Introduction
“Interpretation is a science is an art is a science.” This is the answer proposed by Merkouris as the appropriate response to those wondering whether the interpretation of international treaty provisions can be classified as an “art” or as a “science” (Merkouris, p. 13). In this way, Merkouris purported to dispel one of the most famous aphorisms regarding the nature of treaty interpretation, whereby interpretation is an art and not a science. He argues that, despite its artistic side, treaty interpretation also entails an equally important scientific side, which renders it not less of a science than other scientific exercises (ibid, pp. 12-13).
The scientific nature of treaty interpretation has also been upheld by Linderfalck, who has further underlined that “whether treaty interpretation is an art or a science cannot be determined in the abstract,” but is “a question of fact inextricably tied to the approach taken by each and every law-applying agent in particular cases” (Linderfalck, pp. 171-173). As that author further noted, despite the existence of the customary rules on treaty interpretation, which are reflected in Articles 31-33 of the Vienna Convention on the Law of Treaties (VCLT) and which provide for the tools that may be used during the interpretation of an international convention, to some extent, issues of interpretation still have to be resolved at the discretion of the law-applying agents themselves (ibid, p. 175). In other words, the interpretative guidelines set out in the VCLT cannot (be realistically expected to) accommodate all the needs of current and future interpreters. These interpreters are and will continue to be confronted with the need to use the customary rules on treaty interpretation to interpret a wide range of treaty provisions that will be applied to a wide range of unforeseeable factual scenarios. Hence, interpreters themselves need to take up the task of filling the interpretative gaps that the rules of treaty interpretation have left unaddressed, as they deem appropriate. Although it has been argued that this discretion that the law-applying agents enjoy leaves “limited room” for interpretative maneuvers (Wu, p. 369), this Essay contends that this discretion is broad enough to allow the law-applying agent to apply feminist beliefs onto their interpretations of international treaty provisions.
This Essay will first outline the customary interpretative tools reflected in the VCLT and will point out that one way in which the artistic side of treaty interpretation and the interpreters’ discretion manifests is the balancing exercise that the treaty-interpreting agent is free to perform while deciding how much weight will be afforded to each interpretative tool. This balancing exercise leaves enough leeway for the person performing the interpretative exercise to tilt the scale of interpretation toward either a feminist interpretative outcome (i.e. an interpretative outcome that meets the standards raised by feminist scholars and women’s rights’ advocates) or a restrictive one that exacerbates inequalities and enables the preservation and proliferation of sexist biases in international law and jurisprudence. As this Essay will further note, this balancing exercise became particularly discernible in the jurisprudence of the European Court of Human Rights (ECtHR) concerning access to abortion. On this note, I will subsequently propose a metamethod of treaty interpretation (i.e. feminist treaty interpretation), whereby the interpreter utilizes the discretion afforded to them and places primary emphasis on those interpretative tools that enable a feminist interpretative conclusion. The Essay will further highlight this interpretative metamethod’s relationship to the interpretative methods envisaged in the VCLT and will explain why feminist treaty interpretation shall be preferred to the customary interpretative exercise reflected in the VCLT. Additionally, the analysis will focus on the connection between feminist approaches to international law and feminist treaty interpretation. It will justify the need to not impose a specific school of feminist legal thought on the interpreters that engage with feminist treaty interpretation. Upon these clarifications, the Essay will distinguish feminist treaty interpretation from the academic practice of feminist judgment-writing. Ultimately, the Essay concludes by underlining that feminist treaty interpretation bridges legal positivism with feminist approaches to international law and can serve as an intermediate step toward the eventual feministization of international law.
I. Treaty Interpretation in International Law: A Positivist Exercise Leading to Objective Interpretative Outcomes?
Although VCLT Articles 31, 32, and 33 reflect the customary rules on interpretation, it is the former two (i.e. Articles 31 and 32) that provide the tools that are useful for an interpreter during the performance of the interpretative exercise. These tools depict the three main methods of interpretation: (1) textual, (2) contextual, and (3) teleological interpretation of treaties. These methods entail the ordinary meaning to be given to the terms of the treaty, taking into account the context of these terms and the object and purpose of the treaty (VCLT Article 31 para. 1). For these interpretative purposes, the context of the treaty entails in addition to the treaty’s text (including its preamble and annexes), any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty, and any instrument which was made by one or more parties in connection with the conclusion of the treaty and is accepted by the other parties as an instrument related to the treaty (VCLT Article 31 para. 2).
Together with the context, the VLCT requires that emphasis be placed on any subsequent agreement between the parties regarding the interpretation of the treaty, any subsequent practice in the application of the treaty, which establishes the agreement of the parties regarding its interpretation, and any relevant rules of international law applicable in the relations between the parties (VCLT Article 31 para. 3). Finally, according to VCLT Article 31 para. 4, a special meaning shall be accepted as having been given to a term of a treaty, if it is established that the parties so intended. In this vein, it becomes clear that the intention of the parties to a given treaty, evinced through their practice or through relevant explicit agreements, plays a central role in the interpretative process (Crawford, p. 31).
If the interpretative tools above leave the meaning of a given provision ambiguous or obscure, or lead to a result that is manifestly absurd or unreasonable, interpreters may have recourse to supplementary means of interpretation, including (but not limited to) the preparatory work of the treaty and the circumstances of its conclusion (VCLT Article 32). These supplementary interpretative tools may also used for the confirmation of the meaning resulting from the application of the main interpretative tools listed in VLCT Article 31.
The aforementioned interpretative tools aim at paving the way for an interpretative exercise, which is objective (i.e. centered around criteria that are independent of the interpreter’s personal understanding of a treaty’s terms or of the way, in which a certain treaty should regulate its subject matter) (Lo, pp. 294-295; Djeffal, pp. 148-150, Gardiner, p. 28). Nonetheless, precisely because the customary rules on treaty interpretation leave some discretion to the treaty interpreting authority as to the way in which these rules will be implemented and to the weight that will be placed on each of the interpretative tools that they have at their disposal, they essentially allow some of the interpreters’ personal views to be channeled into the performance of the interpretative exercise. In practice, this may be realized in three main ways: through the interpreters’ decision as to which interpretative tools will be utilized during the interpretative process (i.e., whether the interpreters will find a reason to resort to the supplementary means of treaty interpretation and which tools they will perceive as such supplementary interpretative tools); through the interpreters’ interpretation of the VCLT and of the customary rules on treaty interpretation (i.e., what the interpreters will perceive as the “ordinary meaning” of certain terms, as interpretation “in good faith,” or as “relevant rules of international law”); and, finally, through the interpreters’ decision on the weight that will be afforded to each interpretative tool (i.e. through the balancing exercise among the interpretative tools entailed in VCLT Article 31, and through the perceived relationship between the interpretative tools enshrined in VCLT Articles 31 and 32).
Various analyses have sought to provide interpreters with positivist parameters that could help them resist the temptation to insert their personal views into the interpretative process and safeguard the objectivity of the interpretative outcome. These include an extensive study on the interpretation of the (customary) rules on treaty interpretation, as well as arguments in favor of a holistic approach toward treaty interpretation. The latter is essentially a metamethod of treaty interpretation, namely a method concerning the way in which the particular methods of treaty interpretation (the textual, contextual and teleological methods) will be employed. This metamethod envisages a holistic approach that requires the interpreter to take into account all interpretative tools that may be helpful in the interpretative exercise (i.e. the text, the context and the telos of a given treaty provision) as a normative whole (Regan, pp. 1052-1054). However, when pieces of this normative whole lead to different interpretative outcomes, the interpreter will essentially have to choose which aliquot interpretative method they will place more emphasis on and which interpretative path they will follow.
In the jurisprudence of the European Court of Human Rights (ECtHR) on women’s access to abortion, this has become particularly clear. The most notable example is the infamous judgement on A, B and C v. Ireland concerning women’s access to abortion. The Grand Chamber of the ECtHR was called upon to assess whether Ireland had breached Article 8 of the European Convention on Human Rights (ECHR) by predicating the applicants’ access to abortion upon the assessment of whether there was a real and substantial risk to the life of the pregnant person that could only be avoided through the pregnancy’s termination (paras. 39-44). The court acknowledged that the substantial majority of the ECHR member states allowed abortion on broader grounds than Ireland but further highlighted that there was no consensus among these states as to when the right to life begins (paras. 235-237). On this basis and highlighting the lengthy, complex, and sensitive debate in Ireland regarding its abortion laws, the court concluded that Ireland maintained a broad margin of appreciation, while considering how to regulate access to abortion in its territory, and had, thus, not breached ECHR Article 8 (para. 241). After all, the persons who wished to have an abortion and could not legally access such a treatment in Ireland had the alternative of abortion traveling to the ECHR member states that allowed abortion on broader grounds, as abortion traveling was not prohibited under the Irish legislation (paras. 239-240).
To reach this interpretative outcome, the court essentially placed primary focus on the lack of a uniform subsequent practice among the parties to the ECHR. It observed that the requirements of VCLT Article 31 para. 3(b) were not met, because the subsequent practice of the states was differentiated. As a result, the court decided to receive primary interpretative guidance from the practice of the minority of the ECHR member states. These states persisted in strict abortion policies and acknowledged the fetus’ right to life, even though some of these states’ abortion legislation was incompatible with other judgements of the ECtHR that acknowledged that the inaccessibility of abortions when the pregnant woman’s life is at risk is incompatible with the ECHR (X v. the United Kingdom, paras. 18-20). By placing this much emphasis on the practice of the minority of ECHR member states, the ECtHR actually placed principal interpretative focus on a supplementary treaty interpretative tool, thereby leading to restrictive interpretative outcome (Katsoni, p. 346). This was done to the detriment of other contextual interpretative tools, including relevant rules of international law and their interpretation in other international fora’s jurisprudence. It also undermined the progressive telos that underpins the ECHR. These tools could have led to a much broader interpretative conclusion, whereby access to abortion would be permissible during at least the first ten weeks of the pregnancy on broader grounds than that of the risk to the pregnant person’s life.
In light of the above, it becomes clear that the positivist approach toward treaty interpretation, as provided for in the customary rules on treaty interpretation enshrined in the VCLT Articles 31-33 and as outlined above, leaves so much discretion to the treaty interpreting authority with regard to how much weight will be placed on which interpretative tools that it essentially allows it to decide on whether it wishes to reach a more restrictive or a broader interpretative outcome. It is this leverage that feminist treaty interpretation, as a metamethod of treaty interpretation, utilizes for the feministization of the interpretative outcome.
II. Introducing a Feminist Metamethod of Treaty Interpretation
The concept of feminist treaty interpretation can be envisaged as a metamethod of treaty interpretation, which—similarly to the abovementioned holistic metamethod of treaty interpretation—concerns how the aliquant interpretative methods (i.e. the textual, contextual and teleological interpretative methods), as provided for in the VCLT, should be employed during the performance of the interpretative exercise. More specifically, feminist treaty interpretation argues for the utilization of the existing methods of treaty interpretation albeit to uphold an interpretative outcome that meets the standards raised by feminist scholars and counters the weaknesses of the positivist law that give rise to feminist critique.
In this sense, this interpretative metamethod is outcome-oriented and focuses on the possible feminism-informed impact that a certain interpretative outcome may have in practice. It differs from the positivist treaty interpretation, as envisaged in the VCLT, in that it expressly places primary emphasis on those interpretative methods that will enable a feminist interpretative conclusion, favoring these conclusions over alternative ones that do not meet the demands of feminist critiques. In other words, by choosing to employ feminist treaty interpretation, the interpreter will have to envisage the possible interpretative outcomes of the interpretative exercise in line with the various interpretative methods and will have to prioritize the interpretative method(s) that will allow them to reach a feminist interpretative conclusion.
As becomes clear, feminist treaty interpretation is at its core unapologetically subjective, or—to put it more precisely—unapologetically feminist. This metamethod embraces the fact that the exercise of some interpretative discretion is inherent in an interpreter’s engagement with the interpretative exercise (Merrills, p. 72; Roberts, p. 190; Grandits, p. 8) and seeks to channel this discretion into the feminism-informed interpretative outcome of treaty provisions. This is distinct from the original purpose of the inclusion of the interpretative methods in the VCLT was the containment of the interpreters’ discretion and the objectification of treaty interpretation (Lo, pp. 294-295; Djeffal, pp. 148-150, Gardiner, p. 28). In fact, at the center of feminist treaty interpretation lies the observation that in practice (particularly in adjudicative practice), interpretation is not entirely separated from the application of the law, and therefore from the moment that an interpreter initiates the interpretative exercise, they instantly think of how the interpreted provision will be applied in practice, in the factual situation with which they are confronted (Gourgourinis, pp. 31-32). Building on this reality, feminist treaty interpretation argues that since the outcome of the interpretative process inevitably influences the interpretation itself, the interpreter should intentionally strive for a feminist interpretative outcome. The choice of the feminist interpretative outcome as the preferrable one lies in the feminist objectives of the feminist metamethod of interpretation, which shares the view that there is value and progress in the feministization of international law.
In response to this proposal, one could certainly argue that instead of aiming for the preferrable subjective interpretative outcome (a feminist one, for the purposes of this metamethod), one should look or argue for additional boundaries that could better contain the interpretative discretion that is afforded to interpreters by the customary rules on treaty interpretation. However, neither the customary or VCLT rules on treaty interpretation nor any interpretative rules for that matter could provide for sufficient peripheries that could shield the interpretative exercise from the influence of its interpreter in all circumstances. This is precisely because a lawmaker cannot realistically foresee and address all the possible scenarios in which the interpretative rules that they are drafting will need to be applied in the future, and thus, they cannot realistically foresee the situations in which an interpreter will need to resolve an interpretative lacuna or incoherency by exercising their interpretative discretion (Berner, p. 850; Bianchi and Zarbiyev, pp. 24-27). After all, the peripheries that were enlisted in the VCLT needed to be broad enough for the interpretative tools listed therein to be durable in time and functional for the interpretation of a wide range of treaties that have various points of thematic focus (e.g., for the interpretation of human rights treaties, but also investment treaties, or disarmament agreements and so on). The stricter and more absolute the peripheries provided for in the interpretative rules, the less functional and durable they would be. Therefore, some interpretative discretion is not only unavoidable, but also correctly afforded to the interpreter, who will be confronted with the need to apply the interpretative guidelines of the VCLT to unpredictable for the lawmakers facts and in unforeseeable times (Bianchi and Zarbiyev, pp. 26-28).
After all, even if the rules on treaty interpretation did not afford some discretion to interpreters, it is doubtful that the interpretative process would be immune to subjectivity. In fact, on some occasions where the interpreters’ bias had interfered with the interpretative process, the interpreters have not justified their interpretative conclusion on the basis of interpretative arguments. This can be observed for example in the dissenting opinion of Judge Borrego Borrego of in the ECtHR’s judgement in Tysiąc v. Poland, which concerned the failure of the domestic legal framework to provide a procedure whereby a person could verify whether the requirements for lawful access to abortion under the domestic law had been met. While a violation of the ECHR was acknowledged by the Court, the dissenting judge— in an emotionally-charged dissenting opinion—disagreed with his colleagues, without engaging in an analysis on the basis of his different interpretative conclusions, but rather characterising as “frightening” the Court’s finding of a breach of ECHR, which essentially meant that the court decided “that a human being was born as a result of a violation of the European Convention on Human Rights’ that . . . there is a Polish child, currently six years old, whose right to be born contradicts the Convention.” Again here, feminist treaty interpretation argues that since shielding the interpretation or even the application of the law from the interpreters’ bias is unavoidable, we might as well embrace feminist bias and integrate it into the way we employ the textual, contextual or teleological interpretative methods.
It should be additionally underlined that feminist treaty interpretation does not solely refer to the interpretation of provisions on the right to abortion or to women’s rights as a matter of fact. It can be employed during the interpretation of any international law provisions that may raise feminist critique. After all, feminist treaty interpretation is itself the outcome of a feminist approach toward the (customary) rules on treaty interpretation. Hence, as long as a provision may have an anti-feminist impact at the stage of its application, its feminist interpretation will be relevant.
III. The Manifold Faces of Feminist Treaty Interpretation
The existence of various schools of feminist account of international law means that various forms of feminist interpretative outcomes can be envisaged. For example, through the lens of socialist feminism, which highlights the adverse effects of capitalism on human flourishing and focuses on the impact of women’s socioeconomic status on the enjoyment of her rights (Grant Bowman, p. 120; Hoggart, p. 99), a feminist interpretative outcome of ECHR Article 8 on access to abortion would be one that ensures that the accessibility of abortion will not be dependent on one’s ability to travel abroad to receive an abortion as not all pregnant persons have the necessary socioeconomic means to access abortion by traveling to another state, where access to abortion is legal (Avolio pp. 24-28; Hoggart, p. 99). From the viewpoint of cultural feminists, who believe that feminine characteristics should be valued (Cain, p. 835), the interpretation of the aforementioned provision as granting access to abortion only to persons, who present certain “feminine” characteristics that need to be protected (e.g., to persons who are presented as having been outpowered by a rapist that impregnated them) could be seen as feminism-informed (Ibid, pp. 835-836). However, as postmodern feminists would highlight by taking into consideration the plethora of criticisms on hegemonic and hierarchy-reinscribing practices, elaborated in the context of differing feminist theories (Williams, p. 162), the interpretative outcome stemming from a cultural feminist treaty interpretation would be victimizing the pregnant persons and would be perpetuating sexist narratives, whereby pregnant persons need to be presented as “blameless” for their access to abortion to be “excused” and protected (Jaggar, p. 354). Against this background, an interpretative outcome that could be deemed as feminism-informed according to one feminist school may not be sufficiently feminism-informed according to other schools.
Feminist treaty interpretation as a metamethod of treaty interpretation does not per setake a stance toward a certain feminist approach to international law. This is precisely because it aims to propose a method concerning the way in which the particular methods of treaty interpretation will be employed, so promoting a specific school of feminist thought falls outside the scope of the metamethod outlined herein. Instead, feminist treaty interpretation seeks to serve as a tool, which in the hands of an interpreter that embraces a certain school of feminism will lead to an interpretation that reflects this school of thought. After all, by refraining from promoting a specific feminist approach to international law, feminist treaty interpretation manages to function as a tool embracing polyphony in feminist circles, which is essential for the purpose of ensuring inclusion of all women in feminist discussions and for addressing intersectional factors exacerbating inequalities and reinforcing sexist biases. Most of all, by refraining from adopting a specific feminist viewpoint, feminist treaty interpretation adopts a welcoming attitude toward future feminist approaches to international law and aims to remain functional also in light of future developments in feminist engagements with international law.
In line with the above, by employing feminist treaty interpretation, a socialist feminist interpreter could choose to place primary emphasis on the contextual interpretation of ECHR Article 8 against the background of ECHR Article 14 on the prohibition of discrimination and conclude that a state depending the accessibility of abortions on individuals’ capacity to travel abroad and receive one breaches the ECHR (Katsoni, p. 343). Likewise, a postmodern feminist interpreter could employ feminist treaty interpretation and by emphasizing the need to dynamically interpret the ECHR, the progressive interpretations employed in the abortion-related jurisprudence of various human rights fora and the practice of states that have adopted progressive abortion policies, they could conclude that the ECHR would be breached in case of implementation of a legal framework that predicates the accessibility of abortions upon the victimization of the pregnant person (e.g., upon whether the pregnancy resulted from rape) and thus on grounds that are external to the pregnant person’s control and indifferent to their needs (Katsoni, pp. 345-347). In fact, a postmodern feminist interpretation of the ECHR could even lead to the conclusion that restrictive abortion laws do not pursue legitimate aims, such as the “protection of morals” or the “protection of the rights of others” (i.e., of the fetus or of its “relatives”), as a closer look at these policies evinces that they actually aim at controling the sexuality of persons that may bear fetuses and the enforcement of traditional gender-biased roles, which cannot be seen as falling within the scope of the legitimate aims that could justify these restrictions (Katsoni, pp. 347-348; Jaggar, p. 354; Siegel, pp. 64-65). The following Part will highlight what differentiates feminist treaty interpretation from the feminist rewriting of international law and of relevant judgements.
IV. Feminist Treaty Interpretation as a Positivized Version of the Feminist Rewriting of International Law
The practice of feminist judgment-writing has been progressively growing in academia, as more and more academics adopt feminist methodology to demonstrate how landmark judgements (and occasionally even legal provisions) could be reimagined from a feminist perspective. In this context, academics channel feminist legal theory into jurisprudential and law-making practice and try to envisage a legal sphere, in which women’s perspectives are implemented. To do so, these academics use feminism as a tool of legal method (Avolio, p. 2). In doing so, they do not constrain themselves by the tools which are provided by the positive law. Instead, they utilize feminism per se as a legal tool to rewrite judgements or legal provisions, basing their analysis on inter alia extralegal arguments.
Indicatively, while rewriting the ECtHR Grand Chamber’s judgement in A, B and C v. Ireland, Avolio stressed that providing to pregnant persons the alternative of abortion traveling is not sufficient to render the restriction on access to abortion a measure that was necessary in a democratic society (Avolio, pp. 24-25). To reach this conclusion, she noted that “the protection of morals affects disadvantaged women who cannot afford to travel abroad more than it does wealthier Irish women who can readily seek abortion elsewhere.” In other words, while rewriting the judgement, the author did not point to the contextual interpretation of ECHR Article 8 against the background of ECHR Article 14 and did not highlight that to reach this conclusion she prioritized this interpretative tool over the textual interpretation of the provision. In fact, the author did not engage in treaty interpretation at all. In this precise issue lies the difference and innovative value of the feminist treaty interpretation proposed herein, as well as the limitations of this interpretative method.
Feminist treaty interpretation uses positivist tools to reach a feminist interpretative end but does not allow the insertion of extralegal assessments into the interpretative exercise. For example, the ECtHR’s approach in its more recent judgement on the compatibility of restrictive abortion laws in Poland with the ECHR could be criticized as a skillful maneuver around this question and as a purposed shift of focus from the actual subject matter of the applications to the rule of law crisis in Poland. A feminist rewriting of this judgement could go beyond finding that the restriction on access to abortion had not been “prescribed by law” due to the incorrect and unconstitutional composition of the Constitutional Court, through the decision of which the impugned measure was implemented (M.L. v Poland, para. 73). It could further touch upon the issue of the substance of this inaccessible and unforeseeable decision and note that it imposed an unlawful and disproportionate restriction on pregnant persons, who were required to carry their pregnancy to term even in cases of fetal impairment. As the judges’ choice to find a violation of an ECHR provision on a ground relating to the normative quality and not the substance of the law through which a restriction was imposed, is a choice that does not relate to the interpretation of the respective ECHR provision, feminist treaty interpretation would not lead to a feminist judgement in this case. Only through the process of rewriting this judgement from a feminist perspective would a substantive analysis of the incompatibility of the Polish near-absolute abortion ban with the ECHR be included in the judgement.
In this sense, feminist treaty interpretation does not overcome the boundaries of legal positivism. However, it bridges legal positivism with feminist approaches to international law and serves as an intermediate step toward the eventual realization of the feministization of international law. Until the laws adopted are feminism-informed and until feminist judgements are realizable in the jurisprudence of positivism-centered adjudicative fora, which focus primarily on the letter of the written law, feminist treaty interpretation can allow the judges (as well as any other interpretative authority) to use their interpretative discretion. Doing so, they can carve with the positivist interpretative tools at their disposal an interpretative outcome that is as feminism-informed as possible. In this way, this method strengthens the gradual feministization of international law and of relevant jurisprudence.
Conclusion
As the analysis above has stressed, the customary rules on treaty interpretation afford enough discretion to the interpreters regarding the weight that will be placed among the various available interpretative tools. This discretion can be used by the interpreters, who can emphasize those interpretative tools that may enable a feminism-informed interpretative outcome through the method of feminist treaty interpretation. The latter may serve as an impactful intermediate step toward the eventual feministization of international law, but this change further presupposes that the interpretating authority at issue chooses to employ a feminist method of treaty interpretation. In this sense, the role of the judge as well as of any other interpreter is pivotal for the feministization of the interpretative process and of the interpretative outcome to which it leads.
This of course raises new discussions about the composition of courts and other interpretative authorities, the lack of representation of groups that may be affected by the non-feminist interpretations of these for a, and the focus of traditional legal academia and international law teachings on legal positivism to the detriment of alternative, critical approaches to international law. Judges (or interpretative authorities more generally) have been already observed to have a decisive impact on the outcome of the interpretative exercise even when the interpretative exercise is conducted in line with legal positivism. One cannot help but worry about the utilization of feminist treaty interpretation, however, when they notice the persisting dearth of women in the composition of interpretative authorities.
Similarly, one cannot help but notice that the above-referenced judgement of the Grand Chamber of the ECtHR on Ireland’s formerly restrictive abortion laws was issued when the Grand Chamber was composed of five women and twelve men. In fact, three of the five women were among the dissenting judges who issued a partly dissenting opinion, whereby the strong European consensus on the accessibility of abortion on broader grounds than the ones acknowledged by the Irish law could not be overridden by any moral views embedded in an ECHR member state, and, thus, that this restrictive law breached the applicants’ right to respect of their private life. Thus, only the minority of the women who were included in the Grand Chamber joined the majority’s views on access to abortion, a subject matter that lies at the heart of women’s reproductive rights and autonomy.
Of course, male interpreters may also promote feminist treaty interpretation and enhance the feministization of international law and jurisprudence. But the delegation of the promotion of feminist interests to male interpreters cannot sooth feminist concerns, while the idea that the dearth of women interpreters does not impact the way in which the discretion afforded to interpreters by the customary rules on treaty interpretation is exercised seems delusional against the background of the above interpretative example of the ECHR’s provisions and access to abortion. Hence, it seems that the increase of gender pluralism in the composition of interpreting fora is important not only for the enhancement of the legitimacy of their interpretative conclusions but also for the feministization of international law and the use of the feminist treaty interpretation.
Acknowledgements: The author is grateful to the editors of the Yale Journal of International Law and to Jan-Phillip Graf for their constructive comments on earlier versions of this Essay.
*Dr. Sissy Katsoni holds a PhD from Ruhr-University Bochum and is a Research Associate at the Institute for International Law of Peace and Armed Conflict.