms of discrimination. As a consequence, there is a need for more investigation and quantative as well as qualitative data on structural discrimination in international law that also goes beyond monolithic categories of their subjects, however, without ignoring the significant hurdles intersectional research faces.

Advanced: Distinction between structural and institutional discrimination

Although structural and institutional discrimination may sometimes be used synonymously, Pincus described their differences as follows: Both forms of discrimination share the effect of certain groups being kept subordinate, 'but only institutional discrimination is intended to keep minority groups subordinate.' While structural discrimination as a phenomenon can therefore generally be described as indirect and unintended, it may still be built upon or accompanied by forms of direct and intentional discrimination. It is also important to point out that women are much affected by structural and institutional discrimination even though they do not fit into the category of minority.

IV. Intersectionality

While bell hooks had already described interlocking webs of oppression beforehand, it was Kimberlé Crenshaw who coined and finally introduced the concept of intersectionality into feminist theory. Her work 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics' can be read as a critique of both feminist and anti-racist movements for their one-sided focus on the most privileged members of the respective group. According to Crenshaw, the 'single-axis analysis' results in anti-racist strategies that tend to focus on gender privileged persons – men – and a women's movement which puts a spotlight on class-privileged women associated with a certain race, namely white, Western, heterosexual, middle- and upper-class women. This blindness towards other groups that suffer from structural discrimination, particularly at the intersection of different categories upon which subordination and discrimination is based, leads to the marginalization of 'those who are multiply burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination.' Building upon this, intersectionality has been commonly defined as 'the complex, cumulative way in which the effects of multiple forms of discrimination [...] combine, overlap, or intersect especially in the experiences of marginalized individuals or groups.' As a result, intersectional approaches of feminist and queer theory seek to include perspectives and experiences of individuals and groups where several forms of discrimination based on different categories, such as gender, race, sexual orientation, class, age, disability or belonging to an indigenous community, just to name a few, overlap.

Advanced: Sexual orientation and heteronormativity

‘Sexual orientation’ is different from the terms ‘sex’ and 'gender' in that it makes reference to the type of person to whom one is attracted. The Yogyakarta Principles define sexual orientation as referring 'to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.'

While sexual orientation may be perceived as an open term encompassing a plurality of sexual attraction and experiences, heteronormativity, in turn, as a social hegemonial norm assumes that heterosexuality is the normal, natural and preferred mode of sexual orientation to the exclusion of its many other forms. Building on this assumption, heteronormativity further presupposes that an individual's biological sex, sexuality, gender identity, and gender roles are aligned.

The Bejing Declaration as an outcome of the Fourth World Conference of Women in 1995 can be seen as an early beginning of intersectionality feeding into international law. Both concept and terminology of intersectionality found their way into international documents particularly at the intersection of gender and race, examples of which are the adoption of the Durban Declaration and Action Programme of the World Conference Against Racism, Racial Discrimination, Xenophobia Related Intolerance in 2001 and General Recommendation No. 25 of the Committee on the Elimination of Racial Discrimination. Also Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) has endorsed intersectionality in several of its General Recommendations. In the following, intersectionality as a feminist approach has therefore also come to play a vital role in the adjudication of international human rights law, particularly with regard to violations of anti-discrimination norms, and has consequently found its way into the jurisprudence of regional human rights monitoring bodies.

Example for Intersectionality in Regional Human Rights Systems: Intersectionality has been regularly used in the jurisprudence of the Inter-American Court of Human Rights to assess and unveil complex situations of vulnerability and discrimination. In Gonzalez Lluy v. Ecuador, the Court held that 'numerous factors of [Thalías] vulnerability and risk of discrimination intersected that were associated with condition as a minor, a female, a person living in poverty, and a person living with HIV. The discrimination [...] also arose from a specific form of discrimination that resulted from the intersection of those factors; in other words, if one of those factors had not existed, the discrimination would have been different.' In this sense, the Court also emphasized that intersecionality is to be distinguishied from additive, cumulative or multiple discrimination.

In the African Human Rights System, the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples' Rights deserve special mentioning when it comes to the concept of intersectionality. Therein, the African Commission on Human and Peoples' Rights (ACHPR) underscored that 'States should recognise and take steps to combat intersectional discrimination based on a combination of (but not limited to) the following grounds: sex/gender, race, ethnicity, language, religion, political and other opinion, sexuality, national or social origin, property, birth, age, disability, marital, refugee, migrant and/or other status.'

C. Problems that Feminist and Queer Theory Seeks to Address

Broadly speaking, feminism and queer theory seek to address the same problem: equality within society. This goal is one that is shared with most marginalised-peoples-focused theories within law, social sciences, and the humanities. The key differences here (and elsewhere) are which marginalised group is the focus in its quest for equality, and how this quest for equality is positioned strategically and tactically.

Example for Key People in Feminist and Queer Theory in International Law: Hilary Charlesworth, Christine Chinkin, Shelley Wright, Ratna Kapur, Rahul Rao, Aeyal Gross, Dianne Otto, Gina Heathcote,Nan Seuffert, Doris Buss, Ralph Wilde, Vanja Hamzić, Anne Orford, Nienke Grossman, Josephine Jarpa Dawuni, Senthorun Raj, Sylvia Tamale, Vasuki Nesiah, Usha Natarajan, Vidya Kumar,Aileen Moreton-Robinson, Rosalva Aída Hernández Castillo, Johanna Bond

I. Feminist Engagement with International Law

There is a valid argument to suggest that the drafting and entry into force of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979 and 1981 respectively is the starting point of feminist approaches to international law; however, academic scholarship from the feminist tradition did not gain traction until a decade later. The consideration of international law as an area of concern for feminism began in earnest in 1991 with the foundational article ‘Feminist Approaches to International Law’ by Charlesworth, Chinkin, and Wright. While this began at the same time as what is seen as third wave feminism (most distinctively characterised by the work of Butler and incorporating intersectionality following Kimberlé Crenshaw’s work), the approach taken was shaped by the education in second wave feminism of the academics championing this important moment in International Law. This approach to seeking equality being grounded in the framework of second wave feminism can be seen in how CEDAW has been constructed and in how Charlesworth et al. construct the goal of feminism as being “to capture the reality of women’s experience or gender inequality.”

This tendency of the feminist tradition in international law to follow second wave feminism, which is much more grounded in biological determinism than third wave feminism, is most evident in the way we see the UN’s gender mainstreaming programs (which seek to normalise considerations of the perspectives and impacts of women in UN activities). It is also evident in fantastic programs such as the Gender Legislative Index, which seeks to assess how well states domestic laws are complying with CEDAW obligations. In this construction, the object of feminist interventions and international law is grounded in cisgender women being the subject of arguments for equality, rather than on the cultural social structures, such as the heteropatriarchy, that cause inequality.

The outcome of this focus on women as subjects rather than social structures when conducting feminist interventions in international law lends results in broadly to two separate approaches. The first, and arguably more common approach (and definitely more theoretically sound approach), is one that embraces Crenshaw’s call for intersectionality in its analysis. This is a feminism that acknowledges, and embraces, the fact that women’s lived experiences of the impacts of law is not universal and is also shaped by other defining characteristics of marginalisation (such as inter alia race, class, sexuality, and disability). While this feminism is still predominantly focused upon equality for women, it acknowledges that women’s equality is contingent upon equality for all marginalised groups and the need for feminism to engage in dialogue with these groups. The other approach, often criticised as ‘White Woman Feminism’, embraces the call spearheaded by Catherine MacKinnon that women need to be considered a single unified and universal political category that disregards questions of race, class, et cetera when advocating for equality. Proponents of this approach believe that it creates a stronger argument for women’s equality, but ignore that the focus of the approach is often the interests of white, straight, western women. This second approach has also been plagued by notion of zero-sum games around the question of equality and has pushed back against a broad and inclusive feminism that seeks to advocate for equality for all out of fear that it will come at the expense of equality gains made for women.

Some of the notable achievements of feminist interventions into international law were how advocacy was able to get International Criminal Law and international humanitarian law to treat armed conflict sexual violence as a crime against the personhood of the victim, rather than as a crime against military discipline (as it had historically been treated). Building upon this success in the 90s we have seen the development of the UN Security Council’s Women, Peace, and Security agenda and the growth in the work of UN Women as a sub agency of the UN to specifically consider the impact of international law on the lives of women. Some of the impacts around how women have been characterised, and often essentialised, through the work of engaging in direct consideration of the impact of international law on women has been strongly criticised; however, even those criticising this work acknowledge that it’s an improvement for women than when they were being utterly ignored.

II. How Queer Theory in International Law Differs from Feminism

Queer theory grew out of third wave feminism, in particular the work of Butler and Sedgwick, with a much less cohesive equality agenda than feminism. When looking at questions of equality queer theory is inherently broad (and is mostly inclusive but not without its problems) but has a tendency to focus upon QUILTBAG+ subjects. There is also a strong tendency to explore advocating for equality through an intersectional lens by examining the normative assumptions that are being brought to law and situations that generate inequality. Queer theory, at its core, is an embrace of curiosity and questioning – generally from a framework of understanding that the law and normative assumptions that are brought to law and social practice are culturally dependent social constructions rather than natural and inevitable.The easiest space to see this distinction between feminist approaches to international law and queer theory approaches to international law is in examination of the project of gender mainstreaming within UN projects. Feminist approaches to international law, while often critical of the details taken through gender mainstreaming, have treated this introduction of idea and process into every UN body (and numerous state foreign affairs and defence departments) as a net good. Queer theory approaches to international law, while acknowledging the improvements that adding gender mainstreaming has produced, have heavily critiqued how the process of gender mainstreaming has led to the use of gender being an euphemism for women, how it has normalised and reinforced the (white) cis/het masculine subject as the un-gendered normal to which all other expressions of humanity must be compared, and how the process has reproduced bio essentialist views of sex and gender along regressive heteronormative lines within international legal discourse.

There is a tension created within feminist and queer theory approaches to international law where the perfect can be the enemy of the good. This tension is often referred to as the ‘double-bind’. This idea of the ‘double-bind’ broadly posits that advocates for change and equality suffer pressures from those outside governmental institution to not compromise in questions of equality, while also suffering pressures from within the institution that require accepting an improvement that is less than ideal in the alternative to no improvement. It is because of these competing pressures that feminism and queer theory requires advocates inside governmental institutions to push for change and accept compromise, and advocates outside of governmental institutions to hold those inside the institutions to account and drive them to continue advocating for better equality.

Overall feminism and queer theory seek the same thing: equality. This is achieved better by marginalised groups working together for the betterment of all, and that is something that is known and acknowledged by the majority of feminist and queer theory advocates in international law.

Further Readings

• Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000).
• Kimberlé Crenshaw, 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics' (1989) University of Chicago Legal Forum 139-167.
• Margaret Davies, 'Taking the Inside Out: Sex and Gender in the Legal Subject' in Ngaire Naffine and Rosemary J. Owens (eds), Sexing the Subject of Law (LBC Information Service 1997).
• Rosalva Aída Hernández Castillo, 'The Emergence of Indigenous Feminism in Latin America' (2010) 35 (3) Signs 539-545.
• Loveday Hodson and Troy Lavers, Feminist Judgments in International Law (Bloomsbury Academic 2019).
• bell hooks, Feminist theory: from margin to center (South End Press 1984).
• Emily Jones, Feminist Theory and International Law: Posthuman Perspectives (Routledge 2023).
• Ratna Kapur, Gender, Alterity and Human Rights: Freedom in a Fishbowl (Edward Elgar Publishing 2018).
• Dianne Otto, Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018).
• Susan Harris Rimmer and Kate Ogg Research Handbook on Feminist Engagement with International Law (Edward Elgar Publishing 2019).

Further Resources

• ASIL, International Law Behind the Headlines, Episode 39: Feminist Theories of International Law, 30 Years On, available at: https://www.asil.org/resources/podcast/ep39.
• Borderline Jurisprudence, Episode 18: Tamsin Paige on Sociology of International Law, Queerness, and Pastry, available at: https://open.spotify.com/show/7rlKzpmKoFmmOoXmL9GIkq.
• Feminist and Queer Movie Collection with and without relation to international law: https://commonslibrary.org/5-films-about-fighting-for-gender-justice-and-fundamental-human-rights/ and https://www.bowiecreators.com/film.
• Podcast 'Law and Queer Challenges', available at: https://open.spotify.com/show/4XiUF44wttvTRVwiC5qJio.
• TED Talk by Kimberlé Crenshaw on 'The Urgency of Intersectionality', 14 November 2016, available at: https://www.ted.com/talks/kimberle_crenshaw_the_urgency_of_intersectionality/transcript.
• The East is a Podcast, Ratna Kapur on 'Gender and human rights: Success, failure or new imperialism?' (2016), 16 February 2021, available at: https://eastisapodcast.libsyn.com/ratna-kapur-gender-and-human-rights-success-failure-or-new-imperialism-2016
• The Frontline, Trans Inclusion in the Women's Movement, 31 March 2023, available at: https://www.ilga-europe.org/podcast/the-frontline-trans-inclusion-in-the-womens-movement/.

Conclusion

• Public international law suffers from a clear gender bias and was built on and therefore permeated by a male and heterosexual standard that serves as a basis for structural discrimination of all deviations from this standard.
• The de- and reconstruction of public international law therefore requires a holistic approach that unites feminist and queer approaches despite persisting differences and frictions.
• Sex and gender are core concepts to feminist and queer theory, which due to cultural baggage, oversimplification and modes of application have also led to exclusionary approaches, particularly within the feminist discourse, that perpetuate the very discriminatory structures feminist and queer theory seeks to disclose and abolish. Both terms therefore require careful consideration in their use, taking into account both their social and normative imprint as well as the fluidity, complexity and multiplicity of (gender) identities.
• The analysis of structural discrimination that queer and feminist theory seeks to address requires an intersectional perspective to disclose complex experiences of discrimination and to put a spotlight on the perspectives of marginalized individuals and groups where several forms of discrimination overlap.
• International Law itself is permeated by structural discrimination, which requires more (feminist and queer) quantitative and qualitative (intersectional) research.