Portugese Government in violation of international treaties

 

28-08-04: Our reaction to the DECISION OF PORTUGUESE SECRETARY OF STATE FOR THE SEA AFFAIRS IN
VIOLATION OF INTERNATIONAL CONVENTIONS.

Following the normal procedures, yesterday, Women on Waves has officially requested authorization to enter the harbour of Figueira da Foz.

Within the European Union the request for authorization is only a formality. Usually, the captain of the ship calls the harbour to ask for permission to enter, when the ship arrives to national waters, and the answer is given immediately. Although the Women on Waves' ship, Borndiep, is officialy registered as a
commercial vessel under the Dutch Shipping Inspectorate, has been inspected by the Dutch authorities and given permission to sail to Portugal, although it is complying with all the international regulations and has all the paperwork in order, the
portuguese authorities have refused its entrance and the innocent passage through portuguese waters.

The captain of BORNDIEP received a fax saying:
''On behalf of the Portuguese Maritime authorities, we inform the following: refering to the request of authorization for the ship BORNDIEP to enter into
portuguese territorial waters with destination to the Port of Figueira da Foz we inform you that under the provisions of Section III Part II of the 1982 United Nations Law of the Sea Convention, namely the articles 19 and 25 and the portuguese law, that request was denied.''

There was no explanation as to which Portuguese laws that decision was justified. Women on Waves was later also notified by the President of the Instituto Portuário e
dos Transportes Marítimos of the decision taken by the State Secretary for the Sea Affairs.
According to this decision the State Secretary determined that:
1. it shouldn't be authorized the passage of the ship BORNDIEP through the portuguese waters;
2. because this decision is urgent, due to the approach of the mentioned ship to national waters, and the inexistence of other adequate means to protect the
public interest protected by this decision, there is no place for a hearing of the parties, according to what is stated in article 103.º, n.º 1, al. a) of the Administrative Procedural Code;
3. by all the necessary means of comunication, namely the Portuguese Marine, the captain of BORNDIEP, its charterer, its owner, if different, and the consul of the Kingdom of the Netherlands in Lisbon, should be notified of this decision.

The government justifies this decision by saying that there are strong indications, by means of the media, national and internacional, that Women on Waves wants to enter portuguese territory to:
1. desembarque, distribute and publicitize farmaceutical products that are not authorized in Portugal;
2. to have public meetings to publicize, provoke, and incite the pratice of illegal acts in Portugal;
3. to develop a typical activity in a health infrastructure without license or inspection by portuguese authorities, which will endanger the public health.

The decision also states that the above mentioned activities are in violation with the United Nations Convention on the Law of the Sea (1982) and the sanitarian laws of Portugal (the government did not specificaly mentioned which laws).

The government furthermore claims that Women on Waves is underminding the juridical sovereignty of the Portuguese State and that the decision is respecting the
freedom of navigation in internatonal waters and the UN Convention on the Law of the Sea and the Dutch legislation.

Concerning the first accusation, Women on Waves has always said that it will never disembark, distribute or publicize any pharmaceutical products. Women on
Waves is authorized by the Dutch Government to carry all the medicines that are on board the BORNDIEP. The medicines that are on board the Borndiep have been
sealed by a Dutch notary, to secure that it isn't in any moment opened when in portuguese waters.

Furthermore, the lock can only be opened in international waters in the presence of a medical doctor.
Concerning the second accusation, Women on Waves has never and will never incite to illegal acts in Portugal or in any other country. Women on Waves is a non profit association, registered under Dutch laws, licensed in the Netherlands. It has never been charged or convicted for any crimes or incitement to crimes.

Women on Waves consider this accusations offensive to their dignity, an insult to our good name and a defamation.

Concerning the third accusation, Women on Waves, as it has always pointed out, will not and never had the intention of performing any medical act in Portugal. Women on Waves has official permission from the Dutch Government for its actitivities on board the ship in international waters. Its medical personnel is officially licensed by the Dutch authorities and provide very high standard of care. But again no medical act will or was ever intended to be made in Portugal. Also the medical facility on board is inspected and authorized by the Dutch Health Inspection. The accusation that the activities performed by Women on Waves would be a danger to Portuguese public health is an offence to the standards of the Dutch Health Care.

The decision of the Portuguese authorities violate the international and european conventions. The Portuguese authorities are denying the right of innocent passage and entry to portuguese internal waters.
According to article 19, this can only be done, for example, if the passage of the foreign ship poses any threat or use of force against the sovereignity, territorial integraty or political independence of the coastal State; the pratice of weapons; and
propaganda affecting the defence or security of the state. This is clearily not what Women on Waves is doing ( the organisation would never get licensed to do that). Furthermore, article 25, n. 3, of the United Nation Convention on the Law of the Sea, states that a State may only suspend the access to its territorial sea if such suspension is essential for the protection of its security, but only after being duly publicized. Women on Waves is not posing any threat to the security of Portugal and the portuguese State has never publicize anything assuming that Women on Waves would.

According to european laws, article 27 of the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, the member states can only restrict the freedom of movement of Union citizens on grounds of:
1. Public policy or public security, which shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the
individual concerned. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the
fundamental interests of society. Justification on the basis of general prevention shall not be accepted (art. 27, n. 2) (non of the Women of Waves or crew of the
ship has ever behaved in a any way that could justify this measure).
2. Public health. The only diseases justifying measures restricting freedom of movement shall be the diseases with epidemic potential (art. 29, n. 1).

Women on Waves has sailed before to Ireland and Poland and the ship has never been refused authorization to enter an harbour.

Women on Waves emphasises the need for the responsable Dutch and European and United Nations officials to call upon the Portuguese government and remind it of its obligation to respect and implement the international and european conventions and laws.