Critical Approaches Flashcards
What are critical approaches?
- looking at law through a particular critical lens (feminist, colonial..), analyzing law from that perspective
- what interest underly the law? What do those interest protect?
- what is the impact of the law? Particularly the impact on different groups
- how should the law be? Looking forward as well as assessment based
Why are we learning about critical approaches?
- they are a essential part of understanding international law. International law has a complex history which is understood differently by different groups
- importance of critical thinking
Third World approaches to international law (TWAIL) - an overview
➞ it originates from anti-colonialism movements = groups that tries to gain sovereignty over their own affairs. Decolonising internal law/ international education is a big part of their movement
- questions the universality of international law ➞ particularly the ideas that underlie international law. A trail tenet is that this is a mostly westernized idea and not a global idea of human rights
- international law as a regime of domination and subordination = TWAIL is about power relationships, between the old (colonial) and new, and how TWAIL facilitates this
- a lot of TWAIL is focused on the history of international law, this can still be traced back to the modern days
- deconstruction (breaking down international law and showing how these dynamics work, how it creates winner and losers = analysis part & reconstruction (how international law can be constructed differently)
TWAIL historical focus
(Third world approaches to international law)
- the tainted origins of international law = the idea that the origin of international law came out of something bad, such as colonialism. Always a European project which was based on European ideas and values that got spread through the world.
- the ’civilized’ and the ‘uncivilized’ worlds = early international law draws a line between these two. The idea is to be civilized (aka you had to behave the proper European way). If you did that, you’d have more rights
- Victoria and Spanish conquest: international law as a tool for colonialism
➞ Victoria = statesmen travel to North America and sees the people who live there. Open to new points of views towards the Indians because they had ‘natural law’ and structures built with communities. ‘Progressive statesman’
➞ Spanish = tried to trade in South America, but got refused. The Spanish felt they had the right to enforce international law
TWAIL modern international law
Representation:
- individuals = where are these people educated? Says more about their ideas towards law. Same thing for lawyers and people who work for the UN. Global representation, and often indirectly required to have had a western education.
- within institutions: UNSCN represents essentially the winners of the war and they are the most powerful institution within international law. Preserve the power of specific (western) countries
Decolonized states still bound by European-created legal order: rules proper to decolonization are only consented by the European states. But stille very state is bound by this, even though the states that used to be colonized have never given their consent
Developed and developing states: there is still a predominance for devolved states. Western model of development is the aim, or trying to get to that point
Savages, victims, saviors (Mutua): different branches of international law crate a frame how we see third world countries. International law divides people in the different groups: victims (people that can’t help themselves), savages (people with no morality, no concept of civilized behavior), saviors (usually the western countries who set the standards)
➞ the western countries decide everything for these groups:
- humanitarian intervention, human rights, international criminal law, war on terror
Economic subjugation = economic as well as political and legal prospect
Feminist approaches international law: different feminisms
Liberal feminism = women and men having the same rights ➞ generally accept international law nut seek to ensure their rights preserves as well
Cultural feminism = women and men are different, so they focus on their differences and which rights should come to them. Women see the world through a different perspective. They also focus on women specific rights; they focus on women’s issues
Radical feminism = a feminist lens who views the law as a domination rom men over women. They focus what to do about the dynamic
Beyond
➞ Queer feminism = more about deconstruction of gender
➞ Intersectional feminism = more than just gender dynamic. Also bringing in other components like race, disability, etc.
Feminist approached: method and impact
Feminism as method = men and women have different perspective on law and some think we should look at law more in a women’s perspective
- ethic of care vs ethic of rights: masculine way of looking ‘what rights do I have’. Women will look more altruistic at this / with more care
- emotion vs reason
- particular vs abstract: masculine approach is abstract, feminist approach is more particular. Women look at more specific cases and how it influences the people
Feminism as prioritization of women
Feminist approaches: women in international law
Representation = a few female judges in the ICJ, but they’re still very much outnumbered by men
Public vs private = the private sector is less regulated than the public sector, whereas women’s are more affected by what occurs in the private sector (private sector must also be regulated)
Specific areas of law
- feminist approaches to human rights = human rights who most effect women are applied differently than the human rights who most effects men
- gender and conflict
Feminist approaches vs TWAIL
Other approaches: Marx and anti capitalist approaches
Link capitalism, class and international law:
- the capitalist state = the European model is capitalist in nature
- the ‘transnational capitalist class’ = majority of people with the power to make law come from the upper class
Queer approaches to international law
- relatively new area
- queer approaches as prioritizing LHBTIQ+ community in international law = to hat level does international law protect the queer society?
- queer approaches as deconstructive methodology: what impact does this community have on international law
