In order to understand and analyse how the right to education is implemented and enforced at national level, it is necessary to look at which human rights treaties the State in question is committed to and how the provisions of these treaties are incorporated and translated into domestic laws and policies. Statistical information and case-law can be used to analyse the degree to which the State is complying with its human rights obligations.
For a treaty to be legally binding on the State, the State must ratify or accede to the treaty. When a State signs but does not ratify a treaty, it is only bound by the treaty in a moral and political sense until it ratifies. Ratification usually involves approval from the relevant national organ of the State (e.g., Parliament or the Head of State) and formal consent at the international level.
The constitutional guarantee of the right to education is the highest protection that can be accorded at the national level. The constitution serves as a framework for all other laws and policies, which have to be in conformity with it.
National constitutions vary from State to State, which results in variations in the way that the right to education is guaranteed constitutionally. Some constitutions provide general guarantees of the right to education while others are more specific, for example, they explicitly guarantee gender equality or free and compulsory education.
Generally, constitutions provide for legal recourse when the guaranteed human rights are violated.
Laws do not provide as strong protection as constitutions, but they guarantee the right to education in more precise detail and are more frequently updated to reflect society’s changing needs. States may establish different laws for different aspects of the right to education. For instance, it is common to have specific laws for the different levels of education. National laws on education should be adopted through a democratic process and enforced by the judicial system. This means that if a law is not followed, those responsible for breaking the law can be held to account, and policies or actions of the government that do not conform to the law can be challenged.
Note: in decentralised or federal States, laws on education may also be adopted and enforced at the sub-national or provincial level.
Policies on education, which must comply with laws, are developed by the government and outline its main priorities. They are more flexible than laws and can be changed more easily. They inform how the right to education is implemented in a particular context.
Note: in decentralised or federal States, policies on education may also be developed and implemented at the sub-national or provincial level.
Case-law on the right to education includes decisions of national, regional and international courts as well as decisions from national administrative bodies, national human rights institutions and international human rights bodies.
Case-law can provide examples of violations of the right to education, as well as interpretation and clarification of international and national laws guaranteeing the right to education, Case-law can also be used to challenge other cases on a similar issue, especially in common-law countries such as the UK, Canada and the US, where decisions set a binding precedent on all courts when deciding subsequent cases with similar issues or facts.
Most States and some intergovernmental organisations (e.g., UN, World Bank) collect periodic data regarding education, which is typically used to inform planning (e.g., policies, budgets) as well as compliance with laws. Other actors, such as research institutes, universities and civil society organisations, may also collect data regarding education, usually around a specific project or initiative. Statistics and data on education can provide useful information that can be measured to determine if States are complying with international human rights standards for the right to education. They can also indicate if laws and policies are translated into concrete reality.