Gender and Conflict of Laws: Enabling Violence

Gender is conflict of laws’ blind spot and private international law or conflict of laws rules, doctrines, and practices are rarely analyzed in relation to gender. This chapter builds on insights from materialist and intersectional feminists and argues that to truly integrate gender justice imperatives, conflict of laws needs to turn to an intersectional, contextual, and distributional analysis. This approach interrogates how the discourses, rules, and practices within the field produce gender, how they shape gender relations, and how they stabilize or upend inequalities of gender, race, ethnicity, or class. It is both turned toward the critique of the status quo and committed to (re)imagining the conflict of laws field in a way that eliminate gender hierarchies. This chapter uses the example of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which orders the return of a wrongfully removed child to the country of their habitual residence, to illustrate how this approach could illuminate conflict of laws’ operation. The author shows how the application of the Convention ends up enabling gender-based violence in transnational contexts. The field does so by minimizing or erasing domestic violence and by entrenching dismissive gender representations. Finally, the chapter turns to some of the solutions that are proposed to deal with domestic violence issues in this context, showing why they risk producing gender-based violence.