By Meghan Campbell, Lecturer-in-Law, University of Birmingham. Deputy-Director, Oxford Human Rights Hub
Few people recognize that the courts can be an effective way to enable children to access inclusive, equitable education of good quality. However, to achieve this, human rights lawyers need to use the litigation path in a strategic way to take advantage of the opportunities the law provides.
Strategic litigation has predominantly focused on domestic legal processes. Learning Lessons from Litigators: Realising the Right to Education Through Public Interest Lawyering by the Oxford Human Rights Hub shares the experiences of litigators in Brazil, India, South Africa, and the United States on how to best use courts to overcome deficiencies in the delivery of education. This blog explores the findings, and how they can be used to achieve a right to education.
Even with the most sophisticated and persistent litigation strategies, it can still prove difficult to achieve structural changes in the education system. Courts may not be sensitive to the plight of learners, for example; governments may resist implementing court orders and problems with the education system, such as the misrepresentation of women and girls in textbooks, may not be amenable to typical domestic forums. By ratifying treaties that protect the right to education, many states have agreed to be held accountable on the international plane. UN treaty bodies have been champions in fleshing out the details of the open-textured right to education and holding the state to account. What can the international spotlight bring to upholding the right to education at the country level?
A majority of states have signed and ratified key UN treaties on education: the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. Under these treaties, every four years, the state submits a report explaining the effort it has taken to realize the right to education. The treaty body in its Concluding Observations then assesses areas under implementation and provides recommendations on how the right can be fully realized.
Civil society organisations are crucial in this process as they can submit shadow reports. These reports can provide the critical assessment that is often lacking in the state report and draw to the attention of the treaty body some of the most pressing issues in education. This has been successful in crystallising that the rise of private actors in education is a human rights issue and emphasizing that development aid needs to be channelled towards free, quality public schools. Devoting time and resources to shadow reporting is a good option for refining the nature of the state’s obligation and to emphasise the importance of taking a human rights-based approach to education.
There are several additional remedial mechanisms under the UN treaties. Some treaty bodies are empowered to receive individual communications. These are similar in character to judicial proceedings. They have not been used in the context of the right to education but are a strong option when courts have rejected the claim and domestic avenues of accountability have been exhausted. Some treaties are empowered to conduct inquiry procedures.
Civil society organisations can file concerns that there are grave and systemic abuses of the right to education occurring within the state. The treaty body can then conduct a fact-finding mission where it interviews a plethora of stakeholders. If it concludes that there have been serious violations of the right to education, the treaty body releases a report with recommendations. Again, this has not been used in the context of education but has been used in relation to gender-based violence and disability discrimination with a degree of success. This is an attractive international remedial option when seeking to address deep structural inequalities in the education system, particularly claims that might be ignored in domestic context or claims that are not amenable to traditional court proceedings.
The comparative weakness of the international human rights system is that treaty bodies’ recommendations are not binding and the treaty bodies possess no power to enforce them. It is not enough to simply obtain a decision that vindicates the right to education. However, this limitation should not be used to outright dismiss the value of international human rights law.
Instead it should be seen as a call to lawyers, civil society organisations and other activists to both have a realistic understanding of what they seek to gain from international forums and to be creative and imaginative in translating those gains into domestic forums. This is what is known as strategic litigation. Concluding Observations, Individual Communications and Inquiry Procedures can provide important legitimacy for civil society organisations campaigning for education; can be the basis for putting pressure and facilitating constructive dialogue with government; to develop dissemination plans so as to mobilise public opinion; and as further persuasive and compelling legal authority in domestic court proceedings.
It would be wrong to ignore international human rights law as a remote ivory tower divorced from the on-the-ground struggle to achieve education goals. With a careful assessment of the purpose and strengths of different remedial forums that exist and developing a strategy for how to use favourable decisions from the UN treaty bodies, international human rights law offers an exciting additional tool for public interest lawyers.