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Understanding and using international law

The international legal system has the state at its centre: the state ratifies treaties and thereby assumes the obligation to respect, protect and fulfil the rights enshrined therein. And it is the state itself that must report on its measures of implementation and that can be “named and shamed” in public for not doing so. Treaties specify mechanisms by which the international community can hold states to account: exerting pressure from above (often a very powerful approach); or they can become overtly politicised at the UN or regional fora. The challenge to campaigners and the courts is to place this power in the hands of those whose rights have been violated by the state.

The UN

The United Nations system, begun in 1945 with the UN Charter, depends on the participation by states, as signatories to treaties, authors of reports on the progress and rate of implementation of rights, and as parties to face-to-face meetings and recommendations. The UN works both as a peer system (via the Universal Periodic Review), in which states judge and put pressure on each other - or avoid doing so for political reasons – as well as a system of independent experts (via the committees of the various conventions), who examine, interpret and recommend or criticise the efforts of countries on the background of the normative texts and the internationally binding law.

UN committees

The major UN conventions each have provisions relevant to education, non-discrimination or access to justice, and they can all be signed up to by states, thereby obliging these to respect, protect and fulfil human rights. Countries are bound by treaties to differing degrees, according to whether they have ratified or acceded (almost the same) to them, signed them, or merely indicated an intention to do so. Furthermore, it is very important to note whether or not states have lodged any reservations or declarations, as these bar the convention in question from entering into its full effect at the national level. Lastly, some conventions, either in their core text or in optional protocols, specify routes of individual complaints to the different committees of independent experts, and it must be noted if these exist before contemplating legal action at this level.

Universal Periodic Review

The Universal Periodic Review (UPR) is the latest reporting mechanism at the UN, created by the new UN Human Rights Council. According to this mechanism, it is states themselves who examine other states (as opposed to independent experts on the convention committees), with each country in the world reporting and being examined during a 4-year cycle. This means that a great degree of politics enters into the process – both as peer pressure and as unholy alliances between countries with shared interests. But it also creates room for civil society to play an important role: in submitting a shadow report with additional information, and to put pressure on either the examined or the examining states to focus on the critical issues

Regional systems

When domestic institutions are the violators or when they fail, it may be necessary to seek redress beyond national boundaries. The regional system is a supranational mechanism of redress, and, unlike the ‘higher’ level of the UN, the regional system also offers actual courts whose decisions are legally binding upon the State. There are only 3 regional systems, as Asia is regrettably still lacking one – posing a great positive challenge for civil society campaigners and public interest lawyers in the Asia region to lobby for such a mechanism.

UNESCO

UNESCO has many conventions, two of which are particularly important as standard setters in the field of non-discrimination in education and on technical and vocational training. Both of them suffer slightly from a comparatively low rate of ratification and neither of them have very impressive oversight mechanisms, with all reporting done in private, leaving little room for “naming and shaming”. This arguably makes them less useful as international legal instruments. However, they have both been influential as normative texts, inspiring other conventions and bringing important issues to the fore.

ILO

The International Labour Organisation (ILO) has an impressive array of conventions and normative instruments covering almost all walks of life involving the world of work and labour. In our country database (see above) we have highlighted a few that have direct consequences for teachers, teacher unions, indigenous peoples' rights, child labour and minimum ages etc. As with the UNESCO conventions, their oversight mechanisms have less ‘bite’ for civil society campaigners or lawyers than the UN conventions, and consequently their most important roles are as normative texts and guidance for national laws and policies, as well as for other international standard-setting aspirations.

UN documents

The conventions have cyclic systems of reporting: states submit a report every 4-5 years to the committee of independent experts, which responds by issuing a set of questions to the state. This is followed by a face-to-face meeting in Geneva, after which a final set of concluding recommendations or observations on the status and rate of implementation are issued. All this takes place in public. The current system of many different committees and reporting cycles does produce a lot of paper, leave much room for deference and delays, and can be a huge burden on national civil services. But it also provides many opportunities for civil society: to either work with states, or to produce a critical shadow report which will always be considered by the committee; and to use both the process and the observations to “name and shame”, keeping up and renewing due pressure on states.

For all UN human rights documents, visit: The Universal Human Rights Index

The number of UN documents is ever-growing, but many of them can be extremely useful to campaigners. The Right to Education Project cannot keep track of this. So we refer to the UN’s database for identifying what fits your specific interest or campaigning needs.

The Universal Human Rights Index gives this access. The index is based on the observations and recommendations of the following international expert bodies:

(1) Committees of independent experts of the treaty bodies monitoring the implementation of the core international human rights treaties (since 2000).

(2) Special Procedures of the Human Rights Council (since 2006) – both country and thematic reports, see especially under education, minorities, gender etc.

Therefore please do take your time to search The Universal Human Rights Index. It is available in 6 languages.

Simple searches can be carried out directly on the home page. Documents can be searched by entering a keyword, a country, a body or a right, or any combination of these elements.

The advanced search link makes it possible to refine searches by: combining criteria (e.g. several countries, bodies or rights at the same time); combining keywords; using ‘affected persons’ as a criterion; by the year of publication; or by symbol.

What to look for?

We recommend that you either look at the references to education/gender/minorities/discrimination etc. in the concluding observations by the committee, in order to use these views in your campaigning.

Furthermore, you should visit the individual committees, to keep track of when your country is up for review next time, if a report has recently been posted and when it is opportune to produce a civil society shadow report to counter-balance the official state report.

The major committees dealing with education rights and non-discrimination are:

The Committee on Economic, Social and Cultural Rights (CESCR)

The Human Rights Committee (HRC, dealing with the Covenant on Civil and Political Rights)

The Committee on the Rights of the Child (CRC)

Committee on the Elimination of Racial Discrimination (CERD)

Committee on the Elimination of All Forms of Discrimination against Women (CEDAW)

Committee on Migrant Workers (CMW)

Committee on the Rights of Person’s with Disabilities (CRPD)

If you do not find what you seek or otherwise need further advice on navigation, please do not hesitate to contact us and we will aim to help you as best we can: info[at]right-to-education.org