University of Botswana Law Journal - PULP

THE RIGHT TO MATERNAL HEALTH CARE 65
supplemented with political accountability, where states act to assist each
other in meeting their obligations. As S. P. Marks has written, accountability
“need not take the form of pointing an accusing finger.” 105 Rather, for states
to act to ensure accountability among themselves, Marks continues:
In most situations, the appropriate measures for securing
government accountability consist of persuasion, technical
assistance, dialogue, and emulation. While accountability usually
refers to sanctioning an agent of the state for violating rules, the
nature of the state's obligations relating to the right to health justifies
cooperative means of achieving change through weaker forms of
accountability. The important point is to bring about change, and the
choice between confrontational and cooperative means depends on
circumstances. 106
Governments wishing to advocate for the right to maternal health
care globally should work closely with one another to hold each other
accountable under the CESCR and the CEDAW for the protection of the right
to maternal health care.
The ICPD Programme of Action and the Beijing Platform for Action,
while both expressing international community policy and adding “content
and meaning” to the articulation of the right to maternal health care in
international instruments, are themselves “non-binding consensual policy
documents.” 107 They do not result in legal obligations for states. Nonetheless,
states can hold each other accountable for the rights articulated in the ICPD
Programme of Action and Beijing Platform for Action, using the “weaker
forms of accountability” suggested by Marks. 108 States can work to develop
the right to maternal health care as a human right recognized in customary
international law by doing so in their own practice. This includes through
domestic legislation, and as evidenced by the work a state does in and through
international organizations. 109
The IIMMHAR has issued a Fact Sheet to the UN Human Rights
Council on the Maternal Mortality Resolution, which includes a list of
valuable ways in which state governments can take “focused, effective action”
to enhance accountability and advance legal standards on the right to maternal
105 S. P. Marks, The New Partnership of Health and Human Rights, 2 HUM. RTS. DIALOGUE 21 (2001),
available at http://www.cceia.org/resources/publications/dialogue/2_06/articles/650.html.
106 Id.
107 Hawkins et al., supra note 74, at 43.
108 See Marks, supra note 112.
109 For an in-depth discussion on the development of customary international law, see S. Sahl, Researching
Customary International Law, State Practice and the Pronouncements of States regarding International
Law, Globalex (2007), available at http://www.nyulawglobal.org/globalex/Customary_
International_Law.htm#_State_Practice.