Feminist Treaty Interpretation?

Core fields of international law remain immune from feminist interventions. Despite the breath and richness of international legal feminism, animated by interventions from across the globe and with queer theory and post humanism pushing it into ever more imaginative and thoughtful spaces, bit of international law like treaty interpretation, sources of law, responsibilities and immunities remain as they were.

Now, some might claim, but we cite feminists, and sure there is that panel, in the graveyard slot, with all the feminists (and probably queer theorists too) on it. But every time we write in an edited collection, we are still expected to do the a, b’s and c’s of feminism. Additionally, people often ask us why we don’t include more queer theory, as if we are all the same, instead of close companions with shared interests, causes, and methodologies, but still different. (My suspicion being that we are asked this because the comment writer knows little about either).

No matter the substantive intersectional content and clear citation and argument, every time you say woman, you must outline all the ways women are intersectional, and if you do not, you are always essentialising. The only way to disprove this charge – is not by being substantively intersectional, which is essential, but by writing a long list; you must do the cosmetics. Yet, all the other pieces in the same academic collection can make many essentialist generalisations about people or men, with no intersectional demands.

Feminists must acknowledge where we got our ideas from; we must acknowledge how queer theory impacts our work, where it does some different in imaginative ways; it must be intersectional in a substantive practice and not a cosmetic claim. That is feminist practice. And all, not just the feminists, should do that intersectional work. What is not necessary, is requiring the token feminist to do the token feminist things, keeping it always in introductory mode, because, well, your word count is up!

Writing in feminist edited collections is then a relief, a form of respite. Where, even writing across disciplines, as I was in The Contemporary Reader of Feminist International Relations edited by Catherine Goetze and Khushi Singh Rathore which is an excellent collection which covers women’s and LGBTQi+ rights, feminist contributions to peace, women’s and feminist approaches to diplomacy and feminist theorizing on borders, security and the politics of care. It also has interviews and short essays, allowing for a variety of forms of spaces within the collection. Jumping off from the work Jeni Pettman, Hiliary Charlesworth and Christine Chinkin, my contribution asks what worlding woman could mean for the core of international law, specifically treaty interpretation.

Feminist interpretation of legal provisions is well established but has yet to be applied systematically to treaties. Feminist judgments projects have tackled a variety of areas of international law also, showing how these methods can be used even without changing the substantive law, that feminism can work within the confines of the patriarchal law.

Treaty interpretation is viewed as a neutral act independent that just requires applying rules like Article 31 of the 1969 Vienna Convention. But, as with statutory or constitutional interpretation, stereotypes and discriminatory approaches proliferate.

In the article, I propose four legal feminist tools of interpretation as a starting point and apply them to the UN Charter:

1. read text as if it ought to apply to both men and women, and beyond that binary;
2. make interpretive choices to eliminate subordination;
3. intersectionality;
4. ask the woman (and queer) question?

I argue that these are aligned with the 1969 Vienna Convention as to have full regard to object and purpose, and do so in good faith, would require interpretations that do not harm women.

Reading text as if it ought to apply to both men and women and beyond this, by deconstructing that binary, is a significant aspect of feminist legal interpretation. Moving to numbers 2 and 3, eliminating subordination requires that treaties not only allow women, and others, to thrive but that they are supported in doing so, in all the intersectional ways in which their lived experiences impact how the law applies to them. If a treaty eliminates subordination for some women but continues or multiplies it for others, it is not a feminist interpretation. For the last part, asking the woman (and queer) question means avoiding any burdensome or discrimination approaches that might arise from a specific interpretation.

Important critiques would say that treaties are a tool of subordination and of themselves, that their basis in sovereignty equality has always hidden the structural inequalities that they perpetuate. The full article points to what can be done in the meantime to bring about change. In the full piece, it shows what it would mean for the UN Charter, and specifically for the UN Secretariat. Feminist treaty interpretation can also shed light on why previous strategies to produce equality have failed.

Prof Aoife O’Donoghue is the co-director of Doing Feminist Legal Work, is a Professor of Law at Queen’s University Belfast and is an expert in feminist legal theory, utopias, tyranny and constitutionalism.