Whilst the sovereign state is seen as the metastructure of international law, impacting on all areas of international law, and whilst feminists have suggested that there may be significant problems with this, there has been a lack of feminist analyses of the sovereign state.
Feminist approaches to international law have long been caught between resistance and compliance; that is, caught between using international law as a tool to help women’s material circumstances whilst trying to critique the structures and foundations of this tool. Whilst structural bias, defined here as international law – being structurally based on sex and gender as an approach – was founded on the very conception of feminist approaches to international law, what this precisely means and how far this should go has not been thoroughly explored. Further, in recent years, feminist international legal scholars have moved away from analysing international law at the structural level, and largely preferred to consider and critique the law from the inside, therefore remaining hopeful of international law’s potential to “accommodate” women. Whilst these causes and achievements do have an impact and should be applauded and we ought to strived for them, they, alone, cannot change a lot the gendered structure of international law at a foundational level. The work of Luce Irigaray offers the most promising way for us to challenge the structural bias of international law.
Irigarayan theory can be seen as structural bias feminism. Irigaray shows us how philosophy has been created and is governed by unconscious male fantasies, and are thus depending on a solely patriarchal order. Her work is useful in making application to international responsible for law as she has gone the furthest in looking to re-working and re-creating discourse, to creating a non-phallocentric, feminine discourse, one which recognizes sexuate difference between man and woman. Irigarayan theory may solve the tension between resistance and compliance, moving us towards a true revolution of the structure and discourse of international law.
The sovereign state, as I already mentioned, is largely seen as central to international law as a discipline. However, this centrality has, in recent years, been challenged by globalisation. Drawing on the work of Irigaray, particularly her work on Plato’s Cave and the story of Antigone, it becomes clear that the sovereign state, however, remains central to international law in an important way. The sovereign state’s centrality lies, not in terms of traditional power structures but in terms of imaginative power. The sovereign state corresponds to the international lawyer’s divine desire, with the idea of its completeness functioning as a false and impossible imaginary.
In the context of the sovereign state, sexuate difference can be applied in two ways. Firstly, by bridging the gap between the universal and the other and considering a universal based on difference, a more democratic globalisation may become possible with the inclusion of and collaboration with citizens othered by the current model. The feminine values of hospitality and sharing must be recognized. Irigaray’s sexuate difference represents a universal which resists centralism and centres, and instead focusses on diversity, difference and coexistence, bringing the other in a new kind of universal, one which is based upon relationships between all citizens.
The creation of a differential universal can be applied to the sovereign state in a second way. Noting the link between legal definitions of the sovereign states as borders, whole, territory and the cultural categorisation of these attributes to masculinity, we must consider the other to this masculine paradigm as an alternative source of knowledge, as an alternative way of being. Applying Irigaray’s fluid notions, however, the sovereign state may become fluid like the female subject herself, both as paradigm and as lived. Thus the bounded sovereign state would no longer be bounded or whole, but fluid, in connection, whilst respecting the space of the other and cultivating respective homes.