INTRODUCTION

The end of the Cold War in 1989 heralded in the drafting of a new wave of constitutions, particularly in post-conflict states, as many Cold-War-related conflicts came to a gradual end. Since this time, more than 110 constitutions have been written or revised — and one discernible global trend in this process of constitutional reform has been to entrench the right to equality between men and women as a constitutional principle. This widespread acceptance of gender equality as an international norm of constitutionalism is in large part due to pressure from the international community as well as the influence of international and regional human rights treaties generally. At the same time, constitution making has become increasingly participatory and inclusive and less understood as a process for elite groups. In this period, the United Nations (UN), mostly through the work of peacekeeping missions authorised by the UN Security Council, has assisted many post-conflict states such as Timor-Leste, Afghanistan and Nepal with the process of drafting their constitutions. This assistance has included support with public participation programmes and, in some more recent cases, encouraging women's inclusion in the constitution-making process.

The year 1989 also marks the beginning of Judith Gardam's pioneering work into feminist approaches to international humanitarian law, which has led to the UN Security Council's unfolding Women, Peace and Security (WPS) agenda. Along with peers such as Hilary Charlesworth and Christine Chinkin, with whom she ventured in 1989, Gardam is at the vanguard of feminist legal scholarship in international law: together, in the passing of a quarter of a century, they have led the way in highlighting, challenging and even shifting important paradigms facing women in conflict and post-conflict settings, many of which had previously seemed largely invisible and intractable.

There are a number of paradigms operating in the post-conflict context which have a significant effect on the lives of women. First and foremost is the cultural and social pressure to perform the ‘patriotic duty’ of reconstituting the state through childbearing. For example, five years after independence, in 2007, Timor-Leste had the highest fertility rate in the world.

INTRODUCTION

Almost twenty years ago, our friend and colleague Judith Gardam offered an original and illuminating perspective on the law of armed conflict. She deployed the persona of an alien — filling in time during an intergalactic storm — for the purposes of reading the laws of armed conflict. Back in the person of a scholar of international humanitarian law (IHL), Judith then engaged in a conversation with the alien, comparing its observations on the texts alone with her understanding of how the law operates in practice. Judith's alien-scholar dialogue allowed her to illustrate the malleability of the legal concept of objectivity and the way that the law constructs particular realities while obscuring others. This striking approach was both playful and disconcerting. It revealed, among other things, the gendered nature of the law of armed conflict and its incorporation of Western images of femininity and masculinity.

Inspired by Judith's imaginative method, we reflect in this chapter on international developments over the last two decades which address the lives of women in the area of armed conflict. In 1997, when Judith was in dialogue with the alien, the primary relevant legal framework was that of IHL — notably the Hague and Geneva Conventions and Protocols. In the intervening years, the number of international legal lenses has multiplied. Human rights law, international security law and international criminal law now also regulate the situation of women in armed conflict. Moreover, the plight of women in conflict and its aftermath has achieved much greater political prominence. After sketching a range of issues that shape the situation of women in conflict, we focus on two international documents on this topic, adopted in 2013 by different United Nations institutions, and speculate on what Judith's alien might make of them.

WOMEN AND CONFLICT

Discussion of women and conflict invokes categories such as ‘conflict’, ‘armed conflict’ and ‘post-conflict’. The difference between these terms is, however, difficult to establish in any particular situation — violence typically seeps from periods of formal conflict into the ‘post-conflict’ phase. The term ‘post-conflict’, in particular, can mislead in the context of women's lives. It suggests a neat transition from a state of conflict to peace and implies that ‘post-conflict’ societies are distinct from other conflict scenarios.

INTRODUCTION

Although Judith Gardam's work dealt with some of the most serious and poignant areas of international law, that of international humanitarian law and aspects of proportionality and gender, her writing was also creative and exploratory. An example of this creativity was her chapter in Sexing the Subject of Law, in which she used the device of an alien to investigate what international humanitarian law looks like from the outside. Gardam's chapter was entitled ‘An Alien's Encounter with the Law of Armed Conflict’. Her device of using a fantasy character of an alien to investigate what law looks like is adopted in this chapter. I have chosen this as the organising idea of my chapter in honour of Gardam for two reasons: first, in conversation, Gardam said that she enjoyed writing her chapter; and second, she created an intriguing idea that I strongly believe merits exploration and, indeed, reapplying in the twenty-first century. The idea that Gardam created is to understand the players in international law — the subjects of international law — by examining the ‘distinguishing features of these players’ and thereby elucidating their ‘distinguishing features’.

My chapter will use this device of the ‘alien’ as a form of personified objectivity, but rather than examining international humanitarian law, I will take Gardam's alien and consider the question: What is the role of the scholar of international law? The alien will travel through space, first viewing the world from afar, and then coming into law's orbit, landing and speaking to an individual. At each point, the alien will reflect on the various levels of analysis which scholars could employ in their scholarship. So, for example, the scholar could ask questions that consider the relationship of international law with the whole world, or its relationship with the state or particular individuals.

Judith Gardam was born in Perth, Western Australia, growing up there with her parents and sister and brother. Then, as now, Perth was a relatively isolated city and perhaps because of this, one of Judith's enduring memories as a young woman was the first space flight and orbit of the Earth by Soviet astronaut Yuri Gagarin on 12 April 1961. Asked later about the flight and his view of the Earth, Gagarin recalled:

Gagarin had the rare privilege of being able to see further over the horizon than any other person ever had.

Gagarin's tiny Vostok spacecraft passed over Perth during the night of 12 April and this left an indelible impression on Judith. Though she relentlessly asked her father, an engineer, a flood of questions about the spaceflight, her focus was not just on the technical aspects of the event, but rather something more. The event captivated her, and she recalls that it ignited within her a deep sense of curiosity about the broader world and inspired her imagination about unlimited possibilities. For Gagarin, his view further over the horizon only came through riding that Vostok rocket into a low Earth orbit for an hour and 48 minutes on 12 April 1961. Judith, however, spent a lifetime endeavouring to see further over the horizon than anyone else through her chosen field of international law. And beyond the horizon that limits so many of us in what we can imagine for our global community, Judith saw unlimited possibilities. This volume not only tells her story, but it also tells us what she saw over the horizon.

INTRODUCTION

In ‘An Alien's Encounter with the Law of Armed Conflict’, Judith Gardam converses with an other-worldly creature about international humanitarian law. Gardam's alien is a device to explore the law of armed conflict from without, as a method of investigating the law ‘objectively’. This constitutes an inventive variation on several epistemological methods, which often use different subject positions in order both to reflect critically on the production of knowledge, and to construct alternatives to mainstream truths. In this chapter, I review some of these methods with the aim of illustrating the significance to legal scholarship of a range of such approaches over the past few decades. I also ask what imagining a more radical (that is, external, albeit fictional) subject of knowledge contributes to debate about social and legal norms. In doing so, I will refer to the Alien film series to consider the ways in which imagining a thoroughly radical and incomprehensible outside can seriously unsettle human self-knowledge.

Judith Gardam's alien dramatises theoretical approaches that deploy position and perspective in order to mobilise different truths. Rather than assume or claim that there is a unified truth or unsituated perspective, such methods explicitly acknowledge the role of plural locations in truth construction. As Sandra Harding says in relation to feminist standpoint epistemology, the point of such methodology is that it ‘makes strange what had appeared familiar’ and enables the scholar ‘to value the Other's perspective … in order to look back at the self in all of its cultural particularity from a more distant, critical, objectifying location’. These statements accurately capture Gardam's alien and alien methodology: it starts from an explicit position of strangeness rather than familiarity, and objectifies the law of armed conflict by looking back from a completely foreign place to the ‘cultural particularity’ of the law. As I will explain, methods mobilising perspective have been, and continue to be, very influential in legal scholarship (though the alien perspective is, I believe, unique). Indeed, the deployment of some form of ‘non-legal’ position and perspective has become so crucial and so accepted in the understanding of law that we might even say in some circumstances that the ‘alien’ has been somewhat normalised, if not domesticated, in legal thinking.

It is a little known fact that Judith Gardam has a professional interest in energy law dating back to the beginning of her long and distinguished academic career. While energy law is not her major legal interest, or one for which she has built her international reputation, this interest has continued for over thirty years until the present time. Her first university position was as a Research Fellow at the Melbourne Law School, based at the University of Melbourne, financed by an Australian Research Council grant to Professor Michael Crommelin, and her major LLM thesis and her first four published articles were on the Australian law relating to hydrocarbon pipelines. Her interests in the energy sector later changed and expanded to include the link between energy and armed conflict and energy and human rights law. In both these areas, Judith was able to marry her interest in energy law with her major research focus on public international law.

The purpose of this chapter is to review the reasons for, and the current state of, international law in relation to the energy sector. It will then consider in detail the energy themes that motivate Judith and their possible evolution. As we will see, her emphasis is very much on sustainable energy solutions.

THE CURRENT STATE OF INTERNATIONAL ENERGY LAW

The role and development of public international law in the energy sector has been slow to be recognised and has been late in development. Historically, energy policy and law have been strongly linked to national sovereignty and have been considered to be outside the role of international agreements. As recently as 1992, when Agenda 21 was negotiated internationally at the United Nations Conference on Environment and Development (UNCED), it proved impossible, due to competing national interests, for the international community to agree on a chapter on energy policy. Chapter 9 of this instrument, which was originally envisaged as a comprehensive chapter on energy, proved impossible to negotiate and was eventually replaced by a loosely worded chapter on the atmosphere, which makes only selective and limited references to sustainable energy solutions.

INTRODUCTION

Professor Judith Gardam's distinguished record of scholarship speaks for itself. What is less well known is Judith's record as an inspiring teacher and colleague. To those of us who were fortunate to be her students, Judith conveyed not only her enthusiasm for, and commitment to, international law, but also her intellectual discipline. No student of Judith's could forget her admonitions on the importance to scholars of international law of striving to truly understand its sources. As a colleague, I found supervising doctoral candidates with Judith a pleasure because of her interest in their projects and her dedication to mentoring the next generation of scholars. The humanity that pervades Judith's scholarship and teaching is all the more powerful because of the rigorous and disciplined approach to the law which is her hallmark.

The limits of the powers of the Security Council have been the subject of considerable debate since the rise of the Security Council which accompanied the end of the Cold War. Notwithstanding the absence of any organ competent to engage in a review of the Council's decisions, and irrespective of the political character of many of its most important functions, the Council's powers are nonetheless not unlimited. Indeed, the recent practice to be examined in this chapter has demonstrated that its powers are subject to important collateral limits arising from the human rights obligations of states.

The response of international law to the rise of the Security Council was a topic addressed by Judith Gardam in her 1996 article in the Michigan Journal of International Law entitled ‘Legal Restraints on Security Council Military Enforcement Action’. Here, Gardam argued that, when undertaking military enforcement actions, the Security Council was bound by requirements of proportionality and necessity analogous to those applicable in the jus ad bellum, and also by the rules of international humanitarian law forming the jus in bello. This chapter looks not to uses of force, but to sanctions imposed by the Security Council. Nonetheless, two of Gardam's concluding observations make for a suitable starting point for this analysis. First, she noted the legal character of the Charter:

In 2004, Judith Gardam published her invaluable book, Necessity, Proportionality and the Use of Force by States. In it she makes the case that all lawful resort to military force at the international level requires compliance with the principles of necessity and proportionality. Prior to her work, discussions of resort to force often overlooked these crucial principles, perhaps in part because of a paucity of expert analysis. Professor Gardam's book addressed a critical deficit in our understanding of international law. Governments, scholars, and — most importantly — potential victims of armed conflict have been the beneficiaries.

In this contribution to the volume in her honour, I propose to revisit her discussion of necessity in the jus ad bellum in large part to respond to recent interest in characterising necessity as a lawful basis for the resort to armed force. This characterisation clashes with the position set out in Necessity, Proportionality and the Use of Force by States. The lawful resort to armed force must be based on at least one of two or possibly three exceptions to the United Nations Charter prohibition on resort to force. Necessity is not one of the exceptions. Rather, it is an additional condition for lawful resort to force, which applies once a recognised basis is established. A national leader ordering a military attack on the territory of another state must first confirm that there is a lawful basis for doing so and that the use of force is both necessary and proportional, and conforms to other relevant rules of international law, such as the law of state responsibility and human rights law.

The discussion begins with an overview of the general law on resort to force, then turns to a full focus on necessity. The principle of necessity is found in a number of international law categories with a distinctive meaning in each. Keeping the various meanings and histories separate is a challenge to scholars. In the area of resort to force, the principle of necessity is a restriction on force; it does not and cannot permit military force. In other categories of international law, necessity may provide a defence to otherwise unlawful action, such as imposition of a trade barrier, but not to the otherwise unlawful resort to military force.

INTRODUCTION

How do academics and activists obtain their knowledge of the experiences of women and then utilise that knowledge to frame debates about the rights and interests of those who have been subjected to violence? As scholars, we engage in debates about the framing of legal rules and we critique and perhaps help to create the systems that claim to be responsive to the rights and interests of women. Although Emeritus Professor Judith Gardam [Professor Gardam] would describe herself as a scholar, it is possible to argue that she, like many others, by opening up areas of debate and challenging our conceptions about the structure of the law, fits into the category of individuals sometimes described as ‘transboundary actors’. Such individuals engage with international law and international politics, sometimes directly, sometimes through organisations and, it could be argued, through their publications. Scholarship has the capacity to influence the manner in which issues are debated nationally and internationally.

International law and international relations scholars have focused on the role of non-state actors in the formulation of legal rules and in the delivery of services connected to development, human rights and gender equality. Some authors have considered the manner in which groups and individuals who might be referred to as transboundary actors have challenged the state-centric ethos that has permeated international law and international institutions. In part, these individuals and groups seek to participate in what might be termed international governance. However, many also recognise and discuss the negative power of the law, both in terms of its content and the manner in which the language of the law shapes our understanding of world events and the experiences of individuals. Academics are one of the groups that have contributed to, and will continue to develop, the content of international law and its application by international institutions. The work of academics often contains challenges to the structure of the law, while at the same time demonstrating mastery of its rules.

Through her writing on international humanitarian law (IHL), Professor Gardam has continuously worked to demonstrate both the failure of the present rules to protect and foster the interests of women and the attitudes that influence the manner in which those rules are interpreted and implemented.

INTRODUCTION

It was not until a tour of duty in Afghanistan as a legal advisor with the International Security Assistance Force (ISAF) that I began to sense a disconnect between the different areas of operational law regarding the significance of women in armed conflict, both as combatants and civilians. On any given day, my rule of law officer, a female lieutenant colonel, and I might be meeting with members of women's rights international and non-governmental organisations. Under the effects-based approach to operations method of operational analysis being used at that time in the headquarters, the legal office had been assigned responsibility for developing an effective and holistic assessment of the progress of the international community's rule of law development efforts, and my rule of law officer had convinced me that metrics regarding the treatment of women in the Afghan judicial and corrections systems could provide a particularly valuable and relevant measure of progress.

On another day, I might find myself engaged in a dynamic targeting situation if the legal advisor who ordinarily provided real-time law of armed conflict (LOAC) advice was otherwise occupied. Not surprisingly, the targets in that theatre were generally individual men, but the civilians who were to be protected during the engagements seemed an amorphous group — civilians are civilians, and the direct effects of a kinetic weapon upon a person are not easily differentiated on the basis of sex or gender. Frankly, although I was aware of UN Security Council Resolution 1325 on Women, Peace and Security, women's and gender issues had in the past appeared to me to be largely human rights issues even in a combat theatre, and human rights issues seemed to have little to do with core LOAC tasks, such as a commander appropriately assessing proportionality before deciding to engage with armed force. This was a ‘war amongst the people’, however, and I began to sense that we were neglecting half of them.

To sense a disconnect is one thing; to be able to articulate it for one's self in terms of one's experiences and training is often quite another.