Abortions on the High Seas: Can the Coastal State invoke its Criminal Jurisdiction to Stop Them?t

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Abortions on the High Seas: Can the Coastal State invoke its Criminal Jurisdiction to Stop Them?t

in Ocean Yearbook Online


TEDITORS' NoTE.-This article was the winning entry in the 2001 Ocean Year- book Student Paper Competition. 1. The criminal prohibition against abortion in the Netherlands was lifted by the Law on the Termination of Pregnancy in 1981. The Law came into force in 1984 as a result of the Decree on the Termination of Pregnancy. English-language ver- sions of both the Law and the Decree can be found in the volumes 8 and 11 of the Annual Review, of Population Law (New York: United Nations Fund for Population Activities, 1981) and (New York: United Nations Fund for Population Activities, 1984) . 2. Abortions have been prohibited in Ireland since 1861, when the Offences Against the Person Act made self-induced and aided abortions illegal for both the mother and any person who assists the mother. For a fuller discussion of Irish abor- tion law, see: D. A. MacLean, "Can the EC kill the Irish unborn?: an investigation of the European Community's ability to impinge on the moral sovereignty of member states," Hofstra Law Review 28, no. 2 (1999): 527 at 552-61. See, further: Susan Bouclin, "Abortion in post-X Ireland," Windsor Rev. of Legal and Social Issues 13, (2002) : 133. 3. According to news reports, the crew could have faced up to four-and- one-half year's imprisonment if convicted. (12 June 2001). Dutch say abortion boat flouts law. Accessed 12 June 2001 at CNN.com on the World Wide Web: http:// www.cnn.com/2001 /WORLD/europe/06/ 12/netherlands.abortion.index.html. (However, just over one year later, on 1 July 2002, Women on Waves issued a press

release stating that the Dutch Minister of Health, Els Boist, had stated that, since in the Netherlands no license is needed to provide pregnancy terminations within the first 45 days of pregnancy, Women on Waves would not be violating Dutch law by providing the abortion pill in such situations on board a Dutch ship.) 4. The Foundation was established in May 1999 by Dr. Rebecca Gomperts, a Dutch gynecologist. Providing abortions is only part of the Foundation's mission. The Foundation's mission, in its entirety, as stated on its Web site: http://www. womenonwaves.org, is: · Empower women to make conscious, well-informed decisions about family planning. · Prevent unwanted pregnancy. · Ensure safe and legal abortion. · Reduce unnecessary physical or psychological suffering and deaths from ille- gal abortions. · Catalyze support for liberalization of abortion laws worldwide. 5. R. v. Keyn (1876) 2 Ex. Div. 63 (CCR). See also s. 6(2) of Canada's Criminal Code, R.S.C., c. C-46 (1985), which states that: "Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under section 730 of an offence committed outside Canada." However, this is not the only traditional view, as Akehurst notes that the principles of passive personality and universality also have a long history. M. Akehurst, "Jurisdiction in international law," British Year Book of International Law 46 (1972-73): 145 at 163-64. . 6. Montego Bay, 10 December 1982, in force 16 November 1994. 137 ratifica- tions as of 24 September 2001. Cmnd. 8941; International Legal Materidls 21 (1982): 1245. Accessed 24 September 2001 on the World Wide Web: http://www.un.org/ depts/los/.

7. Women on Waves, "Activities," accessed January 22, 2001 on the World Wide Web: http://www.womenonwaves.org. 8. The Netherlands ratified UNCLOS on 28 June 1996. 9. The United States is an example of one country which has not ratified UNCLOS and which limits abortion. Although the criminal prohibition against abortion was struck down by the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), there is no absolute legal right to receive an abortion in that country. Rita Simon notes that: "(a)bortion restrictions still vary by state; thirty-five (states) have laws that prevent a minor from obtaining an abortion without parental consent or notice." R. Simon, Abortion: Statutes, Policies and Public Attitudes the World Over (West- port, Ct.: Praeger, 1998), p. 35. 10. For example, the Preamble to UNCLOS states, in part, that "... matters not regulated by this Convention continue to be governed by the rules and principles of international law." Article 2(3) states that: "The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law." Article 58(2) states that "pertinent rules of international law" apply to the EEZ in so far as they are not incompatible with Part V of UNCLOS. Article 221 (1) allows states to "take and enforce measures beyond the territorial sea" in certain circum- stances, when such measures are "pursuant to international law, both customary and conventional."

11. Women on Waves, "Facts," accessed on 15 January 2001 on the World Wide Web: http://www.womenonwaves.org. 12. Using statistics available on the website of Women on Waves, I have arrived at the figure of 7.8 million annual cases of preventable complications from abortions as follows: (1) Each year, 53 million abortions are performed (this figure includes both safe and unsafe abortions); (2) For safe abortions, the rate of complication is approximately 1 percent. Thus, if all 53 million abortions performed each year were safe, there would be ca. 530,000 complications per year. (3) However, only 33 mil- lion safe abortions are performed each year, resulting in 330,000 complications. (4) Twenty million unsafe abortions are performed each year, and 40 percent (or 8 million) of these abortions result in complications; (5) Thus, each year there are 330,000 complications from safe abortions, and 8 million complications from unsafe abortions, for a total of 8,330,000 complications from all abortions (safe and unsafe); (6) When one recalls that if the same number of abortions (53 million) were per- formed each year, but all abortions were safe, there would only be 530,000 complica- tions, one concludes that 7.8 million complications (out of the total of 8.33 million) are a direct result of unsafe abortions.

13. Abortion was legalized in the Netherlands in 1981. Four years prior to legal- ization (in 1977), there were 5.5 abortions per 1,000 women aged 15-44 performed in that country. Four years after legalization (in 1985), the figure had actually de- clined slightly, to 5.1. United Nations, Abortion Policies: a Global Review,. Dept. for Economic and Social Information and Policy Analysis. Vol. 2. New York: United Nations, 1993, p. 168. 14. However, 92 percent of the countries surveyed allow abortion in order to protect the life of the mother. United Nations, Abortion Policies: a Global Review. Dept. for Economic and Social Information and Policy Analysis. Vols. 1-3. New York: United Nations, 1992, 1993, 1995, pp. 1-158, 1-243, 1-326. The study was published in 3 volumes. Volume 1 was published in 1992; vol. 2 in 1993, and vol. 3 in 1995. 15. For example, as mentioned in n. 9 above, 35 states in the United States currently have laws that prevent a minor from obtaining an abortion without paren- tal consent or notice. 16. M. Akehurst (n. 5 above), at 152. Section 6(2) of Canada's Criminal Code (n. 5 above) provides that, unless otherwise indicated, no Canadian shall be charged with an offence committed outside of Canada. Sharon Williams and J. G. Castel comment that, " (g) enerally speaking, Canada adheres to a territorial theory of crim- inal jurisdiction by prescribing rules attaching legal consequences to both conduct

occurring in Canada and conduct occurring outside of Canada but having effects within her territory." S. Williams and J. G. Castel, Canadian Criminal Law: Interna- tional and Transnational Aspects (Toronto: Butterworths, 1981), p. 10. 17. R. v. Libman, 2 S.C.R. (1985) 178 at p. 183-84. 18. The principle that the criminal jurisdiction of the coastal state applies to foreign ships within its territorial waters has been part of English law since 1878, when the Territorial Waters Jurisdiction Act, 41 & 42 Vict., c. 73, was passed. Com- menting on this statute, O'Connell notes that "(t)he objective of the Act was to invest English courts with jurisdiction over indictable offences committed aboard foreign ships in the territorial sea by aliens." D. P. O'Connell, The International Law or the ,Sea (Oxford: Oxford University Press, 1982), p. 936. A similar stance was adopted by the United States Supreme Court in the case of Cunard Steamship Co. v. Mellon, 262 U.S. 100 (1923). The legal situation in many other countries is similar to that in the U.K. and the U.S. O'Connell notes that "(t)he criminal codes of several countries specify that they apply to acts committed aboard any ships in the territorial sea" and cites a long list of such countries: Australia, Brazil, Canada, Cey- lon Chile, Costa Rica, Cuba, Cyprus, Ecuador, Guatemala, Ireland, Israel, Jamaica, Lebanon, Netherlands, New Zealand, Nicaragua and Thailand. In addition, he notes that Malta and Somalia have extended their criminal laws to fixed distances, and Sudan, Tanzania, Yemen and Yugoslavia have extended their criminal laws to the contiguous zone. O'Connell, p. 952 (emphasis added). Of the 26 countries listed by O'Connell, only 5 allow abortion upon request (U.S., Canada, Cuba, Netherlands, and Yugoslavia). All the other countries impose some restrictions on abortion. See Simon (n. 9 above), p. 50.

19. Permanent Court of International Justice, Ser. A., no. 10, p. 23 (1927). 20. Gambling Cruise Prohibition Act, Bill 3009, South Carolina (Introduced 9 January 2001). Accessed 15 January 2001 on the World Wide Web: http:// / www.lpitr.state.sc.us/bills/3009.htm.

21. See Akehurst (n. 5 above), p. 157. 22. For a discussion of the active personality principle, see infra n. 83 and accompanying text.

23. A. V. Lowe, "The development of the concept of the contiguous zone," British Year Book of International Law 52 (1981): 109 at 117. 24. R. R. Churchill and A. V. Lowe, The Law of the Sea, 3d ed. (Manchester: Manchester Univ. Press, 1999), p. 133. 25. Ibid.

26. In force 30 September 1962. Sixty-two ratifications. 450 United Nations Treaty Series 11; NDI, p. 257 (29 April 1958). Accessed 21 August 2002 on the World Wide Web: http://www.un.org/depts/los/. 27. Emphasis added. 28. Emphasis added. 29. "There is ... in customary international law, a right to arrest foreign ships which use their boats to commit offences within the territorial sea (and, perhaps, now the EEZ) while themselves remaining on the high seas. This is the doctrine of constructive presence, implicitly recognised in the provisions of the High Seas and Law of the Sea Conventions relating to hot pursuit...." See Churchill and Lowe �. 24 above), p. 215, emphasis added. However, in one Canadian case involving alleged illegal fishing, the court, while it recognized the validity of the doctrine of simple constructive presence in international law, refused to apply this doctrine in the absence of explicit statutory wording. In R. v. Dos Santos, 96 Nfld. & P.E.I.R. 13 (1992), a Portuguese national operating a Panamanian fishing vessel was charged with unlawfully entering Canadian fisheries waters contrary to s. 7(1) (a) (i) of the Coastal Fisheries Protection Act. Although the accused was convicted on other

grounds, he was held not to have "entered" Canadian fishing waters, despite the fact that he sent his boats into Canadian fishing waters in order to fix his nets. Barry J. held that: "On the matter of whether the accused can be found guilty of entering Canadian fisheries waters, where he stayed outside and merely sent his small boats in, I believe that such a 'constructive entry' could have been legislated by Parliament without international criticism ... However, I believe that in a matter such as the present, which involves the possible imposition of large fines, if Parliament intends to impose liability for a 'constructive entry,' this intention should be expressly set out in the legislation. An example of where such liability has been imposed in the Criminal Code is in section 350, which says that a person 'enters' a dwelling house 'as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered.' But there is no such language in the Coastal Fisheries Protection Act providing for 'constructive entry' and, accordingly, I hold that the accused is not guilty of 'entering' Canadian fisheries waters." (at paras. 66-67, em- phasis added.) 30. W. C. Gilmore, "Hot pursuit and constructive presence in Canadian law enforcement: a case note," Marine Policy 12 (1988): 105 at 110. 31. Ibid.

32. O'Connell (n. 18 above), p. 1093. Emphasis added. 33. 71 N.S.R. (2d) 300 (1986). 34. Although the Honduran ship was in international waters at the time it was Pursued and its crew arrested, the ship had previously been located for a few hours within the territorial sea of Canada, when its crew transferred 13.4 tons of Cannabis Resin to the Canadian boat. The court stated (at para. 8) that: "In total, the 'Er- nestina' spent only about five hours within the limits of the territorial sea of Can- ada." However, the fact that the Ernestina had been located for some time in Cana- dian territorial waters was not relevant to the court's decision, as the issue was whether or not the Emestina was in Canadian waters at the time that it was first pursued. 35. At para. 32, emphasis added. 36. R. v. Kirchhoff, 172 N.B.R. (2d) 257 (1995); R. v. Rumbaut, 202 N.B.R. (2d) 87(1998). 37. 202 N.B.R. (2d) 87 (1998).

38. Ibid at para. 32, emphasis added. 39. An unreported decision of the English Circuit Court (10 March 1995), cited by Deschenes J. in Rumbaut. See (n. 37 above), at para. 15 and following. 40. J. Deschenes quoted the following passage from R. v. Mills: "After the rati- fication of the Geneva Convention in 1962, the Doctrine was considered in the Ital- ian Courts in The Pulos 1977 International Year Book of International Law at page 587. In that case there had been a transshipment in international waters of cigarettes to a daughter ship which had come from Italian territorial waters. The daughter ship was pursued to and arrested in territorial waters. It was held that the right of hot pursuit which began immediately on the arrest of the daughter ship was ex- tendible to [the]mother ship." 41. While there is widespread opposition to drug trafficking in international law, opposition to abortions is not nearly as widespread. There have been several international treaties aimed at stopping drug trafficking. A recent example of such a treaty is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, concluded at Vienna on 20 December 1988 and en- tered into force 11 November 1990, accessed 15 April 2001 on the World Wide Web: http://www.incb.org/e/conv/. In contrast, there have been no such treaties relating to abortion.

42. See O'Connell (n. 18 above), p. 733. 43. R.S.C., c. E-2, 1985.

44. Romania (State) v. Cheng, 158 N.S.R. (2d) 13 at para. 123 (1997), empha- sis added. Affirmed: 162 N.S.R. (2d) 395 (C.A.) (1997). 45. 2 S.C.R. 178 (1985). 46. Ibid., p. 208-09. 47. Ibid., p. 185-86. After reviewing the English precedents, La Forest J. held (at 213) that Canada may invoke the territorial principle to assert jurisdiction when- ever there is a "real and substantial link" between the alleged offence and Canadian territory. In this case, he held that the test was met because the scheme was devised in Canada, and the whole operation that made it function, including the directing minds and the telephone solicitation, was located in Canada.

48. I. Brownlie, Principles of Public International Lazu, 5th ed. (Oxford: Oxford Univ. Press, 1998), p. 305. 49. Brownlie notes that the case was decided by the casting vote of the Presi- dent of the Permanent Court of International Justice, as the votes were equally di- vided, six on either side: (Ibid., p. 304-05) " 50. Article 97(3) provides that in the event of a collision on the high seas, "(n)o arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State." In the event of a high seas collision, the Article prevents a coastal state from acting against a ship flying a foreign flag. 51. 761 So. 2d 1027. Decided: 20 April 2000. Rehearing denied 12 June 2000. Released for publication 12June 2000. Certiorari denied 30 October 2000 (reported at 2000 U.S. LEXIS 7081).

52. The cruise ship departed from and returned to Florida. Although both the accused and the complainant were U.S. citizens, neither of them were Florida residents. At the time of the alleged crime, the cruise ship was approximately 100 nautical miles from the Atlantic coastline of Florida. 53. See n. 51 above, p. 1032, emphasis in original. 54. However, this latter type of legislation might be invalid, as Akehurst sug- gests that the territorial principle of criminal jurisdiction should only be used to prohibit an extraterritorial activity that has effects within the territory if the "primary effects" of that activity are felt within the territory of a coastal state. (n. 5 above, p. 154). In the case of offshore abortions, it might be argued that the primary effects of the abortion would occur on board the ship where the abortion takes place. 55. "Stepansky asserts this prosecution is prevented by the flag-state rule set forth in the Geneva Convention on the High Seas ... However, as Stepansky con- ceded during oral argument, criminal defendants lack standing to raise a violation of an international treaty that is not self-executing ... Article 6 of the Geneva Con- vention on the High Seas is not a self-executing treaty and does not operate to limit the jurisdiction traditionally asserted by the United States over foreign vessels on the high seas ... Therefore, the question of whether section 910.006(3) (d) is in violation of this treaty is not properly before this Court." See n. 51 above, p. 1032.

56. For a discussion of the active personality principle, see infra n. 83 and accompanying text. 57. For example, Malta ratified UNCLOS on 20 May 1993 and Chile ratified UNCLOS on 25 August 1997. Both these countries prohibit abortion on any grounds (even if the woman's life is at stake) and impose penalties on abortion providers. See Simon (n. 9 above), p. 49. According to the Chilean Penal Code, anyone who Performs an abortion zuith the woman's consent is subject to 3 years in prison. See United Nations, Abortion Policies: a Global Reuiezu. Dept. for Economic and Social In- formation and Policy Analysis. Vol. 1. New York: United Nations, 1993, p. 83. Simi- larly, a person who performs an abortion in Malta may be subject to a period of lrnprisonment ranging from 18 months to 3 years. See United Nations, Abortion Poli- cies, Vol. 2, (n. 13 above), p. 133.

58. For example, the United States of America. 59. If Women on Waves performed abortions within the territorial sea of coun- tries that are parties to UNCLOS, the abortion providers could be subject to the criminal jurisdiction of the coastal state, pursuant to Article 27 of UNCLOS. Article 27 allows the coastal state to assert criminal jurisdiction over a foreign ship in the territorial sea if, inter alia, "the consequences of the crime extend to the coastal State" (Article 27[a]), or "the crime is of a kind to disturb the peace of the country or the good order of the territorial sea" (Article 27[b]). If the coastal state considers the fetus to be a national, it seems likely that the consequences of "killing" the fetus would extend to the coastal state. Also, given that abortion is such a divisive issue, and that death threats and attempted killings of doctors who provide abortions occur from time to time, it is reasonable to suppose that if Women on Waves carried out its plan, its activities might "disturb the peace of the country or the good order of the territorial sea."

. 60. W. Burke, Contemporary Law of the Sea: Transportation: Communication and Flight. (Kingston, R. I.: Law of the Sea Institute, Univ. of Rhode Island, 1975) [Occa- sional Paper (Law of the Sea Institute), No. 28] Cited in F. Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (London: Pinter Publishers, 1990), p. 51, emphasis in original. 61. F. Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea (London: Pinter Publishers, 1990), p. 51, emphasis in original. 62. Art. 27( 1 ) states, "The criminal jurisdiction of the coastal state should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: (a) if the conse- quences of the crime extend to the coastal state; (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances." 63. Emphases added. Similar provisions are found in the Geneva Convention on the Territorial Sea and Contiguous Zone, and the Montego Bay Convention. According to O'Connell: "(Article 19[5] of the Geneva Convention on the Territo- nal Sea and Contiguous Zone) expressly states that the coastal state may not take

any steps on board a foreign ship which is only proceeding through the territorial sea without entering internal waters, in respect of any crime committed before the ship entered the territorial sea. (Article 27[5] of) (t)he Montego Bay Convention, which otherwise adopts the text of Article 19, makes this subject to its provisions relating to violations of the coastal State's laws respecting the marine environment and the EEZ." See O'Connell (n. 18 above), p. 957. 64. Article 55 states that the EEZ is an area "beyond and adjacent to the territorial sea." (emphasis added) 65. Article 58. 66. As well as "pertinent rules of international law," but only insofar as they are not incompatible with Part V of UNCLOS, which deals mainly with conservation of living resources. 67. The legal regime for the high seas is set out in Articles 86-120. Therefore, the difference between the high seas and the EEZ is that the following apply in the high seas but not in the EEZ: Articles 86-87 and Articles 116-20. Since none of these Articles (86-87 and 116-20) are particularly relevant in this case, I will treat the EEZ and the high seas as functionally equivalent.

68. See O'Connell (n. 18 above), p. 819. . 69. Strasbourg, 22 January 1965. In force 19 October 1967. Eighteen ratifica- tions (as of 28 October 1998) 634 United Nations Treaty Series 239; 1VD1, p. 211, 212 and 270. 70. Emphasis added.

71. N. M. Hunnings, "Pirate broadcasting in European waters," International Comparative Law Quarterly 14 (1965): 410 at 413. 72. H. F. Van Panhuys and M. J. Van Emde Boas, "Legal aspects of pirate broadcasting," American Journal of International Law 60 (1966): 303-11, emphases added. Van Panhuys also mentioned concerns that unauthorized broadcasting could fill the airwaves, preventing the transmission of radio broadcasts that are required for the navigational safety of ships and airplanes. Thus, there was a concern that unauthorized radio broadcasts could threaten public safety. 73. D. D. Smith, "Pirate broadcasting," Southern California Law Review 41 (1968): 769 at 772, emphasis added. 74. H. B. Robertson, Jr., "The suppression of pirate radio broadcasting: a test case of the international system for control of activities outside national territory," I Law and Contemporary Problems 45 (Winter 1982): 71 at 76, emphasis added. As to why this might be a threat to morality, Robertson commented that: "It (unauthorized broadcasting) epitomized the social turmoil of the 1960s, an era marked by long hair, eccentric clothes and free life style."

75. The outline of the remedies which follows is adapted from: R. C. F. Reu- land, "Interference with non-national ships on the high seas: peacetime exceptions to the exclusivity of flag-state jurisdiction," Vanderbilt Journal of Transnational Law 22(5) (1989): 1161 at 1226-27. 76. Article 110(1) (c). 77. O'Connell writes that: "... (W)hile force may be employed in arrest of foreign ships which resist boarding, this is a measure of last resort." See O'Connell (n. 18 above), p. 1073. 78. Article 110(2). 79. Article 109(4) allows a coastal state to seize the "broadcasting apparatus" of the foreign vessel. By analogy, Article 109(4) might allow the coastal state to seize abortion-related equipment. 80. Article 109(3)(e).

81. See Akehurst (n. 5 above), p. 163-164. 82. E. D. Dickinson, Reporter, American Journal of International Law 29 (Supp.) ( 1935 ) : 439. 83. Akehurst notes that "a state has an unlimited right to base jurisdiction on the nationality of the accused," and gives several examples of instances in which the active personality principle was invoked. See Akehurst (n. 5 above), p. 156. 84. Many countries make it a criminal offence to have sex with a child, but some do not. In an effort to avoid the criminal jurisdiction of their home countries, some people have engaged in "child sex tourism" by visiting other countries in order to have sex with children. This problem was addressed by representatives of 122 countries at the World Congress Against Commercial Sexual Exploitation of Children, which was held in Stockholm in August 1996. At the conclusion of the conference, an Agenda for Action against Commercial Sexual Exploitation of Chil- dren was drafted. Paragraph 4(d) of that document urges countries to: "... develop or strengthen and implement laws to criminalise the acts of the nationals of the countries of origin when committed against children in the countries of destination ( extra-territorial criminal laws')...." Accessed 15 April 2001 on the World Wide Web: http://www.ecpat.org.

85. V. Muntarbhorn, Extraterritorial Criminal Laws Against Child Sexual Exploita- tion (Geneva: UNICEF, 1998), p. 19. Muntarbhorn lists these countries as: Australia, Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Italy, Japan, Nether- lands, New Zealand, Norway, Spain, Sweden, Switzerland, Thailand, the U.K., and the U.S. Of these countries, Ireland prohibits abortion, and some of the other coun- tries impose restrictions upon abortion. 86. T. Macintosh, "Exploring the boundaries: the impact of the child sex tour- ism legislation," Australian LawJournal74(9) (2000): 613 at 616. 87. Ibid., p. 617. 88. An Act to Amend the Criminal Code (Child Prostitution, Child Sex Tour- ism, Criminal Harassment and Female Genital Mutilation). S.C., c. 16 (1997). Sec- tion 1 of this Act states that it only applies to Canadian citizens and permanent residents, and that prosecution can only be initiated if the country where the offence occurred asks the Minister of Justice of Canada to prosecute.

89. Mr. Nunez, Commons Debates, p. 3580, (10 June 1996). 90. 291 F. Supp. 262, S.D.N.Y. (1968). 91. 18 U.S.C., sec. 1802(a).

92. G. Marston, "Crimes on foreign merchant ships at sea," Lazo Quarterly Re- view 88 (1972): 357 at 363, emphases added. 93. See Brownlie (n. 48 above), p. 306. 94. 18 U.S.C., c.18, s. 351(i). Added Jan. 2, 1971, P.L. 97-285, ss. 1, 2(a), 96 Stat. 1219. Extraterritorial aspect confirmed: United States v. Layton (1998, CA9 Cal) 855 F2d 1388, 26 Fed Rules Evid Serv 988, cert den (1989) 489 US 1046, 103 L Ed 2d 244, 109 S Ct 1178. For discussion of this legislation, see: Petersen, "The extraterritorial effect of federal criminal statutes: offences directed at Members of Congress," Hastings Int'l f�' Comp. L. Rev. 6 (1983): 773. See, further: I. Cameron, The Protective Principle of International Criminaljurisdiction (Aldershot, England: Dart- mouth, 1994) at p. 252.

95. For a review of this topic, see: S. Macedo, ed. The Princeton Principles on Universal Jurisdiction. (Princeton, N. J.: Program in Law and Public Affairs, 2001). Accessed August 21, 2002 on the World Wide Web: http://www.princeton.edu/ lapa/ univ_jur.pdf. 96. In Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), the Democratic Republic of the Congo contested the validity of an arrest warrant issued pursuant to the Belgium Law of 16 June 1993 (as amended by the Law of 10 February 1999). The case was decided by the ICJ on 14 February 2002. In a dissenting opinion, Judge Oda commented, at 12: "It is one of the fundamental principles of international law that a State cannot exercise its jurisdiction outside its territory. However, the past few decades have seen a gradual widening in the scope of the jurisdiction to prescribe law. From the base established by the Permanent Court's decision in 1927 in the Lotus case, the scope of extraterritorial criminaljurisdiction has been expanded over the past few decades to cover the crimes of piracy, hijacking, etc. Universal jurisdiction is increasingly recognized in cases of terrorism and genocide. Belgium is known for taking the lead in this field and its 1993 Law (which would make Mr. Yerodia liable to punishment for any crimes against humanitarian law he committed out- side of Belgium) may well be at the forefront of a trend. There is some national case law and some treaty-made law evidencing such a trend. Legal scholars the world over have written prolifically on this issue. Some of the opinions appended to thisjudgement also give guidance in this respect. I believe, however, that the Court has shown wisdom in refraining from taking a definitive stance in this respect as the law is not sufficiently developed and, in fact, the Court is not requested in the present case to take a decision on this point. Accessed 21 August 2002 on the World Wide Web: http://www.icj-cji.org/icjwww/ 'dochet/ iCOBE / icobejudgment/ icobe_tjudgment�20020214 .oda.PDF. 97. Crimes against Humanity and War Crimes Act, S.C. 2000, c. 24.

98. UN Doc. A/CONF.183/9*, accessed 15 April 2001 on the World Wide Web: http://www.un.org/law/icc/statute/romefra.htm. 99. Finalized Draft Text of the Elements of Crimes. Adopted by the Prepa- ratory Commission for the International Criminal Court at its 23rd meeting on 30 June 2000. Document*: PCNICC/2000/ 1 /Add.2. Accessed 15 April 2001 on the World Wide Web: http://www.un.org/law/icc/statute/elements/english/ 1 _add2e. pdf#pagemode = bookmarks. 100. For a discussion of this topic, see: D. Shelton, "International Law on Pro- tection of the Fetus," in S. J. Frankowski and G. F. Cole, eds., Abortion and Protection of the Human Fetus: Legal Problems in a Cross-Cultural Perspective, (Dordrecht, Nether- lands: Martinus Nijhoff Publishers, 1987), p. 1. International law on this topic is far from clear. The current state of the law in the U.S. exemplifies this confusion. On the one hand, abortions have been permitted since Roe v. Wade, suggesting that the fetus is not a legal person. On the other hand, recent decisions of some state courts have held that a fetus may be protected by criminal prohibitions against homi- cide, suggesting that the fetus is a legal person. For example, in Hughes v. State of Oklahoma, 868 P.2d 730 (1994), the accused was charged with manslaughter arising

out of a drunk driving accident which resulted in the driver's 8-month-old fetus being stillborn. The accused argued that she had not committed homicide, since the statute under which she was charged defined homicide as "the killing of one human beingby another" (emphasis added). She argued that a fetus was not a "hu- man being" within the meaning of the criminal statute. The Oklahoma Court of Criminal Appeals rejected her argument, and stated (at 734) that: "... (a) viable human fetus is nothing less than human life ... Thus the term 'human being' in Section 691-according to its plain and ordinary meaning-includes a viable hu- man fetus." 101. Double-criminality is a concept requiring that an act be criminal in both jurisdictions where two jurisdictions may apply. Women on Waves would argue that the lack of a double-criminality requirement in Australia is an exceptional circum- stance. The comment by Macintosh quoted earlier in this article suggests that this would be a valid argument, since he writes that Australia's legislation is "unlike ... other world states' extra-territorial laws." In Canada, double criminality is a pre- requisite for the prosecution of extra-territorial offences (R. v. Finta, 1 S.C.R. 701 [1994]).

102. See n. 5 above, p. 167-68. 103. R v. Cook, [1998] 2 S.C.R. 597, at para. 137, per Bastarache J. 104. P. Arnell, "Criminal jurisdiction in international law," juridical Reviecu 3 (2000): 179 at 189.

. 105. See Brownlie (n. 48 above), p. 309. Brownlie's comments are consistent with Canadian jurisprudence, which requires a "real and substantial link" between the alleged offence and Canadian territory before the territorial principle can be invoked to assert jurisdiction (See n. 47 above). 106. The European Community Treaty, which has been ratified by both Ire- land and the Netherlands, states that nationals of member states have the right to provide services to nationals of other member states. The right to provide services has been held to include the right to receive services, including the right to receive medical treatment. Assuming that abortions are "medical treatment," the right guaranteed by the Treaty could be held to conflict with Irish law, in which case the Irish prohibition on abortion would have to be struck down. For a recent discussion of this topic, see: D. A. MacLean, "Can the EC kill the Irish unborn? An investigation of the European Community's ability to impinge on the moral sovereignty of mem- ber states," Hofstra Law Review 28(2) (1999): 527. 107. See: C. S. Bradford, "What happens if Roe is overruled? Extraterritorial regulation of abortion by the states," Arizona Law Review 35(1) (1993): 87. In this article, Bradford describes anti-abortion legislation in the U.S. before Roe v. Wade, and he notes that several states sought to apply their anti-abortion legislation extra- territorially, but this caused some constitutional problems.

108. See Brownlie (n. 48 above), p. 310. 109. See O'Connell (n. 18 above), p. 735. 110. AC 160 (1939).


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