According to UNESCO, 264 million children and youth are still out of school around the world, and this is only accounting for the primary (61 million) and secondary school (203 million) age population. In particular, the poorest and most marginalised, including ethnic and religious minorities, persons with disabilities, girls, and populations experiencing conflict, are often systematically unable to access and complete a full cycle of quality education. The first volume of NORRAG Special Issue (NSI) is dedicated to examining international frameworks and national policy as well as the challenges of fulfilling the right to education in practice.
The inaugural issue of NSI on the Right to Education Movements and Policies: Promises and Realities aims to highlight the global and national level experience and perspective on guaranteeing the right to education, as outlined in international frameworks, national constitutions, legislation, and policy, when creating the required administrative structures to ensure that the right is respected, protected, and fulfilled for all.
The Issue is divided into six parts, each focusing on a specific theme of right to education policy and practice. The first part includes an article written by RTE staff on The Role of Court Decisions in the Realisation of the Right to Education, which draws on RTE's background paper on accountability for the GEM Report 2017-8.
RTE's background paper for the Global Education Monitoring Report 2017/8: Accountability in education: Meeting our commitments.
The purpose of the paper is to show how a human rights-based approach offers insights and practical solutions to address the accountability deficits found in both education policy decision-making and implementation, and the 2030 Agenda for Sustainable Development.
Specifically, the paper argues that a human rights-based approach to accountability can bolster public policy accountability by defining the responsibilities of authorities, ensuring they are answerable for actions regarding those responsibilities, and how they can be subject to forms of enforceable sanctions or remedial action for failures to carry out those responsibilities.
As the national government is the primary duty bearer for the right to education it is important for any report on accountability to start with the responsibilities of government. The paper provides an overview of the right to education legal framework to which States have legally committed, as well existing international and regional accountability mechanisms.
The paper then explores the connections between the 2030 Agenda, the Incheon Declaration, and human rights law. The Incheon Declaration affirms, ‘the vision and political will reflected in numerous international and regional human rights treaties that stipulate the right to education and its interrelation with other human rights” (para. 2). In the Declaration education is framed as both a “public good” and a “fundamental human right” (para. 5). However, whether a rights-based approached is consistent or present in the operationalisation of SDG4 has not been clearly debated. Part of this challenge is the diluted and often, overly simplistic notion of what the right to education entails. The paper seeks to better understand the similarities and differences of these two large global frames for education and includes a matrix that links the normative content of each framework. This matrix shows that the content of each is largely aligned, even if the processes are not. The paper argues that by recasting the content of SDG4 as part of the right to education, the legal obligations owed to that content can be invoked. This renders various elements of SDG4, if the state in question has legally committed to the right to education and incorporated the right to education in their domestic legal orders, amenable to adjudication by competent mechanisms, offering the possibility of legal accountability through legal enforcement.
The second half of the paper explores the prevalence of the right to education in national laws and the conditions necessary for the right to education to be successfully adjudicated at the national level. It provides an overview of how countries have incorporated the right to education in their domestic legal orders, as well as a list of countries where the right to education is justiciable. This is complemented by a series of case studies that draw out the requirements for successful adjudication at the national level.
At the national level the incorporation and implementation of the right to education, as required by international treaties, requires at least three stages. Firstly, countries must translate their international legal commitment into concrete action to ensure the full enjoyment of the right to education. This includes the incorporation of the right to education into the domestic legal order, through the adoption of education laws and policies. Secondly, countries must secure the right to education as a justiciable right. Lastly, the justiciable right to education must be able to be adjudicated fairly through the judicial system. Whilst the first stage is completed at a near universal level by countries, the final two stages, essential for the fulfilment of the right to education, are achieved by significantly fewer countries. Even when justiciability is present, various barriers may be present that hinder the adjudication of the right to education. Understanding how countries move from incorporation to application and implementation is essential to understanding whether the right to education is truly realised in a country. Our analysis shows that legal enforcement, through mechanisms competent to hold duty-bearers legally accountable, has a positive impact on the realisation of the right to education. Furthermore, little is known about how the political, social, and cultural context of a country limits or enables the adjudication of the right to education. This paper examines court cases from countries around the world to identify the conditions that enable the right to education to be realised through adjudication.
It has recently been suggested that the age of human rights is over. The West, itself often not respecting human rights, is said to have abused the concept as a tool to retain control over the developing world. Human rights have remained a foreign construct in Africa, the Near East, and Asia. They have "underperformed," and the level of privation in many parts of the world is more intense than ever. This Article acknowledges elements of truth in these observations, but argues that the battle for human rights is not lost. Using the right to education in Africa as an example, three arguments will be presented to explain how human rights can regain their moral cogency and actually help change a world of misery for the better. First, human rights need to be "domesticized," made "home-grown" achievements with which local populations can identify. Regional human rights institutions need to give specificity to universal norms. These "locally-owned" norms must then be effectively enforced. Second, pure "development goal" approaches to reducing global poverty need to be debunked. Instead, a human rights approach needs to identify clear duty-bearers, including notably the World Bank, who, when they have failed to comply with specified duties, should be considered "human rights violators" and held accountable accordingly. Third, and perhaps most importantly, human rights must be recognized to give rise to extraterritorial state obligations. These are obligations of states, in appropriate circumstances, to respect, protect, and fulfill the human rights of those beyond their own territory. The extraterritorial human rights obligations of states must structure bilateral development assistance and cooperation, the lending operations of the International Monetary Fund and the World Bank, and free trade within and beyond the World Trade Organization (here, meaning the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights).