University of Botswana Law Journal - PULP

THE RIGHT TO MATERNAL HEALTH CARE 67
governments.” 113 Alston concludes that while at least some of the Millennium
Development Goals have met this status and are now recognized in customary
international law, it remains difficult to say that all of the Millennium
Development Goals have satisfied the criteria required for a norm to become
part of customary law. 114 With regard to Goal 5, which calls for the reduction
of maternal mortality through providing universal access to reproductive
health, Alston applies a test to determine if a right articulated in a Millennium
Development Goal has become a part of customary international law:
… no right should be excluded which is (i) indispensable to a
meaningful notion of human dignity (upon which human rights are
based) and (ii) the satisfaction of which is demonstrably within the
reach of the government in question assuming reasonable support
from the international community. 115
Alston concludes that Goal 5 meets this test and that it can plausibly
be claimed that Goal 5 (and several of the other Millennium Development
Goals that Alston examines) reflects norms of customary international law.
Finally, the Maternal Mortality Resolution is generally considered to be nonbinding,
but aids in building customary international law and informing
international community policy. Further, as noted by Sandeep Prasad of
Action Canada for Population and Development (a human rights advocacy
organization):
… the consensus nature of this resolution signals agreement on the
part of governments with the various acknowledgments, requests
and calls that the Council makes in it. Moreover, the resolution
reinforces the legally binding obligations that states have already
assumed upon themselves as interpreted by treaty-monitoring
bodies and long-standing commitments that governments have
made. 116
Over time, the Maternal Mortality Resolution could be given weight
as a source of international law, but as it has been in existence for less than a
year, at present it seems be only evidence of already existing international
113 P. Alston, A Human Rights Perspective on the Millennium Development Goals, Paper prepared as a
contribution to the work of the Millennium Project Task Force on Poverty and Economic Development, 3,
available at http://hurilink.org/tools/HRsPerspectives_on_the_MDGs--Alston.pdf (last visited 6 March,
2010).
114 Id. p. 3, p. 20.
115 Id. p. 21.
116 J. Jacobson, UN Human Rights Council Resolution: Maternal Death, Illness Are Human Rights
Violations, RH Reality Check (18 June, 2009), http://www.rhrealitycheck.org/blog/2009/06/18/unhuman-rights-council-recognizes-maternal-death-and-illness-human-rights-violations.