H.

Charlesworth, ‘Feminists Critiques of International Law and

Their Critics’, 13 THIRD WORLD LEGAL STUDIES-
A RESPONSE-
Hillary Charlesworth is a leading feminist international lawyer and a Melbourne Laureate Professor at
Melbourne Law School. She is widely considered as a leading authority in the area of feminism in
international law and has contributed immensely as a scholar on this subject, among others. The
present paper is a response to the above-mentioned article, authored by herself and seeks to recognise
the contribution of feminist critique to international law while also analysing the critiques of the
critiques.
The origin of feminism in the late 20th century was a result of the questioning of the universal
applicability of law and the assumption that the legal personality is genderless. Initially dismissed as a
mere idea of propaganda politics, feminist jurisprudence gained credibility in the 1970’s as a reformist
and an experiential approach that provided a combination of theories and perspectives.
In the international arena, the feminist legal discourse made an entry rather later than it did in other
legal fields. The catalyst for its emergence was the evolution of the international human rights regime
that uncovered the need to protect the diverse sections of the society that had been subjected to
continuous oppression throughout history. According to Charlesworth, the basic foundation of
feminist critique lies in the idea of posing a challenge to the generally accepted theory of international
law being a mere structure, propagated through implicit liberalism, that provides its actors a platform
to pursue their visions of a good life. 1 The primary challenge is posed in the form of depicting that the
fundamentals of international law, in its substance and practice has a gender that is biased towards
men. It is through this foundation that she treads on the path to discover the answer to the general
feminist question regarding the incorporation of women into the structures and substance of the
international legal order.
The modern international legal order, since its inception has been subject to criticism by the ‘Global
South’, the critical race theories and many other “outsider” discourses to the subject. However,
Charlesworth, interestingly, draws a distinct comparison between the existing critiques and the
feminist critique to international law by eliminating the “conceptual links” between the former and the
latter. She suggests that unlike the other critiques of international law, the feminist movement does
not preserve the basic concepts of international law, such as statehood and the accepted ‘actors’ by
merely attempting to argue for recognition of economic disparity. Instead, the feminist approach tries
to question the very fundamentals of international law by bringing to the spotlight its ‘true nature’
which is believed to be dominated by a male ideology. The underlying idea to Charlesworth’s
definition of the feminist critique to international law is agreed upon. Unlike the other critiques, the
feminist angle not only contemplates a structural reform but goes into the very basis of the formation
of the existing international legal order, that has not been explored previously. While doing this
however, it is indeed important to highlight the traits of radical feminism that is portrayed in such a
distinction provided by Charlesworth. This is important because not all feminists, especially liberal
feminists, would agree with such a critique that would require a complete overhaul of the existing
structure of the international legal order.
Stepping away from the clutches of an extremely radical stance, Charlesworth offers an interesting
dual role of feminist analyses of international law by referring to the deconstructive and
reconstructive theories. Like her, the author too believes that the deconstructive theory offers a better
and practical approach towards evolving the international legal structure by raising concerns that
would require immediate addressal. An issue such as the exclusion of women from the very

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H. Charlesworth, ‘Feminists Critiques of International Law and Their Critics’, 13 Third World Legal Studies
foundations of the construction of modern international law is likely to draw more attention and create
massive awareness among the masses. The state is then labelled as non-neutral ever since its
inception, thereby snatching its genderless identity that had been propagated for the longest time. A
deconstructive analysis of this kind mobilizes the diverse sections of the society, not only with respect
to the exclusion of women in the construction of the notion of state, but will also include the various
communities that had been subjugated to long-standing oppression, empowering them to step out and
demand their rights. With regard to women, the realisation of their exclusion from all important
aspects of decision making i.e. economic, religious, political, and military systems will only assist in
the creation of unity among the different international feminist perspectives. A more radical stance,
being the reconstruction of the international legal system is far-fetched, at least in the present
scenario. As Charlesworth points out, the fundamental problem with regard to such a reconstruction is
the lack of a definite historical perspective with which one could make gender a category for analysis
and inclusion, in the creation of a new legal order. To destabilize and reform an existing structure
from its roots, without the requisite sources of knowledge and information may only result in
dangerous outcomes that may not be viable for all of us concerned. Thus, in order to transform the
existing international structure into one that accommodates the different stakeholders of our society
equally, it is important to strike patriarchy at points where it hurts the most. This is possible through
mobilization of forces and creation of awareness in a manner that gives sufficient premise and
reasoning to all those affected to unite in the pursuit of the common cause. The primary action needed
for this to challenge the “male monopoly of the production and reception of knowledge” and create
accommodations within it before effecting a structural overhaul of the international legal order, which
seems inevitable.
After providing the foundation for her critique of the international legal order, Charlesworth proceeds
towards addressing her critiques, especially Fernando Teson who calls her out to be incoherent in her
critique of the international legal order. In this section of the article, she clarifies herself as leaning
towards the radical side of the feminist discourse in international law. Upon a thorough reading of the
article, the author was indeed convinced with Charlesworth’s reasoning with one specific line acting
as the smoking gun that rebuts Teson’s stance appropriately. “Patriarchy is not a temporary
imperfection in an otherwise adequate system; it is a part of the structure of the system and is
constantly reinforced by it.”2 This particular line is of great importance personally as it strikes at the
root of the existing structure of international law. It creates the basis for feminist thought and
highlights the need for a structural overhaul that is eventually, if not presently, possible through a
radical reform. As far as Teson’s criticism is concerned, the author believes that the anti-western bias
is a movement that is founded upon existing international structures, visible and highlighted in all the
different critiques of international law, that stretches itself considerably into the feminist agenda in
international law. The author is also against his ‘intellectual purity of position’ with respect to
scholars being free from social and political factors while going about their work. Personally, the
author believes that the entire arena of critique in the international forum is a result of the continuous
social and political oppression that has transcended over generations, led by Western thought and
action. To consider the state or the actors of international law in an ‘intellectually pure’ state as
suggested by Teson would be a misconception that could not provide for the realities of the
oppression that has been suffered over the course of time. In order to genuinely understand the
feminist critique of international law, it is imperative to dig deep into the social and political causes
behind the origins of female suppression and exclusion without which there would be no context to
any critique that is initiated against the existing system. As pointed earlier, it is inevitable that there
will arrive a moment in time where the liberals and radicals will join hands to effect a structural
overhaul in the international regime and the author is in agreement with Charlesworth when she
defines her work as a combination of intervening theories that are applicable at different periods of
time. It is indeed necessary to understand the history of feminine subjugation which would not be
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H. Charlesworth, ‘Feminists Critiques of International Law and Their Critics’, 13 Third World Legal Studies
possible with a single theory or its application throughout the course of time. Patriarchy remains a
constant while the impending question remains the amounts of subjugation or constraints it has posed
on women throughout time. One may be sure that an ‘intellectually pure’ state and a single theory
cannot answer this question.
Further, Charlesworth analyses the essentialist critique to the feminist critique of international law
that poses a better challenge than the incoherent critique. The foundation of this theory treads on the
path that women have a fixed essence in the society with regard to specific functions that they are
required to perform. However, it fails to realise the varying roles a woman may play in a society. It
casts on a woman, a stereotypical character that is expected to be constant across all societies
irrespective of its history or traditions. The theory does not accommodate the cultural differences in
women that vary significantly across different societies. The example used by Charlesworth is worth
mentioning when she questions herself as a white international lawyer and her ability to deliver a
system of international law that may provide for universal justice. She rightly questions her form of
universal justice being applicable to other women who may have had a different experience of
subjugation throughout history and for whom, the definition of justice may completely be different. It
is here where essentialism poses its biggest challenge and brings up the question whether international
law can ever be universal in nature? Charlesworth offers a partial solution to this question by
acknowledging the different life experiences of women, the different cultures they believe in and the
varying levels of subjugation that they may have gone through by asking them to unite in the
“collective social history of disempowerment, exploitation and subordination extending to the
present.”3 This collective feeling, according to her should be targeted at overhauling the male
dominance, that across societies is mostly the common factor that will enable women from different
walks of life to unite in the fight against patriarchy. Evidently, such a solution also demands certain
sacrifices with respect to culture and beliefs held by particular women, but is necessary to at least
create a level playing field before a complete overhaul can take place.
Finally, the article addresses the issue of international human rights and its problematic differentiation
between the public sphere and the private sphere, especially with regard to women. Charlesworth
points out the need to bridge the gap between the application of the human rights regime in the public
sphere, that is dominated by men and the private sphere, where the domination is not addressed or
recognised internationally, considering the fact that a woman’s life in most cultures is spent in the
household. As a result, it becomes necessary to conceive a system that primarily focuses on
minimising these differences of applicability with the sole view to not marginalise or exclude the
experience of any woman. As far as the essentialist critique is concerned, the author is in agreement
with the tripartite approach4 proposed by Isabelle Gunning that proposes cultural exchange of
knowledge and experience that in turn promotes co-working in the realisation of common goals that is
beneficial for all. This may be done in a variety of ways, but the primary agenda should be to promote
literacy among these women that would go a long way towards achieving the desired outcome.
The feminist legal discourse in international law, despite its recent origins has been successful in
making its presence known. The process has a long way to go and it is important to acknowledge the
fact that obstacles in front have been existing since time immemorial. As a result, the fight will have
to be drawn out for many more years before it could even reach the stage of a structural overhaul. It is
only continued creation of awareness and voluntary action that can pave the way for a world where
equality is truly felt and practiced in the different societies of the world, even if it means the non-
existence of a universal international law.

- Satvik Upadhya
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H. Charlesworth, ‘Feminists Critiques of International Law and Their Critics’, 13 Third World Legal Studies
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H. Charlesworth, ‘Feminists Critiques of International Law and Their Critics’, 13 Third World Legal Studies