Feminist Judgments in International Law, a new book edited by Loveday Hodson and Troy Lavers explores how key judgments in international law may have differed if feminist judges wrote them. Kirthi Jayakumar reviews the book.
The process of rewriting of jurisprudence through a feminist lens is a powerful and intriguing development in legal methodology in recent times. Turning existing decisions passed by courts of law into feminist narratives, this effort involves both a reassessment of jurisprudence and a recasting of their jurisprudence through a feminist lens. A recent collection that engages with existing judicial decisions through a feminist lens, Feminist Judgments in International Law, cuts across issues, geographies, time, and contexts and offers deep introspections on judicial precedents and reexamines both the written word and the tools and frameworks deployed in crafting the written orders.
Public international law is a blend of treaty and customary law as highlighted by state practice, and peremptory norms from which no derogation is permissible. Within this framework, state practice plays a significant role in that precedential rulings, actions, policies, and approaches in inter-state relations are informed by governments and state apparatuses, and are framed around man-drawn borders, ideas of nationalism and national identity, and structures that are established to further state interests. This book interrogates these very systemic and structural components of international law through a feminist lens, and offers meaningful and viable alternatives to established norms in international law. It then identifies the impact of deploying such a lens by examining the outcome – specifically in the form of whether the decision that emanates from such an analysis furthers justice, and in relevant cases, peace.
Rewriting Judgments: A Feminist Exercise
The book examines cases that address the fount of international law namely the sources and the public-private divide, state conduct as they manifest in the form of sovereignty, responsibilities and immunities, the international legal regime in the form of treaty law, the engagement of non-state actors such as human rights protection, as well as themes of global governance and violence as they exist within the scope of international law. Within all these spaces, the reassessment of extant jurisprudence takes the reader through an innovative, wholesome, and unique reassessment of international law.
The introduction sets the stage for the process involved in examining judgments in international law through a feminist lens. Loveday Hodson and Troy Lavers spend time reflecting on the need for the process in itself, and examine the need to infuse a field that is already prone to Utopian thought with a feminist pursuit of “imagination, hope, and activism” through the harnessing of the “creative energy generated, and the insights that emerge, when a group of feminists with an interest in international law are brought together and given space to strategise, critique, encourage, and reflect.” Contextually propped by a long-drawn initiative to rewrite judgments, the authors allude to the need for consideration of the concrete ways in which feminist perspectives can change the law, in order to apply extant theory in a practical fashion. In doing so, they firmly establish that this book is an effort to shift international law out of the patriarchal thought it is deeply rooted in, and to subvert the notorious domination of male perspectives.
The rest of the book is divided into four parts. Part two speaks to cases under general international law, part three to human rights issues, part four to international criminal law, before part five concludes the book. The selection of cases is both interesting and representative, starting right from the Permanent Court of International Justice and including the European Court of Human Rights, the International Criminal Court, the Special Tribunal for Sierra Leone, the Court of Justice of the European Union, the International Court of Justice, the Committee on the Elimination of Discrimination against Women, and the International Criminal Tribunal for the Yugoslavia.
The choice of the judgments appears to have been from among a pool of those who responded to the call for participation – and the ones selected were drawn out to both represent the diversity and range of cases in international law, and to examine critical issues of relevant value in international law. The judgments are rewritten in a methodical format that begins with the author’s note, followed by a note explaining the differences between the rewritten and the original judgment. The rewritten judgments follow an outline of the facts and context, and a set of notes wrap up the judgment with an explanation of the aims of the rewritten judgment and a clear highlight of the contributions made to the feminist reimagination of international law. Some judgments have been rewritten in full, and some, in part, with a clear indication of the relevance of the part in question.
While a case-by-case review would be ideal, this review, in interest of brevity, focuses on three of the entire set of cases in the book.
Starting with the Lotus Case, the book traces the earliest international judicial affirmation of sovereignty and acknowledges the gendered personification of states. Instead of the “Lotus Case,” the authors rename it the Bozkurt case, labelling it not after the ship it collided with (SS Lotus), but after the ship that collided with the SS Lotus (Bozkurt), thus altering the very nature of power structures. The judgment examines questions about the rights of women that the tribunal did not address, and also de-centered sovereignty and establishes international cooperation as the norm in international society.
In the Lockerbie bombing case, the feminist chamber rewriting the judgment paves the way for a successful claim for Libya, and expands the jurisdictional ambit of the International Court of Justice to include a judicial review of Security Council Resolutions, and calls for a fetter on the unrestricted exercise of its powers.
What stands out in its construction of gender is that this book is conscious about not conflating “gender” and “women,” and acknowledging judicial responses to non-binary gender identities, as well. In re-writing Christine Goodwin v. The UK, the feminist chamber goes beyond the decision that affirmed the applicant’s rights, by demanding that the understanding of gender had to transcend the binary, and that multiple relevant issues needed to be addressed – such as acknowledging the lived experiences faced by the applicant on account of her lived and “legal” gender.
Overall, even a cursory study of the rewritten judgments shows that each author has paid close attention to reflection, rather than blatant “decision-making.” The reflective process thus enables a reader to not only learn, but also unlearn along the process, and acknowledge the dynamism and contextual modifications that may come from such an exercise if another person were to engage with the same case, and with a feminist lens. There is a deep sense of commitment to engaging through enquiry at every turn. The re-written judgments are also a product of a collaborative approach that prioritizes the inclusion of voices, rather than the “adding” feminist views and stirring the original judgment up. Instead, this approach has examined the entire judgment from the root upwards. This is also in line with regular legal practices where single judge benches are seldom engaged in deciding cases of this magnitude.