ABSTRACT
This chapter arises from my experience as an academic international lawyer with an interest in human rights law and political feminism. It responds especially to one question that has been of concern to me for a long time: how can legal measures that are often said to be-and in many respects areprogressive in relation to the claims of women to be free and equal subjects seem to work in practice so as to sustain women as unfree and unequal? This problem could, of course, simply be framed in popular terms as the problem of the ‘glass ceiling’, or as a condition in which rising tides do not in fact make all boats rise higher, but such claims are too simplistic. The literature of international law and human rights law, and particularly women’s human rights law does not provide any satisfactory answers to this paradoxical situation. Rather, it tends to treat the law as given, and pays little attention to the inconsistent and often contradictory character of the international legal order in its response to claims about women’s oppression-inconsistencies and contradictions that create new sites for the subtle or perhaps ‘structural’ subjugation of women. Consequently, one might turn to a range of contemporary theory, namely
feminist theory, critical theory, critical/feminist legal studies, international political theory, postmodern and poststructuralist theory, post-colonial theory and so forth. Some of these writings argue that much of the explanation for the subordination of women lies in the international legal doctrine of statehood, derived from the principle of state sovereignty that comes to be deployed as disciplinary power in the production of the modern subject/individual. Michel Foucault’s reading of the discursive construction of the modern subject is especially illuminating, and I will use this, alongside Judith Butler’s idea of the performative construction of subjectivity, to develop my theoretical framework. On this basis, the first part of the chapter will focus on the performative
conception of identity formation as a discursive practice that produces the normative understanding of sex, gender and women, and especially the individual inscribed as ‘woman’.2 This will lead to an exploration of the gendered nature of international human rights law in which I look at state sovereignty
as a performative force in the categorization of the legal subject. This chapter, thus, seeks to ‘deconstruct’ the legal subject and human rights law. My task is to highlight and pose questions about the repressive sovereign discursive discourses and mechanisms at work in the legalisation of the rights of women.
