This article considers the question of the justiciability of social and economic rights from both a conceptual and an experiential perspective. It first reviews some of the major concerns that are frequently raised in relation to whether social and economic rights can, or should be, adjudicated by courts, drawing on commentary from experts and judicial and quasi-judicial bodies considering this question. This is followed by an overview of the growing body of jurisprudence from domestic courts and regional and international bodies that have adjudicated social and economic rights. 

This article critically evaluates case-law developments regarding the right to basic education as enshrined in the South African Constitution and argues that litigation, or at the least the threat of it, plays an important role in the realisation of the right to education. 

This paper argues that social and economic rights, defined as rights to the satisfaction of basic needs, are constitutional essentials at domestic level and claims of the highest priority at supranational level. Their inadequate legal protection in national and supranational orders is not justified. Social rights have common foundations with civil and political rights, but have been neglected in law because of Cold War ideologies. The paper explores the role of courts and the role of legislatures in the protection of social rights, and identifies the key challenges in each of these fields. 

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.

This issue of the INTERIGHTS Bulletin focuses on litigating the right to education in Africa. It includes the following articles:

Litigating the Right to Education: Editorial
Solomon Sacco and Susie Talbot

Africa and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
Malcolm Langford and Rebecca Brown

Litigating the Right to Universal Primary Education: Challenges and Prospects
Iain Byrne

Toward Recognition of the Right to Free Education in Colombia
Esteban Hoyos-Ceballos and Camilo Castillo-Sánchez

Expropriation as a Means to Protect the Right to Basic Education: The Case of a Farm School on Private Property Facing Eviction
Dmitri Holtzman

Lessons from Litigating Universal Primary Education in Swaziland
Ruchi Parekh

Developing a Litigation Strategy Regarding Non-Fee Barriers to Equal Access to Free and Compulsory Education for Children in Kenya
Hellen Mutellah

Litigating the Expulsion of Pregnant Girls
Solomon Sacco

Tactics to Secure the Right to Education for Children Living with Albinism in Kenya
Gertrude N Angote

Dzvova v Minister of Education, Sports and Culture & Ors
Bellinda Chinowawa

Republic v Head Teacher, Kenya High School, ex parte SMY
Charlotte Leslie

The Legal Way of Doing Things: The Competing Powers of School Governing Bodies and Education Authorities in South Africa
Karabo Ngidi

The ECOWAS Decision on the Right to Education in SERAP v Nigeria
Adetokunbo Mumuni and Chinyere Nwafor

Advancing the Right to Education Through the Communication Procedure in the African Committee of Experts on the Rights and Welfare of the Child
Charlotte Leslie

The following articles relevant to the justiciability of the right to education can be found in this INTERIGHTS Bulletin:

  • Diokno, MSI (2007) Short-changing the Right to Education in the Philippines,
  • Ribeiro, RM (2007) Securing the Right to Education in Brazil: A Brief Overview of the Role of the Courts
  • Courtis, C (2007) The Right to Education in the Jurisprudence of the Inter-American Court of Human Rights
  • Cojocariu, C (2007) Racial Discrimination against Roma Children in Schools: Recent Developments from Courts in Bulgaria and Hungary

The following article is relevant to the right to education of minorities:

  • de Varennes, F (2007) Language Rights in Education

The adoption of the OP-ICESCR is only a beginning and that the real challenges lay ahead. 

This Commentary is intended to benefit claimants and their advocates and to provide a broader resource for states and the Committee – providing a deeper jurisprudential base on the range of issues likely to be raised. In so doing, the Commentary charts in effect both the legal opportunities but also the limitations.

In describing the state courts’ active new role following the U.S. Supreme Court‘s decision in Rodriguez v. San Antonio Independent School District,1 this chapter emphasised the dramatic change in the outcome of challenges to state education finance systems that occurred beginning in 1989. From that year up until the time of the book‘s publication in 2009, plaintiffs, who had lost over two-thirds of the cases in the preceding decade, prevailed in more than two thirds of the final liability or motion to dismiss decisions of the state's highest courts. This dramatic turnabout was attributed to the shift in plaintiffs’ legal strategy from an emphasis on equal protection claims to a substantially increased reliance on adequacy claims; the text also stated that the burgeoning standards-based reform movement had a significant impact on the capacity of the courts to craft effective remedies in these cases.

From late 2009 through the end of June, 2017, there were seventeen rulings of state supreme courts or unappealed lower court decisions in cases involving constitutional challenges to state education funding systems. Plaintiffs prevailed in eight of these cases (California (Cal. Sch. Bds), Connecticut, Kansas (2) Louisiana, New Hampshire, South Carolina, and Washington), and defendants prevailed in nine (California (Coalition), Colorado (2), Indiana, Michigan, Missouri, Rhode Island, and South Dakota and Texas). Thus, plaintiffs prevailed in less than 50% of the major cases that were decided in these recent years.

 

 

 

Key resource

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.