Gender Perspectives in Law 3 Ivana Krstić Marco Evola Maria Isabel Ribes Moreno Editors Legal Issues of International Law from a Gender Perspective Gender Perspectives in Law Volume 3 SeriesEditors DragicaVujadinović,FacultyofLaw,UniversityofBelgrade,Belgrade,Serbia IvanaKrstić,FacultyofLaw,UniversityofBelgrade,Belgrade,Serbia The series ‘Gender Perspectives in Law’ discusses all-encompassing gender-com- petent legal questions. Having a gender-competent approach is required when considering the highest values and normative standards of modern international, European,andnationallaw.Raisingawarenessaboutgenderequalityissuesmeans investing in the creation, interpretation, and implementation of legislation that is more fair, just, and equitable and will also contribute to a comprehensive under- standing of social reality, as well as to gender-competent political, legal and eco- nomicdecision-makingandpublicpolicies. The series accepts monographs focusing on a specific topic, as well as edited collectionsofarticlescoveringaspecificthemeorcollectionsofarticles. ć (cid:129) (cid:129) Ivana Krsti Marco Evola Maria Isabel Ribes Moreno Editors Legal Issues of International Law from a Gender Perspective Editors IvanaKrstić MarcoEvola UniversityofBelgrade DepartmentofLaw Belgrade,Serbia LUMSA Palermo,Italy MariaIsabelRibesMoreno UniversityofCádiz Cadiz,Spain ThisprojecthasbeenfundedwithsupportfromtheEuropeanCommission.Thispublication [communication]reflectstheviewsonlyoftheauthor,andtheCommissioncannotbeheld responsibleforanyusewhichmaybemadeoftheinformationcontainedtherein. ISSN2731-8346 ISSN2731-8354 (electronic) GenderPerspectivesinLaw ISBN978-3-031-13458-6 ISBN978-3-031-13459-3 (eBook) https://doi.org/10.1007/978-3-031-13459-3 ©TheEditor(s)(ifapplicable)andTheAuthor(s),underexclusivelicensetoSpringerNatureSwitzerland AG2023 Thisworkissubjecttocopyright.AllrightsaresolelyandexclusivelylicensedbythePublisher,whether thewholeorpartofthematerialisconcerned,specificallytherightsoftranslation,reprinting,reuseof illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similarordissimilarmethodologynowknownorhereafterdeveloped. Theuseofgeneraldescriptivenames,registerednames,trademarks,servicemarks,etc.inthispublication doesnotimply,evenintheabsenceofaspecificstatement,thatsuchnamesareexemptfromtherelevant protectivelawsandregulationsandthereforefreeforgeneraluse. The publisher, the authors, and the editorsare safeto assume that the adviceand informationin this bookarebelievedtobetrueandaccurateatthedateofpublication.Neitherthepublishernortheauthorsor theeditorsgiveawarranty,expressedorimplied,withrespecttothematerialcontainedhereinorforany errorsoromissionsthatmayhavebeenmade.Thepublisherremainsneutralwithregardtojurisdictional claimsinpublishedmapsandinstitutionalaffiliations. ThisSpringerimprintispublishedbytheregisteredcompanySpringerNatureSwitzerlandAG Theregisteredcompanyaddressis:Gewerbestrasse11,6330Cham,Switzerland Preface The book series Gender Perspectives in Law is a systemic attempt to provide all-encompassing gender-competent legal knowledge. The term gender-competent legalknowledgeisusedtoaccentuatethereconsiderationofdifferentfieldsoflegal knowledge from the point of gender equality approach and with offering relevant andconvincingargumentsinthatregard.Thistermissometimesreplacedwiththe term “gender-sensitive”, which also refers to awareness about the importance of gender equality approach and to its implementing in theoretical and scientific knowledge production. Having a gender-competent approach in legal education is required when considering the highest values and normative standards of modern international,European,andnationallaw.Raisingawarenessaboutgenderequality issues among researchers and academic scholars in the field of law and other multidisciplinary fields relevant for legal theory and practice, educating in a gender-sensitive manner law students (future lawyers, judges, prosecutors, public officials, members of parliament, and governmental bodies), as well as students of humanities-social sciences, means investing in the creation, interpretation, and implementation of legislation that ismore fair, just,and equitable. Prosecutors and judgesinparticular,butalso otherlegalprofessionalsinallfieldsoflegalpractice, publicadministration,andpolicydecision-makingneedtobetrainedandsensitized inordertoencourageagender-sensitiveapproach.Thiswillcontributetoamorerich and comprehensive understanding of social reality, as well as to gender-competent political,legal,andeconomicdecision-makingandpublicpolicies.Inotherwords,it meansinvestingintothefuturebasedonmoregenderjusticeandmoresocialjustice andhuman rights protectioningeneral.Intheend,itwill helpfulfiltheessenceof contemporarylaw—equalrespectandprotectionforallindividuals,whichleadsto theirequalopportunitiesanddiminishesthepossibilityofgenderdiscrimination. This book series, Gender Perspectives in Law, attempts to cover all relevant subjects of legal knowledge from a gender equality perspective. The plural desig- nation is entitled because there is a plurality of feminist understanding of gender equality issues generally speaking and insofar also within the law. The call for papers was open for professionals in legal, political, sociological, and historical v vi Preface fields of interest with an attempt to cover, as much as possible, specific relevant topics,inordertoprovideanoverviewofthegendercompetentdeconstructingand reconsidering the way they are articulated in the dominant thought, i.e. the main- stream within the law. The authors in the series’ volumes try to establish a gender equalityapproachtodifferent fields of lawwhiletaking into considerationspecific issues of their interest and attempting to consider chosen different aspects of legal knowledgeandpracticeinaparadigmaticgender-competentmanner.Theyattempt to critically reconsider the dominant moulds of legal knowledge and present inno- vative gender-sensitive and gender-competent insights relating to different issues withinallfieldsoflaw,inordertointroducenewresearchtopicsrelevantforgender equalityinlaw,as well asto stimulatethe development ofa legal and institutional framework for achieving gender equality in real life. The degree to which main- streamknowledgehasbeenreconsideredfromagenderequalityperspectivediffers between contributors. Moreover, a variety of relevant legal subjects and other closelyrelatedsubjectmattersarecoveredinvaryingdegreesbytheselectedtexts. This book series Gender Perspectives in Law encouraged scholars and experts fromdifferentfieldsoflawandhumanities-socialsciencestoreconstructtheirlegal andmultidisciplinaryknowledgefromthestandpointofgenderequality.Thisbook series shouldinspirefurtherattemptsofthiskind,asareconsiderationoflegaland multidisciplinary knowledge from a gender perspective has become an axiomatic task.Ifcontemporarylawisdefinedprimarilyfromthehumanrightspointofview, thenitisnecessarytotakeagenderequalityperspective;thehumanrightsfounda- tion of law cannot be regarded as the civilizational standard without also incorpo- ratingwomen’srightsandgenderequalityapproachingeneral,articulatingthemin themainstreamlegalandpoliticalthought,andeliminatinggender-basedbiasesand discriminationwithinthedominantlegalsystems. This third book in the series Gender Perspectives in Law, which is titled Legal IssuesofInternationalLawfromaGenderPerspective,offersanewperspectiveon international law, that was, for a long time, male-dominant and gender-neutral. However, this gender blindness led to many injustices, non-recognition of certain rights, and to impunity for serious crimes. The book covers the development of genderperspectivesindifferentbranchesofinternationallaw.Thus,someuniversal standards are covered and explained. However, particular attention is reserved for theEuropeanhumanrightssystem.Therefore,thebookprovidesanexplanationof externalpoliciesoftheEUinrelationtosex,sexualorientation,andgenderidentity. Also, specialfocus is given to therelevantjurisprudence of theEuropeanCourtof HumanRightsinrelationtogenderandsexualorientation,femalereproduction,and sexuality.Theauthorsexplainnotonlytheimportanceofanadequatelegalframe- workforcombatinggenderinequalitybutalsothedetrimentaleffectofdeeplyrooted gender stereotypes and prejudices. Afterward, the development of particular branches is presented, such as a gender-sensitive approach to the prevention of war crimes, gender perspectives in refugee law, as well as the development of gender-sensitive environmental law. Additionally, the problematic situation of dis- criminationintheworkplaceisaddressedfromdifferent approaches.Manydiscus- sions, especially among EU member states, are reserved for the issue of women’s Preface vii participation in the company boards, while another interesting topic is growing awarenessofgenderequalityinaninternationaltradeagreement.Finally,thebook also offers a historical perspective of the development of international law in the interwar period, with a particular focus on the situation in Yugoslavia. This book aims to critically reconsider the dominant moulds of legal knowledge and present innovative gender-sensitive and gender-competent insights relating to different issues within international law, in order to introduce new research topics relevant togenderequality,aswellastostimulatethedevelopmentofaninternationallegal and institutional framework for achieving greater gender equality in practice. The collectionofessaysofferedinthisbookwillbeofinteresttoallthoseworkinginthe fieldofinternationallaw,aswellastostudentsandacademicswhocanbroadenand deepen their research on different legal issues of international law from gender perspectives. This book includes papers written by Marco Evola, Ivana Jelić, Ludovica Poli, Berfu Yalçın and Alparslan Özaltuğ, Rigmor Argren, Ivana Krstić, Bojana Čučković,LindeVerhoevenandAlexandraTimmer,MareikeFroehlich,andSanja Djajić. Marco Evola deals with the scope and content of the EU external action. He evaluates how non-discrimination provisions based on sex, sexual orientation, and gender identity are framed within EU external relations and concludes that the approach is neither holistic, nor homogeneous. EU external action covers issues such as political participation, family law, marriage, birth registry, registration of same-sex partnerships, same-sex marriage, property rights, and inheritance. The authorarguesthatgenderequalityisenshrinedinallfieldsofitsexternalrelations, whilenon-discriminationonthegroundofsexualorientationandgenderidentityis limited only to EU accession and the EU Neighbourhood Policy. Evola thus finds that non-discrimination on mentioned grounds is not important per se, but only in terms of its contribution to the EU’s broader set of goals that it has set itself. The EU’s external gender quality action is exposed to two different approaches: one based on economicreasons, which have been thedriving force since theestablish- mentoftheorganization,andtheotherbasedonhumanrightsprotectionintheEU, which has just recently come into focus. It is crucial to strike the balance between these two approaches towards non-discrimination. The author argues that the EU institutions’practiceshowsthattheeconomicapproachhasweakenedtherationale of advancing human rights and combating prejudices and root causes of discrimi- nation against women and LGBTIQ persons. Evola identifies several factors that decreasethecapacityoftheEU’sexternalactiontoenhancehumanrightsprotection andconcludesthatthesefactorsinfluenceEUstrategiesandcanseriouslyaffectthe attainment of the objective of promoting gender equality and the LGBTIQ community’srights. Ivana Jelić evaluates the jurisprudence of the European Court of Human Rights (ECtHR)inrelationtogenderequality.Theauthor’sstartingpositionisthatgender equality is one of the main principles enshrined in the European Convention on HumanRights(ECHR),anditspromotiondemonstratestheevolvinginterpretation of the Convention as a living instrument. Non-discrimination in the Court’s view viii Preface was broadened by recognizing indirect discrimination and positive measures as a means of achieving substantial equality. According to the author, this is crucial as directdiscriminationcasesarerareandwomenareexposedtoinequalitiesusuallyas a result of gender-neutral norms and practices. Jelić classifies jurisprudence of the ECtHRinrelationtogenderequalityintothreesegments:(1)case-lawinrelationto Article 14 of the ECHR that covers direct gender discrimination; (2) domestic violenceandtraffickingthatdisproportionatelyaffectwomeninpracticeandrequire theirspecialprotection;and(3)specific issuesthataffect women, suchasviolence against women and reproductive rights. An overview of the most relevant cases shows that, unlike gender religious identity cases, the Court provides extensive protection in cases that concern domestic violence, when the States’ margin of appreciationislimited.JelićalsonotesthattheECtHRverymuchreliesoninterna- tional jurisprudence on gender equality protection, and that cases of other interna- tionalbodiesinfluencegendersensitivityintheinterpretationofnormsbytheCourt itself.However,theauthorclaimsthatfeministjusticeisstillunderdeveloped,when comparedtowhatisneededtotrulyprotectwomen,andarguesthattheCourtavoids discovering the gendered aspects of violations, especially in cases of indirect discrimination against women. Nevertheless, the author concludes that the most recent gender-sensitive judgments are quite significant from the perspective of feministjusticeandcanhelpinthecreationofagenderequalityculture. LudovicaPoliconsiderstheimpactofgenderstereotypesonwomen’srights.Her starting point is that the female role in reproduction pushes and incites gender stereotypes about motherhood and sexuality. Childbearing and motherhood have a strongculturaldimension,giventhatinmanysocieties,theyrepresentarequirement andaclearlydefinedsocialfunctionascribedtowomen.Sheexploresthejurispru- dence of the European Court of Human Rights (ECtHR) and UN treaty bodies, whichisdividedintothreesegments:(1)reproductivecapacityofgirlsandwomen; (2) access to reproductive health services; and (3) preconceptions about female sexuality. As for the last segment, the author devotes a section to the analysis of the Carvalho Pinto v. Portugal case, where the ECtHR recognized the violation of theECHR,consideringthatthenationalcourt’sdecisiontoreducethecompensation amountwasbasedontheapplicant’sageandsex,confirmingprejudicesheldbythe Portuguese judiciary with regard to the applicant’s sexuality. Poli highlights the detrimental effect that gender stereotypes about female sexuality and reproduction have on women’s fundamental rights, as they can lead to child marriage, female genital mutilations, ostracism, and other harmful practices. She believes that their growing recognition increases attention to obstetric violence, where she cites the CEDAWCommittee’s caseS.F.M.v. Spain. She also refers tothe CEDAW Com- mittee’s findings that denying access to contraception is considered to be gender discrimination. However, addressing theissue ofabortionrequires adeeperunder- standingofgenderdiscrimination,aswellaswomen’srighttosexlifeseparatefrom reproduction. Poli claims that violent acts in reproductive healthcare are persistent duetothelackofknowledgeonthesexualandreproductiverightsofwomen. Berfu Yalçın and Alparslan Özaltuğ contributed to this volume with a paper dealing with discrimination in the workplace for LGBTQ persons. Yalcin and Preface ix Oyaltug claim that sexual orientation discrimination can occur in the workplace in manyforms.TheauthorsfocusonEuropeanstandardsenshrinedintheEUlawand therelevantjurisprudenceoftheEuropeanCourtofHumanRights(ECtHR).They contendthatwhiletherighttoworkisnotguaranteedbytheEuropeanConvention on Human Rights (ECHR), the ECtHR has assessed certain employment relation- shipswithinArticle8(theprivacyrights).Ontheotherside,theypresentsomeofthe mostimportantprovisionsoftheEmploymentFrameworkDirective(2000/78/EC), which provide protection from discrimination in the EU, and which is further supported by a broad interpretation of the Court of Justice of the EU (CJEU). Although the authors acknowledge the Directive’s importance, they also highlight somechallenges,suchasdiscriminationduringjobinterviews,discriminationinthe workplace, whether sincere statements from the victim be sufficient for the prima faciecase,thedegreeofvictimstatus,andthedegreeofrationepersonae.Theyargue that the victim status should be interpreted broadly in order to provide proper protection. Their positionisalso that both courts accept that theimpartiality ofthe enterprise might be a justification for some rules that are discriminatory. The obligation to conform to heteronormative social rules, on the other hand, is not considered a legitimate cause. The same judgement holds true for an employer’s homophobicspeech,whichdirectlyhindersLGBTQindividuals’accesstoworkand is not protected under Article 10 of the ECHR, which guarantees the freedom of expression.Moreover,itcanbringaboutthepositiveobligationofStatesinorderto protecttheLGBTQpopulation.Finally,theauthorsdevoteasegmenttotheanalyses of the Directive’s exception for churches, which has been accepted by many European States and, they argue, allows the homophobic dynamics to survive. Their conclusion is that national courts, as well as influences and trends in human rightslaw,canminimizetheeffectofthisexception. RigmorArgren offersareconsideration oftheLaw onArmed Conflict(LOAC) from the feminist viewpoint. The analysis applies the feminist legal theory to the LOACasapreventivelegalregime.Theauthorarguesthatarefinedunderstanding of gender perspectives could contribute to enhancing resilience and strengthening theoverallrespectfortheLOAC,thusincreasingtheprotectionofallpersonsinan armed conflict. The intention of this paper is to explore what insights a feminist readingoftheobligationtopreventwarcrimesmightbringtothetable.Theauthor seeks to address the gap in research by applying a gender lens to the (civil) legal obligationthatStateshavetopreventwarcrimesinthefirstplace.Forthatpurpose, Argren considers critically the gendered nature of public international law. She assumesthatfrombothahistoricalandcontemporaryperspective,thefundamental observationofinternationallawasdecidedlymasculinestillholdstrue,whichcanbe evidenced in both organizational and normative terms. Public law has its roots in public/private dichotomy, insofar as the whole area of public international law has been described as gendered: the public being male, the private being female. It followsthattheStatehasbeenseenasintrinsicallymale.Sheaccentuatesthesocial/ politicalrealitythatwarbringsmonumentalsuffering,directlyandindirectly,which isnotlimitedtocivilianwomenonly.Butitisimportanttorememberthatwhenthe veil of victimhood is lifted from women in armed conflict, wars can also serve as