A Feminist Critique of the Realism-Oriented International Law System
Shengdi (Esther) Ge
For many, the presence of international law may seem to be more like a win for liberalists rather than realists: international law functions as an international institution, drives attention to international interdependence, and emphasizes the possibility of a positive-sum game through securing mutual benefits. None of these characteristics align with the assumptions of realism. However, when considering how the recognition of controversial issues and the enforcement of internationally-agreed issues play out in reality, realist thinking informs and shapes international law to a great extent.
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In this paper, the author will use the examples of abortion and international sex trafficking to illustrate how the realist thoughts inform the international system, rendering it difficult to address these two issues at an international level. The two case studies are chosen due to their unique significance to women’s security. Abortion highlights not only women’s general access to reproductive health, but also signifies their agency and bodily autonomy. It is important to note that pregnancy is never a one-time decision – it creates long-term impacts over the arrangement of their career and the course of their life. As such, restricting access to and even criminalizing abortion is equivalent to a substantial deprivation of their own agency, a right that is ought to be inalienable to themselves. As for international sex trafficking, the example contributes to the conversation due to not only its direct impacts on women’s bodily security, but also how it is deeply rooted in the commercialization of women’s bodies and the gendered social norms that prey on women.
Realism and How It Informs the World
Realist theories, including both the classical- and the neo-realism, tend to emphasize several key elements.[1] First of all, they assume that states exist in an anarchical international system, which has no central authority or government; self-help is thus needed. Second, it focuses on states, particularly the more powerful ones, as the primary actors, and further assumes that states are unitary and rational. Third, states are assumed to be in pursuit of their survival and national interests. Lastly, a zero-sum game will inevitably be the outcome of state interactions.
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It is difficult to evaluate the extent to which international realist theories have influenced international outcomes by informing the decision-making of the policymakers. This challenge stems from the fact that policymakers never directly refer to or are made aware of what theories they are influenced by. However, a general sense can be achieved by reviewing critical historical events and the language adopted by policymakers. From the United State’s calculations in the Cuban Missile Crisis which highlight how the neorealist thinking informed policymakers about the limits of the world[2], to the repetitive use of the term “national interest” and “international anarchy” in political rhetoric for justifying policy decisions[3], the influence of realist thoughts on the world has extended far beyond the realm of academia and shaped the international political world.
Feminist Critiques of International Law
The feminist critique of international law is not a new concept. In fact, feminist scholars have been extensively criticizing international law ever since the late 20th century. Existing critiques generally fall into two broad categories: (1) the association of women with their roles as wives and mothers, and (2) its adherence to the conventional separation between the private and the public sphere, consequently rendering the problems that are unique to women unmentioned and unaddressed. In this section, the author will provide a literature review of these critiques and evaluate to what extent these critiques are still valid given the recent progress made in international law.
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First, the association of women with the roles as wives and mothers contribute to the limited if not none inclusion of women into the conversations happening at the level of international law. In her work Feminist Methods in International Law, Hilary Charlesworth argues that while women are not completely absent from conversations about international law, the understandings of their roles are largely limited: they are considered mothers and/or wives, or the potential mothers and/or wives.[4] Her observation was valid and proven true by almost all pieces of international law work at her time. For example, in 1995, the Fourth World Conference on Women was held in Beijing. Following the conference, the Beijing Declaration and Platform for Action was published, which has been widely considered the “the most progressive blueprint ever for advancing women’s rights.”[5] However, even in this work, women’s roles as wives and mothers remained the focus. Not only their contribution to the welfare of the society is only viewed through their contributions to the welfare of the family, their need to balance their responsibilities between work and families is also particularly emphasized, while the same discussions never appear for men.[6]
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Second, the separation between the public and the private sphere in international law is also criticized by feminist scholars. International law tends to regulate affairs within what is constructed as the “public sphere”: areas including economics, politics, and military conflicts. The private sphere is believed to be beyond the jurisdiction of international law and agreements.[7] However, the gendered-structure that is in place makes women largely constrained to the private sphere, therefore excluding them from the conversations of international law. Furthermore, numerous problems that are unique to women are often related to private actors instead of the state agent. Domestic violence is one example. Legal works ranging from Universal Declaration of Human Rights, International Covenant on Civil and Political Rights to Report of the World Summit for Social Development fail to address domestic violence as a form of human rights violations.[8] From this perspective, the term “human rights” is never about human; it remains to be and only to be about men.
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It is, however, important to recognize the historical limits of these critiques and acknowledge the recent progress of international law in addressing these problems. Conversations revolving around gender equality and the protection of women’s rights are no longer built upon their identities as wives and/or mothers. The separation between the private and public spheres has been gradually mitigated. More generally, issues unique to women are gradually gaining international awareness. In 2000, the United Nations Security Council issued Resolution 1325, formally acknowledging the disproportionate impacts of conflicts on women;[9] In 2011, the Council of Europe issued the Istanbul Convention, particularly aiming to combat violence against women and domestic violence.[10]
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However, the fact that the current international law framework has begun to incorporate and address the existing feminist critiques does not mean it is ideal from the sense of women’s security. Several issues critical to women’s rights continue to go unaddressed by international law; numerous of them are, although incorporated in a de jure sense, facing significant enforcement issues in practice. The following passages will explain the persisting problems by drawing on the implications of realism on international law with the example of abortion and sex trafficking. It argues that feminists should acknowledge how realism poses a radical threat to gender security at the level of international law by not only informing its construction, but also limiting the enforcement of international law in practice.
Case Studies
1. Abortion: the Lack of Agreement
To begin with, there is no international agreement ensuring access to abortion. The only international law that addresses the issue of reproductive health for women is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). However, this law limits its focus by only providing that “the role of women in procreation should not be a basis for discrimination,” calling for the improvement of women’s reproductive rights and restricting forced abortion.[11] However, what improving women’s reproductive rights actually entails can greatly vary on a state to state basis. For Finland, a country with liberal abortion laws, it may be assumed to include abortion;[12] For Honduras, which is home to the world’s most restrictive abortion laws, improvement of women’s reproductive rights may mean to expand its current restrictions and completely outlaw women’s access to abortion.[13] The language was designed to be intentionally vague on the issue of whether providing access to abortion should be considered as part of a woman’s reproductive health. In this section, the author will discuss how the realist assumptions contribute to the lack of mention of access to abortion as an inherent component of reproductive health for women within the international legal system.
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First, the realist emphasis on state sovereignty limits opportunities for international agreement when states each have distinctive values that influence their opinion of the issue at stake, which is the case of abortion. In his work Politics Among Nations: The Struggle for Power and Peace, Hans Morgenthau outlines state sovereignty as one of the fundamental principles of international realism. Sovereignty enables states to act independently and functions as the primary condition for states to pursue national interests.[14] This dynamic is highlighted by the practice of reservation in international law. Reservation allows each state to indicate which clauses they would not fully comply with or form a different interpretation of. In the context of abortion, the practice of reservation is not applicable as each state holds distinct values . Any attempt to form an unitary international agreement regulating access to abortion will thus be deemed as an overstepping of state’s sovereignty, leading to the failure of the international law system to reach an unitary agreement regarding women’s reproductive rights and securing women’s access to abortion.
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Second, realism downplays the role of societies and internal dynamics within states, which consequently excludes the chances to understand or address the issue of abortion. For Waltz, states are considered unitary actors who act within an anarchic international system in the pursuit of their self-interests; the internal political dynamics of the states are not emphasized.[15] However, different from other issues like domestic violence and human trafficking that different political parties tend to unilaterally recognize the criminality of them, the issue of abortion is often highly politicized, with competing political parties at the domestic level holding contradicting views on whether abortion should be liberalized or criminalized. It is thus the internal political dynamic within the state renders the issue of abortion remain to be highly controversial and unable to enter international conversations. By downplaying the role of domestic societies and internal dynamics within states, realism fundamentally renders it impossible to understand what results in the status quo of the issue of abortion.
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Third, realism emphasizes the distribution of power among states in shaping state’s behaviors. This assumption negatively impacts global access to abortion by allowing shifts in the policies of superpowers, like the U.S., to influence those of less powerful states, and by extension, the international consensus. In Theory of International Politics, Waltz considers the distribution of capabilities or power among states a determinant of states’ behaviors. He contends that when the distribution of capabilities change across the system’s units - which are defined as the states in the realist paradigm - the system’s structure will be transformed, influencing the actions of individual states within the larger stage.[16] The emphasis on the distribution of power leads to the emphasis on the role of the superpowers. Although Waltz never directly talks about the role of international law in this piece of his work, his arguments shed light on how, under the realist thinking, changes in the stands of the superpowers would lead to change in the system of international law.[17]
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The implications here are clearly double-sided: when superpowers liberalize and secure women’s access to abortion, less-powerful states follow; and vice versa. This relationship, to some extent, explains why the international society has seen a trend of liberalizing access to abortion in the few decades following the U.S. Supreme Court decision to uphold a woman’s rights to abortion in Roe v. Wade. However, in 2022, the U.S. Supreme Court overturned its ruling. At an international level, given the fact that the United States is still largely considered the global superpower, the international significance of the overturning of Roe V. Wade may be more alarming. While the decision is recent and the long-term impacts may be hard to predict, twenty one states have already moved to restrict or ban women’s access to abortion.[18] In Latin America and the Caribbean, where progress in liberalizing abortion rights has been made in recent years, the overturning of Roe v. Wade has strengthened anti-abortion activist movements.[19] It is not so hard to imagine how, if an international conference on abortion can be held, the U.S.’s reversal of Roe V. Wade may make these states even more unwilling to take a stand and call for liberalization of abortion.
2 .International Sex Trafficking: the Lack of Implementation
Unlike abortion, the issue of international sex trafficking is not deemed as controversial both domestically within individual states and internationally among states. Instead, international agreements have been made, and the problem lies in the lack of enforcement. This section will argue that this problem can be attributed to the realist emphasis on not only state sovereignty and interests, but also the anarchic structure of the international system that it upholds.
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States tend to universally recognize sex trafficking as a crime. International agreements have been made to address this crime, with the most influential and well-recognized one being the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (also known as the Palermo Protocol) implemented under the United Nations Convention against Transnational Organized Crime, with 182 out of 195 countries are now parties of the Protocol.[20] The Protocol ground breakingly addresses the international trafficking of women. While the term “sex trafficking” is not explicitly used, the Protocol does recognize women’s vulnerability to trafficking for the purpose of prostitution or other means of sexual exploitation and outlines extremely detailed provisions on how to prevent and combat trafficking, along with means to settle the victims of trafficking.
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While combating international trafficking of women has achieved international consensus, the enforcement, however, remains limited. The Protocol merely focuses on guiding individual states to set up domestic countermeasures. While international cooperation across borders is encouraged, the Protocol neither sets up a specific international organization in charge of the issue, nor establishes an international measure of enforcement. Sex trafficking remains prevalent around the world, most notably in the Golden Triangle Region located in between Thailand, Laos and Burma. Notably, these three states are parties to the Palermo Protocol. In this region, women are treated as the best form of commodities: abundant, extremely profitable, and less risky than drug trafficking.[21]
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The realistic prioritization of national interests creates incentives for the countries to not comply with the Protocol they signed onto. The sex trafficking industry is extremely well-established in the three countries mentioned above as a result of corruption and collusion between government officials at different levels, who are authoritative and powerful enough to make national interest a representation of their own interests. In the example of Burma, the production and commercialization of drugs, particularly heroin, are controlled by and used to profit the militant government. The trade of drugs results in a significant number of men trapped in debts, who would then either sell or be forced to give up their daughters to the sex traffickers.[22] The trafficked women are never given a chance to escape: the personnel ranging from border patrols, immigration to local police do not provide them assistance (although being required to by the Palermo Protocol); they instead collectively ensure no one is able to leave the chained industry. In this sense, the realist emphasis on national interests, given that corrupted state officials are able exploit the conception of national interests and equalize it with their own interests, thus prevents states’ compliance to established international law that ought to address the issue at stake, creating a situation in which de facto achievements remained limited while de jure progress has been made.
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Furthermore, the tenets of realism also pose an inherent challenge to the enforcement of international law regarding international trafficking by prioritizing state sovereignty and revolving the theory around the anarchic structure of the global society. The successful countermeasure of sex trafficking relies on the establishment of an international party that is capable of supervising states’ compliance and conducting enforcement when necessary, neither of which is possible, given the realist-aligned factors stated above. This yields two implications. First, it prevents the successful implementation of the current Protocol, as any close supervision of states’ compliance at the domestic level will be registered as a threat to the sovereignty of the state. Second, it also limits the possibility of improving the Protocol: adding in an element calling for the building of an international enforcement mechanism may result in states’ complete withdrawal from it. The best result can only be a compromised one: either an international law that contributes to the establishment of international norms against sex trafficking but lacks an effective enforcement method, or an ideal law that no state signs.
Concluding Thoughts
This paper provides a critique of the how realists tenets underlie and thus compromise international law, using the examples of abortion and international sex trafficking. It argues that the realist orientation of international law contributes to its limited response to both issues in unique ways. In the case of abortion, realism hinders the formation of an international agreement by emphasizing state sovereignty, downplaying the internal dynamics of each state, and focusing predominantly on the actions of the “superpowers.” When it comes to international sex trafficking, while international agreements are achieved, realist practices restrict the successful enforcement of the related international protocol by prioritizing national interests and emphasizing the anarchy of the international system.​
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It may seem odd that the problems of international law highlighted in this paper appear to confirm the predictive power of realism instead of disproving it. However, it should be understood that realism’s appears predictive because leaders relied on realist assumption when organizing the world order. The wide acceptance of realist thinking has dominated how politicians and international law makers perceive and synthesize the world. Thus, they reinforce the negative implications of realism, making it even harder for women’s security to be improved. The problems become normalized, and the potential countermeasures become hard to even imagine. This paper seeks to point out the inherent flaws rooted in the realist thinking in terms of improving women’s security. It is embedded in the hope of inspiring the prospective audience to acknowledge the flaws of realism and potentially reconstruct their understandings of international relations with an active awareness of the situation of women.
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Endnotes
1. Waltz, 1979; See also Morgenthau, 1948.
2. Smith, Hadfield, and Dunne, 2012.
3. Mangalvedhekar, 2019.
4. Charlesworth, 1999; See also Hevener, 2019.
5. UN Women, 2015
6. United Nations, 1995.
7. Sullivan, 1995; See also: Charlesworth, 1999; Hernandez-Truyol, 1996.
8. Hernandez-Truyol, 1996.
9. UNSC, 2000.
10. Council of Europe, 2011.
11. Office of the High Commissioner for Human Rights, 1979.
12. Thomson and Pierson, 2018.
13. Council on Foreign Relations, 2022.
14. Morgenthau, 1948.
15. Waltz, 1979.
16. Waltz, “Chapter 6: Anarchic Order and Balances of Power” in Theory of International Politics, 1979.
17. Krasner, 2002.
18. Council on Foreign Relations, 2022.
19. Wise, 2022.
20. United Nations, 2000.
21. Beyrer, 2017.
22. Beyrer, 2017.
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