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Edited by Irini Papanicolopulu

In Gender and the Law of the Sea a distinguished group of law of the sea and feminist scholars critically engages with one of the oldest fields of international law. While the law of the sea has been traditionally portrayed as a technical, gender-neutral set of rules, of concern to States rather than humans, authors in this volume persuasively argue that critical feminist perspectives are needed to question the underlying assumptions of ostensibly gender-neutral norms. Coming at a time when the presence of women at sea is increasing, the volume forcefully and successfully argues that legal rules are relevant to ensure gender equality and the empowerment of women at sea, in an effort to render law for the oceans more inclusive.

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Ioannis Stribis

Abstract

Shipping is an industry in which women have a limited role. Most work on passenger and cruise ships and only a few are masters or officers, while the vast majority are enlisted as ratings and other personnel. These occupations increase the vulnerability of women seafarers, and are added to the difficulties women face when searching to find work on ship or when they are effectively enlisted. Instances of harassment, including sexual harassment, are informally discussed but victims seldom complain officially. The Maritime Labour Convention (MLC) has the ambition to be an international maritime labour code, and it includes some gender-related provisions, including both general clauses of equality and non-discrimination, few rather obvious provisions concerning separate accommodation and sanitary facilities on board ships; and considerations relating to maternity with respect to social security benefits and leave entitlement. The chapter discusses the value of the explicit clauses of the MLC as well as the potential for developing gender awareness in the maritime labour sector through the use of the compliance and enforcement provisions of the MLC.

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Momoko Kitada

Abstract

The chapter discusses how international laws and policies can be translated into ‘good practices’ at a national level for the successful integration of women in the maritime sector. So-called ‘good practices’ are exercised for the implementation of laws and practices and considered as ‘good’ and ‘effective’ in a given situation. Although general concerns, including equal opportunities and equal pay, are shared worldwide, the notion of ‘good practices’ vary by country. Similarly, the national priorities in achieving gender equality may not be the same from one country to another. The chapter first identifies where interventions are necessary to ensure that actions and policies are effective. In this respect, the use of Gender-Sensitive Indicators (GSI) and Gender-Based Analysis (GBA) is a good starting point to facilitate the process of implementing the international laws and policies at a national level. In addition, the chapter addresses the significance of cultural differences when designing maritime strategies addressing gender inequality. Finally, the chapter calls for greater international engagement with countries which have not ratified the key legal instruments.

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Nilufer Oral

Abstract

Climate change has traditionally been associated with the atmosphere. However, the important nexus between climate change and the ocean has gained increased recognition in the past few years. Climate change and the oceans brings into play two important but separate regimes: the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and the 2015 Paris Agreement on Climate Change. UNCLOS was negotiated a decade before the 1992 UNFCCC. UNCLOS does address gender issues and it was not until the 2015 Paris Agreement that any acknowledgment was given to the place of gender in climate change. Specifically, the preamble of the Paris Agreement calls upon Parties, when taking action to address climate change, to “respect, promote and consider their respective obligations” inter alia “gender equality and empowerment of women. The chapter will provide a brief overview the relationship between climate change and oceans, looking at the existing climate change regime, disaster regime and law of the sea regime, and then examine the place of gender in relation to climate change and oceans in these respective regimes. The chapter will show that there is an imbalanced treatment of gender among the UNFCCC climate change regime, the disaster regime and that of the UNCLOS regime.

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Patricia Mallia and David Testa

Abstract

In the opening sequence of her Nexus Lecture, Borgese was quick to acknowledge an almost life-long preoccupation of hers with the “problem of being a woman in our Western culture”. Furthermore, she considered that the Oceans would serve as a “great laboratory for the making of a new world order” and, as such, presented an opportunity for utopian ideas of world governance to be “tested in the arena of real politics”. This approach came to characterize Borgese’s subsequent contributions to the law of the sea. If in the context of the LOSC a community based approach ultimately prevailed over more State-centric attitudes, this was to be properly construed as the reflection of a much grander ideal. Borgese, in fact, celebrated the LOSC as a promise of a new socio-political map. Most relevantly, however, in her own final analysis of the “years of [her] life”, Borgese reaffirmed her unwavering belief that “the new emphasis on community and on cooperation, coupled with technological developments, will also enhance a new gender balance”. This chapter delves into the above as well as trace Borgese’s immense contribution to the development of the Law of the Sea as we know it today, including her contribution through the Pacem in Maribus series of conferences and the establishment of the International Ocean Institute.

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Alice Ollino

Abstract

The depletion of marine living resources and the need for their conservation are among the most pressing tasks faced by international law of the sea. While the failure to properly manage marine living resources may be due to States’ lack of will to take appropriate conservation measures, structural limitations of existing rules of international law and conceptual narratives about nature foster harmful and unsustainable behaviours. This chapter builds on feminist post-humanism to unpack disciplinary assumptions about nature that underpin international law, and offers a critical analysis of the legal system surrounding marine living resource management. The chapter argues that international law of the sea is structured in a way that systematically reinforces patters of environmental degradation, for its genealogy rests on the concepts of anthropocentrism, androcentrism and epistemological mechanisms of exclusion whereby certain humans and the natural ecosystem are systematically disadvantaged. The chapter discusses the legal foundations of the law of the sea framework and analyses the most relevant international instruments and integrative approaches governing marine living resources management. In relation to the latter, the chapter queries whether the ecosystem approach could aptly represent a trope for a posthumanist manifesto in the international law of the sea.

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Volume-editor Irini Papanicolopulu

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Vasco Becker-Weinberg

Abstract

The chapter examines the connection between human trafficking and IUUF and its legal and gender implications, taking into account the shortcomings of international law to effectively combat these phenomena. Interception, boarding, search and seizure of vessels and of goods, and the arrest and rescue of persons onboard would be the clearest response available, particular in those cases where States allow the permissive environment for abuses and violations of human rights to occur. However, outside the principle of flag State preemption, the law of the sea offers limited possibilities for action. Therefore, it is also necessary to consider other legal regimes and in particular international human rights law applicable to human trafficking, in order to attempt bridging the existing enforcement gap. In addition, and similar to most activities at sea, human trafficking and IUUF are strongly dependent on onshore operations, and it is precisely on land that the gender implications become more apparent, seeing that women and girls are forced to work within fishing communities and subject to sexual abuse, while the most part of victims at sea are men and children. In these cases, the effectiveness of human rights protection is bounded by the sovereignty of a State over its territory.

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Loveday Hodson

Abstract

The chapter considers the high seas as both a conceptual and an activist space for feminist engagement with international law. While the Law of Sea creates a highly technical specialist regime that has attracted little feminist commentary, the 1958 Convention on the High Seas places particular emphasis on freedoms as opposed to regulation, stipulating that no state may validly purport to subject any part of the high seas to its sovereignty. This paper asks what the implications might be of such (apparently) borderless space for feminist engagement with international law. Among scholars of international law, there is rightly much attention paid to how women are rendered vulnerable in the absence of the State’s regulation (particularly asylum seekers and trafficked women). The chapter asks whether this binary between body/mind, wilderness/regulation, vulnerability/protection – and the idealisation of sacrifice inherent in the apparent choice offered by this binary – might usefully be resisted by feminists working in international law. The chapter then considers how these ideas may inform activist engagement with international law, the implications of activists’ use of the high seas and the strategic shifting of sovereignties

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Francesca Mussi

Abstract

In recent years migration at sea has represented a pressing legal and political issue due to the massive number of migrants involved. The vast majority are women and girls, who move across the borders of the diverse geographical regions despite the dangers related to voyages on old unseaworthy boats, thus contributing to the increase of the so-called “feminisation of migration”. This has led to significant developments in international human rights law and has raised much interest in existing scholarly literature. On the contrary, little attention has so far been paid to the relevance of gender dimension in the context of criminal activities connected to migration at sea, that is to say trafficking in human beings and smuggling of migrants. In light of the above, the chapter analyses, through a gender perspective, the international legal regimes set out by the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Sea and Air, in order to assess whether they are able to effectively address the experiences of women subject to trafficking and smuggling by sea.