Theoretical and Methodological Approaches to Gender and International Law

“Gender” as a specific topic of concern appeared gradually within international law and scholarship, initially by scholars drawing on feminist theories. A central concern in the scholarship is how gender relates to sex. For some scholars, gender is useful for distinguishing social constructions from biological sex. For others, this distinction is problematic because it conceals the way sex is also socially constructed. Reflecting these scholarly debates, the way gender is defined and relates to sex is not consistent in international legal instruments or scholarship. Another dividing question is how gender, sex, and “women’s situation” relate. For some, gender means a focus on women. This conflation is questioned by others. The gender/woman question injects confusion and political force in international legal debates. More recently, gender identity has attracted attention, and while gender equality has long been a central topic of concern, states and scholars critical of what they consider “gender ideology” in instruments such as the Yogyakarta Principles and the Istanbul Convention have sought to advance “gender complementarity” in its stead. For scholars committed to gender equality, gender complementarity is conceived of as a backlash. These topics of concern do not reflect any specific theoretical or methodological approach, and it is not possible to divide the theoretical and methodological approaches according to topic. Instead, the debates are pursued in a variety of ways: An early approach that remains significant seeks to identify structural biases in seemingly neutral or universal instruments. This can be contrasted to scholarship analyzing international instruments explicitly engaging with gender, the way international law partakes in forming gendered subjects, and processes of gender mainstreaming. The role of gender in gender-based violence continues to be questioned. More recently, queer approaches have sought to question the normative in international law, and a theoretical focus on men and masculinity has emerged as a response to the focus on women in gender and international law debates. Aiming at granularity and “localizing” gender, anthropological and ethnographic approaches contribute with narratives breaking with universalizing tendencies in international law. Similarly, intersectional, TWAIL, and posthuman feminist debates approach gender as part of broader concerns, while some scholars have turned to history in order to rethink gendered aspects of international law. Natural science methods, including emerging technologies such as AI, are also used to analyze gender concerns. How gender is debated, analyzed, and questioned through different methodological and theoretical approaches demonstrates the political vibrancy of gender as a concept in international law.