Public International Law/Actors in International Law/Women in International Law





Author: Juliana Santos de Carvalho, Verena Kahl "Required knowledge: Feminism & Queer Theory, Individuals, Human Rights Law, International Criminal Law." "Learning objectives: to understand how women have been included as subjects of international law; how they have contributed to the development of the international legal practice; and to take stock of (some) persisting challenges to gender equality in the field."

A. Introduction
Despite the well documented (white) masculine dominance in international law, women have long been a part of the international legal practice and discipline both as subjects of international legal instruments and as agents within the profession. This chapter aims to briefly cover how women are addressed in international law, as well as their contributions to the field. For that, it first introduces an overview of international legal instruments that recognise and advance women's rights internationally. It subsequently addresses the persisting widespread invisibility of women as active designers and interpreters of international law and casts a spotlight on selected women as key actors and active agents of and within public international law.

B. Women as Subjects of International Law
Women have long been the subject of different international legal instruments, either as a central group category for the norm in question or as a specially protected group within a larger framework of rights and protections. International law’s attention to women is mainly indebted to the continuous activism from international and transnational coalitions of different women’s movements and civil society, and, as will be demonstrated below, has encompassed a great variety of sub-fields in the international legal order.

Perhaps one of the most emblematic inclusions of women as subjects of international law is contained in the UN Charter. In its preamble, the Charter introduces among the UN's objectives the equal rights of men and women. Additionally, in article 8, the Charter makes explicit that the UN’s principal and subsidiary organs are to follow the equality between men and women in their functioning.

Similarly, the Universal Declaration of Human Rights (UDHR)'s preamble reaffirms the UN Charter’s recognition of the equal rights of men and women and, in its article 2, reiterates the right of all individuals, without distinction as to their sex, to fully enjoy the human rights set out in the Declaration. Further, article 16 of the UDHR recognises the right of men and women of full age to marry and found a family.

Another important international legal instrument, the International Covenant on Civil and Political Rights (ICCPR), establishes that State parties are to respect all individuals' civil and political rights irrespective of their sex. Article 3 indicates explicitly that State Parties need to ensure that men and women will enjoy the rights enshrined in the document equally. Similarly, articles 4(1), 23(2), 24, 25, and 26 contain provisions protecting individuals from discrimination on the basis of their sex. Mirroring these provisions, articles 2(2) and 3 of the International Covenant on Economic, Social and Cultural Rights also establish equality provisions for men and women in relation to the rights established therein. Additionally, article 7(a)(i) requires State to ensure equal pay for equal work, something that is also ensured by the International Labour Organisation (ILO) Convention 100 (Equal Remuneration Convention) of 1951.

Going beyond equality clauses, international legal instruments also add special protective provisions for women. In this regard, for instance, article 6(3) of the ICCPR prohibits the execution of capital punishment on pregnant women. Additionally, several ILO conventions establish specific protective measures for women, such as the Maternity Convention (first established in 1919, with the latest revised variant in 2000), night work, plantation work, among others.

However, perhaps one of the most comprehensive legal regimes of special rights and protection accorded to women have been those elaborated by the Commission on the Status of Women (CSW). Established by the UN Economic and Social Council in 1946, the CSW was fundamental for the drafting and adoption of several international conventions on women's rights, including the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). CEDAW provisions encompass a variety of issues, including, but not limited to, equality before the law and within cultural practices, access to education, political rights, equal representation in national governments and international bodies, specific rights for rural women, economic and social benefits, among others. Nevertheless, it bears noting that the CEDAW is one of the universal human rights instruments with the most significant number of State reservations.

The CEDAW also has an Optional Protocol with 115 States parties. This document establishes a monitoring Committee, competent to receive and consider communications concerning alleged Convention violations. Moreover, article 8 enables the Committee to conduct an inquiry procedure when it receives 'reliable information indicating grave or systematic violations by a State Party'.

Aside from international human rights, women have been particularly included in international criminal law. Most notably, the Rome Statute of the International Criminal Court (ICC) includes gender as a protected category for the crime of persecution, recognises women as a specific vulnerable group to specific international crimes, and indicates that gender equality and expertise should count in the selection of judges for the ICC.

Despite its contested legal status, the Women, Peace and Security (WPS) agenda of the UN Security Council is also considered an influential set of documents that reinforce existing legal obligations of parties to armed conflicts concerning the rights and specific needs of women and girls. Initiated by the unanimously adopted Resolution 1325(2000), and comprising nine different sister resolutions under the same rubric, the WPS agenda encompasses several issues relating to women and girls during and after conflict settings, such as prevention and protection against conflict-related sexual violence (CRSV), increased participation of women in peace processes, and specific measures to ensure the specific needs of women and girls in humanitarian relief.

C. Women as Agents of International Law
As stated beforehand, the corpus iuris of international law as well as the corresponding policy and law-making processes have to a large extent been construed and dominated by (white) men. Public international law has therefore been built on and permeated by the male norm, thereby constantly overseeing, neglecting and outcasting all of its deviations. This systematic and structural discrimination and marginalisation of women in all their diversity has, for the most part, been addressed through the above-mentioned specialized international and regional (human rights) treaties and protection regimes, focussing on women as right holders and victims of rights' violations.

However, besides the already mentioned one-sided focus on victimhood, systematic and structural discrimination and marginalisation of women in all their diversity has had and still has another effect in the context of international law, which requires further reflection: The invisibility and non-recognition of women as active agents of and within public international law. Overlooked contributions by women to the (further) development of public international law may, besides various factors, such as a lack of representation and resources, also be the result of an overly dominant victim narrative. In the following, the current contribution takes therefore a closer look at the persistent invisibility of women as active contributors to the international legal order in theory and practice, presents scholarly projects that seek to remedy this situation and finally casts a spotlight on - necessarily - selected women actors of and within public international law.

I. Invisibility and Non-Recognition of Women as Actors of and within International Law: An Attempt at Explanation
Due to systematic and structural discrimination, women have faced significant hurdles to shape and further develop public international law, a scenario to which various factors, such as the public-private divide, behavioural stereotypical gender roles, power imbalances and corresponding lack of or aggravated access to financial resources, land and property as well as educational institutions and offices, See, inter alia, Caroline O. N. Moser, who described the triple role of women in the Global South and their limited access to (and control over) financial resources, land ownership, education, high income positions and political power. See Caroline O. N. Moser, 'Planning in the Third World: Meeting Practical and Strategic Gender Needs' (1989) 17 (11) World Development 1799, 1801, 1803,1812-1813. Furthermore, Maxine Molyneux considered as strategic gender interests to overcome women's subordination, inter alia, 'the abolition of the sexual division of labor, the alleviation of the burden of domestic labor and childcare, the removal of institutionalized forms of discrimination, the attainment of political equality, the establishment of freedom of choice over childbearing, and the adoption of adequate measures against male violence and control over women.' Maxine Molyneux, 'Mobilization without emancipation? Women’s interests, state and revolution in Nicargua.' (1985) 11 (2) Feminist Studies 227, 232-233. See also V. Spike Peterson and Anne Sisson Runyan,  Global Gender Issues  (Avalon Publishing 1993) 62, 77, as well as the narration of Virginia Woolf on the restriction of women's (creative) development through lack of (financial) resources, own premises and access to education, leading to 'the safety and prosperity of the one sex and of the poverty and insecurity of the other and of the effect of tradition and of the lack of tradition upon the writer.' Virginia Woolf, A room of one's own (Hogarth Press 1929) 19-21, 72-74, 90. See also Catherine Kessedjian, 'Gender Equality in the Judiciary – with an Emphasis on International Judiciary' in Elisa Fornalé (ed), Gender Equality in the Mirror: Reflecting on Power, Participation and Global Justice (Brill 2022) 195, 202-205. may very well have contributed.

On the next level, the structural discrimination, which manifests itself differently depending on the intersectional situation of the specific woman, continues in the direct or indirect denial of or difficult access to and participation in international institutions, key positions and corresponding law- and decision-making processes, ultimately building on a lack of rights, resources and representation mentioned above. It is also worth mentioning that the struggles caused by and the fight against patriarchal structures also ties up important resources, such as money, time and energy, that could otherwise be invested differently. Invisibility therefore refers to all those women of diverse backgrounds that could not participate in the "game" of international law in the first place. This absence of women in the international sphere is also reflected in their continuous underrepresentation in important and influential international legal institutions, such as the International Law Commission or international courts and tribunals. See the description of female representation in international courts with further sources of Catherine Kessedjian in 2022: 'Concerning the ICJ despite a complete renewal of the judges between 1945 and 1969, no woman was elected until 1995 (Dame Rosalyn Higgins). In 2021, three women out of a total of 15 are on the bench: (by order of election) Joan E. Donoghue (2010), [...] Xue Hanqin (2010), and Julia Sebutinde (2012). There are almost no women ad hoc judges at the ICJ. The Tribunal for the Law of the Sea (Hamburg) is composed of 21 judges, five of whom are women. At the International Criminal Court, the situation has worsened: at the initiation of the court there was an equal number of women and men. However, in 2019 women accounted for only one-third of the bench. A decrease has also been seen at the European Court of Human Rights despite the policy announced by the Council that it would not be acceptable for Member States to propose a list that does not include at least one woman. The World Trade Organization (WTO) panel members did not include a woman until 2003.' Catherine Kessedjian, 'Gender Equality in the Judiciary – with an Emphasis on International Judiciary' in Elisa Fornalé (ed), Gender Equality in the Mirror: Reflecting on Power, Participation and Global Justice (Brill 2022) 195, 201. See also, by mode of example, Nienke Grossman, 'Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?' (2012) Chi. J. Int'l L. 647; Nienke Grossman, 'Shattering the Glass Ceiling in International Adjudication' (2016) 56 Va. J. Int'l L. 1; Leigh Swigart and Daniel Terris, “Who are International Judges?” in Cesare P. R. Romano, Karen J. Alter, and Yuval Shany (eds), The Oxford Handbook of International Adjudication (Oxford University Press 2014) 619. No woman has been nominated UN Secretary-General so far.

Nonetheless, international law has also fostered patterns of overseeing, ignoring, and denying adequate recognition to those women that have actually been active designers of the international legal order and made significant contributions to the continuous development of international law, often precisely despite the very difficult conditions faced by these women. Invisibility and non-recognition of women agents in the realm of international law is also owed to a patriarchal system that operates in invisibility itself. Still, the mechanism that fuels invisibility of these active women agents of and within international law can particularly be observed where international law is taught, described, analyzed and criticised: within academic institutions. Trailblazing women as active designers of international law and their contributions are largely absent in universities' classrooms in comparison to their men colleagues. The often taught and scholarly discussed 'classics of international law' seldom include contributions of women. These 'classics' go beyond the eponymous series edited by James Scott, as they refer to pre-selected works, which are considered contributions of such significance that they are regularly and repetitively addressed in seminars, lectures as well as articles, books and other forms of academic publications. The resulting invisibility and non-recognition of women agents of international law - besides losing valuable, substantive contributions to the development of the international legal order themselves - also leads to a presumption of their nonexistence and a lack of role models for young students, legal scholars and practitioners, which is why we need continuous research with corresponding data compilation to visualise, analyse and explain the absence of women as active agents of international law.

Yet, some important scholarly projects have tried to break the glass ceiling in favour of the visibility and recognition of women as active agents and designers of international law, such as the recent works of Rebecca Adami and Dan Plesch and Immi Talgreen.

II. Trailblazing: Women as Active Designers of International Law
Despite the aforementioned hurdles, women have made important contributions to the development of international law in different roles, such as diplomats, judges, scholars, lawyers and active members of civil society. Nevertheless, it is important to highlight that white, Western women have notably gained more recognition than their racialised and Global South counterparts. In this section, we aim at modestly correcting this bias by foregrounding the diverse set of women who have contributed to substantial landmarks of contemporary international law.

In this sense, while Eleanor Roosevelt has become much more visible in her efforts to encourage the adoption of the Universal Declaration of Human Rights, Dominican Minerva Bernardino was crucial in her promotion of the rights of women in the document. Bernardino, along with other Latin American diplomats, such as the Brazilian Bertha Lutz and Mexican Amalia González Caballero de Castillo Ledón, have also had an important role in the inclusion of women's rights during the negotiations of another landmark international legal document: the UN Charter. Both Bernardino and Lutz were active in the drafting process of the Charter, especially in their work of including crucial wording on the equality of men and women. An equally outstanding international figure of that time is Hansa Mehta from India, the only woman delegate to the UN Commission on Human Rights besides Eleanor Roosevelt in 1947. The change in the wording of Art. 1 of the Universal Declaration from 'All men are born free and equal' to 'All human beings are born free and equal' is to her merit.

Even before the birth of the UN System, as early as 1889, Bertha von Suttner formulated her - at that time - very progressive thoughts on peace and the international legal order in her bestselling anti-war novel 'Die Waffen nieder!'. She envisaged an international legal order with international institutions, international jurisdiction and peaceful cooperation among States. Suttner was the first women to participate as an observer at the First Hague Peace Conference in 1899 and the first women to be awarded the Nobel Peace Prize in 1912. Nearly a century before the publication of 'Die Waffen nieder!' another trailblazing woman, a feminist, abolitionist playwright fought against discrimination of women and publicly opposed slavery in the context of the French revolution: Olympe de Gouges. As a response to the 1789 Declaration of the Rights of Man and of the Citizen, she published a 'Declaration of the Rights of Women and of the Female Citizen', advocating for equal rights and challenging male authority and male oppression of women.

Nowadays, outstanding women from the Global South and their important contributions to international law are gaining more and more attention, such as Navanethem Pillay, Hauwa Ibrahim, Xue Hanqin, Unity Dow or Taghreed Hikmat and Cecilia Medina Quiroga, besides many others.

This has only been a very limited selection and therefore much incomplete list of many trailblazing women and their important contributions to international law across different times and cultures. (Re)discovering the contributions of women to international law is still the subject of ongoing scholarly research and discussion.

Conclusion
This chapter has demonstrated that, despite the structural gender bias and barriers in the international legal field, women have been a significant part of international law—both as subjects of international legal instruments and as agents contributing to the development of the international legal order. However, there is still a long way to go to achieve full gender equality and meaningful inclusion in the international legal order. Women—especially those positioned within an intersectional background of discrimination and oppression—still face structural marginalisation in the international legal field, despite their continued relevance for the profession. As such, striving for gender equality and the recognition of women’s contribution to international law is still an important and much needed endeavour.

This chapter sought to introduce these themes only briefly. Interested students, researchers, and teachers can further explore the topics, challenges, and contributions of women to international law by using the further readings listed below.

Summary

 * Women have been subjects of international law across a variety of international legal instruments ranging from, among others, human rights, international labour law, international criminal law and international security resolutions.
 * Systematic and structural discrimination has led to the persisting and widespread invisibility and non-recognition of women as active agents of international law owed to, inter alia, the public-private divide, behavioural stereotypical gender roles, power imbalances and corresponding lack of or difficulty in access to financial resources, land, property, and institutional positions.
 * Despite longstanding marginalisation, women have been active designers of the international legal order—and whose recognition is a still relevant endeavour.

Further Readings

 * Rebecca Adami and Dan Plesch, Women and the UN: A New History of Women's International Human Rights (Routledge 2022).
 * Rebecca Adami, Women and the Universal Declaration of Human Rights (Routledge 2019).
 * Hilary Charlesworth and Christine Chinkin, The boundaries of international law: A feminist analysis, with a new introduction (Manchester University Press 2022).
 * Immi Tallgren (ed.), Portraits of Women in International Law: New Names and Forgotten Faces? (Oxford University Press 2023).

Further Resources

 * Calendar on Outstanding Women of International, European and Constitutional Law .
 * Women and War: A Feminist Podcast .
 * 'Women in justice: three trailblazing judges send a powerful message', Interview with Xue Hanqin, Hilary Charlesworth, and Dame Rosalyn Higgins (UNRIC, 9 March 2023) .