R.

Brooks, ‘Feminism and International Law: An Opportunity for Transformation’- An

Analysis
Nitin Soni*

Contents
Background .............................................................................................................................. 1
Introduction .............................................................................................................................. 1
Analysis ..................................................................................................................................... 4

Background
‘Feminism and International Law: An Opportunity for Transformation’ is written by Rosa
Ehrenreich Brooks, this article is published in Yale law journal in this year 2002. Rosa
Ehrenreich Brooks is Associate Professor of Law at the University of Virginia School of Law.
She also serves on the Board of Directors of Amnesty International USA, and is the former
Acting Director of Yale Law School's Schell Center for International Human Rights. In this
article she talks about the implications of international law on women and how we can rectify
them as to get the maximum of them.

Introduction
In this article R. Brooks she try to show the implication of international law and how the
international law can be used to maximise its effect. She also discusses the afterwards of war.
Her article is published in the year 2002 after the terrorist attack of 26th November 2001 in
world trade centre, so she also discusses about the terrorist and there way to treat the women.

* The Author is a candidate of law at Dharmashastra National Law University, Jabalpur. The article is submitted
as a project for Gender Justice and Feminism Jurisprudence subject. Sincere acknowledgement to the Ms. Swati
Parmar (Assistant Professor of Law) for her kind guidance and consultation, without the piece could not have
reached finality.
She also discusses various international legislations like CEDAW 1 and VAWA2 also about the
civil and political rights where she tries to explain how effectful the social and economic rights
can be.

This article consists of four chapters, in first chapter she discusses about the maleness of law,
and about the position of women in world full of man, the also about the position of women in
the international law. Quoting her “women are similarly absent from the highest ranks of the
United Nations, NATO3, the OSCE4, and other influential international and regional
organizations. And as even a quick document search on Lexis or Westlaw demonstrates, women
are equally few and far between as authors of articles on international law. A search of law
school catalogues shows the same shortage of women in the ranks of international law faculty.”

Here it can be seen how problematic that is, women in these organisations or any other place
are like a drop in the ocean full of man.

In second chapter she discusses about the many feminist authors who writes about the
international law and feminism, she criticizes the concept of state by giving reference to
refugees and talks about the Universality of social and economic right apart from the civil and
political right. Indeed, the very understanding of what constitutes a "state" is a highly gendered
understanding. International law requires four minimal criteria to be met before recognizing
the existence of a "state": a state must have a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states.5 These are, of course,
requirements that are arbitrary, and increasingly so in this more global era: for instance, why
must a group of people occupy a defined territory before they are permitted a state, given that
electronic communications may make physical location less important than ever before?

Women have insisted, for instance, that trafficking and violence against women must be viewed
as proper subjects for international human rights and humanitarian law: After all, widespread
domestic violence is possible only when state structures encourage, tolerate, or consistently fail
to remedy it. Rape of women during armed conflicts only occurs when commanders encourage

1
See Convention on the Elimination of all Forms of Discrimination Against Women, Nov. 1, 1991 (hereinafter
CEDAW), available at http://www.un.org/womenwatch/daw/cedaw/ratifica.htm ("specialized" convention
ratified by over ninety percent of the world's states).
2
See The Violence Against Women Act of 1994,(hereinafter VAWA) available at
https://nnedv.org/content/violence-against-women-act/.
3
The North Atlantic Treaty Organization.
4
The Organization for Security and Cooperation in Europe.
5
See 3RD RESTATEMENT ON FOREIGN RELATIONS (1987); Montevideo Convention on the Rights and Duties of
States, Dec. 26, 1933, U.N.T.S.
it, or choose not to prohibit it or punish men who engage in it. Trafficking in women is possible
only when state agents refuse to make preventing it a priority and refuse to engage in the
collaborative international efforts necessary to stamp it out.6 If we use a more nuanced and
expanded definition of state action--one that recognizes that will-full blindness or deliberate
inaction is just as much a state choice-many injuries that affect women in particular suddenly
appear on our maps with startling clarity.

Here we can see how she derives the state relation and the international law for the protection
of women.

In third chapter she becomes the feminist critique of feminist in international law where she
pointed out how the traditional thinking of most of the women is a hindrance towards making
more feminist regime because the hesitate saying that they are feminist, and continue to be
slave of male society and male norms.

In fourth chapter she discusses about the International law as a transformative discourse in this
chapter she write that “I believe it is critical that we, as women-with all of our similarities and
all of our differences-engage in the international law project. I believe, in particular, that
universalist, liberal conceptions of human rights have much to offer- that we can do quite a lot
with the language of human rights, however limited its vocabulary and incoherent its
grammatical rules.”

She also discusses about the human rights violation by Taliban and Islamic countries where the
women are not treated as a human being, the arm conflicted Afghanistan that causing the huge
harm to everyone but specially to the women. women around the world suffer from both de
jure and de facto discrimination. In some states, women are inferior to men as a matter of law;
they cannot inherit property, cannot obtain a divorce, cannot hold public office, cannot receive
the same education as men, are forbidden to enter certain professions, are fined if they wear
"improper" clothing, and can legally be beaten or raped by their husbands. (The Taliban may
be gone from Afghanistan, but women in most parts of that troubled country find today that
they are still subject to numerous restrictions 7 as are women in many other parts of the Islamic

6
It is worsened when women who are "trafficked" for sexual purposes are treated as criminals rather than as
victims.
7
HUMAN RIGHTS WATCH BRIEFING PAPER, TAKING COVER: WOMEN IN POST-TALI1AN AFGHANISTAN (May
2002), available at http://hrw.org/backgrounder/wrd/afghan-women-2k2.htm.
world). In many other states, the laws on the books are gradually changing, but women still
face widespread societal discrimination.

Now moving forward with respect to the project here is the analysis of the article.

Analysis
Rosa Brooks highlighted the problems which can be solved by using the International law or
we can say that how the international law can be a discourse method to move towards the more
gender justice. This article is among the few articles which connected the dots of feminism
with international law. This article revolve around the development in world politics and
terrorism activity in early 2000s.

Firstly, she pointed about the problem of the women representation in any place be it United
Nation or a State’s legislature, or any office of organisation or NGOs, there are a few numbers
of women out there in the whole chunk of man. There is not much literature written by women
in international law out there. She is totally right in this aspect; this problem is not only there
at the international level but the domestic level too. In the Indian legislative assembly, there
are total 818 women members out of the 543 seats, interesting to note that this 81 is the highest
figure of women members in India till now. How we can assure the women safety and security
if the law maker is the man who wanted to enforce the male norms.

Secondly, She talks about the international law and its relation with individual, and the
effectiveness of the human rights she also questioned the word State and its responsibility also
she criticise the CEDAW. R. Brooks is beautifully drawn the relationship between the
individual and international human right law but her logic to include everything with aspect of
international law can go against the integrity of the nation, the major problem with the
enforcement of International law is that the concept of State sovereignty which put resistance
in the enforcement of International law on the State. If we cover every domestic aspect with
the international law then the nation’s security is in danger also this will not be practically
possible it seems utopian. Yet if we are succeeded in that than we will make a better world.

She also against the defined concept of State where the boundary, the population defines State,
because if we see that there is a huge no. of refugees living in the other State on the mercy of
it. They are most vulnerable because of the concept of state due to which they are not the
citizens and they do not have any rights, in the refugee camps women are most vulnerable they

8
See http://164.100.47.194/loksabha/members/women.aspx.
are tortured, raped and sexually assaulted by armed personals, if the concept of state is not there
and the international law applicable to them then there is a slight chance woman are in good
condition. If we remove the concept of State than we can live in the world free of boundaries’,
free of armed conflict, international humanitarian law applicable to them, it seems utopian but
it can be possible in other way around what if the International humanitarian law applicable to
every person in the world, that is far achieving goal but it can be achieved.

CEDAW is a very old legislation also there are very less no. of signatory in this legislation
there is need to amend this law also make sure to enforce this law to every person in the world.
The only possible way to eliminate the discrimination against women.

Thirdly, she becomes the feminist critique of feminist critique of International law, in this
aspect she criticise the universal applicability of law, how one law is different for the different
women, the applicability of CEDAW. She is right in this respect because there is difference
between the sex worker and a corporate working woman and a homemaker, the law will be
different for everyone, there is difference of rights between them so it is not possible to counter
everyone with the same law.

Lastly, she talks about the International human right laws as a transformative discourse, in this
perspective how the International law can be come as a discourse. Until now we do not used it
as a transformative discourse, it is there as a piece of paper but this paper can change the
thousands of lives.

In this world the women are treated as object they are frequently tortured, sexually assaulted
and abducted for human trafficking. Women trafficked and forces them to be sex worker or
slave, the grave violation of human right. The Taliban treated the women as they are not human
women are not allowed to wear what they want there right to choose, which is fundamental
right, Al Quida and Taliban violates the human rights of its own citizens and the women is
more vulnerable in this, if the international human right law applicable to them there is slight
chance of improvement. If CEDAW is rectified and every country become signatory to it then
at least some countries where the terrorism doesn’t rule might improve the condition of women,
country like Kuwait, Saudi Arabia and other middle eastern Islamic nation where the women
is still struggling to get basic fundamental right.

Enforcing International Human right law to every person and not on some state, this approach
seems utopian and there will be many practical problems in enforcing same. But the approach
is correct how the international human right law will work as transformative it can be one way.
Due to the international law United Aram Emirates allows women to drive the vehicles and
issuing of driving licence, these are a few effect of International legislation and it can be seen
as transformative discourse.

This article is a decade old yet it is still relevant in contemporary era, the same Taliban issue,
the Iraq war and the no rights to women in middle east, and no literature by women in
International law and not holding any positions in world politics, same as 2002, a few drops in
ocean. This article shows how the transformation can be happened and the author is correct in
her reasoning. So this article is important with respect to the Feminism and International law.