女性主義觀點下的國際法——以海洋法為例

International Law from the Perspective of Feminism–The Law of the Sea as An Example

近年來，「性別與海洋」相關議題在聯合國架構中，漸被關注。事實上，從女性主義角度出發研究國際法已有蓬勃發展，其主要觀察到在國際法之架構、形成過程與研究方法中，女性被邊緣化，其生活與經驗往往被忽略。故而國際社會回應性別問題之程度亦有限，在規範面，不同領域對於性別問題回應之程度不同，縱然有部分發展，但仍屬少數，甚至仍視女性為被害者或是僅具軟法性質。在制度面，雖然聯合國倡議「性別主流化」，其組織之女性高階人員比例有長足成長，但技術性領域仍有所限制。在爭端解決程序面，在佔多數的男性法官主導絕大多數爭端解決機制的狀況下，無從判斷女性法官參與對於制度的影響程度如何，但性別失衡的結果不免影響相關程序與結果。在海洋法領域，其失衡之程度，更甚於其他國際法領域。《聯合國海洋法公約》縱有人權或人道考量，但仍非針對性別的意識與回應。近年來，雖有海洋環境或漁業資源管理領域發展出顧及性別之文件或規範，但仍相當有限。甚至公約所建立之機制，全然無性別考量，更少有女性參與者。在當代海洋法面對眾多新挑戰的狀況下，透過女性主義角度的切入，能提供跳脫傳統侷限之機會，透過多元價值與途徑，促進規範的再進步、再發展。

Recently, issues about gender and the sea have gained more attention from the United Nations (UN). In international legal research, more vigorously developed has been how feminism has approached international law. Such developments have found that international law's evolution, structure, and studies have altogether often marginalized the female's role, characteristics, and living experiences as a whole. Thus, international society has—to a very limited extent—adequately responded to gender-related issues. In lawmaking, international law's different sub-sectors have—at different levels—responded to gender-related issues. Only few of such responses have taken the premise of ''gender'' into account. As some of such responses have merely viewed females as victims and/or formed a soft law status. In administrative institutions, though gender mainstreaming has been proposed in the UN and the number of female high-ranking personnel has increased, all of such progresses have not been evident in the technology sector. And in dispute settlement procedures, most of the presiding judges are male. Thus, it is difficult to discern how female judges might impact the aforesaid systems and procedures. Also, more doubts could persist as strong gender imbalances might impact such procedures and their produced results. In the law of the sea field, these gender imbalance issues are worse than those of other international law fields. Namely as the UN Convention on the Law of the Sea (LOS Convention) does not explicitly respond to and/or make sense of gender-related issues. Yet, the LOS Convention does sometimes take human rights and/or humanity-related issues into account. From a very limited scope and in the realms of both fisheries management and maritime environmental protection, only some regulations are developed in tandem with gender-related concerns. More concerning is that the LOS Convention's established mechanisms lack both the adequate sense of gender and number of female participants. As the contemporary law of the sea faces various new challenges, the feminist approaches allow for ampler opportunities to both diverge from certain traditions and promote further regulatory developments in the near future.