Regarding Rights

Academic and activist perspectives on human rights

Law as a site of politics: an interview with Hilary Charlesworth

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By Mareike Riedel

Centre for International Governance and Justice, RegNet, ANU


This interview with CIGJ Director, Hilary Charlesworth, appeared first on Völkerrechtsblog.

Hilary Charlesworth is best known for her work on feminist theory and international law, however her intellectual curiosity extends far beyond this – for example she recently explored the role of rituals and ritualism in human rights monitoring and in 2011 she was appointed judge ad hoc of the International Court of Justice for the Whaling in the Antarctic case. In 2015 Völkerrechtsblog had the pleasure to meet with Hilary Charlesworth in her sunny Canberra office and talk with her about the old and new boundaries of international law and what feminism in international institutions has in common with space food.


Do you still remember your first encounter with international law or how you became interested in international law?

I was quite miserable studying law and I kept thinking I should drop out, but for one reason or another I never did. In my final year of law school I enrolled in international law and it was the very first law subject that I engaged with immediately. I think that was because it was so closely tied to politics.  I studied at the University of Melbourne Law School, a very conservative law school in the 1970s, and we were essentially told by the lecturers – although they never put it quite so explicitly – that law is different to politics. When you got to international law, however, you couldn’t tell that story anymore, because they were so obviously connected. At the end of the year I was involved in the Jessup Moot Court, which really cemented my interest in international law. In those days in Australia there wasn’t much competition and my team went as the Australian team to Washington to compete. The topic of the moot was outer space law, and at that time I thought it was like a parachute that allowed me to jump out of the dreary, grinding law degree.

Why did you decide to go to academia and not into practice?

After I did my articles of clerkship I went to work for a judge in the High Court here in Australia and I loved watching the process of legal argument. There were a couple of really interesting cases in international law in front of the High Court at that time. I went off to study in America with the idea that I would come back and be a barrister. But the experience of being taught really well in the US and listening to and engaging with some brilliant teachers changed that. My teachers at Harvard were using styles of teaching that I had never encountered in Australia, perhaps a more Socratic, discussion based style. This was a style of teaching that treated students as adults who have done their reading so the lecturers didn’t need to just spoon feed it to you, which was the standard way to teach law in Australia in the 1970s. While studying in the US I went as an intern to the UNHCR in Geneva because I thought this could be the sort of thing I wanted to do. But by that stage I had become excited enough about the process of teaching to think that this might be for me.

You have written extensively on feminist approaches to international law and on women’s rights – how did you get into that topic?

I feel as if most things I have done in my career have been accidental – without planning. I am not proud of this, but I didn’t have much interest in feminism, even at university. I came from a very large family, five girls, two boys –  and I went to an all-girls school. My parents were very democratic, my father did a lot of housework, which was unusual in those days. I always felt that there were the same expectations and possibilities for the girls in my family. The first time I thought that there was a problem was when I started in legal practice. There were all these little things at the law firm that I was asked to do that the men weren’t, for example to go and buy the lunch of the senior partners. At first I was very dutiful and dedicated and just did it. But then I started to wonder why it was only me who was doing this and not the other male articled clerk. I remember he said to me that he just would not do such a task, and I slowly started to see some of these patterns of discrimination against women. In those days, there were almost no senior women lawyers or judges. At the time I applied for my articles we did not have anti-discrimination legislation and it was okay to ask in job interviews whether women had a boyfriend, or intended to have children. Of course, the men would never be asked this and today it would be illegal to ask any prospective employee such questions. I think the sexism was really one of the reasons why I didn’t enjoy legal practice but at the time I didn’t think that there was any theory behind it.

And how did you get into the theory?

When I was at Harvard Law School there were some inspiring people working with feminist theories in law like Frances Olsen, who is now at UCLA and was then doing her SJD at Harvard. She gave this brilliant seminar, which later became an article in the Harvard Law Review called “The Family and the Market”. This was a kind of epiphany for me and I became very interested in feminist questions. For a while I didn’t think that feminist questions could apply to international law on the basis that international law is all about the state. It wasn’t until I got back to Australia as a young academic in the late 1980s that I put them together. My journey into feminist theory in international law was really based on friendship, in particular my friendship with Christine Chinkin and Shelley Wright, who were both teaching in Australia when I met them at a conference. One day we decided to propose a paper for the Annual meeting of Australian international lawyers on this topic. We really thought that our colleagues would think this was ridiculous and wouldn’t allow us on the programme. But the person in charge of the programme, Don Greig, said: “Great! Go ahead”. We were then in panic because we actually didn’t know what to say. This was before the Internet and Christine and Shelley were in Sydney, I was in Melbourne and we divided up the topic, talking on the phone a lot. Then we presented the paper that eventually became an article in the American Journal of International Law, the Feminist Approaches article. That’s how we got started – it’s not a very intellectual story and it was almost because we wanted to provoke our colleagues. Luckily, these colleagues opened the door and made us think it through. Of course, looking back at these things now I think how terribly simplistic it was and there is a lot that I want to criticise today, but that’s really how it came about.

What were the reactions when you introduced this topic to international lawyers?

There was a whole range of interesting reactions. At the negative end, the reaction was “That’s ridiculous. You are completely muddling up law with a political project. You are debasing the law by having this sort of analysis.” I remember sitting in some formal dinner next to a quite senior person in international affairs and when I told him about the topic he roared with laughter and said I must be joking.  Then there were people who engaged with it but found it intellectually suspect. An example of this would be Fernando Tesón, a quite conservative international lawyer, who took on our article in the Virginia Journal of International Law and argued that we were wrong on many counts. Even though I did not agree with his critique, he had at least taken our arguments seriously. Even people from the critical legal tradition were uncomfortable with the article because, they would say, “it’s not just a critique, it’s a political project and that’s just not what international law should be used for.”

So what is the trouble with feminist approaches to international law?

I think that the trouble with a lot of feminist work in international law is that the ideas and the discussions take place in quite a small group and there is very little engagement with feminist ideas from people that are not already part of this community. I guess this is why some critical international law scholars are sceptical of this project. They acknowledge that feminism has had some impact in international law, but think it has really run out of ideas. Of course, we know that in international institutions some version of feminism – to me an exceptionally limited version of feminism – has achieved some form of acceptance. You can hear the UN Secretary-General making a worthy speech about the inclusion of women on International Women’s Day and you may have this idea of gender mainstreaming being picked up within the UN. There are certainly some programmes that appear to take up feminist ideas but I do not see them as very successful despite the rhetoric and despite the adoption of United Nations Security Council Resolution 1325 in 2000. I actually think that the problem is having such a limited, fractured idea of feminism. It’s a bit like when astronauts go into space and they take with them this pre-packaged, powdered food. I see the sort of feminism in international institutions as a bit like space food – they have taken out all the moisture, they reduced it and have taken out much of the texture and the freshness. There has not been enough attention to the differences in women’s lives and situations across the globe or how international standards can be used to keep women in their place. On the other hand, some scholars and NGOs like the Women’s International League for Peace and Freedom say that feminist claims have been galvanising at the grass roots level. So I think this whole process is a mixed story with some success and plenty of failures, too.

I wonder whether we can blame feminism for this. Isn’t it more the institutions or the people in these institutions that are reluctant to implement these ideas more radically?

I agree with you, and of course such a process happens with a lot of ideas. Just look at development. You put this concept into an institution and it can become a very weak, desiccated, powdered version. In the case of feminism, it readily becomes a count of female heads. I don’t see it as the fault of feminism but I do think that feminists have to really think about of how we can get a more radical message through. Of course, at the moment there is a very interesting process under way. Radhika Coomaraswamy is preparing a major report for the UN for this year on the 15th anniversary of Security Council Resolution 1325 and from her public speeches we can see she is taking into account a lot of this criticism and trying to push the UN a bit further. The other issue that feminists have to be more strategic about is the way that their ideas are being picked up.

Do you have an example?

Take the example of gender mainstreaming. That has been reduced in institutional terms to a very limited understanding. You just add women and stir and hope for the best, but you are not really changing the institutions. We need to be more critical and say where the gaps are, for example in the language used in the Security Council resolutions on women, peace and security. We have to scrutinise these words and not just congratulate the UN for using them. It’s about the way you define these words and put them into action. Feminists have maybe been too satisfied with seeing a feminist vocabulary appear in international institutions without paying enough attention to the limited consequences it has.

Maybe it just takes more time to change institutions. You said that feminism is a political project but isn’t preserving the status quo not also a political project because it serves the interests of some groups?

Of course! If you have the benefit of the status quo you tend to say that it has become like this because it is a good idea. You don’t acknowledge the politics. But feminism, like other critical approaches, is very attentive to the politics but also to the politics of keeping things as they are. The great mythology about law, which is still the way law is taught in Australian law schools, is that it offers something impartial and apolitical, despite all the work over many decades that challenges this position. You can of course make an argument for law, for the rule of law, but you have to acknowledge the political position that you are coming from. As soon as you are willing to acknowledge something as political, then there is the possibility of change. I don’t understand why people want to hide the political ramifications of particular positions that they take, but at least in Australia it is a very standard move.  It was international law that initially allowed me to see the law, including domestic law, in perspective, to see the law as a site of politics. And feminism reinforced this message.

Let’s jump to the book on Rituals and Ritualism in the Universal Periodic Review that you recently co-edited with Emma Larking. Why did you choose to look at this instrument through this particular lens, which is not a legal one in the first place?

I first heard about this idea of ritualism through the work of my colleagues John Braithwaite and Valerie Braithwaite in a seminar here in RegNet. They published a book on nursing home regulation in three different countries. One of the things they noticed was that a lot of people that run nursing homes, when faced with a new regulation, like setting the temperature of bath water, would very rarely actively resist the new regulation. They usually just would accept it but would act in ways that would just appear to comply, but were not really engaged by the law. It was just a performance of compliance. I thought this could be applicable to international law and human rights law where countries would often accept regulation and treaties but would act in ways that were only minimally affected by these laws. This was the basis for the fellowship that I got five years ago exploring this idea. Again, I feel like a lot of these things have just been very happy accidents. I did my application for this fellowship together with the anthropologist Margaret Jolly. We talked about the relationship between ritualism, which is a concept that comes from regulatory theory, and ritual theory, which is very important in anthropology.  It’s not hard to see the Universal Periodic Review as a ritual in the way that is performed. So the question was how do these UPR rituals become ritualistic in a regulatory sense.

In a nutshell I would say that in the human rights field the power of rituals can sometimes be harnessed to overcome the problems associated with ritualism. The concept of ritualism, which comes from the sociologist Robert Merton, identifies a response to a normative order, a way of getting around a normative order, which is a very real phenomenon. But there is also power to human rights rituals. In the UPR, countries sometime behave quite ritualistically, however, I think that the rituals of the UPR can in some contexts nevertheless exert pressure on those countries to change practices. The collection that we edited has nice examples of this and also of the positive powers of human rights rituals.

You often use the term “regulation”. What is the benefit of looking at law through regulation?

I think the reason why I find regulation so rich is the idea that regulation means shaping the flow of events. The concept is much broader than law. So law is one form of regulation but the concept of regulation would also encompass the rules of etiquette, architectural planning and practices as forms of regulation or self-regulation. I think why I find the idea of regulation so rich is because it decentres law – it means that the law is not your first and only means. Let’s say we ask how can we change the course of events, for example how can we decrease young Australian Muslims enrolling in ISIS? If you approach it in a regulatory way, you wouldn’t say that the first answer is a law to take away the citizenship of people who join ISIS. Regulation understands law always in relationship to other forms of control and I think that is much more accurate and useful approach.

Do you have an example from the international sphere?

Take for example human rights treaties. Say there is a problem, there is discrimination against people with disabilities. What will we do? The international lawyer will want to create a treaty, to put some law out there and get countries to sign onto it. We tend to put our faith in a legal tool and getting people to adhere to it. But, as we know, this can never be the end of the story. If you take any of the human rights treaties like the Convention Against Torture or the Convention on the Elimination of All Forms of Discrimination Against Women, you might have splendid normative standards but they are clearly not enough in themselves to produce any behavioural change. Take prisons and the risk of torture: What forms of pressure can minimise torture in these contexts? We might think of architectural and building standards or the employment structures of people that are running these places or the way they are trained and educated. The concept of responsive regulation, developed by John Braithwaite, is valuable in achieving normative goal, such as human rights. The idea of responsive regulation, first articulated in the context of business regulation, is built on pyramids of supports and pyramids of sanctions. The idea is to start by identifying the strengths of a particular system, or actor, and then to expand them through building capacity. The tip of the support pyramid is superlative forms of recognition. Moving up the pyramid of supports encourages the growth of an actor’s capacity to respond to problems. If particular problems are impervious to regulation through the provision of support, a pyramid of sanctions can be deployed. At its base are dialogue-based sanctions such as education and persuasion. Increasingly tough measures apply moving up the sanctions pyramid, such as shaming, sanctions and, finally, even ejection from the system. Escalating the severity of penalties takes place only when the previous step has manifestly failed.

You work with a lot of scholars from other disciplines and use yourself insights from other disciplines in your work. How important for you is interdisciplinary research in law?

Straight legal research or purely positivist research is dull. Maybe it’s because of the way that I learned law, which basically meant swallowing the principles and then just regurgitating them out again. I think lawyers and the nature of the legal training haven’t really changed since I studied law, although there are some inspiring exceptions. Working in an interdisciplinary way has been very rich for me because it exposes you to so many different ways of looking at things. I appreciate in particular the perspective of the sociologists and anthropologists who I have encountered here at RegNet and the ANU and I have learned so much from them. They often tend to look down their noses at law and regard lawyers as people in a trade school who are just like learning the rules of connecting electrical wires. I am exaggerating the picture, because there are wonderful people that do amazing work in law, but to me interdisciplinary work is the future. Not only because it is intellectually stimulating but also because if you want the law to do anything you have to see it in its larger context. If you don’t, you just make tiny little changes but cannot really affect larger social problems.

Let’s move out of academia and to the ICJ. You were appointed there as an ad hoc judge for the case on Whaling in the Antarctic. Can you tell us a little about your experiences? Did that change your perception of international law and how it works in this institution?

It was a marvellous experience, and it changed my perspective about the way international courts operate. It is exciting to be inside an institution that you have studied from the outside. The fifteen elected ICJ judges were all welcoming and open. Most judges of course have the experience of hundreds of cases, however I just have one, but it was an intriguing case and I enjoyed getting to know the law that relates to whaling. I was very interested to observe the rituals and the way the Court prepares for the case. Overall, I was impressed by the seriousness of the members of the Court and their approach to the issues. The process of judicial deliberation fascinated me, in particular how you get fifteen or sixteen strong-willed individuals, from common law and civil law backgrounds with their different approaches, to come together to devise an outcome. On the ICJ, there were quite few judges who had prior judicial experience and many more who had diplomatic experience, so it was also interesting to see the difference in those approaches. Judgments in the court are crafted in deliberative sessions, which takes a huge amount of time. After the case is heard each judge writes a memo on their views and presents those in a plenary meeting and the drafting committee tries to fuse those ideas into something coherent. Weeks are given over to deliberation, painstakingly going through every paragraph of draft judgments. It was fascinating to see how particular ideas are sometimes lost in that process and other ideas that did not seem so important come much more into focus. Now when I read an ICJ judgement I can imagine some of the debates that lie behind it.

What do you think about the fact that Japan aims to continue whaling?

Japan has now applied to the International Whaling Commission to approve a new programme of scientific research. The Whaling Convention has a specific provision that contemplates scientific whaling, so it is definitely allowed. The hope by some activists that the Court would somehow prohibit all scientific whaling did not take the terms of the treaty into account. The critical question is what size of take is consistent with scientific whaling. I assume the IWC will read the ICJ judgment carefully and will take into account the Court’s views on the elements of a valid scientific programme.

To conclude, what do you think is the biggest challenge to international law at the moment? I think for example the current refugee crisis?

International law can do some things but it can’t do everything. How can we respond to the current situation with respect to large scale flows of asylum-seekers?  The answers of course are much broader than law. The Refugee Convention was drafted in the post Second World War period and in the light of quite different situations. We could presumably negotiate different international legal standards, although in the current climate they could be very weak indeed.  It may be more useful to think in terms of responsive regulation and identify an appropriate pyramid of supports and pyramid of sanctions to achieve the desired effect. We have to move beyond a narrow view of sovereignty and reach a situation where this is seen as a more global problem and where there is a commitment to burden-sharing. We also have to think deeply about the causes of the flows of desperate people and whether we are contributing to them. These questions requite political imagination and courage. International law does not have all the answers, but it can be one important thread in responding to complex situations.

Thank you so much for the conversation, Hilary.

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