2. the national human rights institution mandate
subject to progressive realization. NHRIs
can use the complaint handling mechanism
to monitor the progressive realization of
reproductive rights. Complaints can indicate
the government’s failure to take determined
steps (such as establishing benchmarks and
targets), retrogression, discriminatory measures and failure to use maximum available
resources. On the other hand, total lack of
complaints concerning reproductive rights
can be a symptom that the general population is not aware of their rights or of the
right to complain.
If the NHRI in question is not used to
dealing with rights subject to progressive
realization (which is the case for most of
the rights protected by International Covenant on Economic, Social and Cultural
Rights), complaints concerning the right to
sexual and reproductive health might be
difficult to handle. The principle is set out
in Article 2.1 of the Covenant, according to
which each state party “undertakes to take
steps, individually and through international
assistance and co-operation, especially economic and technical, to the maximum of its
available resources, with a view to achieving
progressively the full realization of the rights
recognized in the present Covenant by all
appropriate means, including particularly the
adoption of legislative measures”. General
Comment 3 (1990) of the Committee on
Economic, Social and Cultural Rights clarified the meaning of progressive realization.
Accordingly, states are obliged to “move
as expeditiously and effectively as possible
towards [full realization]. Moreover, any deliberately retrogressive measures in that regard
would require the most careful consideration
and would need to be fully justifi ed by reference to the totality of the rights provided for
in the Covenant and in the context of the full
use of the maximum available resources”. The
General Comment also refers to minimum
core obligations that must in any event
be provided; this includes, among other,
essential primary health care, the provision
of essential drugs (including medicines
related to reproductive health and essential
contraceptive commodities) and the provision of reproductive maternal and child
health care.
Another difficulty that would seem mainly
to be relevant in cases concerning lack of
provision of medical services is that certain
cases will hinge on very technical medical
evaluations. For this reason the Portuguese
NHRI declines to handle cases concerning
alleged lack of proper medical attention
leading to maternal and/or infant mortality
and rather refers such cases to authorities
considered more proper. It could be argued
that courts are also not equipped with medical knowledge and still have to deal with
complex issues of medical errors and other
cases of similar complexity. Rather than simply declining to consider such issues, NHRIs
should consider ways in which to get sufficient information to handle such cases. This
could involve obtaining affidavits from relevant experts or hearing expert witnesses, in
a manner similar to the actions of a court,
and then, just like a court would do, make
a legal, human rights and evidence-based
assessment.
A NHRI can only be an effective route to
justice in individual cases if the general population is aware of the possibility to submit complaints to it. Information on how
to exercise these mechanisms should be an
important component of broad campaigns
on reproductive rights.
73
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