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The Right to Education: International Legal Obligations

Critical review of an article by Kishore Singh published in IJELP [2005], issue 1-2.
by

Dr Maria Smirnova

on 23 January 2013

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Transcript of The Right to Education: International Legal Obligations

International Legal Obligations
of the States Concerning
the Right to Education Critical review of an article The Author's View of the Subject Conclusion:
clarity, usefulness and contribution to understanding of the subject Advantages Novelties 2. Nature and sources of international obligations 3. Connection with other human rights 1. 'Dimensions' of the right to education Subject matter Structure Methodology... Aims,
methodology,
structure the right to education as an internationally recognised fundamental human right.

comprehensive overview of UNESCO and UN international instruments dealing with the right to education. traditional doctrinal approach:
- "black-letter law"
- no extra-legal sources or techniques Very vague:

- names of the subdivisions seem interchangeable.
- the text is full of restatements and duplication. Dimensions - essential components, or building blocks of the right to education. 'equity of access’ to education, not just equality.

EQUITY OF ACCESS:
a certain form of positive discrimination towards ‘special target groups’ of less advantaged people. ‘right to education has been devised to benefit both individual and society’ The Right to Education:
International Legal Obligations
by Kishore Singh since 2010 – Special Rapporteur
on the right to education
in the UN Human Rights Council binding and non-binding international instruments of UNESCO and United Nations imposing legal obligations or having ‘moral force’ in relation to the responsibility of a state to respect, protect and fulfil the right to education. aims, methodology and structure clarity and comprehensiveness approaches used analyse the position of the author creates an unbeatable legal argument denies any connection of the phenomenon under scrutiny with the reality outside the courtroom ... and style academic, scholarly style:
textbook-like instructive and descriptive manner leaves almost no room for personal contribution.

No rhetorical questions
No ironical tone in theory: - free and compulsory primary education;
- secondary education available and accessible to all;
- higher education accessible to all on the basis of individual capacity;
- equal standards of education in all public schools;
- training for the teaching profession without discrimination. Singh: regards the right to education as ‘as an empowerment’. Right to education: as a tool to fight poverty,
an empowerment right,
a right to development... one of the Millennium Goals of Development it opens up opportunities for marginalized categories of people, especially women, children, minorities. General Comment No. 13 'education ‘must be accessible to all, especially [to] the most vulnerable groups’, including ‘non-nationals and irrespective of their [children’s of school age] legal status’. ECJ 'Casagrande' [1974]: A student with migrant background was entitled to the right to attend school ‘under the best possible conditions’. Singh: education is ‘empowering individual[s] and transforming societies’ CDE:
protection of the rights of national minorities to receive education.
empowerment for women. 'reaching the unreached':
the poor,
women and girls,
rural populations,
minorities,
refugees,
countries or populations victims of disasters and people with special needs. The right to education is it a right or a ‘possibility’?
a right or a principle?
a right or a freedom ? Outside the scope: respect protect fulfill 3 levels of obligations on State parties to avoid measures that hinder or prevent the enjoyment of the right to education negative obligation to take measures that prevent third parties from interfering with the enjoyment of the right to education. positive obligation to take positive measures that enable and assist individuals and communities to enjoy the right to education (facilitate and provide) positive obligation Broad definition.

In this respect the right to education is ‘like all human rights’.

Therefore:

No nuances arising from socio-economic nature of the right;
No specific features as an overarching ‘development’ right.

Not an immediate obligation! Interrelation and difference legal state obligations under binding conventions and treaties non-binding, yet compelling, political (or moral) responsibility arising from 'soft law' Dakar Framework for Action
'could be taken as imposing legal obligations on the signatories' ... Singh: no connection, BUT: The right to education parental right to choose education Other rights: academic freedom - freedom of communication freedom to teach (express information) and learn (receive information) in conformity with their convictions:
- freedom of thought, conscience and religion; - right to respect family life. - religious freedom;
- linguistic rights;
- freedom of movement etc comprehensive analysis of the international human rights instruments outlining the states' obligations.
efficient evaluation of 'soft law'.
elaborated system of sanctions for infringement of both binding and non-binding obligations. Flaws By whom?
When?
How? The End
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