A NHRI with a general mandate to receive and consider individual human rights com-plaints is by definition in a position to receive and consider complaints pertaining to repro-ductive rights. These complaints should not be handled any differently than other human rights complaints. Just as it is the case with
stated above, having staffs that are is prop-erly trained on issues relating to reproduc-tive rights is in any event necessary for a NHRI that wants to work in this field.
Reproductive rights are part of the larger right to health, protected among other
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 mea-sures 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 popu-lation 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 Cov-enant 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 eco-nomic 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 clari-fied the meaning of progressive realization.
Accordingly, states are obliged to “move
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 pro-vision 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 med-ical knowledge and still have to deal with complex issues of medical errors and other cases of similar complexity. Rather than sim-ply declining to consider such issues, NHRIs should consider ways in which to get suffi-cient information to handle such cases. This could involve obtaining affidavits from rele-vant 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
pared to use this power also with respect to reproductive rights. NHRIs should also consider intervening in court cases touching upon reproductive rights issues as friends of the court (amicus curiae) to ensure that the relevant human rights provisions are taken
whether there is a good chance of establish-ing new legal precedents that will enhance the protection of reproductive rights. Such strategic litigation can be done in collabo-ration with civil society, unless this might prejudice the independence of the NHRI.
A Human Rights-Based Approach (HRBA) can be defined as a conceptual and ana-lytical framework that integrates human rights norms, standards and principles into all development work. The United Nations Statement of Common Understanding of Human Rights-Based Approach to devel-opment cooperation and programming includes:
1. All programmes of development coop-eration, policies and technical assis-tance should further the realization of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments.
2. Human rights standards contained in, and principles derived from, the Univer-sal Declaration of Human Rights and other international human rights instru-ments guide all development cooper-ation and programming in all sectors and in all stages of the programming process.
3. Development cooperation contributes
gender-responsiveness within its under-standing of a HRBA to programming.1
In a HRBA to programming, all development efforts pursue a desirable outcome through a legitimate process. In a HRBA to devel-opment, human rights standards define the desirable outcome, and human rights princi-ples ensure the legitimacy of the process. In that sense a HRBA offers objective criteria in defining both the ends and means of devel-opment efforts.
HRBA is based on a list of basic human rights principles developed by the United Nations that are of consequence for development initiatives. The principles that form the fundamental basis of a HRBA are:
• Universality, inalienability, and indivisibil-ity of human rights;
• Interdependence and inter-relatedness;
• Equality and non-discrimination;
• Participation and inclusion; and
3. PROMOTING REPRODUCTIVE RIGHTS THROUGH A HUMAN RIGHTS-BASED APPROACH TO DEVELOPMENT