Ntina Tzouvala’s Capitalism as Civilisation makes vital contributions to multiple areas of scholarship, including Marxist approaches to international law, the turn to the history of international law and Third World Approaches to International Law (TWAIL), among others. The central argument of the monograph is that the ‘standard of civilisation’ in international law applies in a way that links ‘the degree of international legal personality that political communities are recognised as having’ to their ‘conformity with the basic tenets of capitalist modernity.’[1] Thus, Tzouvala argues that the ‘standard of civilisation’ is inherently linked with global capitalism. She notes that while, one the one hand, there is a racist scepticism prevalent in international law that questions whether predominantly non-white communities can even be equally included in the global order, on the other, inclusion is considered desirable and possible, depending on conformity with capitalist modernity.[2] Thus, Tzouvala persuasively argues that international law and ‘the standard of civilisation’ operate in a way that is both inclusive and exclusive.
In this response I will focus on one of the ways that Tzouvala’s work and her particular take on the indeterminacy thesis of international law speaks to debates around what is termed ‘resistance and compliance’ within the field of feminist approaches to international law.[3] Broadly, this debate centres on whether feminists should seek to resist the gendered structure that is international law or whether they should instead work within the system in the hope of fostering transformative change.[4]
Martti Koskenniemi argues that international law is far from being a complete system of rules and principles but is, rather, indeterminate, meaning that legal outcomes are by no means fixed but constantly contestable.[5] In short, international law is always infused by politics.[6] This does not mean, however, that any outcome is possible. Rather, Koskenniemi argues that the system inherently creates preferences for ‘some outcomes or distributive choices.’[7]Thus, he concludes, international law is permeated by the ‘embedded preferences’ of professionals, fostering ‘structural biases’[8] and limiting the rage of outcomes possible.
As Tzouvala outlines, the indeterminacy thesis of international law has been subject to critique from Marxist international lawyers.[9] Both B.S. Chimni and Rose Parfitt have, for example, critiqued the thesis, arguing that viewing international law as indeterminate risks side-lining inequalities or, in the words of Parfitt, the fact that ‘certain communities always draw the short straw.’[10] However, as Tzouvala astutely notes, these critiques are not so much a deconstruction of the indeterminacy thesis per se but, rather, they critique the conclusions that both Koskenniemi and David Kennedy, among others, draw from the thesis.[11] Thus as Tzouvala puts it, the critique is of ‘the figure of the self-reflective international lawyer who struggles to infuse international law with his progressive, genuinely universal political commitments but does so conscious of the fact that there is no objective anchor nor a transcendental guarantee that the law ‘actually’ aligns with these ideas’ (with Tzouvala making it clear that the use of ‘he’ is purposeful here).[12] In light of this, Tzouvala concludes that, indeed, international law is indeterminate – but that does not mean that it is either unstructured or norm-free. Rather, Tzouvala exemplifies the essential role that ‘the standard of civilisation’ plays in international law. Tzouvala thus moves beyond the a-political risks of the indeterminacy thesis by noting international law’s indeterminacy alongside structural power dynamics. Tzouvala does not claim that ‘the standard of civilisation’ is the only structural force in international law but, rather, she makes it clear that this is the concept she focuses on.[13] At the same time, Tzouvala is clear in noting how class, race and gender produce certain narratives of international law and are, in turn, reproduced in and by international law – something well worth noting – after all, gender remains little mentioned by most international legal scholars beyond the cursory footnote, even within contemporary critical work.[14]
It is, however, Tzouvala’s politicisation of the indeterminacy thesis that I wish to focus on here, analysing the insights that can be brought to parallel debates within feminist approaches to international law. While, as noted, Tzouvala provides her own unique flare on the indeterminacy thesis of international law, a related debate has emerged within the field of feminist approaches to international law. This debate is often framed through the tension between resistance and compliance.[15] Here, feminist scholars note how feminists have come to focus on a narrower array of issues in international law in the hope of changing the law from the inside, this focus occurring at the expense of work that resists the gendered structures of the law and calls for international law to be re-imagined.[16] Sari Kouvo and Zoe Pearson argue that the tension between resistance and compliance is ‘built into the heart of the feminist project within international law.’[17] This tension is thus framed around the choices feminists must make between using international law as a tool to change women’s immediate circumstances while wishing to challenge the structures of international law itself. The critical outcome of the resistance and compliance conundrum is the reflection that, for the most part, feminist approaches have in recent years turned towards what can be deemed more of a compliance mode, working within the system to seek change, and therefore remaining hopeful of international law’s potential for women.[18]
An example of what can be deemed the compliance mode of feminist thought can be seen when analysing the Women, Peace and Security (WPS) agenda. Made up of a series of United Nations (UN) Security Council resolutions, the WPS agenda seeks to ensure that gender equality and women’s participation are promoted through work on peace and security.[19] While there have been many gains made through the WPS agenda, providing an authoritative framework through which, for example, women’s grassroots organisations can ‘claim a role in peace negotiations and postconflict decision making,’[20] the WPS agenda has also been widely criticised.
The WPS agenda is now made up of ten resolutions.[21] While the first resolution, 1325, has its origins in the work of feminist civil society organisations,[22] Dianne Otto argues that the peace-informed values present in the initial feminist vision behind 1325 can now be seen as at odds with the subsequent trajectory of the agenda.[23] A related argument has also made by Carol Cohn who argues that by calling for women to be protected in war and for them to participate equally, war itself is left in place.[24] Otto thereby notes that one cost of engaging with the Security Council through the agenda has been ‘a softening of feminist opposition to war’ as feminist peace advocates shift from focusing on ending war to ‘making wars safer for women.’[25]
There are many other critiques of the WPS agenda and its inclusions and exclusions.[26] However, one debate within critical work on the WPS agenda, and one that is pertinent to my reading of Tzouvala, focuses on whether feminists can ever really make gains when working with the Security Council. Sara E. Davies and Jacqui True, for example, note the underlying tensions within that are presented by seeking to ‘transform power relations’ by engaging with the ‘political and economic institutions… that have marginalised women’s representation and livelihoods.’[27] As Otto notes, ‘the Security Council’s approach to peace supports the continued expansion of the international market for arms, increased powers of state security institutions, and more coercive policing of sexuality and gender.’[28] While working with the Security Council may provide some legitimacy, some access to power, overall, there is a tension presented by what is lost when working with the Security Council.[29]
Feminists clearly face many tensions when seeking to work with(in) international law. The tension between resistance and compliance is not an easy one to navigate. This is where Tzouvala’s Capitalism as Civilisation can provide some insight.[30] Examining the period of decolonisation and the various political and ideological battles of the time, Tzouvala analyses how Third World actors used the language of international law to articulate their augments in the aim of seeking to radically challenge and reform international law itself.[31] Tzouvala makes this argument most strongly in Chapter Four when examining the South West Africa saga (in relation to South Africa’s claim to authority over Namibia) and the series of cases and advisory opinions that emanated from the International Court of Justice (ICJ) at the time. In this chapter, Tzouvala examines the arguments put forward by both sides to the ICJ. At the core of the debate was the notion of the ‘sacred trust of civilisation,’ this being the language used to justify the original League of Nations mandate South Africa held over the territory. Essentially, the submissions then came down to the debate around South Africa’s obligation to promote the well-being and development of the peoples of Namibia. Ethiopia and Liberia, the only two sub-Saharan African states that were independent members of the League, and therefore the only two that had standing in this instance, decided to take up an adversarial case against South Africa, centring their arguments on the meaning of the ‘sacred trust of civilisation.’ Essentially flipping the ‘standard of civilisation’ ‘on its head,’ to use Tzouvala’s words,[32] Ethiopia and Liberia argued that South Africa was not fulfilling its obligations as part of the ‘sacred trust of civilisation.’ They based their arguments upon the exposure of the racial capitalist nature of the South African regime, focusing on issues such as the exploitation of black labour and the dispossession of native land.[33] However, as Tzouvala exemplifies, despite radical intentions, the strategy adopted by Ethiopia and Liberia ended up conceding a great deal. Ultimately, the applicant’s own logic left them arguing that South Africa had a duty to do better and guide the people of Namibia towards development, using the civilisational ‘logic of improvement’ (to use Tzouvala’s terminology) to problematically justify their arguments.[34] This, in turn, allowed South Africa to draw heavily on what Tzouvala calls the ‘logic of biology,’ arguing that their strict regime was necessary because of the “uncivilised” nature of the population.[35] Therefore, despite their radical aims, by working within the logic of international law, the applicants’ submissions ended up conceding the more radical argument that Namibia did not actually require supervision, thereby also conceding that South Africa had a role to play in “elevating” the Namibian people. Overall, Tzouvala sadly concludes that, despite their efforts, the reformers were unsuccessful in challenging the argumentative structure of international law, becoming trapped in the contradictions of their own arguments. By trying to ground their arguments using the tools of international law, the applicants had to concede that some points of the law and its logic were correct. This meant that, through working within the system, complying and trying to change it from within, the parties ended up limiting their own radical aims.
Going back to feminist approaches, various feminist scholars have provided possible solutions to the resistance and compliance conundrum. Otto, for example, while deeply critical of the WPS agenda, remains hopeful that feminists can continue to transform it from within.[36] Noting that, while the Security Council and other institutions have only ‘selectively engaged’ with feminist ideas thus far,[37] Otto finds recourse to hope in the contestable nature of significations,[38] identifying a series of ‘footholds’ in the WPS resolutions where postcolonial and materialist feminist ideas could potentially be more radically inserted.[39] Faye Bird takes a similar approach, drawing on the work of Margaret Jane Radin[40] to argue for the explicit weighing up of non-ideal options when working within institutions[41]while calling for the continuation of ‘critical and revolutionary imaginings of feminisms’ beyond institutional limits.[42]These debates are very much ongoing, with Birds’ article, for example, being published as recently at 2020. However, Tzouvala’s meticulous analysis of the South West Africa saga, I believe, provides a case study whereby similar power dynamics and tensions to the ones feminists are concerned with have already played out. Reading Tzouvala alongside feminist debates, therefore, allows for the picture to be viewed through a different lens. While indeed, working within the system has proven key for feminists and while, as Bird notes, feminists must (and already do) weigh up their ideal and non-ideal options when making decisions about when and whether to engage with power structures in international law, Tzouvala’s analysis complicates this narrative. As Tzouvala exemplifies, the risks of working with(in) international law cannot always be predicted and therefore weighing up one’s options is not always enough. Tzouvala’s analysis resonates with Nancy Fraser’s discussion of how feminist engagements with mainstream power are often transformed into a ‘strange shadowy version’ or an ‘uncanny double’ of the original,[43] as well as with Marxist international legal scholar, Robert Knox’s analysis of tactics (which Tzouvala explicitly draws on), in which Knox cautions against the uncritical use of liberal legalism in the pursuit of short-term goals – noting the risks that such a use could undermine the prospect of structural transformation.[44] In short, there is always a risk presented by working within the problematic logic of international law that the radicality of any argument made will be watered down through engagements with international law. Furthermore, Tzouvala’s analysis also points to the inability to foresee how one’s arguments and attempts may be taken up, used, and even manipulated by other actors in international law. This transformation may not be predictable, as Tzouvala’s analysis of the South West Africa saga exemplifies. Rather, the outcomes are unpredictable precisely because, as Tzouvala exemplifies, of the tension between international law’s indeterminacy and its ultimate structural biases, be this these gendered biases, racial biases, or the bias towards viewing progress through the lens of capitalist modernity. Tzouvala’s analysis of the South West Africa saga therefore provides a key warning for feminists in international law, especially those aligning themselves perhaps too comfortably alongside institutions such as the UN Security Council. After all, the Security Council gains legitimacy by proclaiming to be promoting a feminist agenda, but the gains for feminists are much more ambiguous.
Overall, Capitalism as Civilisation is a phenomenal read and is a text impossible to do justice to in only a few thousand words. In this short piece, however, I have sought to examine how Tzouvala’s take on the indeterminacy thesis of international law, read alongside feminist approaches, can help critical international lawyers of all persuasions better understand the politics of indeterminacy. This may allow, I hope, for all critical international lawyers to continue, as Tzouvala does, to move finally beyond the ‘figure of the self-reflective international lawyer who struggles to infuse international law with his progressive, genuinely universal political commitments but does so conscious of the fact that there is no objective anchor nor a transcendental guarantee that the law ‘actually’ aligns with these ideas.’[45] Indeed, it is perhaps Tzouvala’s explicit rejection of the liberal model,[46] a shift, arguably, that some of the key names associated with the indeterminacy thesis of international law have been reluctant to take,[47] that makes Tzouvala’s take on the indeterminacy thesis so poignant for feminist and critical international lawyers alike.
[1] Ntina Tzouvala, Capitalism as Civilisation: A History of International Law (Cambridge University Press, 2020), p. 2.
[2] Ibid.
[3] This terminology originates from Sari Kouvo and Zoe Pearson (eds.), Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Hart, 2011).
[4] Ibid.
[5] Martti Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument, Reissue with New Epilogue (Cambridge University Press, 2005 [1989]).
[6] Ibid., p. 596.
[7] Ibid., p. 606-7.
[8] Ibid., p. 607.
[9] Tzouvala, above note 1, p. 38.
[10] Rose Parfitt, The Process of International Legal Production: Inequality, Historiography, Resistance, (Cambridge University Press, 2019) p. 21.
See also, B.S. Chimni, ‘New Approaches to International Law: The Critical Scholarship of David Kennedy and Martti Koskenniemi,’ in B.S. Chimni, International Law and World Order, (Cambridge University Press, 2017) 246.
[11] Tzouvala, above note 1, p. 38.
[12] Ibid., p. 38-39.
[13] Ibid., p. 21. See also; Robert Knox, ‘Marxist Approaches to International Law, in Anne Orford and Florian Hoffmann (eds.), The Oxford Handbook of the Theory of International Law, (Oxford University Press, 2016), 306.
[14] See: Hilary Charlesworth, ‘Talking to ourselves? Feminist scholarship in international law’ in Sari Kouvo and Zoe Pearson (eds.), Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Hart, 2011) 17; Hilary Charlesworth, ‘Cries and Whispers: Responses to Feminist Scholarship in International Law’ (1996) 65 Nordic Journal of International Law (1996) 65, 557.
Notable exceptions where critical international legal scholars have engaged with feminism beyond a the cursory footnote and have not merely done so to dismiss and disparage feminist work for doing precisely what it aims to do; critiquing traditional international law and its claim to objectivity (as Charlesworth notes happens all too often – see her ‘Cries and Whispers’ piece cited above), include B.S. Chimni’s recent engagement. See: B.S. Chimni, ‘Feminist Approaches to International Law: The Work of Hilary Charlesworth and Christine Chinkin,’ International Law and the World Order: AC Critique of Contemporary Approaches (Cambridge University Press, 2nd edn, 2017) 358 – though see also Tzouvala’s critique of this engagement: Ntina Tzouvala, ‘Reading Chimni’s International Law and World Order: The Question of Feminism,’ EJIL:Talk! 28 December 2017 < https://www.ejiltalk.org/reading-chimnis-international-law-and-world-order-the-question-of-feminism/> last accessed 9th December 2021.
Andrea Bianchi also engages with feminist approaches in his book, International Law Theories, in which he has written a chapter entitled ‘Feminism.’ The chapter provides a good overview of some of the key debates within feminist approaches to international law. However, it is a textbook and thereby falls short of a more substantive academic engagement. See; Andrea Bianchi, ‘Feminism’ in International Law Theories: An Inquiry into Different Ways of Thinking (Oxford University Press, 2017) 183.
[15] While this framing has its origins in Sari Kouvo and Zoe Pearson’s edited collection, Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Hart, 2011), it was, of course, not the first time by any means that feminist have had to face this perennial dilemma. For further feminist discussions of this idea see: Hilary Charlesworth, Gina Heathcote and Emily Jones, ‘Feminist Scholarship on International Law in the 1990s and Today: And Inter-Generational Conversation,’ Feminist Legal Studies (2019) 27, 79; Gina Heathcote, Feminist Dialogues on International Law: Successes, Tensions, Futures (Oxford University Press, 2019); Faye Bird, ‘Is This this a Time of Beautiful Chaos?: Reflecting on International Feminist Legal Methods,’ Feminist Legal Studies (2020) 28, 179.
[16] Charlesworth, Heathcote and Jones, Ibid.; Heathcote, Ibid.
[17] Sari Kouvo and Zoe Pearson, ‘Introduction,’ in Sari Kouvo and Zoe Pearson (eds.), Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Hart, 2011), p. 5.
[18] Ibid.
[19] For some background readings on the formation of the WPS agenda see; Sara Bertotti et al, The Law of War and Peace: A Gender Analysis Volume 1 (Bloomsbury, 2021), p. 20-21; Cornelia Weiss, ‘Creating UNSCR 1325: Women who served as initiators, drafters, and strategists,’ in Rebecca Adami and Dan Plesch (eds.), Women and the UN: A new history of women’s international human rights (Routledge, 2021) 139.
[20] Dianne Otto, ‘The Security Council’s Alliance of Gender Legitimacy: The Symbolic Capital of Resolution 1325’ in Hilary
Charlesworth and Jean-Marc Coicaud (eds), Fault Lines of International Legitimacy (Cambridge University Press 2010), p. 240.
See also: Dianne Otto, ‘Contesting Feminism’s Institutional Doubles: Troubling the Security Council’s Women, Peace and Security Agenda,’ in Janet Halley et al. (eds.), Governance Feminism: Notes from the Field, (University of Minnesota Press, 2019) 200.
[21] UN Security Council Resolutions 1325 (2000); 1820 (2008); 1888 (2008); 1889 (2009); 1960 (2010); 2106 (2013); 2122 (2013); 2242 (2015); 2467 (2019); 2493 (2019).
[22] For more background see; Cohn, Carol, Helen Kinsella, and Sheri Gibbings, ‘Women, Peace and Security: Resolution 1325,’ International Feminist Journal of Politics (2004) 6(1), 130, p. 131-2; Sara Bertotti et al, above note 19, p. 20-21; Weiss, above note 19.
[23] Dianne Otto, ‘Women, Peace and Security: A Critical Analysis of the Security Council’s Vision’ in Fionnuala Ní Aoláin et al. (eds), The Oxford Handbook of Gender and Conflict, (Oxford University Press, 2018) 105, p. 111.
[24] Carol Cohn, ‘Mainstreaming Gender in UN Security Policy: A Path to Political Transformation?’ in Shirin M Rai and Georgina Waylen (eds), Global Governance: Feminist Perspectives (Palgrave Macmillan, 2008) 198.
[25] Otto, above note 23, p. 106. This is a phenomenon Vasuki Nesiah has also discussed, noting the turn to what she terms ‘International Conflict Feminism’ i.e. the focus of many feminist initiatives on women as victims of conflict, which she problematises for presenting only a partial gender perspectives. See; Vasuki Nesiah, ‘Gender and Forms of Conflict: The Moral Hazards of Dating the Security Council,’ in Fionnuala Ní Aoláin, et al. (eds.) The Oxford Handbook of Gender and Conflict (Oxford University Press, 2018) 289.
[26] On critiques of which women are included and excluded, see: María Martín de Almagro, ‘Producing Participants: Gender, Race, Class, and Women, Peace and Security,’ Global Society (2018) 32(4) 395; Gina Heathcote, ‘Security Council Resolution 2242 on Women, Peace and Security: Progressive Gains or Dangerous Developments?’ Global Society (2018) 32(4) 374, p. 378.
For critiques from a queer perspective, see; Tamsin Phillipa Paige, ‘The Maintenance of International Peace and Security Heteronormativity,’ in Dianne Otto (ed.),Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018) 91; Lisa Davis and Jessica Stern, ‘WPS and LGBTI Rights,’ in Sara E. Davies and Jacqui True (eds.), The Oxford Handbook of Women, Peace, and Security (Oxford University Press, 2019) 658; Jamie J. Hagen, ‘Queering Women, Peace and Security,’ International Affairs (2016) 92(2) 313.
Others have critiqued the essentialist linking of women to peace inherent in the agenda. See; Otto, ‘The Security Council’s Alliance,’ above note 20; Sara Bertotti et al, above note 19, p. 22.
Other critiques focus on the problematic linking of the WPS agenda with the wider countering-terrorism agenda. See; Heathcote, above note 26, p. 387; Fionnuala Ní Aoláin ‘The “War on Terror” and Extremism: Assessing
the Relevance of the Women, Peace and Security Agenda,’ International Affairs (2016) 92(2) 276.
[27] Sara E. Davies and Jacquie True, ‘From Pillars to Progress in Women, Peace and Security,’ LSE Blog, 26 November 2018, < https://blogs.lse.ac.uk/wps/2018/11/26/from-pillars-to-progress-in-women-peace-and-security/> last accessed 9th December 2021.
[28] Otto, above note 23, p. 106. See also; Ratna Kapur, ‘Gender, Sovereignty and the rise of a sexual security regime in international law and postcolonial India,’ Melbourne Journal of International Law (2014) 14(2) 1.
[29] For a discussion of these ‘faultlines’, see: Otto, ‘The Security Council’s Alliance,’ above note 20.
[30] Ntina Tzouvala, ‘Arguing with Borrowed Concepts: “The Sacred Trust of Civilisation” in the South West Africa Saga’ in Ntina Tzouvala, Capitalism as Civilisation: A History of International Law (Cambridge University Press, 2020) 129.
[31] Tzouvala, above note 1, p. 129-130.
[32] To use Tzouvala’s words; Ibid., p. 153.
[33] Ibid., p. 149-157.
[34] Ibid., p. 153-154.
[35] Ibid., p. 154-155.
[36] Otto, ‘The Security Council’s Alliance,’ above note 20.
[37] Otto, ‘Contesting Feminism’s Institutional Doubles,’ above note 20, p. 201.
[38] Ibid. Here, Otto draws on Judith Butler’s work on re-signification. See; Judith Butler, ‘contingent Foundations: Feminism and the Question of “Post-Modernism”’ in Judith Butler and Joan W. Scott (eds.), Feminists Theorize the Political, (Routledge, 1992), p. 3.
[39] Ibid. Gina Heathcote, drawing on Otto’s concept of “footholds”, undertakes a similar turn through focusing on resolution 2242 and proposing an ‘alternative future’ for the resolution through the application of intersectional and postcolonial feminisms. See; Heathcote, above note 26, p. 390-4.
[40] See; Margaret Jane Radin, ‘The Pragmatist and the Feminist,’ Southern California Law Review (1990) 63, 1699.
[41] Bird, above note 15.
[42] Ibid., p. 181. Yoriko Otomo also calls for the tension between evolution within the law and revolution outside the law to inform the feminist international legal project. See: Yoriko Otomo, ‘Searching for Virtue in International Law,’ in Sari Kouvo and Zoe Pearson (eds.), Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Hart, 2011).
[43] Nancy Fraser, ‘Feminism, Capitalism, and the cunning of History,’ New Left Review (2009) 56, p. 114. Dianne Otto applies Fraser’s argument to WPS. See: Otto, ‘Contesting Feminism’s Institutional Doubles,’ above note 20.
[44] Robert Knox, ‘Strategy and Tactics,’ Finnish Yearbook of International Law (2011) 21 193. A similar argument has also been made by Susan Marks in relation to human rights. See: Susan Marks, ‘Human Rights and Root Causes,’ Modern Law Review (2011) 74(1) 57.
[45] Tzouvala, above note 1, p. 38-39.
[46] Tzouvala, above note 1, p. 34-35.
[47] See: B.S. Chimni, above note 10.
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