Background and legal information - Guatemala

Background Information

The activities of Women on Waves are based on the principle of double criminality in international law, which means that an act can only be punished if it was an offence in the country in which the activity took place.

The medical abortions are provided in international waters, where the law if the the ship’s flag state applies. This means there is no violation of the Guatemalan abortion law and thus none of the articles under criminal code will apply to anybody involved with Women on Waves. Women have a constitutional right to travel to other countries (article 13 of Universal declaration of human rights). 

Abortion in Guatemala

In Guatemala, 56% of all pregnancies are unplanned.  Abortion is illegal under all circumstances, except to save a woman's life, according to Articles 133 – 139 of the Guatemalan Criminal Code. Still, nearly 65,000 induced abortions are performed annually in Guatemala. Every year about 21,600 women are hospitalized and 660 women die from complications of unsafe abortion. These deaths are totally preventable by legalising abortion. 

Abortion as a human right

The World Health Organisation’s definition of health is: “Health is a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity”.[1]

The WHO listed mifepristone and misoprostol as essential medicines since 2005 [2]

Access to essential medicines as part of the right to the highest attainable standard of health ("the right to health") is well-founded in numerous international human rights treaties, such as: the Universal Declaration of Human Rights: Article 25.1 in 1948; the International Convention on the Elimination of All Forms of Racial Discrimination; Article 5 (e) (iv) in 1965; the International Covenant on Economic, Social and Cultural Rights: Article 12.1 in 1966; the Convention on the Elimination of All Forms of Discrimination against Women; Articles 11 (1) (f), 12 and 14 (2) (b) in 1979; the 1989 Convention on the Rights of the Child; Article 24; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Articles 28, 43 (e) and 45 (c) in 1990, and the Convention on the Rights of Persons with Disabilities: Article 25 in 2006.

The authoritative General Comment 14 (2000) further applies the principles of accessibility, availability, appropriateness and assured quality to goods and services, which include essential medicines "as defined by the WHO Action Programme on Essential Drugs".[3]

In October 2011, Anand Grover, the UN Special Rapporteur on the Right to Health, submitted a report to the UN General Assembly which stated, “Criminal laws penalising and restricting induced abortion are the paradigmatic examples of impermissible barriers to the realisation of women's right to health and must be eliminated. These laws infringe women's dignity and autonomy by severely restricting decision-making by women in respect of their sexual and reproductive health” [4].

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) states that, “Essential medicines should also be available, including a wide range of contraceptive methods, such as condoms and emergency contraception, medicines for abortion and for post-abortion care, and medicines, including generic medicines, for the prevention and treatment of sexually transmitted infections and HIV.”[5]

Responsibility of states to refrain from limiting access to health

States are under the positive obligation to respect the right to health by refraining from limiting access to contraceptives and other means of maintaining sexual and reproductive health such as medical abortions.

The General Comment of the Committee on Economic Social and Cultural Rights on the right to the highest attainable standard of health in the International Covenant on Economic, Social and Cultural Rights paragraph 42 states: “While only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society - individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sector - have responsibilities regarding the realization of the right to health. State parties should therefore provide an environment which facilitates the discharge of these responsibilities. [6]

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) states that:

• 39. States parties have an obligation to respect, protect and fulfill the right of everyone to sexual and reproductive health.
• 40. The obligation to respect requires States to refrain from directly or indirectly.
• 41. The obligation to respect also requires States to repeal, and refrain from enacting, laws and policies that create barriers in access to sexual and reproductive health services.[7] 

UNCLOS (United Nations Conventions on the laws of the Sea)

There are no legal grounds on which the ship can be detained or arrested UNCLOS 3.4.2  article 1 -2 and 3.4.3, article 27 [8]