Understanding and using international law
The international legal system has the state at its centre: the state ratifies treaties and thereby obliges itself to respect, protect and fulfil the right to education. And it is the state that must report on its own implementation and who can be “named and shamed” in public for not doing so. Treaties specify mechanism for how the international community can hold the state to account, exerting pressure from above, and therefore such mechanism can be very powerful - or they can become overtly politicised at the UN or regional fora. It is the challenge of campaigners and the courts to place this power in the hands of those whose rights have been violated by the state.
The UN
The United Nations system, begun in 1945 with the UN Charter, depends on the participation by states, as signatories to treaties, as authors of reports on the progress and rate of implementation of rights, and as parties to face-to-face meetings and recommendations. The UN works both as a peer system (via the Universal Periodic Review), where states judge and place pressure on each other - or avoids doing so for political reasons – as well as a system of independent experts (via the committees of the various conventions), who examine, interpret and recommend or criticise the efforts of countries on the background of the normative texts and the internationally binding law.
The major UN conventions each have provisions relevant for education, non-discrimination or access to justice, and they can all be signed up to by states, thereby obliging these to respect, protect and fulfil human rights. It matters if a country has ratified or acceded (almost the same), signed, or merely indicated an intention to do so, as this binds them legally to various degrees. Furthermore, it is very important to note if states have lodged any reservations or declarations, barring the convention in question to have full effect at the national level. Lastly, some conventions, either in their core text or in optional protocols, specify routes of individual complaints to the different committees of independent experts, and it must be noted if these exist before contemplating legal action at this level.
The Universal Periodic Review (UPR) is the latest reporting mechanism at the UN, created by the new UN Human Rights Council. As such, it is states themselves who examine other states (as opposed to independent experts on the convention committees), with each country in the world reporting and being examined during a 4-year cycle. This means a great degree of politics enters into the process – both as peer pressure and as unholy alliances between countries with shared interests. But it also gives great room for civil society to play a role: in submitting a shadow report with additional information, and to put pressure on the either the examined or the examining states to focus on the critical issues
When domestic institutions are the violators or when they fail, it may be necessary to seek redress beyond national boundaries. The regional system is a supranational mechanism of redress, and, unlike the ‘higher’ level of the UN, the regional system also offers actual courts whose decisions are legally binding upon the State. There are only 3 regional systems, as Asia is regrettably still lacking one – posing a great positive challenge for civil society campaigners and public interest lawyers in the Asia region to lobby for such a mechanism.
UNESCO has many conventions, two of which are particularly important as standard setters in the field of non-discrimination in education and on technical and vocational training. Both of them suffer slightly from a comparative low rate of ratification and neither of them have very impressive oversight mechanisms, with all reporting not done in public, leaving little room for “naming and shaming”. This arguably makes them less useful as international legal instruments. However, they have both been important as normative texts, inspiring other conventions and bringing important issues to the fore.
The International Labour Organisation (ILO) has an impressive array of conventions and normative instruments covering almost all walks of life where the world of work and labour is involved. In our country database (see above) we have highlighted a few that have direct consequences for teachers, teacher unions, indigenous people’s rights, child labour and minimum ages etc. Like with UNESCO conventions, their role are as normative texts and guidance for national laws and policies, as well as for other international standard setting aspirations, as their oversight mechanisms have less ‘bite’ for civil society campaigners or lawyers than the UN conventions.
UN documents
The conventions has cyclic systems of reporting: the state submits a report each 4-5 years to the committee of independent experts, who responds with a set of questions issued to the state, a face-to-face meeting in Geneva then takes place and a final set of concluding recommendations or observations on the status and rate of implementation is issued. All this takes place in public. This current system of many different committees and reporting cycles does produces a lot of paper and can be a huge burden on national civil services, and leave much room for deference and delays. But they also provide many opportunities for civil society: to either work with the state, or to produce a critical shadow report which will always be considered by the committee; and to use both the process and the observations to “name and shame”, keeping up and renewing due pressure on the state.
For all UN human rights documents, visit: The Universal Human Rights Index
The number of UN documents is ever-growing, but many of them can be extremely useful to campaigners. The Right to Education Project cannot keep track of this. So we refer to the UN’s database for identifying what fits your specific interest or campaigning needs.
The Universal Human Rights Index gives this access. The index is based on the observations and recommendations of the following international expert bodies:
(1) Committees of independent experts of the treaty bodies monitoring the implementation of the core international human rights treaties (since 2000)
(2) Special Procedures of the Human Rights Council (since 2006) – both country and thematic reports, see esp. under education, minorities, gender etc
Therefore please do take your time to search The Universal Human Rights Index. It is available in 6 languages
Simple searches can be carried out directly on the home page. Document can be searched by entering a keyword, a country, a body or a right, or any combination of these elements.
The advanced search link makes it possible to refine searches by: combining criteria (e.g. several countries, bodies or rights at the same time); combining keywords; using ‘affected persons’ as a criterion; by the year of publication; or by symbol.
What to look for?
We recommend that you either look at the references to education/gender/minorities/discrimination etc in the concluding observations by the committee, in order to use these views in your campaigning.
Furthermore, you should visit the individual committees, to keep track of when your country is up for review next time, if a report has recently been posted and when it therefore is opportune to produce a civil society shadow report to counter-balance the official state report.
The major committees dealing with education rights and non-discrimination are:
The Committee on Economic, Social and Cultural Rights (CESCR)
The Human Rights Committee (HRC, dealing with the Covenant on Civil and Political Rights)
The Committee on the Rights of the Child (CRC)
Committee on the Elimination of Racial Discrimination (CERD)
Committee on the Elimination of All Forms of Discrimination against Women (CEDAW)
Committee on Migrant Workers (CMW)
Committee on the Rights of Person’s with Disabilities (CRPD)
If you do not find what you seek or otherwise need further advice on navigation, please do not hesitate to contact us and we will aim to help you as best we can: info[at]right-to-education.org
