Navigating Rough Seas: Women on Waves' Legal Options for Overcoming Resistant States

By Bisgaier, Jennifer | Chicago Journal of International Law, Summer 2019 | Go to article overview

Navigating Rough Seas: Women on Waves' Legal Options for Overcoming Resistant States


Bisgaier, Jennifer, Chicago Journal of International Law


I. Introduction

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 Founded in 1999 by Dutch physician Dr. Rebecca Gomperts, Women on Waves seeks to provide abortion services to women living in countries with restrictive abortion laws.2 Women on Waves achieves this goal in part through its ship campaigns. During a ship campaign, the group sails women twelve miles off the coastline to international waters to give them medical abortion pills. Because the ship is registered in the Netherlands and has a permit from the Dutch Ministry of Health,3 Dutch law applies when the ship is in international waters.4

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 Over the next few days, the army forbade the ship's crew members from leaving the pier for any reason, even to obtain additional food and water. The army ultimately allowed crew members to use the bathroom (only if escorted by ten guards) after outcry from human rights organizations.6 Around midnight on Friday, Guatemalan Immigration informed Women on Waves that it would expel the ship for violating public order, national interest, and state security.7 The ship departed the following evening on Saturday, February 25, 2017.

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 In its initial voyage to Ireland in 2001, Women on Waves was forced to cut the mission short for failure to obtain proper Dutch abortion licensing.9 In 2004, Portuguese naval warships blocked Women on Waves from entering the country's territorial waters. Five years later, the European Court of Human Rights (ECtHR) ruled that Portugal violated Article 10 of the European Convention of Human Rights (ECHR), freedom of expression, by interfering with Women on Waves' mission.10 In 2012, Morocco's navy prevented Women on Waves from docking.11

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 This Comment explores issues that have yet to be addressed by the scholarship, such as how the Inter-American System would treat Women on Waves, and whether invoking the human rights of local women-in addition to those of the organization-would impact litigation. …

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