II. Whose universalism?

The challenge to universalism has long been a central tenet of critical thought. The call for women, or people of colour or other marginalized groups to have rights too, is an inherent challenge to universalism at the level of inclusion. Thinking through the epistemic closures of universalism, Kapur challenges the universalism of human rights and the concept of ‘freedom’ promoted by human rights through a focus on epistemologies from the Global South.Footnote ⁹ On a related but slightly different note, Donna Haraway argues that any universal, totalizing theory is ‘a major mistake that misses most of reality’.Footnote ¹⁰ The Xenofeminist Manifesto (outlined in more detail below) likewise discusses universalism. The Xenofeminist Manifesto, however, actually calls for universalism – albeit a universalism that must be made from the particular,Footnote ¹¹ thereby inherently posing a challenge to the mainstream form of universalism upon which much legal theory, including global constitutionalism, is based and that it seeks. Writing on xenofeminism a few years after the Xenofeminist Manifesto was published, Helen Hester (one of the collective members who wrote the original manifesto) further clarifies the universalism of xenofeminism, defining it as an intersectional universalism, supporting the stance that the xenofeminist concept of universalism must have difference embedded within it.Footnote ¹² This point has, of course, been raised within the field of global constitutionalism itself – including by feminist scholars working within this area, as referenced above, but also in relation to the need to decolonize global constitutionalism.Footnote ¹³

The authors in this special issue all discuss the challenges of exclusion within global constitutionalism. In doing so, they adopt different methods and different frameworks for understating and tackling this exclusion. For example, Houghton and O’Donoghue, through their meticulous overview of the multiple feminist manifestos that have been written, argue that manifestos provide evidence of dissident voices and knowledges that have never been included in the so-called universalism of international law. On the other hand, Gina Heathcote and Lucia Kula adopt a related but different method, calling for a politics of listening and learning. While their article, like Houghton and O’Donoghue’s, discusses the value of including what until now have been excluded knowledges, and calls for greater attention to be paid to those voices as part of a feminist praxis within global constitutionalism, Heathcote and Kula’s article speaks not only to global constitutionalism as a field but also to feminists working within international law. Focusing in particular on feminist work and organizing within Lusophone Africa, Heathcote and Kula call for feminists to challenge their own assumptions about what feminist knowledge is and who is being heard, critiquing ‘white and mainstream feminisms’ by drawing on feminist epistemologies from the Global South. Sheri Labenski, on a different note, calls for manifestos and other forms of knowledge to be considered as evidence of the forming of customary international law. By focusing more squarely on exactly how such knowledge can be used to rethink international law-making, Labenski’s article provides another way of thinking and doing feminism within global law while also raising an important point about the value unfairly placed on some sources of international law as inherently more valid than others. Each article thereby takes a different approach to a similar theme: the need to listen to a wider array of voices and hitherto excluded knowledges, and take them as seriously as we do their powerful white, male counterparts. The special issue comes with a clear message: it is about time that the voices of those who are rendered peripheral are heard.

In this article, I add a further layer of exclusion to the analysis by drawing on posthuman feminism to think through global constitutionalism, focusing specifically on international environmental law. In short, I seek to add to the special issue, which focuses primarily on including a wider array of human voices and interests within global constitutionalism, arguing for the need to also think about the interests of non-humans.

III. Posthuman feminist theory

There are many strands of posthuman theory, so there is a need to be clear about what form of posthumanism we are talking about before engaging this theory. For example, transhumanism is a form of posthumanism that seeks to use science and technology to extend humans (usually men) beyond their human limits. This may be done through, for example, extending life – be that through cryogenics, seeking to upload the human brain to a machine or even lower tech forms of human enhancement through biohacking.Footnote ¹⁴ This form of posthumanism differs greatly from critical posthumanism. Transhumanism seeks to ‘perfect’ the white, able-bodied, middle class, heterosexual man, seeking to make him God-like, bringing Nietzsche’s ‘god is dead’ thesis to the contemporary technologically mediated era.Footnote ¹⁵ Transhumanism is only posthuman in the sense that it seeks to expand upon the human; in short, humanism and its centring of the exclusionary white male subject remain at the core and are unchallenged by the transhuman paradigm.Footnote ¹⁶ Critical posthumanism, on the other hand, can be broadly defined as being located at the convergence between post-humanism (thereby seeking to dismantle hierarchies between humans such as gender, race and class) and post-anthropocentrism, seeking to challenge the hierarchical position the human subject holds in dominant Western thought over, for example, technology or non-human animals and the environment.Footnote ¹⁷ Posthuman feminism is therefore a strand of critical posthumanism that draws upon a long lineage of feminist work, from intersectional feminism to queer feminism, cyberfeminism, ecofeminism and xenofeminism, to intervene in the posthuman condition.Footnote ¹⁸

Posthuman feminism is intimately tied to manifestos. There are multiple manifestos written in the thread of posthuman feminism,Footnote ¹⁹ but here I will introduce two of the most prominent: Haraway’s Cyborg Manifesto and the Xenofeminist Manifesto. Haraway’s Cyborg Manifesto was originally published in 1985.Footnote ²⁰ It was subsequently updated ‘for the late 20th century’.Footnote ²¹ The manifesto questions human–machine relations, noting that we are all already intimately connected to technology and are therefore all already cyborgs.Footnote ²² The manifesto is careful to note the darker sides of technology, from the ways in which women –particularly women in the Global South – often do not experience the benefits of technologyFootnote ²³ to the intertwined nature of contemporary technology with capitalism and the military, and the possibility of a cyborg world ending in a ‘Star Wars apocalypse waged in the name of defence’.Footnote ²⁴ However, in the end Haraway sees promise in the cyborg. The cyborg may indeed be the ‘illegitimate offspring of militarism and patriarchal capitalism’, but its contradictory and hybrid ways may also provide a path out of ‘the maze of dualisms in which we have explained our bodies and our tools to ourselves’.Footnote ²⁵ The cyborg already challenges many of the dominant gendered dualisms that permeate Western thought, including – importantly – nature/culture.Footnote ²⁶ Haraway notes that ‘high-tech culture’ challenges dualisms: ‘It is not clear who makes and who is made in the relation between the human and the machine.’Footnote ²⁷ After all, as Haraway reminds us, ‘illegitimate offspring are often exceedingly unfaithful to their origins. Their fathers are, after all, inessential.’Footnote ²⁸ The cyborg thereby challenges the white, male, individual, rational subject (this being the central subject not only of Western thought, but also the law).Footnote ²⁹ By noting the ways in which humans, machines, non-human animals and matter are interconnected, the cyborg provides an alternative model of the subject as interconnected, dependent and never fixed, but always partial. Of course, the cyborg is a ‘dangerous possibilit[y]’ but, Haraway continues, the struggle is to remain open to ‘permanently partial identities and contradictory standpoints’ and ‘to see from both perspectives at once’.Footnote ³⁰ Cyborgs are ‘monstrous and illegitimate’, states Haraway, concluding that ‘in our present political circumstances, we could hardly hope for more potent myths for resistance and recoupling’.Footnote ³¹

Another important posthuman feminist manifesto is the Xenofeminist Manifesto,Footnote ³² which broadly seeks to put forward a feminist understanding of technology that positions technology – much in the same way as Haraway – as holding feminist potential. The Xenofeminist Manifesto calls for an appropriation of technology for feminist aims, ensuring that such technology remains loyal to the politics feminists may wish it to promote. Such feminist aims include the will to ensure the free distribution of hormones (to allow people to undergo gender transition outside the medical and state apparatus) or to use technology to restructure gendered systems of reproductive labour and care,Footnote ³³ declaring that, ‘If nature is unjust, change nature!’Footnote ³⁴

The history of manifestos within posthuman feminism makes a lot of sense. Putting forward an alternative set of ideas or a new way of viewing the world is very much at the heart of the posthuman feminist project which, for example, problematizes the constructed binary between subject/object that has come to structure much Western thought, including legal thought, noting the links between the human, the non-human, and matter and the environment. As Houghton and O’Donoghue note in their article in this issue, this aim of rethinking the world equally sits at the heart of the manifesto form. It therefore seems fitting to analyse the role of posthuman feminism within this special issue on feminist manifestos and global constitutionalism.Footnote ³⁵

IV. What this means for global environmental law

International law is highly fragmentedFootnote ³⁶ and global constitutionalism as a field partly seeks to address this fragmentation.Footnote ³⁷ However, it is not only international law that is fragmented: the different fragmented areas of international law are often each fragmented internally in their own ways.Footnote ³⁸ For example, in international environmental law, environmental, human and non-human interests are protected in different areas of the law and in different ways, with differing principles and approaches emerging accordingly.Footnote ³⁹ Examples include treaties that focus on conservation and sustainable use of natural resources and biodiversity,Footnote ⁴⁰ the obligation to preserve the marine environmentFootnote ⁴¹ and instruments to decrease pollution,Footnote ⁴² among others. Positive obligations are thereby focused on specific areas. There is no general obligation in international law to protect the environment in and of itself.Footnote ⁴³ While the UN General Assembly has taken up the task of environmental protection, most notably through the work of the UN Environment Programme (UNEP), there is no one specific international organization that has oversight of all environmental matters.Footnote ⁴⁴ Fragmentation is therefore a key challenge for international environmental law. While certain areas of international environmental law are moving towards a more integrated approach, changes are still occurring within specific areas of focus only.Footnote ⁴⁵ This fragmented nature means that consensus can be hard to find.Footnote ⁴⁶ Despite the seemingly inherent fit, there has been little engagement within global constitutionalism with regard to international environmental law.Footnote ⁴⁷

While attempts have been made to provide a more overarching system of rules and approaches for environmental protection,Footnote ⁴⁸ fragmentation within international environmental law remains a core issue. A recent attempt to create a more integrated system can be seen within ongoing negotiations on the Global Pact for the Environment. Initially a civil society initiative launched in 2017, the aim of the Pact was to bring together many existing international environmental law treaties into an more integrated and overarching instrument.Footnote ⁴⁹ Negotiations between states on this issue were launched following a vote by the UN General Assembly (UNGA) in 2018.Footnote ⁵⁰ In launching these negotiations, the UNGA requested the creation of ‘a technical and evidence-based report that identifies and assesses possible gaps in international environmental law and environment-related instruments with a view to strengthening their implementation’.Footnote ⁵¹ Furthermore, the UNGA established a working group under its own auspices, which was created ready to consider the said report and ‘discuss possible options to address possible gaps in international environmental law and environment-related instruments, as appropriate, and, if deemed necessary, the scope, parameters and feasibility of an international instrument’.Footnote ⁵² Following this and pursuant to the UNGA’s resolution, the UN Secretary General published a report on the need for a Global Pact on the Environment. In the report, the fragmented nature of international environmental law is highlighted, with the report stating that the current law is ‘piecemeal and reactive’, noting the need for further coherence and clarity. The report thereby calls for the creation of a ‘comprehensive and unifying international instrument that gathers all the principles of environmental law’.Footnote ⁵³ Negotiations remain ongoing.Footnote ⁵⁴

A Global Pact for the Environment seems to align very much with the broader aims of global constitutionalism – that is, the unifying of key principles and the addressing of fragmentation. However, this special issue exemplifies the need for global constitutionalism to listen to a wider array of voices, noting the role manifestos may play in providing alternative visions for global constitutionalism. It is key, when thinking about including feminist voices, to return to Hilary Charlesworth’s call for the method of feminism to be taken up and not just the message.Footnote ⁵⁵ While feminism does indeed note the need for further perspectives to be evaluated, this goes beyond a mere inclusion of women (or people of colour, or queers, or disabled people, or working-class people). As Houghton and O’Donoghue argue elsewhere, the question for global constitutionalism thereby becomes ‘whether it is possible for constitutionalism to change international law in ways that will open it up to alternate possibilities’.Footnote ⁵⁶ Feminist concerns go beyond issues of representation, arguing that the very epistemic basis of international law (or, in this instance, global constitutionalism) represents a specific, dominant account of law and politics as applied primarily through Western-based and gendered legal norms. Feminist approaches, as this special issue well exemplifies, thereby call not only for the inclusion of voices, but for substantive changes. Through listening and learning (Heathcote and Kula), through taking seriously texts written by people not at the centre of power (Houghton and O’Donoghue) or through recognizing feminist texts as providing a completely different perspective on what international law is and can be (Labenski), feminist approaches, as this special issue exemplifies, cannot stop at the call for liberal inclusion without substance but must rather call for real, substantive change.Footnote ⁵⁷

Feminist scholars have long noted the inherent bias that underlies international law’s structure, from the way the state is conceptualized through gendered paradigmsFootnote ⁵⁸ to the gendered and racialized norms upheld through international human rights law.Footnote ⁵⁹ Similarly, posthuman feminism has identified how dominant accounts of Western philosophy uphold narrow and problematic epistemic frames,Footnote ⁶⁰ with these modalities of thought having structured the law.Footnote ⁶¹ For example, posthuman theories of new materialismFootnote ⁶² broadly challenge dominant understandings of subjectivity, stressing the ‘force of living matter’.Footnote ⁶³ Bennett, for example, challenges the binding of subjectivity to the fantasy of ‘human uniqueness’Footnote ⁶⁴ and the ‘fantasy that “we” are really in charge of those “its”’.Footnote ⁶⁵ Bennett thus re-centres matter as an ‘actant’,Footnote ⁶⁶ challenging the idea objects are opposite to subjects through a focus on ‘thing-power’.Footnote ⁶⁷ Bennett notes that humans are part of a shared ‘vital materiality’,Footnote ⁶⁸ arguing that humans impact and are impacted by things, yet also highlighting the fact that humans are themselves ‘a particularly potent mix of minerals’.Footnote ⁶⁹ Bennett, along with posthuman theory more broadly, thus challenges the idea that agency is something held by humans alone, rather stating that ‘the locus of agency is always a human–non-human working group’.Footnote ⁷⁰ As Braidotti shows, feminist thought on the environment is deeply connected to new materialism, from the feminist new materialists to posthuman feminism to longer histories of ecocritical and ecofeminist thought.Footnote ⁷¹

Critical environmental law scholars have noted the inherent anthropocentrism that underlies international environmental law, where similar patterns of human exceptionalism and the upholding of the subject/object binary can be mapped.Footnote ⁷² What does, unfortunately, unite international environmental law is its constant privileging of human interests, including state economic interests, and its ultimate justification of environmental exploitation.Footnote ⁷³ Even human rights and the environment – one of the most promising and radical areas of environmental law – is ultimately about human interests. This can be seen, for example, in the human right to a healthy environment, a right recently recognized for the first time in October 2021 by the Human Rights Council.Footnote ⁷⁴ While indeed the right is potentially transformative,Footnote ⁷⁵ it is a right that protects human rights to live within a healthy environment. The right does not protect the rights of the environment to its own health, or the rights of animals to live in a healthy environment. This means that environmental damage that does not impact humans but may, for example, impact other species, or cases where environmental damage is occurring a long way from human occupants (such as in international waters), cannot be enforced through this right in its current framing. International environmental law enforces a problematic subject/object binary under which humans are the central subject of the law and the environment is viewed as an object. This is the case both when the environment is being protected (where it is still seen as an object) and when it is being exploited – that is, as an economic resource. Non-humans and the environment are rendered objects – albeit differing in status.

The view of the environment as an object not only undermines the solutions possible under the existing logic of environmental law, but also helps support the rationalization of other masculinist solutions. As Joanna Zylinska argues, the apocalyptic narratives that surround the Anthropocene have always been about the fear of the end of the European man, and the idea that salvation will come from some supernatural elsewhere.Footnote ⁷⁶ This can be seen, for example, in the logic of the billionaire tech giants who propose human migration to Mars as the solution to climate change.Footnote ⁷⁷ Mars is envisaged by these people as the solution, the place to go once we have destroyed Earth. Actively deploying the terminology of colonization, men such as Elon Musk and Jeff Benzos seem unaware (or, more likely, all too aware) of the echoes of European colonialism in their proposed elite, uber-rich, white male utopia on Mars.Footnote ⁷⁸ This phenomenon has led feminist scholars to call for a feminist founding constitution for Mars, noting the need to avoid the perpetuation of past and existing inequalities.Footnote ⁷⁹ The problem with such a solution, however, is similar to the problems outlined above with international environmental law and the creation of a Global Pact for the Environment. The law is, itself, fundamentally anthropocentric. This is possibly best exemplified in relation to outer space by recent attempts by the United States to shift the long-held view in international law that outer space is part of the global commons – that it cannot be used for commercial exploitation but rather is held by all of humanity in common.Footnote ⁸⁰ In 2020, following an Executive Order by President Trump a few months earlier, which called for the inclusion of commercial partners in space exploration and encouraging exploration of space mining,Footnote ⁸¹ NASA released the Artemis Accords, which aim to ‘establish a common set of principles to govern the civil use of outer space’, seeking to ‘facilitate exploration, science, and commercial activities for the benefit of humanity’.Footnote ⁸² The Accords propose a series of bilateral agreements in which ‘partner nations’ agree to follow US-drafted rules.Footnote ⁸³ The move away from ideas of shared cooperation and ownership towards a property-based model that sees outer space as the next commercial frontier again works to uphold and perpetuate the anthropocentric nature of international law, whereby matter – outer space – is seen as an object to be exploited for economic benefit. Yet, given that the underlying anthropocentrism of international environmental law (and the anthropocentrism of dominant human understandings of the environment, matter and the non-human more broadly) has caused and justified vast environmental degradation, it is evident that anthropocentric, capitalist outer space laws and the great colonization of space cannot provide the solution to the journey towards destroying the planet that humanity is on course to complete. Rather, as Zylinska notes, a feminist counter-apocalypse is needed in the here and now,Footnote ⁸⁴ seeking to ‘interrupt the habit’ of the oncoming apocalypse.Footnote ⁸⁵ Zylinska’s counter-apocalypse finds resolution in theories of relationalityFootnote ⁸⁶ but, from the perspective of international law and global constitutionalism, what becomes clear is that there is a need to challenge the epistemic basis of the law itself if humanity it to move beyond the same old story of masculinism, colonization, racism, speciesism and so on.

Discussing the anthropocentrism of international environmental law, critical environmental law scholar Anna Grear asks whether environmental law actually can respond to ‘alternative modes of knowing’ seeing and sharing the world.Footnote ⁸⁷ On a similar note, Usha Natarajan and Kishan Khoday argue that international environmental law is set up in a way that re-enforces ecological harm,Footnote ⁸⁸ with Stephen Turner similarly concluding that ‘the very design of the law itself is fundamentally predisposed to environmental degradation and forms part of a dysfunctional global legal architecture which cannot achieve environmental sustainability’.Footnote ⁸⁹ What becomes clear, therefore, is that unifying international environmental law through something like the Global Pact for the Environment, while useful, is not and cannot be enough because the existing provisions are not enough. While negotiations on the Pact do show the potential to create new principles, a core task is consolidation, with newly proposed principles being used to fill gaps in the same trend as existing provisions in other areas.Footnote ⁹⁰ While some more radical shifts could occur, in the sense that the Pact can put forward new provisions that may even go beyond existing specialist treaties (providing the environmental protection purposes of that said treaty are not undermined), this seems unlikely given the wider context of the Pact, the difficulties in negotiating environmental law treaties and the realities of states’ willingness to push forward environmental issues in a more radical way.Footnote ⁹¹ Bringing existing treaties and principles together into one Pact cannot, however, be the end point for those who wish to ensure international environmental law can and does protect the environment. This is because the very epistemic basis of the law itself needs to be rethought. The unification of international environmental law may indeed support better overall environmental protection, but in the end integrating existing treaties and principles can only go so far when those treaties and principles are themselves anthropocentric.

It is clear that global constitutionalism, if it is to be used in a transformative way that is genuinely open to alternative voices, cannot be used solely to integrate existing values or even to uphold them more strongly with the aim of addressing, for example, concerns around legitimacy. Rather, if global constitutionalism is to take feminist critiques seriously, more attention must be paid to ‘how the institutions and structures of international law themselves dictate and produce circumscribed outcomes’.Footnote ⁹² Scholars must commit to being open to listening to and seeking to include, not only new voices, but alternative knowledges and new visions of what global law is and can be. Such perspectives may indeed include posthuman feminism, as I have tried to argue here, as well as other perspectives – including, for example, postcolonial feminisms, queer perspectives and feminist science fiction, among others.Footnote ⁹³ Feminist theory can be used to help rethink the underlying values of international law, and thereby the underlying values adopted by much of the literature within global constitutionalism.