Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable

A well-established adage posits that no right can exist without a remedy. This truism is sometimes forgotten for economic and social rights, including the right to education, thereby divorcing them from their grounding in law and transforming them into a secular religion. Such experiments are not likely to take root, nor are they likely to be beneficial for the human rights cause, unless the core of human rights is preserved and strengthened – rights entail corresponding obligations and ought to be accompanied by access to remedy for alleged denials and violations. The conceptual counterpart of human rights are then governmental obligations. Governments are individually obliged to secure human rights for their own population. They cannot be held legally responsible for violating human rights in other countries and international development co-operation is perceived as human-rights promoting, or at worst neutral. It often facilitates the realization of human rights, it is almost never neutral, while it can also harm human rights.

On the one hand, governments of developing countries can be pressurized into violating or denying human rights through conditions for development finance. Trade union freedoms of teachers can be denied so as to keep their salaries low and reduce budget deficits. On the other hand, governments could be assisted in promoting and protecting human rights where development finance is designed within the framework outlined by international human rights law. In-between, many policies that are apparently human-rights neutral have significant human rights effects. An example are ceilings on the size of civil service which may inhibit teacher recruitment and thus jeopardize increased or even sustained access to education.

These issues are addressed in Primer No. 5; this text is discussing governmental obligations at the domestic level. The right to education is routinely classified as an economic, social and cultural right; these are often deemed to be lacking remedies and are accordingly treated as quasi-rights or not-quite rights. As a consequence, denials and violations of the right to education are not addressed. This reductionism ruptures the symmetry of law which balances rights and duties, freedoms and responsibilities. Keeping the symmetry, this text concentrates on governmental obligations which stem from the right to education and discusses different types of human rights obligations which distinct facets of the right to education entail. Different from its frequent but erroneous image as being only an economic, social and cultural right, the right to education is also a civil and political rights. Moreover, it straddles individual and collective rights, embodying both.