University of Botswana Law Journal - PULP

60 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
childbirth traditionally come out of a conjugal union, the right to maternal
health care is often placed within the family, an approach that ignores intrinsic
unequal power relations between the sexes within the family structure. 86
Patriarchal norms, the gender-blind (even gender-biased) nature of
international law and the public/private ideological construct all inform the
right to health, and therefore operate to make the realization of the right to
maternal health care vulnerable to being limited when the right to maternal
health care is placed within the right to health framework.
The right to maternal health care should be recognized as an
independent human right apart from the right to health, demanding of
enforceable state obligations on its own. For a value to move from being a
respected social value to being considered a human right is a tremendously
important transition, as understanding a right as a human right gives rise to
obligations on the part of governments to protect the international human
right. Philip Alston has warned that without an established procedure to
recognize when a value becomes a human right, the international system runs
the risk of being overloaded with human rights. 87 Alston argues that any
proposed human right should not only reflect a fundamentally important
social value, but should also be relevant to diverse value systems, and should
be eligible for recognition as an interpretation of UN Charter obligations, as a
reflection of customary law rules or as a declaratory of general principles of
law. 88 Further, Alston suggests that any proposed human right should be able
to achieve a very high degree of international consensus, be compatible with
the general practice of states and be specific enough to give rise to identifiable
rights and obligations. 89
Burns Weston has provided five postulates that assist in defining
human rights, writing that despite a lack of consensus on these postulates, they
are nonetheless accurate. 90 In considering whether a right is a human right,
Weston’s postulates can guide understanding and provide some sort of
procedure in recognizing if a right is indeed a human right. In sum, Weston
proposes that human rights: (1) are “understood to represent both individual
and group demands” for “cherished values or capabilities, the most
fundamental of which is respect”; (2) are commonly assumed to refer to
“fundamental” as distinct from “nonessential” claims or goods; (3) “refer to a
wide continuum of claims ranging from the most justiciable to the most
aspirational”; (4) “are qualified by the limitation that the rights of individuals
86 Id. p. 329.
87 P. Alston, Conjuring up New Human Rights: A Proposal for Quality Control, 78 AM. J. INT’L L. pp. 607-
608 (1984), cited in Feitshans, supra note 24, pp. 101-102.
88 Id.
89 Id.
90 See B. H. Weston, Human Rights: Concept and Content, Encyclopaedia Britannica, 15th rev. ed. (2005),
available at http://www.britannica.com/eb/article?tocID=219350, reprinted (with changes from B. H.
Weston) in Human Rights in the World Community: Issues and Actions 17 (R. P. Claude & B. H. Weston
eds., 2006).