PhD studies in human rights: Ruling on Maternal Health Care by Committee on the Elimination of Discrimination Against Women

Wednesday, 17 August 2011

Ruling on Maternal Health Care by Committee on the Elimination of Discrimination Against Women

The United Nations Committee for the Elimination of Discrimination Against Women issued an important decision last week confirming the right of all women, regardless of income or racial background, to timely, non-discriminatory and appropriate maternal health services. The case was filed against Brazil on behalf of Alyne da Silva Pimentel in accordance with the Protocol to the Convention. Alyne da Silva Pimentel was a 28-year-old Afro-Brazilian woman who died in 2002 after being denied basic medical care to address complications in her pregnancy.

The litigation was undertaken by the Center for Reproductive Rights. For more information, click here.

Thanks to Janna Chan.

1 comment:

Roger Derham said...: I have had the opportunity to read the CEDAW da Silva Piemental Teixeira judgement (CEDAW/C/49/17/2008) of the 25 July 2011 in detail and there are three points I’d like to raise.
1. For the first time that I am aware an “unreasonably prolonged delay” in a domestic judicial process to allow admissibility to a Convention Committee has been quantified at 8 years. The initial domestic suit was filed on the 11 Feb 2003, the submission to CEDAW filed on 30 Nov 2007 (41/2 years), the State party response on 13 August 2008 (5+ years) and the Committee meeting 25 July 2011 (8+ years). Under Article 4, paragraph 1 of the Optional Protocol the “unreasonably prolonged delay” in domestic judicial proceedings relates to the time factor only as the committee discounted the “complexity of the case” as a qualification for “unreasonably prolonged.”

2. Although the merits of the case are unquestioned the patient whose death precipitated the submission to CEDAW died of complications of pregnancy on the 11 NOV 2002, one month after the Optional Protocol to CEDAW, to which the State party was a signatory, came into force on the 28 Sept 2002. However, and this confuses me somewhat in the admissibility of the case is that the pregnancy which resulted in the maternal death ( i.e. WHO Definition: Maternal death is the death of a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and site of the pregnancy, from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes.) began sometime in May 2002 five months before the Optional Protocol came into force. The Committee stated that it was of the view “that the death of Ms. da Silva Piemental Teixeira must be regarded as maternal.” (italics my emphasis)

Has not CEDAW erred in applying a retrospective judgement under the Protocol to a maternal death?

3. Finally I am a little uneasy (as a medical practitioner who is an Obstetrician/Gynaecologist) that CEDAW have the judicial authority (Recommendations 2(e) ) to demand that “sanctions” be “imposed” on health professionals who “violate” women’s reproductive rights. There is an ocean of difference between a “failure of duty of care” and “violation”.

Roger Derham, MB, LLM, FRCOG, MFFLM.; 31 August 2011 at 22:51

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William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr Yvonne McDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

PhD studies in human rights

Wednesday, 17 August 2011

Ruling on Maternal Health Care by Committee on the Elimination of Discrimination Against Women

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