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Public International Law/Approaches/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. 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.

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. '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. 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.

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.’

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'. 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. 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.

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. 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.'

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.

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.

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.

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.

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.


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Public International Law/Approaches/Marxism

Author: Kanad Bagchi ""

A. Introduction
Marxism is a broad church. Its traditions are as old as they are contested. “…Splits, disagreements, and denunciations…” within it are routinely common. No wonder that many of its tenets have been hopelessly misinterpreted by both Marxists as well as non-Marxist scholars, associating Marxist thought with abject reductionism, crude economic determinism and a certain complicity in authoritarian and dictatorial rule. Ironically enough, Marx himself had vehemently decried being called a ‘Marxist’. To write about a Marxist legal approach is equally difficult, given that Marx and Engels did not have much to say about the law, let alone international law.

Yet, Marxism is not simply about the words and writings of Marx or Engels alone. Generations of Marxist scholars have drawn from Marx’s larger insights into society and history to explain a number of propositions about law and, more recently, about international law. Resisting, alongside a number of other critical movements, including TWAIL, Feminist and Queer theory, critical legal studies and post-colonial approaches, Marxists have challenged international law’s fundamental claims about promoting peace, prosperity, equality or progress. Even while maintaining this critique, Marxist legal theory has pointed to ways in which law can and should be instrumentalized towards progressive ends mindful of both the reifying structures of the system and its limits for emancipation. Having said that, Marxist legal theory still has much ground to cover, several blinkers to shed and the continuing need to open its discursive space to other critical voices. In what follows, I reflect upon five distinct perspectives that Marxist scholars have brought to the disciplinary understandings of the history and present of international law. Additionally, I also highlight some of the blindspots within Marxist legal theory and how recent scholarship has made important strides to fill those voids. My account is necessarily going to be partial and incomplete. Yet, I hope it is readable, accessible, but most crucially, provides a starting point for further debate and revision.

B. Marxism as 'Perspective' and 'Critique'
The use of ‘perspective’ rather than ‘method’ is a conscious choice. Marxist theory rarely conforms to the idea of a singular method of approaching law. For the most part, Marx and the larger Marxist tradition is a theory about the totality of social forms and relationships among individuals, rather than a specific set of propositions about the law. To invoke a Marxist lens is to view the world and society as an endless set of inter-relationships, where one phenomenon is always connected to the other. This means that ideas, institutions and human agency needs to be understood as part of an “integrated whole” that is both dynamic and also beholden to history and past structures. As Marx had insightfully claimed “[m]en make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.” How we think about the law then, will depend on how we think about the determining elements of social relationships more broadly. This is where one’s intellectual framework, i.e, theory about the world, collapses into the narrow question of method. Moreover, Marxism continues to evolve, even as it registers critique, new ways of thinking and a continuing push against its own traditions. Confining Marxist theory to a pre-determined set of propositions or institutional boundaries is not only misguided but also deeply depoliticizing. ‘Perspectives’ in this sense keeps that space open to be constantly revisited and challenged. Broadly stated, a Marxist critique is a structural critique, not aimed at individual instances of exploitation or subjugation alone, but at a reflection on the material structures of society at a systemic level, which make such exploitation part of the ordinary and mundane. It is also an ‘internal’ critique of the system, which exposes the inner contradictions of its operating logic. Law then is to be viewed as a social practice with its own internal formal logic containing a set of argumentative structures that give stability to dominant interests and power. It probes us to think about law and international law not as a fragmented, insular and detached body of rules, but as part of a larger social and economic infrastructure, within which it is embedded and takes its form. Finally, Marxism is not simply a set of theoretical escapades, but a call for radical political action to change existing structures of political economy. It is inherently an emancipatory ‘praxis’ the aim of which is to “create space for interpretive rules and strategies that contribute to the welfare of the subaltern classes”. Marxism therefore, does not draw an overtly strict boundary between ‘theory’ and ‘practice’, acknowledging that one is necessarily dependent on the other.

C. ‘Five’ Marxist Perspectives on International Law
Despite having a rather long and influential pedigree, Marxist approaches to law and international law in particular, largely remained in the margins of the discipline, even within critical circles. Yet, in the last decades, Marxist scholarship in international law has witnessed somewhat of a ‘revival’. This is not least due to the fact that many of our contemporary crises, whether that be the ‘War on Terror’, rising inequality, financial crisis, climate change, racial injustice, violence against women and indigenous communities, and the rise of authoritarian populism, has brought to the fore capitalism’s worse consequences. Alongside that, many of the contemporary social movements, whether that be the farmer’s protests in India, the Black Lives Matter movement or the Palestinian struggle against imperialist violence, have been mobilized using Marxist language, even if not explicitly. Increasingly, the visible inter-connectedness of ‘local’ events with the global structures of political economy have called into question the role of international law in the (re)production of worldwide dispossession and alienation. Marxist concepts such as ‘class’ ‘ideology’ ‘economic base’ ‘commodification’ carry tremendous explanatory potential in laying bare the systemic forces at work, which naturalizes the historical legacies of this unequal and violent order of things.

I. International law as a Material Phenomenon
Marxist theory often begins with the fundamental claim that all social relations need to be understood in its ‘historical-material’ context. This means that law, like any other social form of regulation cannot be studied in isolation, but as having its roots in “the material conditions of life”, which then are the “real foundation, on which arises a legal and political superstructure.” Legal relations correspond to and are a reflection of the larger economic processes within society. It is important to remember, however, that the relationship between law and the economic structure is neither static nor unidirectional. To the contrary, the relationship of the ‘base/superstructure’ is highly contingent, co-constitutive and even contradictory – a point that is routinely forgotten. The task of Marxist legal scholarship, then, is to ask how this relationship plays out in concrete situations. Unlike liberal accounts of the discipline, a ‘historical-material’ perspective locates the rise of international law to the consolidation of global capitalism. In this, the story of capital, although it begins in Europe, travels to the rest of the world through colonial expansion and imperial violence. Primitive accumulation - the resolutely violent and coercive enterprise of “divorcing the producer from the means of production” becomes the chief means of encounter between capitalist Europe and the non-capitalist world. For Marx, colonial expansion and the “extirpation, enslavement and entombment” of the native population was not only indispensable for capitalist accumulation, but was a natural consequence of it. International law including its rules concerning trade and commerce, the doctrine of sovereignty and the legal standard of ‘civilization’ become central to this project of worldwide domination and subjugation.

Thus, from a Marxist perspective, imperialism and colonial expansion is a material phenomenon at the heart of which lies the need for capital to constantly expand “over the whole surface of the globe”. This not only requires forcibly robbing native populations of their subsistence, but also wholesale transformation of non-capitalist societies into the image of capitalist modernity. As Rosa Luxemburg had argued, “Capitalism must always and everywhere fight a battle of annihilation against every non-capitalist form that it encounters.” Imperialism in a Marxist sense, then, is “the political expression of the accumulation of capital" which works to efface all traditional forms of economic and cultural organization and turn them into social spaces that would be safe and productive for capital. Similarly, the distinction between ‘civilized’ and ‘uncivilized’ and corresponding denial of ‘sovereignty’ to the latter from the realm of 19th century European international law was not only about racial supremacy or domination, but was centrally rooted in the logic of capitalism. Equal sovereignty for the colonies could only come through Western capital, the creation of a centralized bureaucracy and through ‘modern’ forms of political organization. Realization of ‘statehood’ under international law became synonymous with violent capitalist transformation.

Viewing international law through a materialist lens points to the several ways in which the civilizing mandate continues to the present day, even when the language of racial difference has witnessed a relative decline. It allows us to witness modern international law as a continuation of past practices of “exclusion and conditional inclusion” of the non-Western world. The post-WWII international legal order which was purportedly based on international rule of law and self-determination did not fundamentally alter the imperial nature of international law, but marked the beginning of “imperialism without colonies”. Imperialism gave way to "the grip of neo-colonialism", tying the third world to the economic dependence of former colonial powers and the institutions that they controlled. The disciplining effect of international law and international institutions manifest itself in the large scale remodeling of the Global South through instruments of structural adjustment and conditionality, market liberalization, promotion of rule of law and protection of foreign investment. The IMF and the World Bank, among others, promote monetary stability, free capital mobility, disciplined finance, and a shrinking of the public sector, under the pretext of the seemingly innate and neutral concept of ‘good governance’. David Harvey calls this “accumulation by dispossession” to refer to the accelerated ways in which capital inhabits every non-capitalist space, leaving in its wake mass poverty, social stratification, forced migration, and land dispossession. Accumulation by dispossession is primitive accumulation in the neo-liberal age aided by the privatization and commodification of natural resources. Modern international investment law, especially BITs, entrench the power of foreign capital, while the WTO prescribes harmonized rules, subjects state autonomy to international adjudication, and legalizes the international protection of property rights.

The logic of Marx’s ‘primitive accumulation’ as a gateway to both imperial expansion and capitalist transformation is also writ large in the continuing forms of settler-colonial practices across the world, where dispossession and expropriation of indigenous land and territory is legally and constitutionally sanctioned. It allows us to conceptualize the relationship between international law, capitalism and imperialism as a permanent process and not one that ought to be confined simply to the ‘pre-history’ of the discipline. International law as a material phenomenon contests many of the ‘idealistic’ portrayals of the discipline, which trace its contours to mythical accounts of benign trade between private individuals, ideas about denouncing ‘war’, ‘human rights’ or ‘peace’. Instead, Marxist accounts of the field have spent considerable efforts in grounding these ‘ideas’ about international law within a historically specific and materially influenced conception of evolution, where it is indistinguishable from violence and expropriation. Here, as Antony Anghie had argued, international law is imperialism all the way down and much like the birth of capital in Marx’s analysis, international law also comes into the world dripped in “blood and dirt”.

II. International Law as a Class Project
‘Class’ is the organizing principle of society in the Marxist tradition. Marx had famously remarked that “[t]he history of all hitherto existing society is the history of class struggles,” between those who own the means of production and those whose only means of subsistence is their labour power. What he meant was that all aspects of social relationships, including those that make up the economic base, are never a constant, but continuously evolve through the struggle between different groups within society. These struggles are often expressed through the law: “[e]very struggling class must therefore formulate its demands as legalistic demands…”. The law becomes crucial here as the means through which class conflict is not only mediated, but, more fundamentally, it is in the process of engaging with the law that class consciousness takes its concrete form. So even while law and legal structures reflect, reify and consolidate the interests of the dominant classes, it also simultaneously shapes the form and content of the struggle itself. The outcomes are therefore never pre-determined.

‘Classes’ however, are not simply confined to the domestic borders of a given political community. With the consolidation of the neo-colonial project in the 1970s and the accelerating trend towards hyper-globalization, class formations too acquired a different dimension. The monolith identity of the ‘state’ as an actor in international law was superseded by rise and prominence of international institutions and loose coalitions of networks. Almost all aspects of state sovereignty were transferred, even as domestic policy space became ever more constrained. More fundamentally, the state found itself enmeshed within the capitalist global economy, aided by the rise of a new social formation – an emerging transnational class fraction – which pushed against national borders and territorial delimitations. Capital accumulation now relied on a “globalized regime of exploitation and waged labour".

Marxist scholars, especially Rasulov and Chimni, argued for a class approach that visibilizes the role and significance of different social groups and classes, which materially influence and shape the formation of international law. They pointed to the emergence and consolidation of a transnational capitalist class (TCC) - a dispersed, yet influential fraction of capitalist classes from advanced capitalist countries and the Third World. Even while situated in different geographic spaces, the TCC was global and had as its primary objective the facilitation of capital accumulation. TCC works closely with international institutions to advance their interests and to create a “functional unified global economic space” where restrictions to capital movement could be flattened. On the flipside, an emerging transnational oppressed class (TOC) comprised of social groups who are disenfranchised from the means of production came to be gradually consolidated. Newer forms of exploitation, corporate abuse, in-formalization and displacement greased the wheels of capital. Much like their counterpart, the TOC operate transnationally, building coalitions with different oppressed groups and use both legal and political means to push against the TCC.

In this constellation, international law becomes a site of class struggle between the TCC and TOC and thus promotes both class consciousness and provides its constitutive structure. This is most visible in the struggle for environment, bio-diversity, development related displacement and the like, where interests of capital compete with rights of labour, indigenous communities, and agricultural workers. These antagonisms play out through overtly capitalist institutions such as the WTO, World Bank and the IMF, but also through institutions such as the International Labour Organization, which one might otherwise think works to correct the imbalance of power between capital and labour. What we have then is an “emerging bourgeois imperial international law”, which speaks in the language and uses the rhetoric of universal human rights and ‘rule of law’, even while entrenching material and ideational primacy of capitalist classes.

A class approach to international law helps navigate through the black box of the state and international institutions by identifying the dominant groups, which benefit from the system of international law. It also helps foreground a more granular story of resistance by TOC to capitalist accumulation and directs our focus to new actors in the global arena. From social movements to civil society organizations espousing the cause of TOC, international law is made and re-made in a number of different terrains.

III. International Law, Ideology and the Critique of Universality
A sensitivity towards class structures demystifies liberal claims concerning the ‘universality’ of international law in the sense that many of its proclaimed values such as human rights are susceptible to selective interests and open to co-option by dominant groups and classes. Law then becomes a means to sustain and stabilize particular interests as universal ones. In the Marxist tradition, this is law acting as an “ideological form”, which domesticates resistance and class conflict, by depoliticizing legal relationships and rationalizing conceptual categories. Ideology in the words of Susan Marks, plays a “key role in legitimating exploitation” precisely by representing capitalist social relations as natural and permanent. Relationships of domination and exploitation are delineated as pertaining to the individual sphere rather than as systemic outcomes. In other words, a focus on ideology exposes the abstracting character of the law, which flattens differences of power, even while projecting exchange as transpiring between ‘free and equal’ participants.

It is not difficult to see how ideology critique provides a useful lens to the work of international law, especially in the context of deeply political conflicts. From humanitarian intervention to economic conditionalities as well as the ‘war on terror’, capitalist states and international institutions have routinely invoked international law to justify a particular idea of ‘liberation’ and ‘freedom’. Sundhya Pahuja for instance, has shown that notions of ‘development’, when prescribed in universalistic terms, carry with it the prescription for particular kinds of economic and political arrangements, which mirrors the Western bureaucratic-state apparatus essential for capital accumulation. International law, by focusing on domestic roots of ‘poverty’ and ‘conflict’ in the ‘third world’, detracts attention from the systemic patterns of capitalist exploitation and violence at the heart of ‘core-periphery’ relationships. Similarly, the growing infrastructure of international adjudication and the increase in specialized forums of dispute resolution add another layer of depoliticization to social conflicts concerning land, environment, and property. Even the concept of ‘democracy’ promoted by international law sidesteps crucial questions of entrenched social hierarchy and inter-group domination, while privileging a narrow set of indicators and benchmarks to assess participation.

To point to the ideological character of international law is to make apparent what is made invisible and lay claim to the ‘false necessity’ of existing structures. It probes us to think about the contingency of social arrangements and about the fact that they need not be the way they are. Yet, if existing social relations seem inevitable or natural, it is but the result of repeated “ideas and rhetorical processes” that legitimizes and orders such structures. But one should also be mindful of the fact that even though historical relations are contingent, they are not always open to change. Quoting Susan Marks once again, “just as things do not have to be as they are, so too history is not simply a matter of chance and will”, meaning that human agency, while paramount for resistance and change, always operate within the “logics of a system". In other words, as much as one ought to be skeptical of historical necessity, meaningful transformation can only transpire through a clear-headed understanding of the ‘false contingency’ and limits of individual action.

IV. International Law as Commodity Form
For Marx, capital makes ‘commodities’ out of everything, but, most crucially, capital expands by commodifying labour power. The process entails both abstracting the individual from the product of its own labour for surplus value and also alienating labour from the very means of production. With the spread of capitalism, commodification extends to every aspect of life mediated, of course, though legal relationships. Capitalist relations, then, are marked by an endless collection of commodities connected through an endless set of legal relations. Capital and law exhibit a structural relationship in the Marxist tradition.

Commodification and the abstracting/individualizing character of the law was central to the work of soviet jurist Evgeny Pashukanis, one of the most influential Marxist theorists of law. Drawing from Marx’s insight that ‘commodities’ are but the elementary form of wealth, Pashukanis argued that, in a capitalist society, relations between individuals based on property rights are homologous to abstract commodities, which are traded. Just like for commodities to be exchanged, each party much recognize the other as an equal owner of property in an abstract sense, so too does the law treat those parties as equal bearer of rights. In other words, the “legal subject is thus the abstract commodity owner elevated into the heavens" and the legal form mirrors this commodity form. One of the fundamental insights of the commodity form theory is that law treats individuals as abstract, neutral entities, detached from the material conditions in which they exist. This makes it seem like exchange is between two equals, even while the law invisibilizes and “permits real inequality” among individuals. Much in the same way, Pashukanis illustrated that sovereign entities in their relationship to one another precisely operate as owners of property (read territory) with each possessing equal rights and obligations. This formal equality in status eludes however, the reality “that they are unequal in their significance and their power”. It is in this context that Pashukanis characterized international law as “the legal form of the struggle of the capitalist states among themselves for domination over the rest of the world”.

The crucial question that arises is how are disputes then resolved between two formally equal sovereigns? What is the nature of the legal form that makes certain claims trump over others? This is where China Miéville in his highly provocative book, Between Equal Rights extended Pashukani’s commodity theory to argue that the legal form inherent in international law is that of coercion. Exchange implies ownership and ownership is primarily about the right, mostly exercised through the law, to exclude others. Since international law does not have a centralized system of enforcement, sovereign entities themselves resolve disputes to the interpretation of rules. In a deeply unequal world, what this means is that powerful states are able shape the order and content of legal norms through economic and military force. Because “coercion is at the heart of the commodity form" and international law mediates commodity exchange, violence is central to it – ‘Between Equal Rights, force decides’.

The commodity form theory as explained by Miéville illustrates precisely how international law not only bore a structural relationship to capitalist accumulation through the commodification of social relationships, but also sustained imperial relations of domination. The very legal form of international law based on “juridical equality” makes violence and coercion in the hands of the ruling classes the chief means of law-making and resolution of legal disputes. To suggest, then, that international law furthers a rules-based order and is counterpoised to power and brute force is misleading. Instead, as Miéville poignantly put it, “[t]he chaotic and bloody world around us is the rule of law".

The commodity form theory of Pashukanis has found tremendous purchase in Marxist international legal scholarship, even beyond Miéville’s path-breaking reconstruction. The biggest reason for this is that it provides a singularly persuasive historical account of why and how ‘law’ developed the way it did and what makes legal relations the perfect infrastructure for capitalism’s expansion. Claire Cutler has applied the commodity form theory to illustrate the nature of the WTO and GATS in the commodification of public commons, while Grietje Baars reflects on the nature of law as a ‘congealing’ devise for capitalist relations. Their work also centers the role of ‘corporation’ as a tool for imperialist expansion.

V. International Law as Emancipation
And yet, China Miéville’s conclusion that there can be no international law without imperialism and that only through “eradicate[ing] the forms of law” altogether can one even think of emancipation left an enduring mark on Marxist international legal scholarship. Hegemonic quarters within the discipline started to associate the general project of Marxism in international law with legal nihilism, ignoring how Marxist legal scholars themselves have mounted the loudest critique to Miéville. This was accompanied with a certain strand of Marxist scholarship, which saw a fundamental incompatibility between Marxism and the support for human rights. Law and international law in this constellation was essentially part of the problem and not the solution to human freedom.

Crucially, these interventions ignored the centrality of capitalism as an inherently conflictual and contradictory system. For Marx, legal struggles and the pursuit of human rights although conditioned by capitalist relations did not mean that they ought to be repudiated. Indeed, Marx expended considerable attention to the law as a means of working class struggle in his elaborate description on the length of the working day, which was won on a legal terrain. Law was important in providing the oppressed classes with the means to push back against capitalist expansion. Similarly, in his work ‘On the Jewish Question’, which is often cited to bring home the point that Marx was disillusioned with the potential of equal rights, Marx had only advanced a limited critique of formal legal quality. For him, political emancipation through law and legal rights was deeply ‘individualizing’ and ‘alienating’ and thus cannot be an end in itself, but only a means towards engendering larger social changes beyond what the law could provide.

Law and the legal form, therefore, in the Marxist tradition exhibit a dual character, which, even while constraining the possibility of deep structural transformation, provides an important, albeit limited, form of social emancipation through concrete legal struggles. These legal struggles, then, must go hand in hand with more demanding political interventions. It is not a choice between ‘Reform’ or ‘Revolution’ but about how these two paths can have always co-existed. Understanding the role of law in the reproduction of capitalist relations and also as a means to resist some of its worst excesses alludes to its ‘relative autonomy’. Both Chimni and Susan Marks thus hold on to the possibility of international law acting as a ‘shield’ against powerful states. Chimni argues for a ‘radicalism with rules’ where international law should be viewed as a site of contestation rather a mere reflection or consolidation of the interests of dominant classes. Bill Bowring goes one step further in situating human rights and international law’s relationship to past revolutions as evidence of the emancipatory role that law can play.

Robert Knox provides a useful lens to navigate through this duality of rejection and embrace of international law. Given that the use of legal means comes with the danger of legitimizing the existing order of social relations, law should only be used for short-term tactical purposes, as a “mere tool to be discarded when not useful." Knox terms this engagement with the law as “principled opportunism” to put forth the point that international law should be pursued for progressive purposes not because it is ‘law’ but because it aids a larger political commitment to fundamentally transform existing society. This would eventually provide the path for what Marina Veličković calls the “planned obsolescence of international law” i.e, the law’s gradual disappearance altogether. But before that happens, the task of radical critique and practise through international law must continue, even when we realize that any utopian hopes of wholesale transformation are ultimately constrained by the legal form.

D. Blindspots, Exclusions and Absences in Marxist Legal Scholarship
Despite the growing cohort of scholars who are writing within the Marxist tradition in international law and sharpening its conceptual tools, the general project of Marxism has been unable to fully shed its blinkers and unwilling sometimes to reorient its own constitutive categories in the light of other modes of struggles that cut across various axis of social divisions. The project of building solidarity across different resistance movements has not always been forthcoming.

This is perhaps most visible in the way Marxist legal scholars have privileged the category of ‘class’ as the most important marker of social division, ignoring how race, gender, sexuality and caste play an equally important role in the chain of production, distribution and thus also exploitation. Marxism has maintained a distance with other critical tradition such as TWAIL, CLS, critical race theory and also feminist approaches to international law in its singular focus that material conditions are unrelated to how cultural or gender stratifications co-constitute the capitalist mode of production. Despite its emphasis on the totality of social relations, Marxist scholars have themselves advanced an understanding of individuals abstracted from deep structural and social markers of community. As Knox points out, within the Marxist discourse, race and racism “tend to be understood as counterposed to processes of capitalist accumulation". No wonder that these exclusions are reflected in some of the ‘mainstream’ iterations of Marxist legal scholarship (including this one) which are produced by men, with a relative absence of women, trans or even black writings on the subject.

Equally, this dissonance is sustained by critical scholars in other traditions who mechanically associate the writings of Marx and the Marxist project with that of structural determinism and Eurocentrism. In some influential quarters of TWAIL, for instance, Marx is portrayed to be “irrelevant” to Third World decolonial struggles. These musings, of course, overlook not just the fact that Marx himself was alive to the conditions of colonialism and expropriation of native peoples as central to Western capitalist expansion, but also generations of Third World Marxist scholars and anti-colonial movements which applied, modified and even ‘stretched’ Marxist theory to local conditions and experiences of domination and imperialist expansion. For the latter, reading Marx has always been about how under conditions of capitalist accumulation, racialization, gender and caste based stratifications are crucial determinants of what constitutes the material conditions of life.

In contemporary times however, many Marxists and equal number of TWAILers, feminist theorists and critical race scholars have moved beyond traditional class variants of historical materialism to underscore the multifaceted nature of capitalist oppression, which straddles through race, patriarchy, and culture. For instance, Knox’s recent scholarship has highlighted that the concepts of ‘value’ and ‘race’ are but two side of the same coin and that any materialist mode of analysis needs to consider them together. Similarly, Chimni’s “integrated” Marxist analysis supplements issues of class with that of social feminist and post-colonial theory has been received approvingly both within the TWAIL and Marxist community. Tzouvala, in her materialist history of the concept of ‘civilization’, addresses how particular conceptions of race, gender, and sexuality operated as tropes for European international lawyers to infantilize, racialize, and feminize non-Western communities while laying the groundwork for capitalist expansion. Her work is also instrumental in bringing together insights from ‘indeterminacy’ in the CLS tradition with a Marxist framework of capitalism and its contradictions. Ruth Fletcher’s work is equally inspiring in thinking through Pashukanis’s commodity form theory from a feminist perspective to foreground the role of social reproduction within notions of value in commodity exchange. These and many other voices have in some sense made Marxist analysis of law and international law respond to and reflect on the many dimensions of social relationships that continue to change, evolve and transform under the conditions of global capitalist accumulation. Here the emphasis is not that 'class' analysis ought to be displaced, but that "class realizes itself and becomes embodied through gender, race, sexuality...". This is the direction that future Marxist international legal scholarship must embrace.

Summary

 * Summary I
 * Summary II

Further Readings

 * Source I
 * Source II

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Public International Law/Approaches/New Haven School

Author: Jane Doe "Required knowledge: Link" "Learning objectives: Understanding XY."

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Further Readings

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Conclusion

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Public International Law/Interaction/Interaction within International Law

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I. The Expanding Scope of International Law and the Multiplication of (semi-)Judicial Bodies
Scope of the international law of judicial bodies and the multiplication the Scope of Expanding Multiplication and International law of Judicial bodies

Further Readings

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Conclusion

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Public International Law/Interaction/International Law and Domestic Law

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A. Introduction
The relationship between international and domestic law (or the synonyms national or municipal law) is an evergreen topic featuring in every textbook on public international law. What is the background? Since International law in the majority view is considered to be an autonomous legal system independent of domestic legal systems, the question arises how the two systems relate to and interact with one another. Even though the relationship between international and domestic law is thus a classic question, having been discussed and theorized extensively, it has not lost any of its currency. In recent years, with some high-profile cases of domestic courts contradicting or "resisting" international law and international courts (see in more detail below C.II.), the question has even gained renewed significance.

There is no simple answer to the question how international law and domestic law relate to one another. The starting point is that, while international law asserts its primacy over domestic law and requires to be followed and implemented, it is usually left to the states to decide about the concrete modalities to do so. Sometimes the term "obligations of result" is used to describe this circumstance. In other words, international obligations stop "short at the outer boundaries of the State machinery". In this sense, international law may „(...) insert its demands in the box, requiring certain results to come out of it; however, it cannot determine how these results are reached within the box.“ States thus retain a certain degree of freedom in the choice of means to implement their international obligations in the domestic legal sphere. This "freedom of implementation" is limited by the fact that states cannot invoke their domestic law to justify the non-fulfillment of their obligations. Article 3 of the Articles on the Responsibility of States for Internationally Wrongful Acts makes clear that the "characterization of an act as internationally wrongful "is not affected by the characterization of the same act as lawful by internal law." Article 27 of the Vienna Convention of the Law of Treaties furthermore states that a state "may not invoke the provisions of its internal law as justification for its failure to perform a treaty." The non-achievement of the required result thus leads to the responsibility of the state on the international plane (see also chapter on state responsibility).

What makes the situation even more complex is that in the decentralized international legal order, to large extents lacking centralized enforcement mechanisms, it is up to domestic actors to implement and enforce international law, with a primordial role in this regard played by domestic courts. Over the last decades, with international regulation more and more overlapping with subjects also regulated under domestic law, from human rights to the environment and health, conflicts between the two bodies of law have become more frequent.

1. Preliminary Remarks
There are two theories that give different answers as to how international and domestic law relate to each other: monism and dualism. Following the above-described freedom in the means to implement international law, it is up to states to decide whether they follow a monist or dualist model. One may argue that this prerogative of states supports the view that the legal reality rather corresponds to a dualist model. It is, however, important to clearly state from the outset that today neither of the two theories is ever fully realized in practice. Even dualist states often foresee exceptions for certain monist "exceptions"; and in monist states courts often reserve the right not to apply international law in certain cases (see in more detail below, C.II.).

The main question the theories seek to answer is how international law becomes valid within the domestic legal system, i.e. how it becomes law that is legally binding within the domestic sphere. Monism and dualism foresee different answers to this question, the main difference being the level of involvement of parliament in the approval of international law. This question of validity is distinct from the question of the position of international law in the norm hierarchy or the question whether or not international law is directly applicable or self-executing by domestic courts and authorities (see on these questions below C.I). Given that, in practice, these latter questions are more relevant than the formal validity of international law, the monism/dualism controversy has already in the 1950s been criticized as "unreal, artificial and strictly beside the point". Nonetheless, the theories continue to play a role in international legal practice and discourse. Today, a major point of discussion concerns the democratic legitimization of international law (see below II.).

2. Dualism
Dualism starts from the idea that international law and domestic law are two distinct legal orders and highlights the autonomy of both legal orders. As Heinrich Triepel, one of the main dualist theorists, has put it, international and domestic law are like "two circles that at most touch, but never intersect". According to this dualist view, for an international legal norm to become valid in the domestic system, it needs to be "translated" to the domestic sphere trough an act of "transformation". Prominent states following a dualist model are Germany, the United Kingdom, India and Israel.

Among the dualist states, a further distinction is necessary. In the first group of states, including Germany, for international law to be transformed a formal parliamentary approval though a legislative act is sufficient. In Germany this act takes the form of a "Zustimmungsgesetz" in line with Art. 59(2) of the Basic Law. After the approval, the treaty can be applied as such, i.e. as international law. In the second group, a treaty can only be applied after having been implemented through substantive legislation. An example is the Human Rights Act in the United Kingdom implementing the European Convention of Human Rights (currently again subject to reform discussions). In this case, the law that will be applied domestically is not anymore the treaty, but the domestic implementing legislation.

3. Monism
Contrary to dualism, monism considers international and domestic law to be one single legal order. According to Hans Kelsen, the most prominent theorist of monism, both international and domestic law derive their validity from one basic norm ("Grundnorm"). The main difference between monism and dualism in practice is that in the monist states, international law does not need to be transformed into domestic law in order to acquire validity. In other words, international norms become automatically valid upon ratification. But Kelsen went even further, considering that any domestic rule contradicting international law is void. While Dualism can therefore be described with Triepel as two separate circles, monism according to Kelsen can be described with the form of a pyramid with international law on top.

Examples of monist states include the Netherlands, Switzerland, China and many Latin American Countries.

II. Current Debates: Is Dualism more Democratic than Monism?
The main actor in the conclusion of treaties is the executive, a major difference to the domestic realm, where for democratic reasons parliament is the central law-making body. The involvement of parliament before a treaty becomes domestically binding law is thus to some extent a compromise to involve the democratically elected parliament before the law becomes binding domestically. However, many consider that in light of the important structural changes international law underwent, this is not sufficient anymore. While classic international law was very state-centered and regulated mainly inter-state issues, this has significantly changed, with today virtually no area not touched upon by international regulation. This process has famously been described by Wolfgang Friedman as a transformation from a "law of coexistence" to a "law of cooperation". This development has increased concerns about the democratic or "political deficit" of big parts of the law governing today's societies.

Dualism, which entails a stronger involvement of parliament, is thus sometimes considered to be more democratic than monism. In light of the increased relevance of international law, in some countries with a strong monist tradition a shift to dualism has been discussed in recent years. By way of example, in Switzerland, a country with a strong direct democratic tradition, a (not successful) parliamentary motion in 2014 requested to consider a shift from monism to dualism. It argued that this would strengthen the Swiss legal order and its democratic legitimacy. In the United Kingdom, in earlier discussions about the legal modalities of the UK's exit from the European Union, it was argued that dualism "may save the United Kingdom from Brexit". The core of the argument was that exiting the Union would alter the UK's domestic law, making parliamentary involvement indispensable. Also some domestic courts have manifested a certain "dualist reflex" in recent years (see in more detail below C.II.).

However, dualism's democratic potential is overrated. Legislation transforming treaties of course needs to mirror the corresponding international obligations, in line with the basic principle that states are not allowed to invoke their domestic norms to deviate form international law (see above A.). The leeway parliament has is thus necessarily and inherently limited. And also in monist states such as Switzerland, the question wether parliament needs to be involved in the withdrawal from treaties, at least in the case of important treaties, is being discussed. Neither dualims nor monism thus seem to offer answers to the challenges and tensions arising in times of global governance and increased concerns for the legitimacy of the law. Some voices have thus argued that in the face of these challenges, especially domestic courts should be granted a certain flexibility when applying international law and facing unsolvable conflicts with domestic law. This will be addressed in more detail below (C.II and E.).

I. Questions Determining the Role of International Law
Because of the decentralized nature of the international legal system, in practice it is often domestic actors and, among those, chiefly domestic courts that apply and implement international law. Until not so long ago, domestic courts were considered to be quite reluctant when it came to the application of international law. The reason was that the international arena was considered to be the exclusive realm of the executive branch. This prompted the Institut de Droit International in 1993 to state that it was necessary "to strengthen the independence of national courts in relation to the Executive and to promote better knowledge of international law by such courts". This situation has changed - due to the massive increase of international regulation leading to substantial overlaps with issues previously solely regulated under domestic law, domestic courts now regularly decide on cases involving international law. Today, domestic courts are considered to play an important role in filling gaps in the existing international legal order by applying international law. Since the international order lacks centralized law enforcement bodies, domestic courts play an important role in this regard and to some extent fill this gap. The idea is that by applying international law in domestic cases, courts "bring to life" international law and in this sense contribute to enforcing it. In line with George Scelle’s theory of dédoublement fonctionnel, domestic judges thus not only fulfill a judicial function at the domestic level; they also have an international judicial function. In light of this, it has been argued that courts contribute to strengthen the international rule of law. In recent years, due to the increased activety of international courts and tribunal and the regulatory activities of international organisations, domestic courts not only deal with international treaties and custom, but increasingly also have to decide cases in which international judicial decisions or secondary rules play a role (see on  this chapter XY ). As will be discussed below (II.), recently, cases make headlines in which domestic courts contradict their international counterparts or refuse to apply international law.

In the practice of domestic courts applying international law, the monism/dualism controversy hardly plays any role. More relevant are the questions whether international law in a given case is directly applicable or self-executing (synonym) and, in cases of a norm conflict, whether it prevails over conflicting domestic law. Put differently, the validity of international law is the necessary precondition for domestic actors to apply international law, but in practice the problems lie elsewhere. Another question that still plays some role is the political questions doctrine. These three issues shall be briefly discussed in the following.

II. Recent Developments: "Backlash" Against International Law?
Often, in the decentralized international legal system, great hope is being placed in domestic courts. Domestic judges are considered to play an important role in applying and enforcing international law in the absence of more centralized law enforcement mechanisms. While in the 1990s it was still believed that domestic courts were reluctant to apply international law and even more so to take a stance that might contradict their domestic governments, it has been shown that over time, the application of international law by domestic courts has become quite normal (see above C.I.). Today, we might be witnessing yet another shift. Over the last years, there seems to be an increasing number of cases in which domestic courts explicitly refuse to apply international law and/or follow judgments of international courts. These cases have sometimes been called cases of "principled resistance". To be sure, it is not a new phenomenon that domestic courts make clear that while they are open to international law and willing to contribute to its enforcement, there are certain limits. In Europe, many high courts have reserved the right to "defend" a certain constitutional core against the "intrusion" of European and international law, with the German Federal Constitutional Court being a well-known example.

Yet, the number and diversity of these cases seems to be growing. Today, they seem to span most jurisdictions and issue areas of international law. Much-discussed examples include the Italian Constitutional Court which in 2014 decided that the implementation of the judgment of the International Court of Justice in the jurisdictional immunities case (Germany v. Italy) would violate the Italian constitution. It declared the law implementing the judgment to be unconstitutional, and, as a consequence, the ICJ judgment has not been implemented to this date. In human rights law, examples include the Argentinian Supreme Court, which in 2017 refused to follow the Inter-American Court of Human Rights in the case of Fontevecchia and D'Amico, and the Russian Constitutional Court, which even developed a certain "control of constitutionality" of judgments of the European Court of Human Rights (later translated into legislation).

Interestingly, domestic courts often rely on constitutional values, including fundamental rights, when refusing to follow international law. Rather than violating the rule of law, they thus seem to believe that they act in the interest of the rule of law. While these cases are often perceived as a setback or "backlash" against international law, this suggests that the reality is more complicated. To be sure, in some cases the invocation of constitutional values and principles might be more of a pretext not to follow an undesired international norm. Overall, however, it is undeniable that with the massive growth of international regulation in quantitative terms and the proliferation of international courts, clashes between legal orders have simply become more likely. Domestic courts can thus find themselves in a dilemma: on the one hand, they are "servants" to international law within the domestic realm and act as pivotal safeguards for its effectiveness. On the other hand, they remain "answerable to the dictates of applicable domestic law" and, therefore, can be – and, in times of global governance and much increased activity of international courts, probably will be – increasingly torn between the sometimes conflicting commands of domestic and international law. Of course there are no clear and simple answers to this dilemma. The question how these conflicts can be solved and how courts should accommodate to today's complex legal reality will be taken up again in the last section.

D. Domestic Law in International Courts
If domestic courts are regularly applying international law, what does the reverse case look like - how do international courts deal with domestic law? Here, the starting point is of course different. Even though domestic courts are not automatically bound by international law (whether they are depends on whether the state in question follows a monist/dualist system, whether the norm in question is directly applicable, etc.), it is clear that ultimately the obligations are binding on the state and need to be implemented (even though the concrete modalities are left to the states). In other words, domestic courts applying international law contribute to fulfill the international legal duties of their states. International courts, on the other hand, are not bound by domestic law and cannot be said to contribute to fulfilling a broader duty. Against this background, it is not surprising that international courts have been reluctant when it comes to the application of domestic law. The Permanent Court of International Justice had expressed a very narrow view by stating that "[f]rom the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States".

Today, it is, however, well recognized that domestic law also plays a role on the international plane. This is obvious when it comes to the formation of international law: domestic legislation plays a role in the formation of general principles of international law, and the decisions of domestic courts are seen as reflecting state practice, thus contributing to the formation of customary international law. It has furthermore been argued that "(...) domestic law is sometimes a necessary component in the functioning of an international rule itself: the determination of nationality for the purposes of diplomatic protection or the definition of the rights of a shareholder are prime examples."

But the relevance of domestic law on the international plane does not end there. It has been shown that the structural changes of international law, moving away from purely inter-state issues towards more and more areas previously only regulated by domestic law, has not only led to a more frequent application of international law by domestic actors, but more generally has had the consequence that "(...) the line between domestic and international law is increasingly blurred, with legal concepts, rules and principles crossing freely between the two spheres." Today, just as international law plays a role when domestic courts apply and interpret the law, the same is true the other way around. While inter-state courts, such as the ICJ, are still cautious in relying on domestic law in their judgments, in other areas of law, domestic law is an inherent part of the legal system, such as in the "margin of appreciation"/consensus doctrine of the European Court of Human Rights. The European Court of Human Rights has furthermore made clear in its jurisprudence that the interpretation and development of the Convention standards is a joint endeavor, a "shared responsibility" between domestic courts and the European Court of Human Rights. In some cases, it has even been criticized that the European Court of Human Rights in the face of political pressure coming from some state and political actors, has "given in" and overadjusted to domestic actors, risking its credibility.

E. Conclusion: Accommodating Orders in a Complex Legal Reality
The previous sections have shown that today, domestic and international law are not neatly separated legal orders, but rather strongly intertwined and mutually influential. With the body of international law growing quantitatively and expanding into more and more issue areas previously regulated solely by domestic law, it is clear that the legal reality has become more complex. It is thus not so surprising that clashes between norms have become more frequent. The question how the relationship between domestic law and international law should be theorized, and how concrete cases of conflict between the two bodies of law should be solved, in a way has become more timely than ever. Confronted with this complex legal reality, some domestic courts have started to develop criteria on how to solve legal conflicts. A pattern we can observe over the last years is that a seemingly growing number of domestic courts has started to make explicit that the domestic constitution, or at least a certain core of the domestic constitution, in case of conflict with international law, would prevail (see above C.II.). While it seems to be too far-reaching to see these cases as cases of "backlash", undermining the relevance of international law, it might well be questionable whether in times of global governance and strong overlap between legal orders, such at first sight simple and clear conflict solutions are the right way to go. A more flexible approach, allowing to balance the different rights and interests at stake in a given case, even though less clear than strict conflict rules and hierarchies, might better fit today's complex legal reality.

Further Readings

 * Source I
 * Source II

Conclusion

 * Summary I
 * Summary II