University of Botswana Law Journal - PULP

64 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
then issues concluding observations and recommendations, which
should be implemented by the government in question. 98
The Committee on the Elimination of Discrimination Against
Women (“CEDAW Committee”) monitors the CEDAW. 99 For the right to
maternal health care, this is extremely significant, as Article 12 of the
CEDAW calls upon states to “take all appropriate measures to eliminate
discrimination against women in the field of health care in order to ensure
access to health care services, including those related to family planning,
confinement and the post-natal period, granting free services where necessary,
as well as adequate nutrition during pregnancy and lactation.” 100 Article 18 of
the CEDAW requires states parties to submit to the Secretary-General of the
UN for consideration by the CEDAW Committee a report on the legislative,
judicial, administrative or other measures which they have adopted to give
effect to the provisions in the CEDAW; these reports must be submitted every
four years and further whenever the CEDAW Committee so requests. 101
Under the CEDAW, states parties have “different kinds of general
legal obligations” to implement to right to maternal health care:
• The obligation to respect rights, which requires states to refrain
from interfering with the enjoyment of rights;
• The obligation to protect rights, which requires states actively to
prevent violations of human rights by third parties; and
• The obligation to fulfill rights, which requires states to take
appropriate governmental measures toward the full realization of
rights. 102
These legal obligations, the enforcement of which is monitored by
the CEDAW Committee, create legal accountability for states. Such
accountability for protecting the right to maternal health care also comes out
of the CESCR. 103 The Economic, Social and Cultural Rights Committee,
which monitors the CESCR, has stated that providing essential obstetric
services “constitutes part of a state’s core obligations, which while not
defining a per se violation is a factor in considering whether the government
has demonstrated that the measures it has adopted to provide such services
meet a reasonableness criterion.” 104 Legal accountability can be
98 World Health Organization, Using Human Rights for Maternal and Neonatal Health: A tool for
strengthening laws, policies and standards of care, A Report of Indonesia Field Test Analysis 5 (2006)
[hereinafter Indonesia Field Test Analysis]. See also Hawkins et al., supra note 74, at 43.
99 Id. at 6.
100 CEDAW, supra note 21, at Article 12, cited in Indonesia Field Test Analysis, supra note 105, p. 18.
101 CEDAW, supra note 21, at Article 18.
102 Hawkins et al., supra note 74, p. 43.
103 CESCR, supra note 19.
104 Yamin, supra note 80, at 1214, citing ECOSOC General Comment, supra note 23, p. 44.