Gender and the Law of the Sea

[Editor’s Note: ICONnect is publishing a series of book reviews that recently ran in ICON (Volume 18, Issue 2: July 2020) on “Law and Gender in the Literature.”]

Irini Papanicolopulu ed. Gender and the Law of the Sea.  Brill Nijhoff,  2019 (hardback). Pp. xxii+ 368. € 138.00. ISBN: 9789004375161.

Isabel Lischewski

International Journal of Constitutional Law, Volume 18, Issue 2, July 2020, Pages 651–654, https://doi.org/10.1093/icon/moaa042

https://academic.oup.com/icon/article/18/2/651/5880171

Almost thirty years have passed since the seminal “Feminist Approaches to International Law” by Hilary Charlesworth, Christine Chinkin, and Shelley Wright appeared in the American Journal of International Law,^[1] and these years have seen the rapid expansion of the field of feminist international legal studies.^[2] Scholars have applied a feminist lens to a range of international legal issues, but have overall directed most of their attention towards human rights law and related subjects. There still seems to be something of a tacit understanding that most areas of classic state-centered international law are not accessible to a feminist analysis, or that the result of such an analysis is evident beforehand: namely, that the core pillars of the inter-state legal order are constructed in a completely gender-neutral way.

It is thus no small undertaking to come forward with a collection whose title brings together the words “gender” and “law of the sea,” be it only because of the gut reaction most international lawyers will have towards the combination. The law of the sea, with its rules regarding coastal delineation, fisheries, and flag states, setting the stage for cases such as Lotus and North Sea Continental Shelf, is viewed as probably the single most technical and functional area of international law, thus implying, for most, gender neutrality. However, in the same breath, it also carries the strongest implication of “traditional,” Hemingwayesk masculinity and of a world where women are not.[^3] It is this second assumption that puts the first one—that the law of the sea is indeed neutral—under some intellectual strain.

The collection—edited by Irini Papanicolopulu—sets out to measure the law of the sea’s genderedness through a variety of contributions addressing issues from the freedom of navigation to environmental questions, fisheries, maritime labor, and migration. From the beginning (at 10), it is clear that the authors rely on a broad understanding of the scope of the law of the sea as a subject field. By incorporating labor law, trafficking, and sustainable development into the project, the horizon of what some would understand the traditional law of the sea to be—i.e. treaty and customary rules regarding navigation, coastal delineation, and perhaps exploitation of resources—is significantly expanded to include, on the one hand, rules leaning more towards “soft law” and, on the other hand, pretty much any legal issue that can take place in proximity to saltwater. While this less confined definition of the law of the sea has its merits even beyond the context of a feminist analysis, within this endeavor it seems to again lead many of the authors to focus their attention on issues of human rights and development—classic mainstays of feminist analysis. Relatively few of the texts engage with the core tenets of the law of the sea.

1. Labor and sustainability at sea

Within the book, there is almost an abundance of (individually well-crafted and mostly convincing) chapters dealing extensively with gendered issues of either maritime labor in different areas (Chapters 7, 12, 13, and 14) or climate change and overfishing (Chapters 4, 8, and 15), or a combination of the two, often through reference to the Sustainable Development Goals (Chapters 1 and 3). These chapters’ main arguments usually focus on issues of gender mainstreaming and representation in decision-making procedures and negotiations. While offering valuable insights into these specific areas, which are underresearched from a feminist standpoint, the conclusions do not go very far beyond stating that women’s increased representation, for example in negotiations around fishing quotas, would somehow lead to a more sustainable approach, or that explicit gender mainstreaming of maritime labor law might help more women enter into these professions. While the former idea is rightfully questioned even within the book (by Tullio Scovazzi in Chapter 5), it also surprises that the concept of gender mainstreaming as such, which has been under scrutiny within the feminist academic community for quite a while,[^4] is hardly called into question in this context.

The study of these areas of law, while doubtlessly a worthy undertaking in general, hardly amounts to a novel expansion of the usual focus of feminist analysis, and the conclusions remain a little unsatisfying. These contributions rarely refer to core issues of the law of the sea proper and cannot fully answer the question of to what extent the ocean is a gendered legal space.

2. Gendered legal subjects: Smuggling versus trafficking

A slightly different approach is taken in Francesca Mussi’s chapter on the gendered differences between the United Nations Protocols on Smuggling (meaning here the facilitation of—not always irregular or illegal—migration for money) and on Trafficking (meaning here essentially trade in human beings across borders for their exploitation).

First of all, the connection to the law of the sea is established here via the duties set out in the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention on Maritime Search and Rescue (SAR) and their applicable guidelines to rescue persons at distress and to deliver them to a place that provides safe embarkment (at 263–268). The crux lies in the questionable interplay of these duties with, on the one hand, international refugee law, specifically the principle of non-refoulement, and, on the other, the United Nations Convention against Transnational Organized Crime and its two Protocols on “Smuggling” and “Trafficking of Persons,” respectively.

In this already multidimensional legal space, Mussi shows how, intentionally or unintentionally, the two Protocols add another layer by each presupposing a differently gendered legal subject. The Trafficking Protocol, reminiscent of the 1904 International Agreement for the Suppression of White Slave Traffic (which specifically referred to the trafficking of women and girls only: see Scovazzi at 145), envisions mostly women and children trafficked into sexual exploitation, thus both assuming a victim status of the trafficked persons and creating some difficulty to address the situation of the significant number of men trafficked for various reasons. On the other hand, the Smuggling Protocol assumes that the migrating persons undergo the process voluntarily and that they are predominantly male, both assumptions leading to the inference that there is less need for protection.

Mussi rightly criticizes both of these approaches as well as the fact that they lead to a conceptualization of migration as mostly a criminological phenomenon, with consequences for the situation of those migrants who, for whatever reasons, will find themselves at danger while crossing the oceans (at 277–278). However, she sadly stops short of proposing any solutions that a gendered analysis might produce.

3. Subverting a male space: The Little Mermaid, Women on Waves, postanthropocentrism, and postandrocentrism

Two contributions in the collection do stand out as taking on a more creative and courageous approach.

Loveday Hodson (Chapter 4) uses Hans Christian Andersen’s tale of The Little Mermaid as metaphor for the costs of subversion of patriarchal authority in a traditional space such as the ocean. However, after setting the scene with this rather bleak example, she embarks on a more uplifting case study of feminist activism that, by making inspired use of the existing law of the sea, does succeed in achieving change. She recounts how activist and physician Rebecca Gompert and her NGO—Women on Waves—take pregnant persons from states with restrictive abortion regulation aboard her floating clinic flying the Dutch flag and sail into international waters to perform medically-induced abortions, thereby also raising awareness of the issue beyond the individual cases. By doing so, they make use of the principle of state sovereignty as it is reflected in the law of the sea to safeguard and campaign for individual rights and liberties.

Alice Ollino (Chapter 9) takes a critical feminist framework as only the starting point for a much deeper dive into a critique of the philosophical principles underlying the legal treatment of the oceans as a natural resource. She shows how the humanist assumption, which she frames as anthropocentrism, has led to the current state of depletion and collapse of maritime ecosystems. Furthermore, she demonstrates that this thinking is not just antropo- but androcentric and intrinsically racialized. The seeming neutrality of the legal subject is thus deconstructed to reveal a hierarchy of needs that pervades the global economic system and deeply affects the ecosystems as well, such as through the principle of Maximum Sustainable Yield. Ollino contrasts this with a posthumanist Ecosystems Approach to international environmental law, which allows for a multiplicity and fluidity of legal subjects (at 223–227).

4. Conclusion

The texts in this collection seem aware at every turn that, in the end, the sum total of them will inevitably be regarded by many as a test case for whether any aspect of international law can really be subjected to feminist analysis. However, it is not always clear if the authors actually believe in this themselves, and few of the contributions take on a more structural perspective or make use of the subversive potential that lies in subjecting such a classic subject as the law of the sea to a critical feminist analysis.

As Charlesworth et al. pointed out:

[Like] all legal systems, international law plays an important part in constructing reality…concerns outside the scope of international law do not seem susceptible to development and change in the same way. To redefine the traditional scope of international law…can open the way to reimagining possibilities for change.[^5]

It can be hoped that scholars will take the valiant effort displayed in these contributions as an encouragement to deepen feminist engagement with the law of the sea, as the approaches already exemplified in this book—specifically the chapters by Hodson and Ollino—do point towards some valuable insights to be gained here.

Hodson demonstrates, on the one hand, the potential of well-established legal norms to be repurposed for feminist activism, thereby suggesting that these rules and principles are not irrevocably gendered, even though they pertain to traditionalist areas of international law. If more feminist legal projects were to take on such an approach, windows of opportunity for the rethinking of several other areas of international law could be wide open. On the other hand, as Ollino shows, this rethinking of international law cannot always stop at repurposing existing norms. Especially when faced with the imminent danger of global ecological collapse, feminist scholarship is tasked with using its immense potential for theorizing radical shifts in perspective in order to clear the way for a recalibration of humanity’s place in nature.

Footnotes

¹  Hilary Charlesworth, Christine Chinkin, & Shelley Wright, Feminist Approaches to International Law, 85 AM. J. INT’L L. 613 (1991).

²  For an overview, see, e.g., Introduction, in RESEARCH HANDBOOK ON FEMINIST ENGAGEMENT WITH INTERNATIONAL LAW (Susan Harris Rimmer & Kate Ogg eds., 2019).

³  Even the law of war, for example, with its strong focus on the treatment of non-combatants, engages more directly with its legal subjects in a (possibly) gendered way.

⁴  See, e.g., Hilary Charlesworth, Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations, 18 HARV. HUM. RTS. J. 1, 13 (2005); Sahana Dharmapuri, Just Add Women and Stir?, Parameters 56 (2011); and JANET HALLEY, PRABHA KOTISWARAN, RACHEL REBOUCHÉ, & HILA SHAMIR, GOVERNANCE FEMINISM: AN INTRODUCTION (2018).

⁵  See Charlesworth et al., supra note 1, 613 at 645.

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