Navigating Rough Seas: Women on Waves’ Legal Options for Overcoming Resistant States
Women on Waves is a Dutch nonprofit that seeks to provide women with safe abortion services and health information, as well as to raise public awareness of countries with restrictive abortion laws. One of the means through which the group achieves these goals is its ship campaigns, in which Women on Waves sails a ship to the harbor of a country with restrictive laws, and then brings local women out to international waters to give them medical abortion pills. In 2017, Guatemala expelled the group’s ship from its dock before it had the chance to fulfill its mission, claiming that Women on Waves represented a threat to public order and security. This Comment examines possible legal actions that Women on Waves and/or Guatemalan women could pursue against Guatemala following this incident, including claims based on violations of the International Covenant on Civil and Political Rights and/or the American Convention on Human Rights, as well as the right to innocent passage in the law of the sea.
The morning of Wednesday, February 22, 2017, a 36-foot sailboat docked at the Marina Pez Vela harbor in San Jose, Guatemala. The boat was navigated by Women on Waves, a nonprofit dedicated to preventing unsafe abortions.1
See Edgar Calderon, The Guatemalan Navy Has ‘Detained’ a Dutch ‘Abortion Ship’ After Protests, Bus. Insider (Feb. 24, 2017), http://perma.cc/94SM-BVWA.
Restrictive abortion laws include laws that either ban abortion entirely or permit abortion only in cases such as rape, incest, risk to the woman, and/or fetal problems.
See Who Are We?, Women on Waves, http://perma.cc/NP93-5MR9.
United Nations Convention on the Law of the Sea art. 94, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994) [hereinafter UNCLOS].
During Women on Waves’ trip to Guatemala, however, impediments quickly emerged. Within twenty-four hours of the ship’s docking, the Guatemalan army blocked the pier, preventing ships from entering or leaving the port. At a press conference, the military stated that President Jimmy Morales had instructed it to prevent Women on Waves from entering international waters.5
Abortion Ship in Guatemala, February 2017, Women on Waves, http://perma.cc/62JM-6GFT.
Id.
Id.
Guatemala is not the first country to challenge Women on Waves. Since its founding, the group has faced backlash on several of its ship campaigns. To date, the group has sent its boats to seven countries: Ireland, Poland, Portugal, Spain, Morocco, Guatemala, and Mexico.8
Abortion Ship Campaigns, Women on Waves, http://perma.cc/7LVC-NF5Q.
Sara Corbett, The Pro-Choice Extremist, N.Y. Times Mag. (Aug. 26, 2001), http://perma.cc/YKV4-QA87.
See Women on Waves and Others v. Portugal, No. 31276/05 Eur. Ct. H.R. (2009).
Abortion Campaigners’ Boat Turned Away from Moroccan Port, The Guardian (Oct. 4, 2012), http://perma.cc/Y6PV-CRNF.
To gain visibility on an international scale, Women on Waves must have the ability to enter countries’ territorial waters. If states were able to get ahead of Women on Waves’ strategy and prevent its ship from docking at all, the results could be devastating for the nonprofit. This Comment analyzes whether states have the authority to restrict Women on Waves from entering their national waters. This Comment will also assess whether states have the authority to prevent Guatemalan women from accessing the group’s resources and information. This issue is relevant today as numerous countries continue to limit women’s access to abortion, and Women on Waves offers a highly creative solution to provide women with care and raise awareness. Given Women on Waves’ recent trips to Guatemala and Mexico, as well as the persistence of restrictive abortion laws throughout Latin America, this Comment focuses on that region in assessing Women on Waves’ legal options. This Comment will explore if Women on Waves’ legal battles are best fought by focusing on the organization’s rights to freedom of expression and innocent passage, rather than women’s rights in general.
While previous scholarly work has analyzed Women on Waves’ ship campaigns, these articles focused on earlier campaigns in Europe and emphasized recourse that the group could take through the law of the sea.12
Three articles from the early 2000s analyze the legality of Women on Waves’ mission following its unsuccessful attempt to visit Ireland in 2001. One of these articles assesses whether Women on Waves’ ship campaigns are consistent with European Community law. See generally Allison M. Clifford, Abortion in International Waters Off the Coast of Ireland: Avoiding a Collision between Irish Moral Sovereignty and the European Community, 14 Pace Int’l L. Rev. 385 (2002). The other two articles ask whether coastal states may assert jurisdiction over their nationals on Women on Waves’ boat in international waters. See generally Shannon Renton Wolf, Note, Making Waves: Circumventing Domestic Law on the High Seas, 14 Hasting Women’s L.J. 109 (2003); Adam Newman, Abortions on the High Seas: Can the Coastal State Invoke its Criminal Jurisdiction to Stop Them?, 17 Ocean Y.B. 512 (2003). Additionally, two articles from the mid-2000s discuss Women on Waves’ 2003 trip to Poland as part of a broader analysis of abortion and women’s rights in Poland. See Alicia Czerwinski, Sex, Politics, and Religion: The Clash Between Poland the European Union over Abortion, 32 Denv. J. Int’l L. & Pol’y 653, 653–54 (2004); Danielle Nappi, Note, Demokracja and Aborcja: Poland’s New Democracy and the Tyranny of Women’s Human Rights, 26 Women’s Rts. L. Rep. 53, 65–69 (2005).
This Comment is divided into six Sections. Section II discusses background information on Women on Waves, including its mission and various campaigns to get women access to abortion pills and information. Next, Section III describes potential human rights that Guatemalan women could invoke to gain access to Women on Waves’ services and information, in particular rights related to reproduction, the right to access information, and the right to freedom of movement. Section IV analyzes two possible rights that Women on Waves itself could rely upon: the right to freedom of expression under international human rights legal instruments and the right of innocent passage under the U.N. Convention on the Law of the Sea (UNCLOS). Lastly, Section V outlines potential causes of action that local women and Women on Waves could bring against Guatemala. The Comment concludes by noting the nonprofit’s best options and highlighting the importance of forum selection in ensuring Women on Waves can continue to make these sorts of trips.
Women on Waves’ mission is twofold: 1) to provide women with information (through trainings, workshops, hotlines, and apps) as well as access to safe early-term abortions; and 2) to raise public awareness regarding countries’ restrictive abortion laws.13
Who Are We?, supra note 3 (“Women on Waves wants to respond to an urgent medical need and draw public attention to the consequences of unwanted pregnancy and illegal abortion.”).
The group has been extremely creative in its approach to the first goal. In addition to its ship campaigns, Women on Waves has also employed advanced technology, including drones and robots, to deliver abortion pills to women in countries with restrictive abortion laws. In 2015, the nonprofit successfully completed its first “Abortion Drone” campaign in Poland, near the German border. Though German police quickly confiscated the drone controllers, two Polish women were able to access the pills.14
See First Flight Abortion Drone, Poland 2015, Women on Waves (2015), http://perma.cc/FH95-NPKF.
Abortion Robot Delivered Abortion Pills to 3 Women in Belfast, Women on Waves (May 31, 2018), http://perma.cc/CGE5-VHWK.
Beyond the dramatic ship, drone, and robot campaigns, which garner the most media attention, Women on Waves also provides healthcare information to women. It often operates hotlines for the women in countries that it visits, as well many other countries.16
See Safe Abortion Hotlines, Women on Waves, http://perma.cc/TWU4-VYAD.
See Training & Advocacy, Women on Waves, http://perma.cc/C93M-UN8F.
See Resources, Women on Waves, http://perma.cc/CPH7-5FXB;Women on Web Website is Blocked?, Women on Waves, http://perma.cc/DL4C-HF9V.
See Women on Web Website is Blocked?, supra note 19.
However, while countries’ resistance to the ship and technology campaigns are detrimental for Women on Waves’ first objective, the backlash very much supports the group’s second objective. In fact, in recapping its trip to Guatemala, Women on Waves noted the extensive international press coverage as a major accomplishment.20
See Abortion Ship in Guatemala, supra note 5.
See id.
Several countries have changed their abortion laws following Women on Waves campaigns combined with other political and social organizing efforts. For example, Portugal legalized abortion two and half years after Women on Waves’ mission, while Spain liberalized its abortion laws two years after Women on Waves’ visit.22
See Jillian Deutsch, The Doctor Who Brought Abortion out of the Shadows in Ireland, POLITICO (Mar. 20, 2018), http://perma.cc/W5J8-9WL3.
Id.
This Section focuses on three types of rights under international law that Guatemalan women could raise in bringing claims against Guatemala: reproductive rights, the right to access information, and the right to leave. Guatemalan women could pursue legal action either through the U.N. or the Inter-American System (the human rights system of the Organization of American States (OAS)). The U.N. has a wide array of legal instruments pertaining to these rights, including the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the U.N. Convention on the Elimination of All Forms of Discrimination (CEDAW), and the International Covenant on Economic, Social and Cultural Rights (ICESCR)).24
The UDHR, ICCPR, and ICESCR together form the International Bill of Human Rights. While the UDHR sets forth general aspirational principles, some of which are considered customary law, the ICCPR and ICESCR each define specific rights and limitations. CEDAW, which was adopted over a decade after the ICCPR and ICESCR, is considered to be an international bill of rights for women. While a large number of states have ratified all four agreements, there is some variation.
Reproductive rights are entangled in complex legal issues, in particular determining when life begins. Reproductive rights also connect to a wide range of other rights including the right to privacy, health, human dignity, access to information, and life. The legal definition of the beginning of life varies depending on the international organization and international agreement. This subsection will cover legal instruments in both the U.N. and the Inter-American System. Within the U.N., the UDHR serves as the foundational document for human rights standards, and several subsequent treaties—detailed below—have elaborated on those standards. Within the Inter-American System, the American Declaration and the American Convention both describe human rights standards for the region. While the two agreements are generally consistent, there are some notable discrepancies pertaining to the start of life.
1. The U.N.’s approach to reproductive rights has expanded, but the right to abortion remains qualified.
The UDHR, adopted by the U.N. in 1948, states, “All human beings are born free and equal.”25
G.A. Res. 217 (III) A, art. 1 (Dec. 10, 1948).
See What is the Universal Declaration of Human Rights?, Australian Human Rights Commission, http://perma.cc/BYQ7-RUQ9.
a) The International Covenant on Civil and Political Rights (ICCPR) grants rights that are tied to reproductive health.
The U.N. Human Rights Committee (UNHRC), which interprets and enforces the International Covenant on Civil and Political Rights (ICCPR), found a human right to abortion when the pregnancy endangers the life of the woman or there is a fatal fetal defect. 27
These types of abortions, in which the procedure is performed only out of medical necessity due to either potential harm to the woman or unviability of the fetus, are known as therapeutic abortions.
K.L. v. Peru, Comm. No. 1153/2003, Adoption of Views, (U.N. Hum. Rts. Comm. Nov. 22, 2005), U.N. Doc. CCPR/C/85/D/1153/2003.
Most Central and South American states, including Guatemala, have ratified the ICCPR.
K.L. v. Peru, supra, note 28, at ¶ 3.
In 2016, the UNHRC ruled in Mellet v. Ireland31
Mellet v. Ireland, Comm. No. 2324/2013, Adoption of Views, (U.N. Hum. Rts. Comm. Nov. 17, 2016), U.N. Doc. CCPR/116/D/2324/2013.
See id.
Regulation of Information (Services Outside the State for the Termination of Pregnancies) Act 1995 (Act No. 5/1995) (Ir.), http://perma.cc/6JL8-T2K5.
The violation of her right to access sexual and reproductive health information was inflicted because she was a woman in need of terminating her pregnancy. Male patients in Ireland are not similarly denied critical health information and are not pushed out and abandoned by the health care system when requiring such information.34
34Regulation of Information Act, supra note 33, at 6.
Most prominently, on October 30, 2018, the UNHRC issued the General Comment No. 36 on Article 6 of the ICCPR, the Right to Life. This Comment was the culmination of a lengthy three-year drafting process. It employs language similar to the terms used in the Mellet case, stating in paragraph 9:
Although States parties may adopt measures designed to regulate terminations of pregnancy, such measures must not result in violation of the right to life of a pregnant woman. . . . States parties must provide safe access to abortion to protect the life and health of pregnant women, and in situations in which carrying a pregnancy to term would cause the woman substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or when the foetus suffers from fatal impairment.. . . . States parties [may not] introduce humiliating or unreasonably burdensome requirements on women seeking to undergo abortion. The duty to protect the lives of women against the health risks associated with unsafe abortions requires States parties to ensure access for women and men, and, in particular, adolescents, to information and education about reproductive options, and to a wide range of contraceptive methods.35
35Human Rights Comm., General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, ¶ 9, U.N. Doc. CCPR/C/GC/36 (Oct. 30, 2018) (emphasis added).
General Comment No. 36 is meant to provide guidelines for states so that they can comply fully with the rights listed in Article 6.36
See Human Rights Committee Developing New Right to Life General Comment, International Justice Resource Center (July 28, 2015) http://perma.cc/2WX8-J8KG.
See Permanent Mission of the Republic of Malta, Draft General Comment on Article 6 of the International Covenant on Civil and Political Rights – Right to Life (2017); see also Republic of Poland, Remarks of Poland to the General Comment No 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life (2017); see also Russian Federation, Preliminary Comments on the Draft General Comment No. 36 on Article 6 (Right to Life) of the International Covenant on Civil and Political Rights, ¶ 7 (2017).
United States of America, Observations of the United States of America on the Human Rights Committee’s Draft General Comment No. 36 on Article 6 – Right to Life, ¶ 3 (Oct. 6, 2017).
Government of the United Kingdom of Great Britain and Northern Ireland, Human Rights Committee Draft General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life: Comments of the Government of the United Kingdom of Great Britain and Northern Ireland, ¶ 9 (Oct. 6, 2017).
Kingdom of the Netherlands, Comments of the Netherlands to the Draft General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, ¶ 7.
b) The U.N. Convention on the Elimination of All Forms of Discrimination (CEDAW) recognizes reproductive rights.
Beyond the UDHR and the ICCPR, other international instruments have addressed women’s human rights. The U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a legally binding treaty adopted in 1979 as an international bill of rights for women,41
See Overview of the Convention, U.N. Women, http://perma.cc/DF6J-N5F8.
See Convention on the Elimination of All Forms of Discrimination Against Women art. 16(e), opened for signature Mar. 1, 1980, 1249 U.N.T.S. 13.
State Parties shall . . . ensure, on a basis of equality of men and women . . . [t]he same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.43
43Id.
The CEDAW Committee, which interprets CEDAW’s mandates and monitors countries to ensure they properly implement the agreement, consists of twenty-three women’s rights experts from countries across the world.44
See Committee on the Elimination of Discrimination Against Women, Office of the High Commissioner on Human Rights, http://perma.cc/VC7R-6KT7.
L.C. v. Peru, Comm. No. 22/2009, Adoption of Views (U.N. Comm. on the Elimination of All Forms of Discrimination Against Women Nov. 25, 2011), U.N. Doc. CEDAW/C/50/D/22/2009.
L.C. v. Peru, supra note 45, at ¶ 2.1.
Id. at ¶ 2.3.
Id. at ¶ 2.6.
Id. at ¶¶ 2.9, 2.11.
See generally id.
Id. at ¶ 9(b)(iii).
The CEDAW Committee has also issued inquiries to specific members states restricting access to abortion in violation of CEDAW. However, while these inquiries are critical of such restrictive laws, they continue to focus on therapeutic abortions, as well as abortions in cases of rape and incest, as most critical. In its observations of the Dominican Republic in 2013, the Committee recommended that the state “[e]nsure that the draft amendment to the Criminal Code, which decriminalizes abortion in cases in which the mother’s life is threatened, will be expeditiously adopted and extended to cover other circumstances, such as rape, incest and serious malformation of the foetus.”52
Comm. on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of the Dominican Republic, ¶ 37(c), U.N. Doc. CEDAW/C/DOM/CO/6-7 (July 30, 2013).
“Consider removing punitive legislative provisions imposed on women who undergo abortion, in line with the Committee’s general recommendation 24 (1999) on women and health, and broadening the conditions under which abortion can be legally available, including when pregnancy is harmful to the mother’s health and in instances of rape and incest.” Comm. on the Elimination of Discrimination against Women, Concluding observations on the sixth periodic report of Angola adopted by the Committee at its fifty fourth session, ¶ 32(g), U.N. Doc. CEDAW/C/AGO/CO/6 (Mar. 1, 2013) (emphasis added).
“[T]he Committee recommends that the State party: (a) Extend the grounds for legalization of abortion to cases of rape, incest and severe foetal impairment; (b) Ensure the availability of abortion services and provide women with access to high-quality post-abortion care, especially in cases of complications resulting from unsafe abortions. . .” Comm. on the Elimination of Discrimination against Women, Concluding observations on the combined seventh and eighth periodic reports of Peru, ¶ 36, U.N. Doc. CEDAW/C/PER/CO/7-8 (July 24, 2014) (emphasis added).
“[The Committee] notes the great harm and suffering resulting from the physical and mental anguish of carrying an unwanted pregnancy to full term, especially in cases of rape, incest and severe fetal impairment, in particular fatal fetal abnormality.” Comm. on the Elimination of Discrimination against Women, Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, ¶ 81, U.N. Doc. CEDAW/C/OP.8/GBR/1 (Mar. 6, 2018) (emphasis added). For the U.K.’s response, see Observations of the United Kingdom, Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, U.N. Doc. CEDAW/C/OP.8/GBR/2 (Mar. 6, 2018).
c) International Covenant on Economic, Social and Cultural Rights (ICESCR) interpretations recognize reproductive rights but fail to offer viable recourse.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the U.N. in 1966.56
See International Covenant on Economic, Social and Cultural Rights, entered into force Jan. 3, 1976, 993 U.N.T.S. 3.
See Committee on Economic, Social and Cultural Rights, Office of the High Commissioner on Human Rights, http://perma.cc/4D37-KPYM.
See Committee on Economic, Social and Cultural Rights: Monitoring the Economic, Social and Cultural Rights, Office of the High Commissioner on Human Rights, http://perma.cc/2ZQ5-8HEN.
Article 12 of the ICESCR states that everyone has a right “to the enjoyment of the highest attainable standard of physical and mental health.”59
International Covenant on Economic, Social and Cultural Rights, supra note 56, at art. 12.
In 2000, CESCR stated that the right to health includes “the right to control one’s health and body, including sexual and reproductive freedom.” Comm. on Economic, Social and Cultural Rights, General Comment No. 14 (2000): The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), ¶ 8, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000).
Comm. on Economic, Social and Cultural Rights, General Comment No. 22 (2016) on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), ¶ 13, U.N. Doc. E/C.12/GC/22 (May 2, 2016).
Comm. on Economic, Social and Cultural Rights, supra note 61, at ¶ 18.
While the most recent General Comment is a major advancement for international reproductive rights, it still provides little recourse for individuals seeking justice. Unlike the ICCPR, many rights under the ICESCR are progressively realized, meaning states are not required to demonstrate immediate compliance, but must show meaningful progress. The “fluid” nature of these ICESCR rights makes them unsuitable for quasi-judicial oversight.63
Alexandra R. Harrington, Don’t Mind the Gap: The Rise of Individual Complaint Mechanisms within International Human Rights Treaties, 22 Duke J. Comp. Int’l L. 153, 162 (2012).
See id.
See Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, opened for signature Sept. 24, 2009, U.N. Doc. A/RES/63/117.
See, for example, Comm. on Economic, Social and Cultural Rights, Concluding Observations on Nepal, ¶ 55, U.N. Doc. E/C.12/1/Add.66 (Sept. 24, 2001). See also Comm. on Economic, Social and Cultural Rights, Concluding Observations on Malta, ¶ 41, U.N. Doc. E/C.12/1/Add.101 (Dec. 14, 2004); Comm. on Economic, Social and Cultural Rights, Concluding Observations on Monaco, ¶ 23, U.N. Doc. E/C.12/MCO/CO/1 (June 13, 2006); Comm. on Economic, Social and Cultural Rights, Concluding Observations on Mexico, ¶¶ 25, 44, U.N. Doc. E/C.12/MEX/CO/4 (June 9, 2006); Comm. on Economic, Social and Cultural Rights, Concluding Observations on Chile, ¶ 53, U.N. Doc. E/C.12/1/Add.105 (Dec. 1, 2004); Comm. on Economic, Social and Cultural Rights, Concluding Observations on Kuwait, ¶ 43, U.N. Doc. E/C.12/1/Add.98 (June 7, 2004).
2. The Inter-American System’s recognition of reproductive rights remains limited.
The Inter-American System for protecting human rights is more constrictive than the U.N. in terms of reproductive rights. The system, created by the Organization of American States (OAS) and its thirty-five members, has two central documents that pertain to these rights. The first, the American Declaration of the Rights and Duties of Man (American Declaration), was adopted in 1948 and set up principles that all OAS member states agreed to follow. The American Declaration was the world’s first-ever human rights agreement, adopted just eight months before the U.N.’s UDHR. The Declaration states, “All men are born free and equal.”67
American Declaration of the Rights and Duties of Man, Preamble, May 2, 1948, OEA/Ser.L.V./II.82, doc. 6, rev. 1 at 17.
American Convention on Human Rights art. 4, Nov. 22, 1969, 1144 U.N.T.S. 143.
See Ligia M. De Jesus, Revisiting Baby Boy v. United States: Why the IACHR Resolution Did Not Effectively Undermine the Inter-American System on Human Rights’ Protection of the Right to Life from Conception, 23 Fla. J. Int’l L. 221, 223–24 (2011).
See American Convention on Human Rights Signatories and Ratifications, Department of International Law, OAS, http://perma.cc/6WXR-YQWF.
The Inter-American System features two judicial bodies that implement these human rights agreements: the Inter-American Commission on Human Rights and the IACHR. Created by the OAS in 1959, the Inter-American Commission is a quasi-judicial body—not a court—that releases non-binding resolutions and reports.71
See De Jesus, supra note 69, at 224–25.
See id. at 225–26.
The IACHR, on the other hand, is a court that can issue judgments involving both monetary damages and injunctive relief. Established in 1979, the IACHR serves both adjudicatory purposes, by hearing cases about state violations of human rights, and advisory functions, by issuing advisory opinions on a range of topics. The court may serve in its role as adjudicator only for countries that have voluntarily submitted to its jurisdiction by ratifying the American Convention. Thus, countries like the U.S. and Canada that have not recognized the Convention are not within the IACHR’s jurisdiction. However, the court may issue advisory opinions about any OAS member state, regardless of whether or not it has ratified the American Convention. To bring a case before the IACHR, individuals, groups, and non-governmental organizations (NGOs) must first file a petition with the Inter-American Commission.73
See American Convention on Human Rights, supra note 68, at art. 44.
Both the Inter-American Commission on Human Rights and the IACHR have ruled that the American Declaration should not be construed to mean that life begins at conception. In 1981, the Inter-American Commission ruled in White v. United States74
White v. United States, Case 2141, Inter-Am. Comm’n H.R., Report No. 23/81, OEA/Ser.L/V/II.54, doc. 9 rev.1 (1980–1981).
The resolution maintained that the use of the phrase “in general” in Article 4(1) of the American Convention demonstrates that unborn children do not have an “absolute” right to life. Id at ¶¶ 19(e), 25.
See id.; see also De Jesus, supra note 69, at 231.
See De Jesus, supra note 69, at 274.
In the years since the Baby Boy case, neither human rights body has explicitly ruled on an unlimited right to abortion. Many abortion cases have involved extreme scenarios featuring rape or danger to the woman. For example, in 2007, the Inter-American Commission oversaw a settlement in which the Mexican government admitted to violating a thirteen-year-old girl’s right to health by denying her an abortion after she was raped.78
See Paulina del Carmen Ramirez Jacinto v. Mexico, Petition 161-02, Inter-Am. Comm’n H.R., Report. No. 21/07 (2007).
The IACHR recently reaffirmed Baby Boy in 2012 in a case brought by nine infertile Costa Rican couples seeking in vitro fertilization (IVF) treatment. The IACHR struck down Costa Rica’s ban on IVF and reaffirmed the Baby Boy case, holding that life does not begin at conception.79
See Murillo v. Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 257 (Nov. 28, 2012).
Id. at ¶ 253.
Id. at ¶ 146.
In blocking Women on Waves’ ship, Guatemala not only stopped women from accessing the group’s services, but also prevented them from accessing the information that Women on Waves offered on reproduction, health, and safety. Thus, the right to access information is relevant. Scholars often view the right to access information as naturally connected to the right to freedom of expression.82
See, for example, Susan Nevelow Mart, The Right to Receive Information, 95 Law Libr. J. 175 (2003). Numerous U.S. Supreme Court cases grant the right to access information as an implicit part of the First Amendment’s free speech clause. See, for example, Martin v. Struthers, 319 U.S. 141 (1943) (granting Jehovah’s Witnesses the right to solicit door-to-door in part due to the homeowners’ right to receive the pamphlets); Red Lion Broad. v. FCC, 395 U.S. 367 (1969) (emphasizing the rights of radio listeners to hear a diversity of views); Va. St. Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976) (holding that consumers have a right to receive information on drug prices). The Court has also explicitly tied the First Amendment to the right to receive information within the context of reproductive rights. See Griswold v. Connecticut, 381 U.S. 479 (1965) (noting the right to receive information about contraception).
U.N. member states recognize the right to access information in several principal documents. In 1946, the U.N. General Assembly adopted Resolution 59(1), which states, “Freedom of information is a fundamental human right and . . . the touchstone of all the freedoms to which the UN is consecrated.”83
G.A. Res 59 (I), at 95 (Dec. 14, 1946).
G.A. Res. 217 (III) A, supra note 25, at art. 19.
See id. at art. 20.
The right to access information relates to the right to equality and reproductive rights, as “it is widely recognized that women cannot exercise basic rights on an equal basis with men unless they have the information and means by which to control their fertility.”86
Sandra Coliver, The Right to Information Necessary for Reproductive Health and Choice under International Law, in The Right to Know: Human Rights and Access to Reproductive Health Information 48 (Sandra Coliver ed., 1995).
See Mellet v. Ireland, supra note 31, at ¶ 3.12.
See id. at ¶¶ 3.15, 3,18.
Within the Inter-American System, Article 13 of the American Convention grants the right to freedom of expression.89
See American Convention of Human Rights, supra note 68, at art. 13.
See Claudio Grossman, Freedom of Expression in the Inter-American System for the Protection of Human Rights, 25 Nova L. Rev. 411, 422 (2001).
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, ¶ 31 (Nov. 13, 1985).
Id. at ¶ 32.
Id. at ¶ 70.
In 1994, over thirty countries from across the Western Hemisphere signed the Declaration of Chapultepec, which elaborated on Article 13 by listing ten fundamental principles needed to sustain a free press in a democratic society.94
Press Release, Inter-American Press Association (IAPA), Declaration of Chapultepec is 20 Years Old Today but It Continues as Valid as Ever, IAPA Declares (Dec. 15, 2015), http://perma.cc/BQB5-HEP5.
Declaration of Chapultepec, Mar. 11, 1994.
Preventing Women on Waves’ boat from fulfilling its mission also implicates Guatemalan women’s right to leave their own country, as the state is preventing its citizens from sailing out to international waters. The right to travel dates back to the Magna Carta, which states in Article 42 that “[i]t shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water.”96
Magna Carta art. 42, June 15, 1215.
See G.A. Res. 217 (III) A, supra note 25, at art. 13(2).
See International Covenant on Civil and Political Rights art. 12(2), 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [Hereinafter ICCPR].
See International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families art. 8(1), Dec. 18, 1990, 2220 U.N.T.S. 3.
See International Convention on the Elimination of All Forms of Racial Discrimination art. 5(d)(ii), Dec. 21, 1965, 660 U.N.T.S. 195.
American Convention on Human Rights, supra note 68, at art. 22(2).
The UNHRC is the only international body that has expansively analyzed the right to leave within the frame of the ICCPR.102
See Colin Harvey & Robert P. Barnidge, Human Rights, Free Movement, and the Right to Leave in International Law, 19 Int’l J. Refugee L. 1, 4 (2007).
See Dimitry Kochenov, The Right to Leave Any Country Including Your Own in International Law, 28 Conn. J. Int’l L. 43, 59–60 (2012) (“Concerning the distinctions between temporary stays abroad and expatriation, sound consensus has emerged in the literature and official commentary that Article 12(2) ICCPR protects both equally, making no distinction between the two.”).
Human Rights Comm., General Comment No. 27, Freedom of Movement (Art. 12), ¶ 8, U.N. Doc. CCPR/C/21/Rev.1/Add.9 (Nov. 1, 1999).
Typically, the right to emigrate is seen as more crucial to human liberty than the right to take shorter trips.105
See Kochenov, supra note 103, at 60.
Nicholas Sitaropoulos, Freedom of Movement and the Right to a Nationality v. Ethnic Minorities: The Case of ex Article 19 of the Greek Nationality Code, 6 Eur. J. Migr. & L. 205 (2004).
See Rosalyn Higgins, The Right in International Law of an Individual to Enter, Stay In and Leave a Country, 49 Int’l Affs. 341, 353–54 (1973).
See id. at 354–55.
The right to leave one’s country has a dual nature when applied to the state’s obligations. The state has both a negative duty to not hinder departure, as well as a positive duty to ensure its citizens are fully capable of leaving.109
See Kochenov, supra note 103, at 61.
Article 12(3) of the ICCPR provides states with the authority to restrict citizens’ right to leave in exceptional circumstances, including national security, public order, and public health and morals.110
See ICCPR, supra note 98, at art. 12(3). National security is concerning as a justification, because it is difficult to limit its abuse in today’s age of terrorism and global threats. The public health and morals justification is also highly concerning, as it enables the majority to impose its personal viewpoints on minorities. “Principles which are not always legally enforceable but which are accepted by a great majority of the citizens as general guidelines” could suddenly be invoked as justification for preventing one’s freedom of movement. Kochenov, supra note 103, at 67 (quoting Alexandre Charles Kiss, Permissible Limitations on Rights, in The International Bill of Rights: The Covenant on Civil and Political Rights 190 (Louis Henkin ed., 1981)).
Human Rights Comm., General Comment No. 27, supra note 104, at ¶ 8.
See Lauri Peltonen v. Finland, Comm. No. 492/1992, Adoption of Views (U.N. Hum. Rts. Comm. July 29, 1994), U.N. Doc. CCPR/C/51/D/492/1992.
See id. at ¶¶ 1–2.
See Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law 22 (2012).
Still, the potential for abuse is high, especially for political dissidents. In Samuel Lichtenszteijn v. Uruguay,115
See Samuel Lichtensztejn v. Uruguay, Comm. No. 77/1980, Adoption of Views (U.N. Hum. Rts. Comm. Oct 27, 1982), U.N. Doc. CCPR/C/OP/2.
See id. at ¶ 8.3.
ICCPR, supra note 98, at art. 12(4).
Women on Waves could pursue legal action based on its own rights as an organization. The nonprofit successfully followed this approach in Europe. However, litigating in the Americas would pose different challenges. This Section explores two possible rights that Women on Waves could invoke to bring a lawsuit against Guatemala: the human right to freedom of expression and the right to “innocent passage” under the UNCLOS.
Numerous international human rights instruments recognize a right to freedom of expression. The UDHR states in Article 19 that “[e]veryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”118
G.A. Res. 217 (III) A, supra note 25, at art. 19.
ICCPR, supra note 98, at art. 19(2).
The exercise of these freedoms may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.120
120European Convention on Human Rights, art. 10(2), Apr. 11, 1950, E.T.S. No. 005.
Article 11 provides the same caveat for the rights to freedom of peaceful assembly and to freedom of association.121
See id. at art. 11(2).
1. Women on Waves successfully sued Portugal for violating its right to freedom of expression.
Women on Waves first raised its right to freedom of expression within the legal system of the European Community, in a legal battle with Portugal following escalated tensions between the nonprofit and the coastal state. On August 27, 2004, Women on Waves’ ship, the Borndiep, entered the Portuguese harbor of Figueira da Foz and requested permission to dock.122
Requesting Permission to Enter the Harbor of Figueira da Foz, Women on Waves: The Portuguese Diary (Aug. 27, 2004), http://perma.cc/8ZLR-RWY4.
Id.
Entry Ship Denied, Women on Waves: The Portuguese Diary (Aug. 28, 2004), http://perma.cc/5BKD-8MQQ.
See War?!, Women on Waves: The Portuguese Diary (Aug. 29, 2004), http://perma.cc/RJ3M-4UKN.
See Feed Me, Paste Me, Women on Waves: The Portuguese Diary (Sept. 3, 2004), http://perma.cc/9DQQ-56TD.
Women on Waves, along with two Portuguese associations (Clube Safo and Não te Prives), attempted to sue Portugal in national courts. On the morning of September 6, the Administrative and Fiscal Court of Coimbra heard the case. The organizations’ lawyers argued that the Portuguese government had violated their freedom of movement, information, and expression.127
See Going to Court, Women on Waves: The Portuguese Diary (Sept. 6, 2004), http://perma.cc/B98M-FCUH.
See Borndiep Heads Back Home, Women on Waves: The Portuguese Diary (Sept. 9, 2004), http://perma.cc/ZK4A-7KMW.
Following their failed attempt in the Portuguese judicial system, Women on Waves and the two other plaintiffs brought the case to the ECtHR. They claimed Portugal violated their rights to freedom of expression and peaceful meeting and freedom of association under Articles 10 and 11 of the ECHR by preventing the group from sharing ideas and information with Portuguese women.129
See Tullio Treves, Human Rights and the Law of the Sea, 28 Berkeley J. Int'l L. 1, 10–11 (2010).
Id. at 11.
The ECtHR released its unanimous131
The unanimity of this opinion marked a significant change from the ECtHR’s 1992 decision Open Door and Dublin Well Women v. Ireland. In that case, the ECtHR held that the Ireland Supreme Court’s injunction, which restrained counseling agencies from giving information on abortion clinics to pregnant women, violated Article 10 of the ECHR. However, the case featured 18 pages of concurring, separate, and dissenting opinions. See Open Door and Dublin Well Woman v. Ireland, 14234/88 Eur. Ct. H. R. (1992).
See Women on Waves and Others v. Portugal, no. 31276/05 Eur. Ct. H. R. (2009).
See Treves, supra note 129, at 10.
Id. at 11.
Id.
However, ultimately the ECtHR found that Portugal violated Article 10 of the ECHR and that its response was disproportionate. The Court held that Portugal’s acts of interference were not “necessary in a democratic society.”136
Id.
See Women on Waves and Others v. Portugal, supra note 132, at ¶ 41.
Regarding proportionality, the decision noted “the State certainly had at its disposal other means to attain the legitimate objectives of defending order and protecting health than to resort to a total interdiction of entry of the Borndiep in its territorial waters, especially by sending a warship against a merchant vessel.”138
Treves, supra note 129, at 11.
In weighing Portugal’s sovereignty against Women on Waves’ right to expression, the ECtHR stated:
The Court does not underestimate how important the protection of the legislation concerning abortion was for the Portuguese State together with the principles and values that undermined it. But the Court highlights that presenting shocking ideas contesting the modus operandi makes freedom of expression more valuable and necessary than ever.139
139See Women on Waves and Others v. Portugal, supra note 132, at ¶ 42.
Despite the legal victory, Women on Waves did not receive anywhere near the amount of damages that it requested. The ECtHR rejected Women on Waves’ request for 49,528.38 Euros for the costs of the Borndiep’s trip.140
Id. at ¶¶ 49, 51.
Id. at ¶ 51.
Id. at ¶ 49.
Id. at ¶¶ 52, 54.
Regardless of the amount of damages awarded, Women on Waves clearly considered its campaign in Portugal to be an overwhelming success. The event garnered extensive press coverage, both across the world and within the state itself. In Portugal, more than seven hundred local newspaper articles focused on the story, and multiple TV channels continuously followed the story as it unfolded.144
See Media Abortion Ship in Portugal 2004, Women on Waves, http://perma.cc/5RCN-Q676.
See Borndiep still in International Waters, Women on Waves: The Portuguese Diary (Aug. 30, 2004), http://perma.cc/4X5Q-Q589.
See Live on Television, Women on Waves: The Portuguese Diary (Sept. 7, 2004), http://perma.cc/6LVG-DN9Y.
Roughly two and a half years after Women on Waves attempted to dock in Portugal, on February 11, 2007, the country voted in a national referendum to legalize abortion up to ten weeks. President Aníbal Cavaco Silva, a Social Democrat who had been elected to office one year earlier, ratified the law on April 10. The ECtHR’s decision would not be released for another two years.
Women on Waves had ostensibly already achieved both its short-term and long-term goals in Portugal by the time of the ECtHR decision, as the ship campaign attracted widespread attention and possibly contributed to the outcome of Portugal’s referendum two years later. Still, the decision was hugely important for Women on Waves’ future impact in Europe, as well as around the world. The group has not visited any other European states via boat since the decision (Women on Waves sailed to Spain in 2008, one year before the decision came out). However, recent Women on Waves press releases sharply condemn restrictive abortion laws in Poland.147
See International Experts Condemn Attempt to Further Restrict Abortion in Poland, Women on Waves, http://perma.cc/K7UJ-QZAZ.
See Abortion Robots Will Deliver Abortion Pills in Belfast, Northern Ireland, Women on Waves, http://perma.cc/2F9Q-HCX3.
2. The Inter-American System strongly promotes the right to freedom of expression.
The impact of Women on Waves and Others v. Portugal may be felt beyond the continent of Europe, as the ruling of one international human rights court could influence the decisions of another such court. Like the European Community, the Inter-American System also recognizes a right to freedom of expression. Article 4 of the American Declaration on Rights and Duties of Man states, “Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.”149
American Declaration of the Rights and Duties of Man, art. 4, May 2, 1948, OEA/Ser.L.V./II.82.
American Convention on Human Rights, supra note 68, at art. 13(1).
The exercise of [this] right . . . shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
a. respect for the rights or reputations of others; or
b. the protection of national security, public order, or public health or morals.151
151Id. at art. 13(2).
This language implies that freedom of expression is an essential individual liberty, which can only be restricted for a pressing public interest.152
See Emilio J. Cárdenas, Argentina Restricts Freedom of the Press, 4 J. Int’l Media & Ent. L. 149, 163–64 (2013).
The OAS has also created a Declaration of Principles of Freedom of Expression to detail how the rights articulated in Article 13 apply to various forms of expression.153
See Background and Interpretation of the Declaration of Principles on Freedom of Expression, World Intermediary Liability Map, Stanford Law School Center for Internet and Society, http://perma.cc/VCM4-YML6.
Declaration of Principles on Freedom of Expression, Inter-Am. Comm’n. H. R. Res., 108th Sess. (Oct. 2000), http://perma.cc/N5UG-SSRS.
See id.
The Inter-American Court of Human Rights (IACHR) has a long history of promoting freedom of expression. In its 1985 advisory opinion, the court stated, “Freedom of expression constitutes the primary and basic element of the public order of a democratic society, which is not conceivable without free debate and the possibility that dissenting voices be fully heard.”156
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, ¶ 30 (Nov. 13, 1985).
Grossman, supra note 90, at 424.
In the 1985 decision of Francisco Martorell v. Chile,158
See Francisco Martorell v. Chile, Case 11.230, Inter-Am. Comm’n H.R., OEA/ser.L./V./II.95 doc. 7 (1997).
[T]he decision to ban the entry, circulation and distribution of the book “Impunidad diplomatica” in Chile violates the right to impart “information and ideas of all kinds,” a right that Chile is bound to respect as a State party to the American Convention. In other words, the decision is an unlawful restriction of the right to freedom of expression, in the form of an act of prior censorship disallowed by Article 13 of the Convention.159
159Id. at ¶ 59.
In the 2008 decision of Kimel v. Argentina,160
Kimel v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 177 (May 2, 2008) (holding that Argentina’s imprisonment of Kimel, who had published a book criticizing a judge’s investigation of a massacre that occurred during the state’s dictatorship, violated Kimel’s right to freedom of expression).
See id. at ¶ 88.
Id. at ¶ 63.
Id. at ¶ 84.
See id. at ¶ 19.
The IACHR often follows similar guidelines to the ECtHR. Most pertinently, in Article 13, the IACHR adopts the same standard as the ECtHR in emphasizing that freedom of expression is guaranteed even for ideas that may be deemed shocking or offensive by the state.165
See Jo M. Pasqualucci, Criminal Defamation and the Evolution of the Doctrine of Freedom of Expression in International Comparative Jurisprudence of the Inter-American Court of Human Rights, 39 Vand. J. Transnat’l L. 379, 388 (2006).
Still, the two courts differ from one another markedly in regard to their comparative force on member states. The ECtHR adheres to the doctrine of the margin of appreciation. This principle recognizes that states have some discretion in how they implement an international agreement.166
See Brianna Gorence, Perspectives on the Inter-American Court of Human Rights and the European Court of Human Rights, Mcgill Human Rights Interns Blog (Sept. 1, 2016), http://perma.cc/48E4-DKZP.
See Gorence, supra note 166.
The two systems also follow different approaches in awarding reparations. The ECtHR typically can only order “just satisfaction,” which amounts to monetary reparations, while the IACHR can order injunctive relief.168
Id.
In conclusion, Women on Waves’ right to freedom of expression may provide a possible means for the group to defend against the actions of states such as Guatemala, especially following the ECtHR’s decision in Women on Waves and Others v. Portugal. Still, while the IACHR has a robust history of protecting freedom of expression under the American Convention, it has never before weighed this right directly against countries’ abortion laws. Thus, any lawsuit involves some level of risk, especially given the possibility of an injunction preventing Women on Waves from approaching coastal states’ waters. However, there are other potential legal avenues that the nonprofit could pursue.
The UNCLOS offers another option for Women on Waves if it chooses to pursue legal action against countries that prevent its boats from entering local ports. UNCLOS is an international treaty, signed in 1982 and entered into force in 1994, that governs countries’ rights and responsibilities regarding maritime travel, commerce, and use of resources. UNCLOS is widely recognized by most states, including countries that have prevented Women on Waves’ ships from docking. Currently, there are 157 signatories and 168 parties to UNCLOS. Portugal, Guatemala, and Morocco have all ratified UNCLOS (and had ratified it before the events in their waters occurred). The Netherlands signed UNCLOS on December 10, 1982 and ratified the agreement on June 28, 1996. Parties have a range of options when choosing where to settle a UNCLOS dispute. Possible forums include the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany (Annex VI of UNCLOS); the International Court of Justice in the Hague, the Netherlands; ad hoc arbitration (Annex VII); or a “special arbitral tribunal” (Annex VIII).169
UNCLOS, supra note 4, at art. 287(1).
UNCLOS divides the waters surrounding a coastal state into various zones: the internal waters, the territorial sea, the contiguous zone, the exclusive economic zone (EEZ), and the high seas.170
See id. at arts. 2, 3, 33, 55, 86.
Wolf, supra note 12, at 117.
See Jason M. Schupp, The Clay Bill: Testing the Limits of Port State Sovereignty, 18 Md. J. Int’l L. & Trade 199, 208 (1994).
The territorial seas consist of the waters within twelve nautical miles of a state’s shoreline. UNCLOS provides ships with a right of innocent passage through a state’s territorial waters.173
UNCLOS, supra note 4, at art. 17.
Id. at art. 18.
UNCLOS, supra note 4, at art. 19(1).
(d) any act of propaganda aimed at affecting the defence or security of the coastal State; . . . (g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; . . . (l) any other activity not having a direct bearing on passage.176
176Id. at art. 19(2).
UNCLOS itself does not specify whether the activities enumerated in Article 19(2) are an exhaustive list, but it has been interpreted as such in a bilateral agreement between the U.S. and the Soviet Union.177
See Wolf, supra note 12, at 124 n.135.
William T. Burke, Contemporary Law of the Sea: Transportation, Communication and Flight, 2 Yale J. Int'l L. 183 (1976).
Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea: The Current Regime of “Free” Navigation in Coastal Waters of Third States 51 (1990).
If a passage is not innocent, UNCLOS specifies that “[t]he coastal State may take the necessary steps in its territorial sea to prevent passage.”180
UNCLOS, supra note 4, at art. 25(1).
See id. at art. 28(3).
Id. at art. 21.
See id. at art. 111.
Id. at art. 24.
UNCLOS, supra note 4, at art. 25.
See Women on Waves and Others v. Portugal, supra note 132, at ¶ 26.
Beyond the territorial sea lies the contiguous zone, which includes waters between twelve and twenty-four nautical miles from a state’s shores. Article 33 of UNCLOS specifies that a state may only exert control over vessels in this zone to prevent and punish the “infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.”187
UNCLOS, supra note 4, at art. 33(1).
The EEZ is the most expansive area in which a state may exercise jurisdiction, as it may constitute up to two hundred nautical miles outside of a state’s territorial waters. In this zone, coastal states have specific, enumerated rights pertaining to artificial islands, scientific research, and the protection and preservation of the environment.188
See id. at art. 56(1)(b).
Lastly, the high seas consist of all waters beyond the EEZ. UNCLOS strongly emphasizes freedom of the high seas, noting that “[t]hese freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.”189
Id. at art. 87(2).
Id. at art. 88.
For each zone listed in UNCLOS, vessels should expect countries to adhere to the jurisdictional boundaries as they best understand them. States have an obligation to follow all articles of UNCLOS in good faith,191
See id. at art. 300.
UNCLOS offers an alternative option beyond human rights law for Women on Waves to pursue. While there is some ambiguity regarding which types of passages count as innocent for the purposes of Article 17, Women on Waves can point to the U.S.-Soviet treaty and a large number of legal scholars as indicators that its mission should qualify.
On its website, Women on Waves states that “all participating activists agreed that it is very important to continue with the legal battle against the expulsion of the crew up [sic] the Inter-American court of human rights.”192
Abortion Ship in Guatemala, February 2017, Women on Waves, http://perma.cc/62JM-6GFT.
See id.
Guatemalan women, rather than Women on Waves, could seek relief based on violations of their human rights.
1. Guatemalan women have procedural rights as a group.
On countless occasions, groups of women have sued their own state to challenge discriminatory laws. The U.N. permits groups of individuals to bring complaints under numerous mechanisms, including the 1503 procedure and the first Optional Protocol to the ICCPR. For example, in 1978, nineteen Mauritian women filed a complaint based on an immigration law preventing foreign husbands of Mauritian women from becoming de facto citizens. The group of women used the first Optional Protocol to the ICCPR,194
Guatemala ratified the Optional Protocol in 2000. See Ratification of 18 International Human Rights Treaties, Office of the High Commissioner on Human Rights, http://perma.cc/85PX-EE59.
See Shirin Aumeeruddy-Cziffra and 19 Other Mauritian Women v. Mauritius, Communication No. 35/1978, Hum. Rts. Comm., U.N. Doc. CCPR/C/12/D/35/1978 (Apr. 9, 1981).
See, for example, Examples of Cases Where Women Have Used the First Optional Protocol to the ICCPR to Challenge Sex Discrimination, United Nations, http://perma.cc/5XSC-2RXV.
Within the Inter-American System, the Inter-American Commission may receive petitions from “any person or group of persons . . . legally recognized in one or more OAS members states.”197
Rules of Procedure of the Inter-American Commission on Human Rights, art. 23.
Rules of Procedure of the Inter-American Court of Human Rights, art. 25(2).
See Rules of Procedure of the Inter-American Court of Human Rights, arts. 2(26), 25(1); Rules of Procedure of the Inter-American Commission on Human Rights, art. 23.
Because Guatemala ratified the American Convention, the state is subject to the IACHR’s jurisdiction in general. State parties must also voluntarily submit to the IACHR’s jurisdiction for particular cases. However, numerous states, including Guatemala, have accepted contentious jurisdiction on a blanket basis.200
See B-32: American Convention on Human Rights, Comisíon Interamericana de Derechos Humanos, http://perma.cc/AWE9-ZDRZ.
2. Guatemalan women could sue Guatemala for violating their reproductive rights.
Initially, the most obvious option appears to be Guatemalan women bringing an action based on the precise right that Women on Waves seeks to protect and promote: the right to an abortion. Within the U.N. system, women could sue based on a large number of rights related to reproduction. Under the ICCPR, there is the right to life (Article 6), the prohibition against cruel and unusual treatment (Article 7), the right to privacy (Article 17), and the prohibition against discrimination (Article 26). The CEDAW explicitly grants reproductive rights in Article 16(e). Additionally, the International Covenant on Economic, Social and Cultural Rights (ICESCR) grants in Article 12 a right to physical and mental health, which the Committee on Economic, Social and Cultural Rights (CESCR) has interpreted to include reproductive rights. In contrast to the U.N., the Inter-American System has a much more confined view of reproductive rights. The American Convention is one of the few international documents to define the start of life at conception.
While U.N. and Inter-American System have vastly different language in their international agreements pertaining to reproductive rights, their judicial bodies have made markedly similar decisions about such rights. These governing bodies have all recognized a woman’s right to an abortion in extreme cases such as danger to the woman, health problems with the fetus, rape, and/or the young age of the woman, but are reluctant to apply that right more broadly. The Mellet case under the U.N. Human Rights Committee (UNHRC) featured a woman whose fetus had congenital heart defects. The L.C. case under CEDAW focused on a thirteen-year-old who was raped. For the Inter-American System, the Inter-American Commission found (and the IACHR affirmed) in the Baby Boy case that a doctor should not be criminally liable for aborting a seventeen-year-old’s fetus.
This precedent is problematic for Women on Waves, because the group does not target its services and information towards a particular scenario or type of woman. Guatemala could easily distinguish Women on Waves’ ship campaign from past cases by emphasizing the group’s outreach towards a wide range of women. Women on Waves aims to ensure that all women, regardless of health, background, or circumstance, have access to safe abortions. Therefore, because enforcement of international reproductive rights is still largely limited to therapeutic abortions and other extreme circumstances, Women on Waves’ legal efforts should focus on other human rights.
3. Guatemalan women could sue Guatemala for violating their right to access information.
Guatemalan women could bring an action against Guatemala either before the UNHCR for violation of Article 19 of the ICCPR, or before the IACHR for violation of Article 13 of the American Convention. While both of these provisions focus on freedom of expression, they either explicitly or implicitly include the right to freedom of access of information as well.201
See ICCPR, supra note 98, at art. 19(2); Advisory Opinion OC-5/85, supra note 91, at ¶ 31.
This claim is probably the strongest of the three options. If the women bring their claim before the UNHCR, they have the advantage of pointing to the precise language of the ICCPR, which highlights the freedom to “seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”202
ICCPR, supra note 98, at art. 19(2).
The IACHR, in contrast, does not have an explicit right or such on-point caselaw. However, this court has a long history of recognizing the right to access information as inextricably linked to the right to freedom of expression. Guatemala may argue that its actions were “necessary to ensure . . . the protection of national security, public order, or public health or morals.”203
American Convention on Human Rights, supra note 68, at art. 13(2)(b).
Id. at art. 13(2).
Id. at art. 13(4).
Id. at art. 27(1).
Guatemala may claim that regulating Women on Waves’ information is necessary to preserve the moral sensibilities of its children. However, this argument falls short for two reasons. First, while Women on Waves certainly is hoping to reach all women who need its resources—including adolescents under the age of eighteen—children are not the only recipients of its information. Therefore, a ban on all resources solely for the purpose of protecting children would be exceedingly overbroad. Second, the American Convention specifies “public entertainments.”207
Id. at art. 13(4).
Guatemala could also argue that Women on Waves’ attempts to subvert its restrictive abortion laws count as a public danger or emergency. However, the group hardly qualifies as a grave danger to the state’s “independence or security,” as the provision requires.208
Id. at art. 27(1).
American Convention on Human Rights, supra note 68, at art. 27(1).
Ultimately, the IACHR’s decision on this sort of claim would hinge on whether the court determines women’s rights under Article 13 to be more significant than Guatemala’s ability to promote its own moral norms. The UNHCR would probably provide a friendlier forum, based on its previous ruling in the Mellet case. If the UNHCR were to expand its holding in Mellet and rule that all women seeking abortions have a right to access information (as opposed to just women seeking therapeutic abortions for their own health), it would be a major victory for Women on Waves, as well as the international reproductive rights movements in general.
4. Guatemalan women could sue Guatemala for violating their right to leave.
Another option for Guatemalan women is suing their state for violating their right to freedom of mobility, either under Article 12(2) of the ICCPR or Article 22(2) of the American Convention. Unlike Article 13 of the Convention, Article 22(2) does not contain any references to permissible ex-post impositions of liability on the state’s part. Guatemala may contend that it never physically stopped women from leaving or inhibited their travel in any way. However, Women on Waves could respond that Guatemala’s decision to block the harbor effectively prevented any women from boarding the ship, and thus restricted their right to total mobility.
Most UNHRC precedent regarding the right to leave focuses on terrorist activity, political dissidents, and military service, so it is difficult to predict how the Committee would rule on a situation where women’s rights to temporarily leave their country conflict with that country’s perspective on public morals. Regardless, one major flaw with focusing on this claim is that it depends on Women on Waves’ ship being able to dock in the first place so that the women can physically access the boat. If countries preemptively stop the boat from accessing a local port, as Portugal did in 2004, women would not be able to leave the country. Women on Waves could attempt to create some sort of tugboat system to transport women to and from the boat, but that approach would require significant coordination and cooperation from locals. In Portugal, Women on Waves briefly tried to set up a tugboat system, but local ships were unwilling to bring women out to the Borndiep out of fear of getting arrested.210
See Vessel (Sovereignty Productions 2014).
Women on Waves could choose to follow a path similar to what it did in Portugal and sue Guatemala for violating its human rights and/or its rights under the law of the sea. Women on Waves was able to prevail in its case against Portugal, so it has a possible roadmap going forward. However, clearly Women on Waves cannot bring an action against Guatemala before the ECtHR, because Guatemala is not a member state of the European Community. Thus, as the forum will differ, the group may need to adjust its strategy. Because the American Convention defines life as beginning at conception, Women on Waves’ best options are either bringing a human rights claim before a U.N. body, or bringing a UNCLOS claim before an alternative forum such as the ITLOS or the International Court of Justice.
1. NGOs have procedural rights to sue states.
Under the U.N., anyone—including individuals, states, and NGOs—may bring a complaint before the UNHRC under the 1503 procedure (the U.N.’s complaint procedure).211
See Fact Sheet No. 7/ Rev. 1, Complaints Procedure, OHCHR 15.
Id.
Within the Inter-American System, NGOs need to file a petition with the Inter-American Commission for their complaints to be heard by the IACHR.213
See American Convention on Human Rights, supra note 68, at art. 44.
See Lloyd Hitoshi Mayer, NGO Standing and Influence in Regional Human Rights Courts and Commissions, 36 Brook. J. Int’l L. 911, 919 (2011).
2. Women on Waves could sue Guatemala for violating its right to freedom of expression.
As it did with Portugal in 2004, Women on Waves could bring an action against Guatemala based on a violation of its right to freedom of expression. Guatemala may invoke arguments similar to those detailed in Section V.A.2 pertaining to national security and public health.
Guatemala could argue that its actions meet the four requirements detailed in Kimel v. Argentina for state limitations of freedom of expression. First, the limitation is clearly based on state law.215
Guatemala’s constitution specifies that life begins at conception. Guat. Const. Title II Ch. I art. 3. Abortion was illegal under all circumstances until 1973, when the penal code was amended to permit abortion in cases that endangered the woman’s life. Guat. Cong. Decree 17-73.
See American Convention on Human Rights, supra note 68, at art 4; Guat. Const. Title II Ch. I art. 3.
The outcome of Guatemala’s defense may hinge on how far the IACHR is willing to extend Kimel v. Argentina. Kimel featured a clear-cut case of abuse of freedom of the press: Argentina imprisoned a journalist who was critical of the state’s investigation of a massacre during its military dictatorship.217
See generally Kimel v. Argentina, supra note 160.
The IACHR has applied the precedent of Kimel to cases featuring individuals other than journalists, including retired military personnel, attorneys, and judges. See, for example, Usón Ramírez v. Venezuela, Inter-Am. Ct. H.R. (ser. C) No. 207 (Nov. 20, 2009); Tristán Donoso v. Panamá, Inter-Am. Ct. H.R. (ser. C) No. 193 (Jan. 27, 2009); Adriana Beatriz Gallo v. Argentina, Inter-Am. Ct. H.R. Informe No. 43/15 (July 28, 2015). Furthermore, many local courts within OAS member states have relied on Kimel precedent in cases featuring non-journalistic organization. See, for example, Party of the Democratic Revolution (PRD Party) v. Specialized Regional Chamber of the Electoral, Mex., SUP-REP 55/15 (Feb. 19, 2015) (reversing a political party’s sanction based on Kimel); Irigoyen v. Wallenberg Foundation, Arg., I. 419.XlVII (Aug. 5, 2014) (holding the Raoul Wallenberg Foundation, which researches Holocaust rescuers, engaged in protected expression based on Kimel); The Case of Sugary Drinks, Colom., T-543/17 (Aug. 25, 2017) (ruling a non-profit has a right to broadcast a public service announcement describing the harms of excessive sugar consumption).
Guatemala may also contend that recognizing Women on Waves’ right to expression would threaten its moral sovereignty. Women on Waves could respond by pointing to Women on Waves and Others v. Portugal in the ECtHR, and noting that—unlike the ECtHR—the IACHR does not follow the doctrine of margin of appreciation and thus does not account for states’ individual standards pertaining to morality.219
See Gorence, supra note 166.
See American Convention on Human Rights, supra note 68, at art. 4.
3. Women on Waves could sue Guatemala for violating its right to innocent passage.
Women on Waves could choose to focus on the law of the sea, rather than human rights, and sue Guatemala for violating its right to innocent passage under UNCLOS. The first issue in bringing a UNCLOS claim is determining where to settle the dispute. As discussed earlier, UNCLOS provides for a wide array of forum options.221
See Section IV.B, supra.
Beyond forum choice, in dealing with the law of the sea, there are five widely recognized bases for jurisdiction that Guatemala may invoke.222
See Wolf, supra note 12, at 114–16.
Guatemala could invoke several of these principles in attempting to demonstrate that Women on Waves’ passage is not innocent. However, Guatemala would first either need to demonstrate either (1) that the activities listed in Article 19(2) are not exhaustive; or (2) that Women on Waves’ actions fall within one of the activities listed in Article 19(2).
Regarding the first option, Guatemala could highlight how Article 19(2)(l) states that “any other activity not having a direct bearing on passage” demonstrates non-innocence.223
UNCLOS, supra note 4, at art. 19(2)(l) (emphasis added).
Guatemala may claim that Women on Waves’ mission represents a threat to defense and national security, and therefore—under the protective principle—it is protecting its own nationals against a grave outside threat.224
See id. at art. 19(2)(d).
See Termination of Pregnancy Act of May 1, 1981, Stb. 257 (into force Nov. 1, 1984); see generally Peter J.P. Tak, Induced Abortion in the Netherlands, 7 Tilburg Foreign L. Rev. 363 (1998–99).
As international law universally recognizes a right to life, legal attitudes towards abortion tend to hinge on the key issue of when life begins. See, for example, Glanville Williams, The Fetus and the Right to Life, 53 Cambridge L.J. 71 (1994).
Guatemala may also choose to focus on Article 19(2)(g), which maintains that the “loading or unloading of any commodity . . . or person contrary to the . . . laws and regulations of the coastal State” on the part of a foreign ship makes the ship’s passage non-innocent.227
UNCLOS, supra note 4, at art. 19(2)(g).
See Sections III.C and V.A.3, supra.
Additionally, Guatemala may assert that Women on Waves is abusing freedom of the high seas under Article 300, which requires “good faith.”229
UNCLOS, supra note 4, at art. 300.
Ultimately, the issue of innocent passage comes down to questions of ambiguity. Does a ship make an innocent passage when it aims to dock on a country’s harbor, board citizens, and then take those citizens to international waters and perform actions that are illegal in that country? Does a ship make an innocent passage when it aims to publicize information about a practice that is illegal in the country? The ECtHR determined in Women on Waves and Others v. Portugal that Women on Waves did not have a claim based on its right to innocent passage. However, the ECtHR ultimately does not have jurisdiction over UNCLOS claims; a different forum may come to the opposite conclusion. Women on Waves would highlight the emerging view that “human rights concerns are . . . inextricably intertwined with the concerns of the Law of the Sea.”230
Treves, supra note 129, at 13–14.
In multiple cases, ITLOS has broadly interpreted the meaning of “detention” to better protect vessels. See, for example, Camouco (Pan. v. Fr.), Case No. 5, Order of Feb. 7, 4 ITLOS Rep. 10; Monte Confurco (Sey. v. Fr.), Case No. 6, Order of Dec. 18, 2000, 4 ITLOS Rep. 86.
See Treves, supra note 129, at 12.
Women on Waves has not announced plans to visit more Latin American coastal states in the near future (its most recent press release focused on Northern Ireland).233
See New study of Women on Web data shows harm caused by restrictive abortion laws in Northern Ireland, Women on Waves (Oct. 19, 2018), http://perma.cc/NWH9-D4ET.
When states such as Guatemala take action to prevent Women on Waves either from directly providing services for nationals, or from communicating information via apps, hotlines, and its website, legal action is one of the best options for the group. While Women on Waves’ ship campaigns aim to provide information and abortion services to women, Women on Waves also has the secondary goal of highlighting the problems of women in countries with restrictive abortion laws. Thus, countries’ attempts to restrict Women on Waves’ ships, and the lawsuits that follow, may ironically be more useful in achieving Women on Waves’ second goal than if the countries passively permitted Women on Waves to dock. Still, it is key that Women on Waves has the capacity to—at the very least—attempt to reach the shores of coastal states (an injunction would be a drastic blow to Women on Waves’ mission). Furthermore, Women on Waves still also hopes to help the individual women of each country it chooses to visit, through access to information and/or services.
If Women on Waves decides to bring a suit on behalf of Guatemalan women, a right to access information claim is probably the best option. Reproductive rights are still largely recognized only within the context of other rights, especially if the case does not feature an extreme situation. Even the more liberal bodies in the U.N. have yet to rule on cases featuring non-therapeutic abortions. A right to leave claim would raise similar ambiguity problems, as no court has ever ruled on mobility rights in this particular scenario. Furthermore, that claim would depend on Women on Waves’ boat getting to a port so that women have the option to leave.
Women on Waves may prefer to sue on behalf of itself, rather than local women, to circumvent procedural and safety issues. While NGOs have the capacity to represent groups of individuals, the claim would involve an additional procedural hurdle to get through. Furthermore, local women may be unwilling to bring a case out of fear of their community’s backlash. If Women on Waves brings its own claim, its best options are either bringing an Article 19 freedom of expression claim before the UNHRC, or bringing an innocent passage claim before the ITLOS or the International Court of Justice. Despite the outcome in Women on Waves and Others v. Portugal, a case before the IACHR would be risky considering the American Convention’s definition of life and the entire region’s pro-life tendencies.
Regardless of the type of claim brought, if Women on Waves chooses to sue Guatemala (or another coastal state in Latin America at some point in the future) in the IACHR, the UNHRC, or another forum, the organization will almost certainly be able to raise its profile, while simultaneously opening the possibility of collecting monetary damages and an injunction against the state. However, on that same note, because the IACHR—unlike the ECtHR—may order injunctive relief that could impact Women on Waves’ ability both to make headline-worthy trips and to provide local women with information or services.234
See Gorence, supra note 166.
- 1See Edgar Calderon, The Guatemalan Navy Has ‘Detained’ a Dutch ‘Abortion Ship’ After Protests, Bus. Insider (Feb. 24, 2017), http://perma.cc/94SM-BVWA.
- 2Restrictive abortion laws include laws that either ban abortion entirely or permit abortion only in cases such as rape, incest, risk to the woman, and/or fetal problems.
- 3See Who Are We?, Women on Waves, http://perma.cc/NP93-5MR9.
- 4United Nations Convention on the Law of the Sea art. 94, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994) [hereinafter UNCLOS].
- 5Abortion Ship in Guatemala, February 2017, Women on Waves, http://perma.cc/62JM-6GFT.
- 6Id.
- 7Id.
- 8Abortion Ship Campaigns, Women on Waves, http://perma.cc/7LVC-NF5Q.
- 9Sara Corbett, The Pro-Choice Extremist, N.Y. Times Mag. (Aug. 26, 2001), http://perma.cc/YKV4-QA87.
- 10See Women on Waves and Others v. Portugal, No. 31276/05 Eur. Ct. H.R. (2009).
- 11Abortion Campaigners’ Boat Turned Away from Moroccan Port, The Guardian (Oct. 4, 2012), http://perma.cc/Y6PV-CRNF.
- 12Three articles from the early 2000s analyze the legality of Women on Waves’ mission following its unsuccessful attempt to visit Ireland in 2001. One of these articles assesses whether Women on Waves’ ship campaigns are consistent with European Community law. See generally Allison M. Clifford, Abortion in International Waters Off the Coast of Ireland: Avoiding a Collision between Irish Moral Sovereignty and the European Community, 14 Pace Int’l L. Rev. 385 (2002). The other two articles ask whether coastal states may assert jurisdiction over their nationals on Women on Waves’ boat in international waters. See generally Shannon Renton Wolf, Note, Making Waves: Circumventing Domestic Law on the High Seas, 14 Hasting Women’s L.J. 109 (2003); Adam Newman, Abortions on the High Seas: Can the Coastal State Invoke its Criminal Jurisdiction to Stop Them?, 17 Ocean Y.B. 512 (2003). Additionally, two articles from the mid-2000s discuss Women on Waves’ 2003 trip to Poland as part of a broader analysis of abortion and women’s rights in Poland. See Alicia Czerwinski, Sex, Politics, and Religion: The Clash Between Poland the European Union over Abortion, 32 Denv. J. Int’l L. & Pol’y 653, 653–54 (2004); Danielle Nappi, Note, Demokracja and Aborcja: Poland’s New Democracy and the Tyranny of Women’s Human Rights, 26 Women’s Rts. L. Rep. 53, 65–69 (2005).
- 13Who Are We?, supra note 3 (“Women on Waves wants to respond to an urgent medical need and draw public attention to the consequences of unwanted pregnancy and illegal abortion.”).
- 14See First Flight Abortion Drone, Poland 2015, Women on Waves (2015), http://perma.cc/FH95-NPKF.
- 15Abortion Robot Delivered Abortion Pills to 3 Women in Belfast, Women on Waves (May 31, 2018), http://perma.cc/CGE5-VHWK.
- 16See Safe Abortion Hotlines, Women on Waves, http://perma.cc/TWU4-VYAD.
- 17See Training & Advocacy, Women on Waves, http://perma.cc/C93M-UN8F.
- 18See Resources, Women on Waves, http://perma.cc/CPH7-5FXB;Women on Web Website is Blocked?, Women on Waves, http://perma.cc/DL4C-HF9V.
- 19See Women on Web Website is Blocked?, supra note 19.
- 20See Abortion Ship in Guatemala, supra note 5.
- 21See id.
- 22See Jillian Deutsch, The Doctor Who Brought Abortion out of the Shadows in Ireland, POLITICO (Mar. 20, 2018), http://perma.cc/W5J8-9WL3.
- 23Id.
- 24The UDHR, ICCPR, and ICESCR together form the International Bill of Human Rights. While the UDHR sets forth general aspirational principles, some of which are considered customary law, the ICCPR and ICESCR each define specific rights and limitations. CEDAW, which was adopted over a decade after the ICCPR and ICESCR, is considered to be an international bill of rights for women. While a large number of states have ratified all four agreements, there is some variation.
- 25G.A. Res. 217 (III) A, art. 1 (Dec. 10, 1948).
- 26See What is the Universal Declaration of Human Rights?, Australian Human Rights Commission, http://perma.cc/BYQ7-RUQ9.
- 27These types of abortions, in which the procedure is performed only out of medical necessity due to either potential harm to the woman or unviability of the fetus, are known as therapeutic abortions.
- 28K.L. v. Peru, Comm. No. 1153/2003, Adoption of Views, (U.N. Hum. Rts. Comm. Nov. 22, 2005), U.N. Doc. CCPR/C/85/D/1153/2003.
- 29Most Central and South American states, including Guatemala, have ratified the ICCPR.
- 30K.L. v. Peru, supra, note 28, at ¶ 3.
- 31Mellet v. Ireland, Comm. No. 2324/2013, Adoption of Views, (U.N. Hum. Rts. Comm. Nov. 17, 2016), U.N. Doc. CCPR/116/D/2324/2013.
- 32See id.
- 33Regulation of Information (Services Outside the State for the Termination of Pregnancies) Act 1995 (Act No. 5/1995) (Ir.), http://perma.cc/6JL8-T2K5.
- 34Regulation of Information Act, supra note 33, at 6.
- 35Human Rights Comm., General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, ¶ 9, U.N. Doc. CCPR/C/GC/36 (Oct. 30, 2018) (emphasis added).
- 36See Human Rights Committee Developing New Right to Life General Comment, International Justice Resource Center (July 28, 2015) http://perma.cc/2WX8-J8KG.
- 37See Permanent Mission of the Republic of Malta, Draft General Comment on Article 6 of the International Covenant on Civil and Political Rights – Right to Life (2017); see also Republic of Poland, Remarks of Poland to the General Comment No 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life (2017); see also Russian Federation, Preliminary Comments on the Draft General Comment No. 36 on Article 6 (Right to Life) of the International Covenant on Civil and Political Rights, ¶ 7 (2017).
- 38United States of America, Observations of the United States of America on the Human Rights Committee’s Draft General Comment No. 36 on Article 6 – Right to Life, ¶ 3 (Oct. 6, 2017).
- 39Government of the United Kingdom of Great Britain and Northern Ireland, Human Rights Committee Draft General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life: Comments of the Government of the United Kingdom of Great Britain and Northern Ireland, ¶ 9 (Oct. 6, 2017).
- 40Kingdom of the Netherlands, Comments of the Netherlands to the Draft General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, ¶ 7.
- 41See Overview of the Convention, U.N. Women, http://perma.cc/DF6J-N5F8.
- 42See Convention on the Elimination of All Forms of Discrimination Against Women art. 16(e), opened for signature Mar. 1, 1980, 1249 U.N.T.S. 13.
- 43Id.
- 44See Committee on the Elimination of Discrimination Against Women, Office of the High Commissioner on Human Rights, http://perma.cc/VC7R-6KT7.
- 45L.C. v. Peru, Comm. No. 22/2009, Adoption of Views (U.N. Comm. on the Elimination of All Forms of Discrimination Against Women Nov. 25, 2011), U.N. Doc. CEDAW/C/50/D/22/2009.
- 46L.C. v. Peru, supra note 45, at ¶ 2.1.
- 47Id. at ¶ 2.3.
- 48Id. at ¶ 2.6.
- 49Id. at ¶¶ 2.9, 2.11.
- 50See generally id.
- 51Id. at ¶ 9(b)(iii).
- 52Comm. on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of the Dominican Republic, ¶ 37(c), U.N. Doc. CEDAW/C/DOM/CO/6-7 (July 30, 2013).
- 53“Consider removing punitive legislative provisions imposed on women who undergo abortion, in line with the Committee’s general recommendation 24 (1999) on women and health, and broadening the conditions under which abortion can be legally available, including when pregnancy is harmful to the mother’s health and in instances of rape and incest.” Comm. on the Elimination of Discrimination against Women, Concluding observations on the sixth periodic report of Angola adopted by the Committee at its fifty fourth session, ¶ 32(g), U.N. Doc. CEDAW/C/AGO/CO/6 (Mar. 1, 2013) (emphasis added).
- 54“[T]he Committee recommends that the State party: (a) Extend the grounds for legalization of abortion to cases of rape, incest and severe foetal impairment; (b) Ensure the availability of abortion services and provide women with access to high-quality post-abortion care, especially in cases of complications resulting from unsafe abortions. . .” Comm. on the Elimination of Discrimination against Women, Concluding observations on the combined seventh and eighth periodic reports of Peru, ¶ 36, U.N. Doc. CEDAW/C/PER/CO/7-8 (July 24, 2014) (emphasis added).
- 55“[The Committee] notes the great harm and suffering resulting from the physical and mental anguish of carrying an unwanted pregnancy to full term, especially in cases of rape, incest and severe fetal impairment, in particular fatal fetal abnormality.” Comm. on the Elimination of Discrimination against Women, Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, ¶ 81, U.N. Doc. CEDAW/C/OP.8/GBR/1 (Mar. 6, 2018) (emphasis added). For the U.K.’s response, see Observations of the United Kingdom, Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, U.N. Doc. CEDAW/C/OP.8/GBR/2 (Mar. 6, 2018).
- 56See International Covenant on Economic, Social and Cultural Rights, entered into force Jan. 3, 1976, 993 U.N.T.S. 3.
- 57See Committee on Economic, Social and Cultural Rights, Office of the High Commissioner on Human Rights, http://perma.cc/4D37-KPYM.
- 58See Committee on Economic, Social and Cultural Rights: Monitoring the Economic, Social and Cultural Rights, Office of the High Commissioner on Human Rights, http://perma.cc/2ZQ5-8HEN.
- 59International Covenant on Economic, Social and Cultural Rights, supra note 56, at art. 12.
- 60In 2000, CESCR stated that the right to health includes “the right to control one’s health and body, including sexual and reproductive freedom.” Comm. on Economic, Social and Cultural Rights, General Comment No. 14 (2000): The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), ¶ 8, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000).
- 61Comm. on Economic, Social and Cultural Rights, General Comment No. 22 (2016) on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), ¶ 13, U.N. Doc. E/C.12/GC/22 (May 2, 2016).
- 62Comm. on Economic, Social and Cultural Rights, supra note 61, at ¶ 18.
- 63Alexandra R. Harrington, Don’t Mind the Gap: The Rise of Individual Complaint Mechanisms within International Human Rights Treaties, 22 Duke J. Comp. Int’l L. 153, 162 (2012).
- 64See id.
- 65See Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, opened for signature Sept. 24, 2009, U.N. Doc. A/RES/63/117.
- 66See, for example, Comm. on Economic, Social and Cultural Rights, Concluding Observations on Nepal, ¶ 55, U.N. Doc. E/C.12/1/Add.66 (Sept. 24, 2001). See also Comm. on Economic, Social and Cultural Rights, Concluding Observations on Malta, ¶ 41, U.N. Doc. E/C.12/1/Add.101 (Dec. 14, 2004); Comm. on Economic, Social and Cultural Rights, Concluding Observations on Monaco, ¶ 23, U.N. Doc. E/C.12/MCO/CO/1 (June 13, 2006); Comm. on Economic, Social and Cultural Rights, Concluding Observations on Mexico, ¶¶ 25, 44, U.N. Doc. E/C.12/MEX/CO/4 (June 9, 2006); Comm. on Economic, Social and Cultural Rights, Concluding Observations on Chile, ¶ 53, U.N. Doc. E/C.12/1/Add.105 (Dec. 1, 2004); Comm. on Economic, Social and Cultural Rights, Concluding Observations on Kuwait, ¶ 43, U.N. Doc. E/C.12/1/Add.98 (June 7, 2004).
- 67American Declaration of the Rights and Duties of Man, Preamble, May 2, 1948, OEA/Ser.L.V./II.82, doc. 6, rev. 1 at 17.
- 68American Convention on Human Rights art. 4, Nov. 22, 1969, 1144 U.N.T.S. 143.
- 69See Ligia M. De Jesus, Revisiting Baby Boy v. United States: Why the IACHR Resolution Did Not Effectively Undermine the Inter-American System on Human Rights’ Protection of the Right to Life from Conception, 23 Fla. J. Int’l L. 221, 223–24 (2011).
- 70See American Convention on Human Rights Signatories and Ratifications, Department of International Law, OAS, http://perma.cc/6WXR-YQWF.
- 71See De Jesus, supra note 69, at 224–25.
- 72See id. at 225–26.
- 73See American Convention on Human Rights, supra note 68, at art. 44.
- 74White v. United States, Case 2141, Inter-Am. Comm’n H.R., Report No. 23/81, OEA/Ser.L/V/II.54, doc. 9 rev.1 (1980–1981).
- 75The resolution maintained that the use of the phrase “in general” in Article 4(1) of the American Convention demonstrates that unborn children do not have an “absolute” right to life. Id at ¶¶ 19(e), 25.
- 76See id.; see also De Jesus, supra note 69, at 231.
- 77See De Jesus, supra note 69, at 274.
- 78See Paulina del Carmen Ramirez Jacinto v. Mexico, Petition 161-02, Inter-Am. Comm’n H.R., Report. No. 21/07 (2007).
- 79See Murillo v. Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 257 (Nov. 28, 2012).
- 80Id. at ¶ 253.
- 81Id. at ¶ 146.
- 82See, for example, Susan Nevelow Mart, The Right to Receive Information, 95 Law Libr. J. 175 (2003). Numerous U.S. Supreme Court cases grant the right to access information as an implicit part of the First Amendment’s free speech clause. See, for example, Martin v. Struthers, 319 U.S. 141 (1943) (granting Jehovah’s Witnesses the right to solicit door-to-door in part due to the homeowners’ right to receive the pamphlets); Red Lion Broad. v. FCC, 395 U.S. 367 (1969) (emphasizing the rights of radio listeners to hear a diversity of views); Va. St. Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976) (holding that consumers have a right to receive information on drug prices). The Court has also explicitly tied the First Amendment to the right to receive information within the context of reproductive rights. See Griswold v. Connecticut, 381 U.S. 479 (1965) (noting the right to receive information about contraception).
- 83G.A. Res 59 (I), at 95 (Dec. 14, 1946).
- 84G.A. Res. 217 (III) A, supra note 25, at art. 19.
- 85See id. at art. 20.
- 86Sandra Coliver, The Right to Information Necessary for Reproductive Health and Choice under International Law, in The Right to Know: Human Rights and Access to Reproductive Health Information 48 (Sandra Coliver ed., 1995).
- 87See Mellet v. Ireland, supra note 31, at ¶ 3.12.
- 88See id. at ¶¶ 3.15, 3,18.
- 89See American Convention of Human Rights, supra note 68, at art. 13.
- 90See Claudio Grossman, Freedom of Expression in the Inter-American System for the Protection of Human Rights, 25 Nova L. Rev. 411, 422 (2001).
- 91Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, ¶ 31 (Nov. 13, 1985).
- 92Id. at ¶ 32.
- 93Id. at ¶ 70.
- 94Press Release, Inter-American Press Association (IAPA), Declaration of Chapultepec is 20 Years Old Today but It Continues as Valid as Ever, IAPA Declares (Dec. 15, 2015), http://perma.cc/BQB5-HEP5.
- 95Declaration of Chapultepec, Mar. 11, 1994.
- 96Magna Carta art. 42, June 15, 1215.
- 97See G.A. Res. 217 (III) A, supra note 25, at art. 13(2).
- 98See International Covenant on Civil and Political Rights art. 12(2), 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [Hereinafter ICCPR].
- 99See International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families art. 8(1), Dec. 18, 1990, 2220 U.N.T.S. 3.
- 100See International Convention on the Elimination of All Forms of Racial Discrimination art. 5(d)(ii), Dec. 21, 1965, 660 U.N.T.S. 195.
- 101American Convention on Human Rights, supra note 68, at art. 22(2).
- 102See Colin Harvey & Robert P. Barnidge, Human Rights, Free Movement, and the Right to Leave in International Law, 19 Int’l J. Refugee L. 1, 4 (2007).
- 103See Dimitry Kochenov, The Right to Leave Any Country Including Your Own in International Law, 28 Conn. J. Int’l L. 43, 59–60 (2012) (“Concerning the distinctions between temporary stays abroad and expatriation, sound consensus has emerged in the literature and official commentary that Article 12(2) ICCPR protects both equally, making no distinction between the two.”).
- 104Human Rights Comm., General Comment No. 27, Freedom of Movement (Art. 12), ¶ 8, U.N. Doc. CCPR/C/21/Rev.1/Add.9 (Nov. 1, 1999).
- 105See Kochenov, supra note 103, at 60.
- 106Nicholas Sitaropoulos, Freedom of Movement and the Right to a Nationality v. Ethnic Minorities: The Case of ex Article 19 of the Greek Nationality Code, 6 Eur. J. Migr. & L. 205 (2004).
- 107See Rosalyn Higgins, The Right in International Law of an Individual to Enter, Stay In and Leave a Country, 49 Int’l Affs. 341, 353–54 (1973).
- 108See id. at 354–55.
- 109See Kochenov, supra note 103, at 61.
- 110See ICCPR, supra note 98, at art. 12(3). National security is concerning as a justification, because it is difficult to limit its abuse in today’s age of terrorism and global threats. The public health and morals justification is also highly concerning, as it enables the majority to impose its personal viewpoints on minorities. “Principles which are not always legally enforceable but which are accepted by a great majority of the citizens as general guidelines” could suddenly be invoked as justification for preventing one’s freedom of movement. Kochenov, supra note 103, at 67 (quoting Alexandre Charles Kiss, Permissible Limitations on Rights, in The International Bill of Rights: The Covenant on Civil and Political Rights 190 (Louis Henkin ed., 1981)).
- 111Human Rights Comm., General Comment No. 27, supra note 104, at ¶ 8.
- 112See Lauri Peltonen v. Finland, Comm. No. 492/1992, Adoption of Views (U.N. Hum. Rts. Comm. July 29, 1994), U.N. Doc. CCPR/C/51/D/492/1992.
- 113See id. at ¶¶ 1–2.
- 114See Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law 22 (2012).
- 115See Samuel Lichtensztejn v. Uruguay, Comm. No. 77/1980, Adoption of Views (U.N. Hum. Rts. Comm. Oct 27, 1982), U.N. Doc. CCPR/C/OP/2.
- 116See id. at ¶ 8.3.
- 117ICCPR, supra note 98, at art. 12(4).
- 118G.A. Res. 217 (III) A, supra note 25, at art. 19.
- 119ICCPR, supra note 98, at art. 19(2).
- 120European Convention on Human Rights, art. 10(2), Apr. 11, 1950, E.T.S. No. 005.
- 121See id. at art. 11(2).
- 122Requesting Permission to Enter the Harbor of Figueira da Foz, Women on Waves: The Portuguese Diary (Aug. 27, 2004), http://perma.cc/8ZLR-RWY4.
- 123Id.
- 124Entry Ship Denied, Women on Waves: The Portuguese Diary (Aug. 28, 2004), http://perma.cc/5BKD-8MQQ.
- 125See War?!, Women on Waves: The Portuguese Diary (Aug. 29, 2004), http://perma.cc/RJ3M-4UKN.
- 126See Feed Me, Paste Me, Women on Waves: The Portuguese Diary (Sept. 3, 2004), http://perma.cc/9DQQ-56TD.
- 127See Going to Court, Women on Waves: The Portuguese Diary (Sept. 6, 2004), http://perma.cc/B98M-FCUH.
- 128See Borndiep Heads Back Home, Women on Waves: The Portuguese Diary (Sept. 9, 2004), http://perma.cc/ZK4A-7KMW.
- 129See Tullio Treves, Human Rights and the Law of the Sea, 28 Berkeley J. Int'l L. 1, 10–11 (2010).
- 130Id. at 11.
- 131The unanimity of this opinion marked a significant change from the ECtHR’s 1992 decision Open Door and Dublin Well Women v. Ireland. In that case, the ECtHR held that the Ireland Supreme Court’s injunction, which restrained counseling agencies from giving information on abortion clinics to pregnant women, violated Article 10 of the ECHR. However, the case featured 18 pages of concurring, separate, and dissenting opinions. See Open Door and Dublin Well Woman v. Ireland, 14234/88 Eur. Ct. H. R. (1992).
- 132See Women on Waves and Others v. Portugal, no. 31276/05 Eur. Ct. H. R. (2009).
- 133See Treves, supra note 129, at 10.
- 134Id. at 11.
- 135Id.
- 136Id.
- 137See Women on Waves and Others v. Portugal, supra note 132, at ¶ 41.
- 138Treves, supra note 129, at 11.
- 139See Women on Waves and Others v. Portugal, supra note 132, at ¶ 42.
- 140Id. at ¶¶ 49, 51.
- 141Id. at ¶ 51.
- 142Id. at ¶ 49.
- 143Id. at ¶¶ 52, 54.
- 144See Media Abortion Ship in Portugal 2004, Women on Waves, http://perma.cc/5RCN-Q676.
- 145See Borndiep still in International Waters, Women on Waves: The Portuguese Diary (Aug. 30, 2004), http://perma.cc/4X5Q-Q589.
- 146See Live on Television, Women on Waves: The Portuguese Diary (Sept. 7, 2004), http://perma.cc/6LVG-DN9Y.
- 147See International Experts Condemn Attempt to Further Restrict Abortion in Poland, Women on Waves, http://perma.cc/K7UJ-QZAZ.
- 148See Abortion Robots Will Deliver Abortion Pills in Belfast, Northern Ireland, Women on Waves, http://perma.cc/2F9Q-HCX3.
- 149American Declaration of the Rights and Duties of Man, art. 4, May 2, 1948, OEA/Ser.L.V./II.82.
- 150American Convention on Human Rights, supra note 68, at art. 13(1).
- 151Id. at art. 13(2).
- 152See Emilio J. Cárdenas, Argentina Restricts Freedom of the Press, 4 J. Int’l Media & Ent. L. 149, 163–64 (2013).
- 153See Background and Interpretation of the Declaration of Principles on Freedom of Expression, World Intermediary Liability Map, Stanford Law School Center for Internet and Society, http://perma.cc/VCM4-YML6.
- 154Declaration of Principles on Freedom of Expression, Inter-Am. Comm’n. H. R. Res., 108th Sess. (Oct. 2000), http://perma.cc/N5UG-SSRS.
- 155See id.
- 156Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, ¶ 30 (Nov. 13, 1985).
- 157Grossman, supra note 90, at 424.
- 158See Francisco Martorell v. Chile, Case 11.230, Inter-Am. Comm’n H.R., OEA/ser.L./V./II.95 doc. 7 (1997).
- 159Id. at ¶ 59.
- 160Kimel v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 177 (May 2, 2008) (holding that Argentina’s imprisonment of Kimel, who had published a book criticizing a judge’s investigation of a massacre that occurred during the state’s dictatorship, violated Kimel’s right to freedom of expression).
- 161See id. at ¶ 88.
- 162Id. at ¶ 63.
- 163Id. at ¶ 84.
- 164See id. at ¶ 19.
- 165See Jo M. Pasqualucci, Criminal Defamation and the Evolution of the Doctrine of Freedom of Expression in International Comparative Jurisprudence of the Inter-American Court of Human Rights, 39 Vand. J. Transnat’l L. 379, 388 (2006).
- 166See Brianna Gorence, Perspectives on the Inter-American Court of Human Rights and the European Court of Human Rights, Mcgill Human Rights Interns Blog (Sept. 1, 2016), http://perma.cc/48E4-DKZP.
- 167See Gorence, supra note 166.
- 168Id.
- 169UNCLOS, supra note 4, at art. 287(1).
- 170See id. at arts. 2, 3, 33, 55, 86.
- 171Wolf, supra note 12, at 117.
- 172See Jason M. Schupp, The Clay Bill: Testing the Limits of Port State Sovereignty, 18 Md. J. Int’l L. & Trade 199, 208 (1994).
- 173UNCLOS, supra note 4, at art. 17.
- 174Id. at art. 18.
- 175UNCLOS, supra note 4, at art. 19(1).
- 176Id. at art. 19(2).
- 177See Wolf, supra note 12, at 124 n.135.
- 178William T. Burke, Contemporary Law of the Sea: Transportation, Communication and Flight, 2 Yale J. Int'l L. 183 (1976).
- 179Francis Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea: The Current Regime of “Free” Navigation in Coastal Waters of Third States 51 (1990).
- 180UNCLOS, supra note 4, at art. 25(1).
- 181See id. at art. 28(3).
- 182Id. at art. 21.
- 183See id. at art. 111.
- 184Id. at art. 24.
- 185UNCLOS, supra note 4, at art. 25.
- 186See Women on Waves and Others v. Portugal, supra note 132, at ¶ 26.
- 187UNCLOS, supra note 4, at art. 33(1).
- 188See id. at art. 56(1)(b).
- 189Id. at art. 87(2).
- 190Id. at art. 88.
- 191See id. at art. 300.
- 192Abortion Ship in Guatemala, February 2017, Women on Waves, http://perma.cc/62JM-6GFT.
- 193See id.
- 194Guatemala ratified the Optional Protocol in 2000. See Ratification of 18 International Human Rights Treaties, Office of the High Commissioner on Human Rights, http://perma.cc/85PX-EE59.
- 195See Shirin Aumeeruddy-Cziffra and 19 Other Mauritian Women v. Mauritius, Communication No. 35/1978, Hum. Rts. Comm., U.N. Doc. CCPR/C/12/D/35/1978 (Apr. 9, 1981).
- 196See, for example, Examples of Cases Where Women Have Used the First Optional Protocol to the ICCPR to Challenge Sex Discrimination, United Nations, http://perma.cc/5XSC-2RXV.
- 197Rules of Procedure of the Inter-American Commission on Human Rights, art. 23.
- 198Rules of Procedure of the Inter-American Court of Human Rights, art. 25(2).
- 199See Rules of Procedure of the Inter-American Court of Human Rights, arts. 2(26), 25(1); Rules of Procedure of the Inter-American Commission on Human Rights, art. 23.
- 200See B-32: American Convention on Human Rights, Comisíon Interamericana de Derechos Humanos, http://perma.cc/AWE9-ZDRZ.
- 201See ICCPR, supra note 98, at art. 19(2); Advisory Opinion OC-5/85, supra note 91, at ¶ 31.
- 202ICCPR, supra note 98, at art. 19(2).
- 203American Convention on Human Rights, supra note 68, at art. 13(2)(b).
- 204Id. at art. 13(2).
- 205Id. at art. 13(4).
- 206Id. at art. 27(1).
- 207Id. at art. 13(4).
- 208Id. at art. 27(1).
- 209American Convention on Human Rights, supra note 68, at art. 27(1).
- 210See Vessel (Sovereignty Productions 2014).
- 211See Fact Sheet No. 7/ Rev. 1, Complaints Procedure, OHCHR 15.
- 212Id.
- 213See American Convention on Human Rights, supra note 68, at art. 44.
- 214See Lloyd Hitoshi Mayer, NGO Standing and Influence in Regional Human Rights Courts and Commissions, 36 Brook. J. Int’l L. 911, 919 (2011).
- 215Guatemala’s constitution specifies that life begins at conception. Guat. Const. Title II Ch. I art. 3. Abortion was illegal under all circumstances until 1973, when the penal code was amended to permit abortion in cases that endangered the woman’s life. Guat. Cong. Decree 17-73.
- 216See American Convention on Human Rights, supra note 68, at art 4; Guat. Const. Title II Ch. I art. 3.
- 217See generally Kimel v. Argentina, supra note 160.
- 218The IACHR has applied the precedent of Kimel to cases featuring individuals other than journalists, including retired military personnel, attorneys, and judges. See, for example, Usón Ramírez v. Venezuela, Inter-Am. Ct. H.R. (ser. C) No. 207 (Nov. 20, 2009); Tristán Donoso v. Panamá, Inter-Am. Ct. H.R. (ser. C) No. 193 (Jan. 27, 2009); Adriana Beatriz Gallo v. Argentina, Inter-Am. Ct. H.R. Informe No. 43/15 (July 28, 2015). Furthermore, many local courts within OAS member states have relied on Kimel precedent in cases featuring non-journalistic organization. See, for example, Party of the Democratic Revolution (PRD Party) v. Specialized Regional Chamber of the Electoral, Mex., SUP-REP 55/15 (Feb. 19, 2015) (reversing a political party’s sanction based on Kimel); Irigoyen v. Wallenberg Foundation, Arg., I. 419.XlVII (Aug. 5, 2014) (holding the Raoul Wallenberg Foundation, which researches Holocaust rescuers, engaged in protected expression based on Kimel); The Case of Sugary Drinks, Colom., T-543/17 (Aug. 25, 2017) (ruling a non-profit has a right to broadcast a public service announcement describing the harms of excessive sugar consumption).
- 219See Gorence, supra note 166.
- 220See American Convention on Human Rights, supra note 68, at art. 4.
- 221See Section IV.B, supra.
- 222See Wolf, supra note 12, at 114–16.
- 223UNCLOS, supra note 4, at art. 19(2)(l) (emphasis added).
- 224See id. at art. 19(2)(d).
- 225See Termination of Pregnancy Act of May 1, 1981, Stb. 257 (into force Nov. 1, 1984); see generally Peter J.P. Tak, Induced Abortion in the Netherlands, 7 Tilburg Foreign L. Rev. 363 (1998–99).
- 226As international law universally recognizes a right to life, legal attitudes towards abortion tend to hinge on the key issue of when life begins. See, for example, Glanville Williams, The Fetus and the Right to Life, 53 Cambridge L.J. 71 (1994).
- 227UNCLOS, supra note 4, at art. 19(2)(g).
- 228See Sections III.C and V.A.3, supra.
- 229UNCLOS, supra note 4, at art. 300.
- 230Treves, supra note 129, at 13–14.
- 231In multiple cases, ITLOS has broadly interpreted the meaning of “detention” to better protect vessels. See, for example, Camouco (Pan. v. Fr.), Case No. 5, Order of Feb. 7, 4 ITLOS Rep. 10; Monte Confurco (Sey. v. Fr.), Case No. 6, Order of Dec. 18, 2000, 4 ITLOS Rep. 86.
- 232See Treves, supra note 129, at 12.
- 233See New study of Women on Web data shows harm caused by restrictive abortion laws in Northern Ireland, Women on Waves (Oct. 19, 2018), http://perma.cc/NWH9-D4ET.
- 234See Gorence, supra note 166.