Under international law, States have to determine how capacity will be assessed.
The Universal Declaration of Human Rights states that higher education should be ‘equally accessible to all on the basis of ‘merit’. The human rights conventions adopted subsequently, replaced the word ‘merit’ with ‘capacity’. ‘Merit’ and ‘capacity’ become an issue when they are used to justify the reproduction of social privileges on the basis of selective admissions’ procedures that do not take into account substantive equality. When assessing capacity States must avoid the use of unjustified criteria that would lead to discrimination to refuse access to higher education.
Article 26, Universal Declaration of Human Rights; Articles 2.2 and 13 (2)(c), International Covenant on Economic, Social and Cultural Rights; Article 4(a), Convention against Discrimination in Education; Article 28(c), Convention on the Rights of the Child.