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International Law's Inherent Biases

Niamh Callinan

Image credit: Patrick Gruban via Flickr

International law is one of the more elusive fields of law, not just in theory but also in practice. Fundamentally, international law articulates the rules, obligations, norms and standards of nation state behaviour and interactions. International law is often employed as a mechanism to promote stability and consistency in international relations.

When I commenced my studies in International Laws, I was invigorated to learn and understand the legal frameworks which underpin international relations. However, I quickly discovered how gendered international law can be. The language utilised in international law exemplifies a perspective which excludes both females and non-binary people. The Vienna Convention on Diplomatic Relations 1961 – Article 13 states; “The head of the mission is considered as having taken up his function in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner.” This is not to say that other more recent treaties utilise such explicitly biased language. However, exclusionary language perpetuates an outlook which not only devalues the voices, experiences, and perspectives of those already disempowered, but also establishes frameworks and systems which perpetuate this bias. As a young woman studying and engaging in international law, it is incredibly discouraging to observe language which blatantly stipulates non-gender-neutral perspectives and enshrines these into the frameworks guiding the behaviours of nation states. A notable example is contained within Article 7 paragraph 3 of the Rome Statute of the Criminal Court. Gender is defined as a term which “refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.” The language highlights other perspectives are excluded from the establishment of the governing rules of international relations. As stated by the forward-thinking organisation Women in Foreign Policy, diplomacy is dominated by individuals who are ‘pale, male, stale (and Yale!).’ The lack of seats at the table taken up by individuals who do not fit into this archetype in international law is indicative of the biases that are intertwined with the rules, norms and obligations governing nation states’ conduct and relations. The Fourth Geneva Convention, while placing an obligation upon States to protect women during armed conflicts, frames protection to be an attack upon a woman’s honour rather than an act of violence. Such framing portrays women’s rights to be bound to male’s rights rather than as individuals afforded their own rights of protection during an international conflict.

This inherent gender bias has left me questioning what other biases are inherent to the structures of international law, especially the rules and norms by which nation states are governed and by which actors are beneficiaries of the systems they create. In considering the process of negotiating a treaty, the nation states with numerous alliances, more influence, and considerable resources have an augmented ability to dictate terms. The soft power often exuded during these processes co-opts certain stand-points and enables the perpetuation of the status quo. The legal structures and frameworks resulting from a treaty could therefore be said to encapsulate rules which are innately more beneficial to larger more influential nations states. The fraught relationship between the African Union and the International Criminal Court due a seeming fixation on states located on the African continent is an exemplary representation of the such biases playing out. The structure of the UN Security Council, with 5 Permanent Members who are able to dictate the resolutions of the Council, is another well-known and critiqued example of this bias.

The subsequent question is, how can such inherent biases can be addressed and removed from international law. Firstly, there is no quick fix nor a one-size fits all solution. Due to the nature of international law the evolution of these structures depends upon the policies and actions of states.Secondly, opportunities of change need to be created within international law. Individuals, organisations and institutions within the system must demand and establish such opportunities.

Thirdly, and most crucially, there needs to be a greater recognition, understanding, and research into the inherent biases which exist within the structures of international law and the subsequent impact these have upon international relations. For the next generation studying International Law, my hope is that more discussions will be had about these biases, further research will be available highlighting these biases, and more opportunities are afforded to ensure the active redress of these biases within the structures that govern international relations.

Niamh Callinan is undertaking a Master’s in International Law at the University of Sydney and volunteers with Voices of Influence as the Deputy Director for their Legal and Political Affairs Subcommittee.


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