Theoretical and Methodological Approaches to Gender and International Law

by

Matilda Arvidsson, Maria Elander

• LAST REVIEWED: 23 August 2022
• LAST MODIFIED: 23 August 2022
• DOI: 10.1093/obo/9780199796953-0239

Introduction

“Gender” as a specific topic of concern appeared gradually within international law and scholarship, initially by scholars drawing on feminist theories. A central concern in the scholarship is how gender relates to sex. For some scholars, gender is useful for distinguishing social constructions from biological sex. For others, this distinction is problematic because it conceals the way sex is also socially constructed. Reflecting these scholarly debates, the way gender is defined and relates to sex is not consistent in international legal instruments or scholarship. Another dividing question is how gender, sex, and “women’s situation” relate. For some, gender means a focus on women. This conflation is questioned by others. The gender/woman question injects confusion and political force in international legal debates. More recently, gender identity has attracted attention, and while gender equality has long been a central topic of concern, states and scholars critical of what they consider “gender ideology” in instruments such as the Yogyakarta Principles and the Istanbul Convention have sought to advance “gender complementarity” in its stead. For scholars committed to gender equality, gender complementarity is conceived of as a backlash. These topics of concern do not reflect any specific theoretical or methodological approach, and it is not possible to divide the theoretical and methodological approaches according to topic. Instead, the debates are pursued in a variety of ways: An early approach that remains significant seeks to identify structural biases in seemingly neutral or universal instruments. This can be contrasted to scholarship analyzing international instruments explicitly engaging with gender, the way international law partakes in forming gendered subjects, and processes of gender mainstreaming. The role of gender in gender-based violence continues to be questioned. More recently, queer approaches have sought to question the normative in international law, and a theoretical focus on men and masculinity has emerged as a response to the focus on women in gender and international law debates. Aiming at granularity and “localizing” gender, anthropological and ethnographic approaches contribute with narratives breaking with universalizing tendencies in international law. Similarly, intersectional, TWAIL, and posthuman feminist debates approach gender as part of broader concerns, while some scholars have turned to history in order to rethink gendered aspects of international law. Natural science methods, including emerging technologies such as AI, are also used to analyze gender concerns. How gender is debated, analyzed, and questioned through different methodological and theoretical approaches demonstrates the political vibrancy of gender as a concept in international law.

General Overview

Following the historical trajectory through which most feminist scholarship has unfolded, the scholarly introductions to gender and international law included below showcase how international law and related fields have adopted the notion of “gender” to discuss primarily women’s voices and inclusion in international law, often in terms of inequality between the sexes. Excellent overviews of theoretical approaches to gender that discuss the stakes involved in various theoretical and methodological approaches include Cossman 2002, Elkayam-Levy 2021, Heathcote 2019, and Otto 2009. Bertotti, et al. 2021 draws on a range of critical, queer, and intersectional approaches to their analysis of the laws of war. There is also a range of edited collections that demonstrate the breadth with which gender is approached in international law, and many collections themselves include a diversity of approaches. Rimmer and Ogg 2019 is a research handbook on feminist approaches that focuses primarily but not exclusively on women; Aoláin, et al. 2018 tackles gender from the perspectives of both international law and international relations, with a breadth of theoretical approaches; and Hodson and Lavers 2019 presents rewritings of significant decisions in international law that unpack the “doing” of gender. Rosenblum 2011 is a special issue with thought-provoking contributions by critical scholars who, from feminist and queer perspectives, seek to unpack the focus on women in gender.

• Aoláin, Fionnuala Ní, Naomi Cahn, Dina Francesca Haynes, and Nahla Valji, eds. Oxford Handbook of Gender and Conflict. Oxford: Oxford University Press, 2018.

  Comprehensive handbook with over forty contributions within international law, international relations, and peace and conflict studies. Covers a range of topics and case studies with different approaches to gender, including critical and queer approaches, structural bias approaches, the effects of certain instruments on women/men, and historical trajectories of notions of gender.

• Bertotti, Sara, Gina Heathcote, Emily Jones, and Sheri Labenski. The Law of War and Peace: A Gender Analysis. Vol. 1. London: Bloomsbury, 2021.

  DOI: 10.5040/9780755637836

  Offers a comprehensive analysis of the gendered aspects of the field of international law and peace and security, drawing on critical, queer, and intersectional approaches to gender. It includes discussions of the use of force, collective security, international criminal law, international humanitarian law, and laws on counterterrorism.

• Cossman, Brenda. “Gender Performance, Sexual Subjects and International Law.” Canadian Journal of Law and Jurisprudence 15 (2002): 281–296.

  DOI: 10.1017/S0841820900003623

  Examines and laments the way international law and international legal scholarship continue to treat gender as something one has rather than as something one does, and often as a synonym for women. Drawing on the work of Judith Butler, Cossman instead calls for a troubling of gender to create a space for subjects currently at the margin of IL.

• Elkayam-Levy, Cochav. “A Path to Transformation: Asking ‘The Woman Question’ in International Law.” Michigan Journal of International Law 42 (2021): 429–477.

  DOI: 10.36642/mjil.42.3.path

  Focusing on how method matters, this article gives a comprehensive overview of feminist methodologies in international law over the last centuries, and the ways in which questions of gender, gender equality, and gender identity figure through international feminist legal debates. Addressing the difficulty of clashing feminists’ views, it suggests an overarching feminist method of asking “the woman question” in international law.

• Heathcote, Gina. Feminist Dialogues on International Law: Success, Tensions, Futures. Oxford: Oxford University Press, 2019.

  DOI: 10.1093/oso/9780199685103.001.0001

  Analyzing feminist scholarly and activist engagements with international law, Heathcote argues that their results in gender law reform are “thin facsimile’s of the original feminist engagements.” The clear and critical message is that gender law reform is not an end to itself, at least not if feminist methodologies are not made part of international law and global governance.

• Heathcote, Gina, and Dianne Otto, eds. Rethinking Peacekeeping, Gender Equality and Collective Security. Thinking Gender in Transnational Times. London: Palgrave Macmillan, 2014.

  Bringing together voices from academia, peacekeepers, and activists, this collection offers a critical assessment of the framework of women, peace, and security, and calls for a feminist reinvestment in anti-militarism and women’s diversity.

• Hodson, Loveday, and Troy Lavers, eds. Feminist Judgments in International Law. Oxford: Hart, 2019.

  This edited collection provides creative and critical reimagining of fifteen judicial decisions in general international law, international human rights law, and international criminal law. Some of the original decisions explicitly deal with questions of gender, but are here reimagined and questioned. In others the role of gender is brought to the fore through the rewriting, demonstrating the significance of unpacking and questioning gender in all decision-making processes.

• Otto, Dianne. “The Exile of Inclusion: Reflections on Gender Issues in International Law over the Last Decade.” Melbourne Journal of International Law 10 (2009): 11–26.

  Examining gender as an issue of international law in the first decade of the twenty-first century, Otto provides an engaging overview of the way the UN system has selectively picked up on feminist issues and of the re-emergences of gendered stereotypes. Noting how feminist concerns have been coopted for militarized responses, Otto calls for continued critical reflection and activism.

• Rimmer, Susan Harris, and Kate Ogg, eds. Research Handbook on Feminist Engagement with International Law. Cheltenham, UK: Edward Elgar, 2019.

  Tackling a diverse set of topics relevant to international law, this collection brings together scholarship on feminist approaches to international law and engages primarily (though not exclusively) with women. Across thirty chapters, the handbook demonstrates a breadth of theoretical and methodological approaches.

• Rosenblum, Darren, ed. Special Issue: After Gender? Examining International Justice Enterprise. Pace Law Review 31 (2011): 799–923.

  This special issue discusses problems with the existing international normative framework associated with gender policy. Its focus on “after gender” provides an entry through which its authors examine international law through questions of gender identity, sex difference, and binarist sex identity.