'Sexing' consent in international law

Abstract

Using an innovative feminist legal method called ‘sexing’, I bring feminist legal thought on the concept of consent in rape and sexual assault to bear on the legal concept of consent in international law as outlined in the 1969 Vienna Convention on the Law of Treaties (VCLT). The VCLT concept of consent is fundamental to both the nature and functioning of international law. However, as currently articulated, it reflects a bounded approach to statehood that ignores important features of history, context and internality that are key to a state’s legal and political subjectivity in the international order. Furthermore, it excludes legal recognition of political and economic coercive practices in contemporary international treaty-making, as exemplified in recent EU endeavours to conclude regional trade agreements with African regional organisations. ‘Sexing’ the concept of consent helps reveal such dynamics. But it also highlights potential areas, both normative and analytical, for further critical attention in international law. An example of the former is exploration of a standard of ‘freedom to negotiate’ as a potential alternative and supplementary framework to that of consent in international law. An example of the latter is the application of a ‘queered’ analysis to colonial international law to better reveal the centrality of a gendered and racialised logic to its evolution, thereby lending further dimensions to critical debates on the historical phenomenon of ‘unequal treaties’. Thus, an international feminist legal analytic does not have to begin with gender as its starting point, or focus on more equitable gender relations as its goal. Instead, it holds great promise for challenging and exploring some of international law’s foundational truth claims. ‘Sexing’ the foundational concepts and prisms of international law offers a rich agenda for legal research that can potentially be intellectually robust, critically subversive and normatively rigorous.