The Joint Expert Group UNESCO (CR)/ECOSOC (CESCR) on Monitoring of the Right to Education in its Second Meeting in May 2004 stated that both the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention against Discrimination in Education (CADE) needed to be carefully examined in a comparative perspective. This should be guided by the General Comments and the Revised Guidelines of CESCR used for monitoring work and the new guidelines for monitoring the implementation of CADE. The Joint Expert Group noted that 83 States are parties to both the CADE and the ICESCR. There is thus the risk of overlaps in the work of the Committees (CESCR and CR) as well as of the States parties’ reports. It was therefore suggested that a document, “which brings out the common features as well as differences in CADE and ICESCR along with a chart of equivalent provisions and the States which are parties to both CADE and ICESCR” be prepared. The present document on the comparative analysis of Articles 13 and 14 of the Covenant and the Convention has accordingly been elaborated.

The Guide identifies equality and non-discrimination strategies that NGOs, lawyers and activists may employ in seeking to advance economic and social rights (ESRs) before courts. It is also accompanied by an online Compendium of useful cases in which equality and non-discrimination concepts and approaches have been employed to advance ESRs.

The Guide is split into three parts. Having introduced the rights framework, the Guide identifies conceptual and practical reasons why equality and non-discrimination arguments should be employed when challenging violations of ESRs. It then presents clear and practical guidance on how to use equality and non-discrimination strategies in courtrooms around the world.

Ceci est le document nº1 des 3 documents conçus pour présenter le récent travail de recherche et de plaidoyer mené par l’Initiative mondiale pour les droits économiques, sociaux et culturels, en partenariat avec les organisations de la société civile dans 7 pays du monde, ainsi que l’Initiative sur la privatisation de la recherche dans l’éducation et le Right to Education Project. Le travail examine de façon critique les effets de la privatisation de l’éducation en utilisant des mécanismes des droits de l’homme. Les documents sont conçus pour servir d’introduction à ce travail et l’Initiative mondiale pour les droits économiques, sociaux et culturels peut apporter d’autres ressources, des informations et une aide à quiconque souhaiterait s’engager dans cette étude. 

Accéder au document n°2: Comment utiliser les mécanismes des droits de l’homme

Accéder au document n°3: Études de cas sur les rapports parallèles pour faire face à la privatisation de l’éducation

ENGLISH

This guide, issued by the Office of the High Commissioner for Human Rights (OHCHR), focuses on how civil society can follow up on recommendations of United Nations (UN) human rights mechanisms and mandates or bodies.

Part I provides an analysis of the various legal issues commonly encountered in economic, social and cultural rights litigation. These include identifying the relevant sources of law, establishing justiciability, defining the nature and scope of rights and obligations, responding to the defences available to governments, and the crafting of appropriate remedies. The next chapters address the right to legal aid for economic, social and cultural rights litigation, specific rights (social security, housing, health and education), as well as the social rights of children. This will provide the user of the manual with a sense of how the application and interpretation of economic, social and cultural rights may vary depending on the group claiming the right and the particular right at issue.

In Parts II and III, the various regional and international complaints procedures are outlined. For each human rights mechanism, there is a description of the relevant legal instruments, the applicable economic, social and cultural rights standards and the responsible adjudicatory body. The procedure for making a complaint is set out in detail, together with the limitations of the various procedure. Each chapter concludes with a brief analysis of the jurisprudence of judicial or quasi-judicial bodies and a list of useful resources. The remainder of the manual seeks to provide the user with a range of practical resources for litigation.

Part IV sets out summaries of leading cases on economic, social and cultural rights,

The Advocacy Toolkit is applicable for all levels of the organization as a resource for building a structured approach for sustained advocacy. The tools are particularly relevant for UNICEF country offices and national committees, but its content will also be valuable to anyone who wants to expand their understanding of the human rights-based approach to advocacy and how this approach is applied. 

The Strategic Litigation Working Group (SLWG) has launched a discussion paper with eight key proposals regarding the follow-up on views issued by United Nations human rights treaty bodies (UNTBs). ESCR-Net’s SLWG recognises the significance of decisions issued by UNTBs under the complaints procedures (Views) in the advancement of human rights enjoyment by people around the world, and welcomes the past action and willingness of the UNTBs to continue developing constructive practices regarding the impact and implementation of such Views.

Three principles underpin the SLWG’s proposals: the principle of non-repetition (consistently applied by the HRC in its views and by the CESCR in its General Comments); the principle of reasonableness (developed by the CESCR through its General Comments and 2007 Statement on Maximum Availability of Resources, and made explicit in the OP-ICESCR); and the principle of participation (recognised under a number of UN human rights treaties). Taking into account the practice of different international and regional human rights bodies, the SLWG proposes that the three principles should be applied during the consideration of a case, follow up and implementation, in order to maximise the effectiveness of human rights remedies.

While many authorities can tolerate some traditional campaigning methods, it is usually harder to ignore the law. As part of broader campaigns, the law can be a powerful tool for achieving the changes that children need. Legal advocacy is now being used systematically in a few countries – leading to strong outcomes for children – and it has great potential for wider use.

There are many occasions for legal advocacy. International law sets out the principles and standards that states are obliged to meet but frequently do not, and so their domestic law violates children’s rights. Often, a state meets a standard in domestic legislation but its policy fails to implement the law. Sometimes, it is unclear what a law means in practice, or the meaning is clear but no one knows whether it is being implemented. These various gaps between international legal standards, domestic law and state policy (or corporate policy) present potential opportunities for legal advocacy.

There are also many avenues for legal advocacy. It is a broad term, not limited to taking rights violators to court. Many small-scale legal activities can enhance traditional campaigning, such as reporting on the implementation of a law, or raising awareness of what the law says. Sometimes, simply documenting and publicising the gaps between law and practice is enough to persuade decision-makers to act. But only sometimes. Towards the other end of the spectrum is work that demands more time and resources, including taking a government or corporation to court in order to bring broader social change. A successful case might improve the legal standards that apply to children, or lead to a major policy change of long-term benefit to children.

This introductory guide offers a brief overview of avenues for legal advocacy. It also offers guidance on how to explore your options, and how to promote legal advocacy work with other children’s rights advocates.

In South Africa, SECTION27 has used rights-based strategies, including litigation, to hold the state accountable for not ensuring the procurement and delivery of textbooks to schools across Limpopo, a poor rural area of the country.

For the past 18 months, a number of international, national and local organisations have been working together to research and assess the effects of the growth of private education from a human rights perspective in 8 countries. This work, led by the Global Initiative on Economic Social and Cultural Rights (GI-ESCR) in Partnership with the Privatisation in Education Research Initiative (PERI) and the Right to Education Initiative (RTE), has produced an effective methodology that civil society can use to tackle privatisation in their countries.

This work has been conducted in Morocco, Ghana, Uganda, Kenya, Brazil, Chile and Nepal. In the UK, organisations have examined the impact of development aid to support to private education in developing countries.

This strategy has been very successful in producing statements and recommendations from key UN human rights bodies. The work has also contributed to reports by the Special Rapporteur on the right to education to the UN General Assembly and the Human Rights Council on the impact of private actors on the right to education. Advocacy at the international level has fuelled national advocacy and dialogue with governments, private actors and other stakeholders on this issue.

There is a unique opportunity for civil society to tackle complex issues of privatisation in education by using this framework. The methodology can easily be replicated by your coalition, even if you have no experience using human rights mechanisms. This 3-part series explains this work in more detail and how your coalition can get involved. The documents are designed as an introduction. 

Part 2 on How to use Human Rights Mechanisms is available, here.

Part 3 Case-Studies on Parallel Reporting to Tackle Privatisiation in Education is available, here.

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