Ressources

Many countries have incorporated the right to education in their constitutions. The present article discusses the modalities of how a number of key dimensions of the right to education have been subject to judicial or quasi-judicial review. In other words, it discusses how the courts have dealt with the educational issues brought before them. Such cases do not always use right-to-education language, but generally speaking they deal with two aspects of the right to education, namely the right to receive an education and the right to choose an education. One of the major arguments against economic, social and cultural rights being on an equal footing with civil and political rights has always been that the former are not justiciable. The present article will reveal that the right to education is and has been fully justiciable in many jurisdictions.

This article was published in Erasmus Law Review, Vol. 2, No. 4, pp. 427-443.

The UN Convention on the Rights of Persons with Disabilities in article 24 seeks to combat discrimination of children with disabilities in the field of education by prescribing a model of social inclusion. This paper will critically examine the sociological concept of inclusion, the German experience in implementing article 24 and the limitations of article 24 vis à vis the Right to Education in the International Covenant on Economic, Social and Cultural Rights. Before turning to the situation in Germany it is beneficial to discuss underlying concepts relating to special need education in order to clarify the notion of inclusion. In doing so, contested medical concepts, the perception of education as end rather than means and the voicelessness of the child, all lead to the conclusion that a rights-based approach is advantageous in acquiring social justice. Moreover, looking at the case of Germany and a school system with an exclusion rate of 82% the delay in the public discourse about inclusion is particularly striking. Hence, section 3 will look at empirical data, the UN definition of education and elaborate on the German confusion of inclusion and integration by making reference to domestic law and an exemplary case along with relating the Monitoring Body’s guidelines of availability, accessibility, acceptability and adaptability to the action plan of North Rhine-Westphalia. Finally, the application of social inclusion maxims to anti-discrimination law demands significant, positive adjustments but is also restricted by its focus on absolute disadvantage. The convention is arguably limited because of its narrow outlook owed to its civil and political nature and inclusive reform might bring broader equality when applied to the a priori Right to Education from the International Covenant on Economic, Social and Cultural Rights.

This Guide will inspire and help judges and lawyers working at national level to litigate cases involving economic, social and cultural rights.

In particular, it aims at giving examples from a large variety of countries and jurisdictions of how courts and other bodies have dealt with the adjudication of these rights.

The Guide also addresses issues that legal practitioners are faced with at the different phases of litigation, from initiating a case and evidence building to the provision of remedies and the enforcement of judicial decisions.

Please note, that this Guide is an updated version of Courts and the Legal Enforcement of Economic, Social and Cultural Rights. Comparative Experiences of Justiciability.

In addition to the electronic version of the Guide in a book format, the ICJ has also launched a searchable online version that is accessible on the ESCR page.

Alternative report submitted in November 2014 to the United Nations Committee on Economic, Social and Cultural Rights (CESCR) at its 54th Session for its consideration of the List of Issues for Chile. The report calls on UN human rights experts to question the government of Chile about the human rights violations resulting from its privatised education system.