Research paper October 2017 “Minimum Core” and the “Right to Education” Professor Angelina Fisher 2 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” “Minimum Core” and the “Right to Education” Professor Angelina Fisher Research Paper | October 2017 Commissioned by the Nordic Trust Fund The World Bank Disclaimer: The findings, interpretations, and conclusions expressed in this study are entirely those of the authors. They do not necessarily represent the views of the World Bank and its affiliated organizations, or those of the Executive Directors of the World Bank or the governments they represent. III Contents Introduction.........................................................................................................................................................1 1. “Minimum core” in academic literature.................................................................................................... 2 Minimum Core as Representation of a Consensus. ........................................................................................................ 4 Minimum Core as a Minimum Obligation............................................................................................................................ 4 2. International and Regional Legal Frameworks........................................................................................ 7 Overview.............................................................................................................................................................................................. 7 ICESCR and the “Minimum Core”. ........................................................................................................................................... 9 “Minimum Core” of the Right to Education According to the Committee. .......................................................... 11 “Minimum Core” of the Right to Education According to Regional Human Rights Instruments and Institutions................................................................................................. 12 Human Rights and Development........................................................................................................................................... 15 Summary............................................................................................................................................................................................ 17 3. “Minimum Core” in State Practice........................................................................................................... 18 State Reports. ................................................................................................................................................................................. 18 National Laws and Policies..................................................................................................................................................... 20 National Jurisprudence. ..............................................................................................................................................................21 South Africa ............................................................................................................................................... 21 “Minimum core”. ...............................................................................................................................................................................21 Basic Education/Immediate Realization Independent of Resources. .................................................................22 Swaziland.................................................................................................................................................... 23 Immediate Realization Independent of Resources .....................................................................................................23 India............................................................................................................................................................. 23 Immediate Realization Independent of Resources/Content of the Right........................................................23 Colombia ................................................................................................................................................... 24 Immediate Realization Independent of Resources .................................................................................................... 24 Costa Rica................................................................................................................................................... 24 Fundamental Right..................................................................................................................................................................... 24 Nigeria......................................................................................................................................................... 25 Immediate Realization Independent of Resources......................................................................................................25 Czech Republic.......................................................................................................................................... 25 Content of the Right...................................................................................................................................................................25 United States............................................................................................................................................. 25 Other........................................................................................................................................................... 26 Summary ........................................................................................................................................................................................ 26 IV “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” Summary ......................................................................................................................................................................................... 27 4. The Role of Indicators...............................................................................................................................29 Conclusion: “Minimum Core” and its relevanceto the Development Works......................................... 33 ............................................................................................................................................. 33 Value-Added of Human Rights. “Minimum Core” for Development.........................................................................................................................................35 Nordic Trust Fund (NTF) is a knowledge and learning initiative to help the World Bank develop a more informed view on human rights. It is designed to improve existing Bank involvement on human rights in the overall context of the Bank’s core mission of promoting economic growth and poverty reduction. The NTF is managed by a secretariat in the Operations Policy and Country Services vice-presidency (OPCS). Financial and staff support for the NTF is provided by Denmark, Finland, Iceland, Norway, and Sweden, with additional funding provided by Germany. I n troduction 1 Introduction “M inimum core” is a concept introduced by the Committee on Economic, Social and Cultural Rights (“Committee”) with the aim of ensuring “the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party.” The “minimum core” concept aims to set a quantitative and qualitative floor of socio-economic and cultural rights that must be immediately realized by the state as a matter of top priority.1 The promise of the minimum core approach is “to give the notion of progressive realization a clearer direction and to evaluate the steps states have taken towards the progres- sive realization of particular rights”. 2 Yet, the Committee itself has been inconsistent in defining the content and scope of the “minimum core” concept for different rights. Although the original definition—focused on minimum essential levels—seems narrowly constructed, in more recent General Comments, the Committee has given the “minimum core” a far more expansive interpretation.3 Further complicating the query is the fact that states rarely use “minimum core” terminology in State Reports to the Committee. Where national courts have referred to the “minimum core” concept—a rare reference—their interpretation has not always been consistent with that of the Committee. In academic literature, too, disagreements remain about the content, scope and even utility of the “minimum core” concept. Without taking a position on which interpretation of the “minimum core” is normatively desirable, this paper aims to provide a descriptive account of how different actors define the content and scope of “minimum core” of the right to education. The paper begins by providing a summary of aca- 1  U.N. Doc. E/C.12/1993111, para. 5; M. Craven, “Assessment of the progress on adjudication of economic, social and cultural demic engagement with the concept of “minimum rights” in J. Squires, M. Langford, M., B. nd Thiele (eds.) The road core”, highlighting different features of the concept to a remedy: Current issues in the litigation of economic, social and that have been identified in the literature. In Part II, cultural rights (2005) AustralianHuman Rights Centre and Centre on Housing Rights and Evictions, p. 39. the paper examines how the concept of “minimum 2  Amrei Müller, “An Analysis of Health-Related Issues in Non-Inter- core” is featured in the international legal framework. national Armed Conflicts” in Michael O’Flaherty and David Harris (eds) The Relationship between Economic, Social and Cultural In Part III, the paper considers whether, and if so how, Rights and International Humanitarian Law, Nottingham Studies the concept of “minimum core” features in national on Human Rights (2013) 3  See e.g., CESCR General Comment No. 14: The Right to the Highest laws and jurisprudence by sampling a few states.4 Attainable Standard of Health (Art. 12), adopted at the Twenty-second In Part IV, the paper discusses the use of indicators Session of the Committee on Economic, Social and Cultural Rights, and other quantitative measures in relation to the on 11 August 2000, E/C.12/2000/4). 4  The analysis in this part is subject to a number of limitations. content of “minimum core”. The paper concludes First, due to language limitations, preference has been given to by suggesting how development banks might use English-speaking states or states for which laws and jurisprudence the concept of “minimum core” to guide their work. have been translated into English. Second, not all relevant laws, rules, regulations and jurisprudence are publicly available. Third, in many states, socio-economic rights are not justiciable, which limits the jurisprudential analysis of the “minimum core”. Lastly, state practice outside of state reports to the CESCR, national laws and jurisprudence is not examined. 2 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” 1. “Minimum core” in Academic Literature Although the idea of “minimum core” has received a lot of (d) Justiciability – it is or should be justiciable, attention in legal academic literature, there is no agreement i.e. enforceable (presumably by the right-holder, on what the content of the concept is or how it should be at least in the first instance) through domestic or applied (and for what purpose). Indeed, some commentators supranational courts. (internal citations omitted)6 are deeply skeptical or critical of the utility of “minimum Young, in contrast, presents the taxonomy on a high- core”.5 Even among advocates of the concept, there is lack of er-level of abstraction. Since Tasioulas’ analysis appears consensus regarding how the concept should be interpreted in the framing paper, for the sake of completeness, a brief and applied. John Tasioulas in “Minimum Core Obligations: overview of Young’s taxonomy is provided here. Human Rights in the Here and Now” and Katharine Young Young identifies three approaches to defining content and in “The Minimum Core of Economic and Social Rights: A scope of the “minimum core” concept: essence, consensus Concept in Search of Content” each survey the different and obligation. approaches taken by the scholars to the concept of “minimum The earliest quest to define the “minimum core” at core” by isolating features that distinguish those rights (or international level7 can be traced to the work of Esin Orücü, obligations) that qualify as “minimum core” from general who proposed that rights (and obligations). Tasioulas summarizes the literature by isolating four features that have been associated with the [t]he scope of each right must be analysed in terms “minimum core”: of an outer edge, a circumjacence and a core. The essential elements of the norm which are unrelin- (a) Immediacy – it must be fully satisfied with quishable and unchangeable for the guaranteed core “immediate effect” by all states, as opposed to must be determined. This would need extensive belonging to that aspect of a right’s content which multi-disciplinary work. Once meaningful criteria may permissibly be fully complied with in the for every right have been established which can be longer-term in accordance with the doctrine of concretized for every right, it should be possible ‘progressive realization’, to formulate a lowest common denominator, and (b) Special content – its content bears some peculiarly intimate relationship to an underlying, high-priority ethical notion, such as human dignity or basic needs 5  E.g., Mark Tushnet, “Social Welfare Rights and Forms of Judicial required for survival, Review”, 82 Tex. L. Rev. 1895, 1904 (2004); Katharine G. Young, “The Minimum Core of Economic and Social Rights: A Concept in Search of Content”, Yale Journal of International Law, Vol. 13 (2008), p. 113. (c) Non-derogability – it is non-derogable as a 6  John Tasioulas in “Minimum Core Obligations: Human Rights in matter of normative force, in that it no competing the Here and Now” (draft on file). 7  The concept of minimum core is said to have its roots in German considerations can ever justify non-compliance Basic Law, which in Young’s translation provides that “[i]n no case with a human rights demand that belongs to the may the essential content of a basic right be encroached upon”. ‘minimum core’, even in an emergency GRUNDGESETZ [GG] art. 19(2) (F.R.G.) “Min im um core ” in Aca demic L iterature 3 perhaps even the average, or ideally the highest, Let us specify the minimum core obligation [of the common denominator of all guaranteed cores.8 right to housing] … as requiring the government to provide each person in South Africa with shelter Along Young’s taxonomy, Orücü’s definition encompasses that protects him or her from the elements. It then two different approaches to defining “minimum core”: one, becomes clear that those who have such shelter have a quest for “essence” of each right, and the second, iden- no basis upon which to claim it from the govern- tification of content that enjoys the widest consensus (i.e., ment. Those who have land, but no shelter, could “the lowest common denominator). claim building materials, for instance. Those with This “essence” approach to “minimum core” is premised neither land nor shelter, could claim both. But, the on the idea that, at the very least, individuals’ basic needs general obligation of the state does not vary: it is the must be immediately satisfied.9 In other words, while the same in respect of each person. What differs in an right itself has higher aspiration of improving the lives of unequal society is how far off from the minimum individuals, the minimum core sets the starting point, the core each person lies, and therefore what must be satisfaction of which is necessary before the more extensive provided for each to alleviate his or her need.12 interests may be progressively realized. The work of Fons Coomans exemplifies the “essence” As discussed below, a number of international instruments approach.10 He argues that and experts have connected the idea of “basic needs” to the ideas of survival, security and life.13 Thus, for example, the the nature of a right must be understood as meaning Inter-American Commission has stated that: its core or essence, i.e. that essential element without which a right loses its substantive significance as a The essence of the legal obligation incurred by human right. …In general terms the core of a right any government in this area is to strive to attain should be the same everywhere. However, it should the economic and social aspirations of its people, be ‘translated’ or operationalised at the national by following an order that assigns priority to the or regional level, taking into account national or basic needs of health, nutrition and education. The regional characteristics and circumstances and the priority of the ‘rights of survival’ and ‘basic needs’ specific needs of individual s and groups. … [F]rom is a natural consequence of the right to personal a conceptual perspective, the needs of the people security. (emphasis added)14 and the available opportunities in a state should not Prior to the enactment of the Right to Education Act, determine the core of a right. It should rather be the Indian Supreme Court held that the fundamental right the other way around, starting with the right itself. …Complying with obligations which relate to the core of a right should not be dependent upon the availability of resources. In other words, when a 8  Esin Orücü, “The Core of Rights and Freedoms: the Limit of Lim- government is facing policy dilemmas as a result of its,” in T. Campbell, D. Goldberg, S. McLean, and T. Mullen (eds.) Human Rights: From Rhetoric to Reality 37, 55 (1986). This quote limited or insufficient financial resources, priority was cited by Philip Alston, the architect of the “minimum core” should be given to the realisation of the core of a concept, as an example of how “minimum core” might be identified. right. …the content of a right determines the nature P. Alston, “Out of the Abyss: The Challenges Confronting the New U. N. Committee on Economic, Social and Cultural Rights”, Human of state obligations, not the other way round.11 Rights Quarterly, Vol. 9, No. 3 (Aug., 1987), pp. 332-381, fn. 138. 9  See, e.g., David Bilshitz, “Giving Socio-Economic Rights Teeth: David Bilshitz explains in relation to the right to housing: The Minimium Core and Its Importance”, 119 S. African L.J. 484 [“minimum core”] represents the standard of socio- 2002 (“ the minimum core is to be specified in relation to the basic needs that we all share.”). economic provision necessary to meet people’s basic 10  Young, supra. needs. Such needs can be understood on a general 11  Fons Coomans, “Exploring the Normative Content of the Right to level as the universal preconditions necessary for Educationa s a Human Rights: Recent Approaches”, http://www. corteidh.or.cr/tablas/r27050.pdf. human survival and those ‘generalized means to 12  David Bilshitz, “Giving Socio-Economic Rights Teeth: The Min- a great variety of possible goals and whose joint imium Core and Its Importance”, 119 S. African L.J. 484 2002 realization, in the absence of special circumstances, 13  Young, supra. 14  Annual Report 1979-1980, Inter-American Comm’n on Human is necessary for the achievement of more ultimate Rights,OEA/Ser.L/V/II.50, doc. 13 rev. 1, at 2 (1980), available at aims’…. http://www.iachr.org/annualrep/79.80eng/chap.6.htm. 4 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” to education flows from Article 21 of the Constitution – the to their rights.”25 This is indeed the approach advocated and right to life and personal liberty.15 defended by Tasioulas. A somewhat more expansive formulation of “basic needs” entails moving beyond what is minimally necessary for sur- vival to identifying what is necessary for life with dignity.16 None of the outlined approaches provides a determinative Thus, for example, the South African Constitutional Court understanding of what the “minimum core” is and how it has affirmed the relationship between dignity and social should be defined. Thus, for example, there are contested assistance.17 Similarly, the African Commission on Human understandings of what constitutes “basic needs” 26 and and Peoples’ Rights has held that the right to food “is insep- human rights advocates express the normative minimum arably linked to the dignity of human beings and is therefore differently, depending on the economic conditions of their essential for the enjoyment and fulfillment of other rights state. Moreover, the idea of dignity is both subjective and cul- as health, education, work and political participation.”18 turally relative.27 The “consensus” approach raises a question Education is often seen not just inextricably connected to but a requirement of human dignity.19 Thus, for example, the 15  UnniKrishnan v. State of AP and Ors., AIR 1993 SC 2178 Israeli Supreme Court held that a daughter’s right to education 16  Young, supra was derived from the mother’s right to dignity, noting that 17  Khosa v Minister of Social Development 2004 (6) SA 505 (CC) at the link cannot be broken “between human dignity and a 27, 33 (S.Afr.); Mashavha v President of the RSA 2004 (12) BCLR 1243 (CC) at 29 (S. Afr.); person’s basic right to acquire knowledge, culture, value and 18  Soc. and Econ. Rights Action Ctr. for Econ. and Soc. Rights v. Nigeria, skills which are all intertwined and all constitute conditions Comm. No.155/96, 2001-2002 Annual Activity Report of the African for a life with human dignity”.20 Commission on Human and Peoples’ Rights, Annex V, ¶ 68, available at http://www1.umn.edu/humanrts/africa/comcases/155-96b.html 19  See e.g., Friboulet, Jean-Jacques, Ed.; Niamego, Anatole, Ed.; Minimum Core as Representation Liechti, Valerie, Ed.; Dalbera, Claude, Ed.; Meyer-Bisch, Patrice, Ed., of a Consensus “Measuring the Right to Education”, UNESCO Institute for Lifelong Learning (NJ3); Klaus Dieter Beiter, The Protection of the Right to Education by International Law, Martinus Nijhoff Publishers (2005). An alternative approach to “minimum core” is to define its 20  Tebka vs. Ministry of Education at para. 16 21  Young, surpa; Sage Russell, “Minimum State Obligations: Interna- content by what enjoys the widest consensus.21 The Maas- tional Dimensions”, in Daniel Brand, Sage Russell, Exploring the Core tricht Guidelines on Violations of Economic, Social and Content of Socio-Economic Rights: South African and International Cultural Rights emphasize the importance of consensus, as Perspectives, Protea Boekhuis (2002), at 11 (“There now exists wider evidenced by state practice, holding that “the application of agreement on the core elements of these rights.”); Philip Alston, The Committee on Economic, Social and Cultural Rights, in The United legal norms to concrete cases and situations by international Nations and Human Rights: A Critical Appraisal 473, 491 (Philip treaty monitoring bodies as well as by domestic courts have Alston ed., 1992) (emphasizing the importance of state reports and contributed to the development of universal minimum stan- criticizing present performance); see also General Comment No. 3, dards and the common understanding of the scope, nature ¶ 10 (relying on experience “of more than a decade of examining States parties reports”). and limitation of economic, social and cultural rights.”22 22  Maastricht Guidelines, para 41 Thus, to ascertain what constitutes the “minimum core” 23  Young, supra 24  See, for example, a list of violations of “minimum core” proposed of the right to education, one might consider state reports by Audrey Chapman and Russel Sage to the CESCR. Background to monitoring bodies and national implementations of the paper submitted by the American Association for the Advancement ICESCR (e.g., legislation, jurisprudence). of Science (AAAS): . 14/10/98, available at http://www.bayefsky. com/general/e_c.12_1998_19.php. 25  Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Minimum Core as a Minimum Obligation Policy 23 (2d ed. 1996), 160. 26  Amartya Sen, Poverty and Famines: An Essay on Entitlement A third approach is to consider whether a minimum obli- and Deprivation 12 (1982) (“People have been known to survive gation (or minimum set of obligations) can correlate to the with incredibly little nutrition, and there seems to be a cumulative improvement of life expectation as the dietary limits are raised. . . minimum core.23 This approach entails focusing on the duties .There is difficulty in drawing a line somewhere, and the so-called required to implement the rights, rather than the elements of ‘minimum nutritional requirements’ have an inherent arbitrariness the rights themselves.24 As Henry Shue notes, the approach that goes well beyond variations between groups and regions.”) 27  Amartya Sen, Inequality Reexamined 115 (1992) (“explains how requires the analysis of “what it actually takes to enable “appearing in public without shame” will be variable between people to be secure against the standard, predictable threats different societies.) “Min im um core ” in Aca demic L iterature 5 about whose opinion counts for purposes of consensus28 and the absolute core minimum while Mali’s may go what degree of consensus is necessary. no further than this absolute core.35 Tasioulas is persuasive in his defense of the obligations In their reading of General Comment 3, states are first approach. Yet a few questions remain unsettled by his anal- obliged to implement the absolute bottom-line requirement ysis as well. For example, who should be determining which (international minimum core) and then develop their own obligation is universally feasible and not-burdensome in state-specific relative minimum cores that would guide the assessing an obligation candidate for “minimum core”? The states’ implementation of the ICESCR. Indeed, the Commission Committee has been drastically inconsistent, possibly due on Human Rights has urged States to “consider identifying to the prior lack of a principled approach (Tasioulas might specific national benchmarks designed to give effect to the argue) or due to expertise and agendas of different Committee minimum core obligation to ensure the satisfaction of min- members or, as Young contends, because lists of obligations imum essential levels of each of the [economic, social and that results from such processes seem to be driven more by cultural] rights”.36 institutional competencies and jurisdictional powers then by the goal of identifying the core content of the right.29 An additional wrinkle to the above approaches is the 28  Young, supra (on whose consensus might count: “judicial con- question of whether “minimum core” should be universal sensus as a special place for unfolding reason; governmental and or state-specific (i.e., invariant or variant).30 In General Com- intergovernmental declarations as a more appropriate test for legit- ment 3, the CESCR states that “any assessment as to whether imate law (captured at a particular, normatively charged moment a state has discharged its minimum core obligations must or subject to ongoing development); or the consensus established between special experts in policy areas influencing economic and take into account the resource constraints applying within a social rights (such as those drawn from public health, education, country concerned”.31 Moreover, in its reporting guidelines, housing, or land reform areas), who are more familiar with the the CESCR requires states to set out national benchmarks institutions and organizations that constitute the concrete efforts to deliver on the material requirements behind rights.”) to measure their progress toward ESC rights.32 This might 29  Young, supra p. 164 suggest that the minimum core is state-specific. On the other 30  Karin Lehmann, “In Defense of the Constitutional Court: Litigating hand, commentators, including Tasioulas, have argued that Socio-Economic Rights and the Myth of the Minimum Core”, Amer- ican University International Law Review 22, no. 1 (2006): 163-197, the minimum core concept should represent a universal p. 183; Manisuli Ssenyonjo, Economic, Social and Cultural Rights standard. They argue that, among other things, “there would in International Law, Hart Publishing (2009), p. 66. be no difference between an obligation to define a minimum 31  General Comment No. 3: The nature of States parties’ obligations core nationally and the general obligation under Art. 2(1) (article 2, para. 1) (1990), adopted by the Committee on Econom- ic, Social and Cultural Rights at the Fifth Session, E/1991/23, 14 ICESCR to progressively realize ESC rights, as the scope of December 1990), para. 10 both would be dependent on available resources”.33 32  CESCR, Guidelines on Treaty-specific documents, E/C.12/2008/2 A third view conceives of two “minimum cores”—one (2009), para. 3(b) and 42). 33  Amrei Müller, “An Analysis of Health-Related Issues in Non-In- universal evidencing the absolute floor and another state-spe- ternational Armed Conflicts” in Michael O’Flaherty and David cific.34 Thus, for example, Scott and Alston interpret the Harris (eds) The Relationship between Economic, Social and Cultural General Comment as follows: Rights and International Humanitarian Law, Nottingham Studies on Human Rights (2013) at 81; Tasioulas, supra; but see Ruchi Parek, Each state must go about making sure that it “Lessons from Litigating Universal Primary Education in Swaziland”, fulfills, as its first priority in resource allocation, INTERIGHTS Bulletin Volume 17 Number 2 2013, who points out that the conditions in Swaziland (discussed infra) demonstrate at least what the Committee calls ‘minimum core that the concept of a universal minimum core is both impractical obligations’ as a function of that state’s available and ineffective. 34  Scott, Craig, and Philip Alston, “Adjudicating Constitutional resources. And every state must meet at least a Priorities in a Transnational Context: A Comment on Soobramon- core universal minimum represented by the most ey’s Legacy and Grootboom’s Promise”, South African Journal of basic provision of state assistance to those in need Human Rights 16 (2000): 206-268; Amrei Müller, “An Analysis of reflected by the basic-survival examples listed in the Health-Related Issues in Non-International Armed Conflicts” in Michael O’Flaherty and David Harris (eds) The Relationship between last sentence of the above quotation [i.e., essential Economic, Social and Cultural Rights and International Humanitarian primary health care or basic shelter and housing, or Law, Nottingham Studies on Human Rights (2013) the most basic form of education]. There is thus a 35  Scott, Craig, and Philip Alston, “Adjudicating Constitutional Pri- distinction between relative (state-specific) core min- orities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise”, South African Journal of Human imums and absolute core minimums. For instance, Rights 16 (2000): 206-268, at 250. Canada’s core minimum will go considerably beyond 36  Commission on Human Rights, Res. 1993/14 6 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” A slight variation of this approach is offered by Müller, As the different interpretations of the “minimum core” who argues that the international minimum core and state outlined herein illustrate, there is no widespread agreement specific minimum core should operate in tandem. Müller in the academic literature regarding the content, scope and proposes that “internationally-defined principled minimum and the normative basis for the “minimum core” concept. core” describe the “minimum essential levels of rights” (with Briefly summarized, one approach ties the “minimum core” the strong underlying assumption that every state has the to the “essence” of the right, often focusing on the basic need necessary resources to satisfy those levels of rights alone encompassed within the right. Another approach claims that or with assistance). This “minimum” level would be linked the content of the “minimum core” is established by state with international indicators. At the same time, every state consensus – that is, the norms that are commonly recognized would be required to define for itself “a pragmatic minimum as such by the vast majority of the states. The third approach core…in accordance with available resources”. Where the claims that “minimum core” relates to those obligations national minimum core falls under the internationally-defined that are subject to immediate realization. Moreover, under minimum core, the international core would guide areas of different views, the “minimum core” of the rights is either high priority for the states.37 Thus, in contrast to Scoot and universal, state-specific, or operates on two-tracks. Each of Alston, Müller does not think that progressive realization of these approaches can find support both in the international the rights begins with “minimum core”; instead, legal framework and in the national laws and jurisprudence. [it begins] with nothing, passes the national mini- mum threshold (that ideally equals the international 37  Amrei Müller, “An Analysis of Health-Related Issues in Non-Inter- standard) and proceeds with the realization of non- national Armed Conflicts” in Michael O’Flaherty and David Harris (eds) The Relationship between Economic, Social and Cultural Rights core obligations under the right is fully realized. If and International Humanitarian Law, Nottingham Studies on Human a pragmatic national minimum core is below the Rights (2013), 83-85 38  Amrei Müller, “An Analysis of Health-Related Issues in Non-Inter- principled international minimum core, states would national Armed Conflicts” in Michael O’Flaherty and David Harris have an urgent need to pursue the approximation (eds) The Relationship between Economic, Social and Cultural Rights to the international core, to secure a minimum level and International Humanitarian Law, Nottingham Studies on Human of well-being of individuals.38 Rights (2013), at 84. I n ter n ation al an d Reg ion al L eg al F rameworks 7 2. International and Regional Legal Frameworks Overview International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR), which requires states to “recognise Broadly speaking, the international legal framework considers the right of everyone to education…[,] agree that education the “right to education” in terms of three components: (a) shall be directed to the full development of the human per- access to education without discrimination, (b) quality and sonality and the sense of its dignity, and shall strengthen content of education and (c) the rights of parents and guard- the respect for human rights and fundamental freedoms. ians with respect to the children’s education. For purposes of … agree that education shall enable all persons to partic- this document, only the first two components are analyzed. ipate effectively in a free society, promote understanding, As early as 1948, the Universal Declaration of Human tolerance and friendship among all nations and all racial, Rights (UDHR) reaffirmed that: ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.”40 Moreover, (1) Everyone has the right to education. Educa- the ICESCR lists a series of measures necessary to achieve tion shall be free, at least in the elementary and the full realization of this right: fundamental stages. Elementary education shall be compulsory. Technical and professional educa- (a) Primary education shall be compulsory and tion shall be made generally available and higher available free to all; education shall be equally accessible to all on the basis of merit. (b) Secondary education in its different forms, including technical and vocational secondary (2) Education shall be directed to the full development education, shall be made generally available and of the human personality and to the strengthening accessible to all by every appropriate means, and of respect for human rights and fundamental free- in particular by the progressive introduction of doms. It shall promote understanding, tolerance free education; and friendship among all nations, racial or religious groups, and shall further the activities of the United (c) Higher education shall be made equally accessi- Nations for the maintenance of peace. ble to all, on the basis of capacity, by every appro- priate means, and in particular by the progressive (3) Parents have a prior right to choose the kind of introduction of free education; education that shall be given to their children.39 (emphasis added) (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who Although the UDHR is legally nonbinding, it is widely perceived that many of its provisions embody norms that have since passed into customary international law. In any 39  UDHR, Art. 26. event, the UDHR’s Article 26 has been since codified by the 40  ICESCR, Article 13. 8 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” have not received or completed the whole period Discrimination (1966) (CERD) and the Convention on of their primary education; the Elimination of Discrimination Against Women (1979) (CEDAW). The UNESCO Convention prohibits depriving a (e) The development of a system of schools at all person or a group of persons of access to education or limiting levels shall be actively pursued, an adequate fellow- a person or a group to education of an inferior standard on ship system shall be established, and the material the basis of “race, colour, sex, language, religion, political conditions of teaching staff shall be continuously or other opinion, national or social origin, [and] economic improved. (Article 13(1) and (2)). condition or birth”.43 Article 4 of the UNESCO Convention requires states, among other things, to make primary education Article 14 further provides that if a state “has not been free and compulsory. CERD requires states to prohibit and able to secure in its metropolitan territory or other territories eliminate racial discrimination in the enjoyment of the right under its jurisdiction compulsory primary education, free to education and training.44 CEDAW requires states to “take of charge, [the state] undertakes, within two years, to work all appropriate measures to eliminate discrimination against out and adopt a detailed plan of action for the progressive women in order to ensure to them equal rights with men in implementation, within a reasonable number of years, to be the field of education”, which includes not only providing fixed in the plan, of the principle of compulsory education equal access to studies, teaching staff and curriculum but free of charge for all.” also eliminating “any stereotyped concept of the roles of men The Convention on the Rights of the Child (CRC), enacted and women…in all forms of education”, providing same over twenty years after the ICESCR, echoes its provisions, opportunities, reducing female students drop-out rates, and adding that the right to education must be achieved on the providing access to educational information to ensure the basis of equal opportunity (Art. 28(1)).41 The CRC further health and well-being of families.45 specifies the content of the right by providing that the edu- Additionally, a number of international legal documents cation of the child shall be directed to: speak to education rights of specific groups – e.g., persons (a) The development of the child’s personality, with disabilities (Convention on the Rights of Persons with talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles 41  CRC, Article 28: “States Parties recognise the right of the child enshrined in the Charter of the United Nations; to education and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) (c) The development of respect for the child’s Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, parents, his or her own cultural identity, language including general and vocational education, make them available and values, for the national values of the country in and accessible to every child, and take appropriate measures such as which the child is living, the country from which he the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the or she may originate, and for civilisations different basis of capacity by every appropriate means; (d) Make educational from his or her own; and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance (d) The preparation of the child for responsible life in at schools and the reduction of drop-out rates. 2. States Parties shall take all appropriate measures to ensure that school discipline is a free society, in the spirit of understanding, peace, administered in a manner consistent with the child’s human dignity tolerance, equality of sexes, and friendship among and in conformity with the present Convention. 3. States Parties all peoples, ethnic, national and religious groups shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to and persons of indigenous origin; and the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern (e) The development of respect for the natural teaching methods. In this regard, particular account shall be taken environment.42 of the needs of developing countries.” 42  CRC, Art. 29(1) 43  UNESCO Convention against Discrimination in Education (1960). Further color to the right of education is added by the Art. 1(1). UNESCO Convention against Discrimination in Educa- 44  CERD, Artcile 5(v). tion (1960), the Convention on the Elimination of Racial 45  CEDAW, Art. 10 I n ter n ation al an d Reg ion al L eg al F rameworks 9 Disabilities, 2006)46, children of migrant workers (Convention (ii) states must not adopt retrogressive measures on the Protection of the Rights of All Migrant Workers and (i.e., states cannot repeal existing guarantees or Members of their families, 1990),47 refugees (“Convention take backward steps that will minimize realization Relating to the Status of Refugees, 1951),48 and indigenous of rights). communities (Declaration on the Rights of Indigenous People, Professor Philip Alston recognized over two decades ago 2007).49 Since the concept of the “minimum core” traces to that “[o]ne of the most striking features of the [IESCR] is the ICESCR, the remainder of this section will focus mainly the vagueness of the normative implications of the various on that convention. rights it recognizes.”51 Thus, the ability to determine the normative content of the rights in the ICESCR was important ICESCR and the “Minimum Core” both for states and the Committee—a body of 18 independent experts—which was set up to monitor implementation of the Although the ICESCR unequivocally recognizes the right of IECSCR by states parties.52 In his review of the challenges everyone to education, it only places an obligation on the facing the Committee, then-Chair of the Committee Professor state parties to “undertake[] to take steps, individually and Alston observed: through international assistance and co-operation, especially economic and technical, to the maximum of its available In its endeavors to clarify the normative content resources, with a view to achieving progressively the full of the rights, the challenge facing the Committee realization of the rights recognized in the present Covenant will be to strike a balance between an expansive, by all appropriate means, including particularly the adoption literal interpretation of the Covenant’s provisions of legislative measures.” (Article 2) (emphasis added) according to which governments are obligated to International human rights law, generally, defines state take a comprehensive set of measures with respect to obligations relating to human rights as encompassing the each right and a highly flexible, subjective interpre- obligations to respect, protect, and fulfill. In the context of tation which accords to each state party a virtually the right to education: unlimited degree of discretion. During the drafting of the Covenant the representative of New Zealand • the “respect” obligation means that the state must refrain argued that the concept of state responsibility for the from interfering with the enjoyment of the right to edu- material welfare of its citizens “was not static and cation (e.g., must respect the right of parents to choose there might be reasonable differences of opinion on their children’s schools), the extent of such responsibilities.” Such an inter- • the “protect” obligation means that the state must pre- pretation would appear to be an accurate reflection vent others from interfering with the enjoyment of the of the drafters’ intention that the Committee should right to education (e.g., ensuring that children are not prevented from attending schools by third parties), and 46  Article 24 requires, among other things, that states ensure that • the “fulfill” obligation means that the state must adopt persons with disabilities are not excluded from the general education measures towards full realization of the right (e.g., by system on the basis of disability, that they have access to inclusive, ensuring that education is culturally appropriate, of quality and free primary and secondary education on equal basis with others, that they receive reasonable accommodations and support. good quality; taking appropriate legislative, regulatory 47  Article 30 guaranties every child of a migrant worker the “basic and budgetary measures, etc.) The obligation to fulfill right of access to education on the basis of equality of treatment incorporates both an obligation to facilitate and an obli- with nationals of the State”. 48  Article 22 requires that refugees be accorded “the same treatment gation to provide.50 as is accorded to nationals with respect to elementary education”. 49  Article 14(2) and (3) provides that indigenous children have While the realization of the full right to education is the right to all levels and forms of education of the State without subject to progressive achievement, the state nonetheless discrimination and that states must ensure that indigenous children have access to an education in their own culture and in their own has certain immediate obligations: language. 50  Special Rapporteur on the Right to Education, http://www.ohchr. (i) states must immediately take steps towards org/EN/Issues/Education/SREducation/Pages/SREducationIndex.aspx realization of the right to education to the maximum 51  Philip Alston, “Out of the Abyss: The Challenges Confronting the of its available resources (i.e., inaction cannot be New U.N. Committee on Economic, Social and Cultural Rights”, in: Human Rights Quarterly, 9 (1987), p. 351. justified by lack of resources) and 52  Information on the CESCR is available here: http://www.ohchr. org/en/hrbodies/cescr/pages/cescrindex.aspx 10 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” seek to identify some minimum core content of each to satisfy, as a matter of priority, those minimum right that cannot be diminished under the pretext obligations.54(emphasis added) of permitted “reasonable differences.” The fact that Thus, in addition to the immediate obligations to take there must exist such a core (which to a limited steps towards realization of the right to education and to not extent might nevertheless be potentially subject to adopt retrogressive measures, the Committee imposes an derogation or limitations in accordance with the immediate obligation on the states to realize the minimum relevant provisions of the Covenant) would seem to core of the right to education. be a logical implication of the use of the terminology Although the “minimum core” originated in the Commit- of rights. In other words, there would be no justifi- tee, it has been reiterated with approval by the Committee on cation for elevating a “claim” to the status of a right the Rights of the Child and in some regional human rights (with all the connotations that concept is generally documents.55 As a general matter, General Comments of the assumed to have) if its normative content could be human rights committees do not constitute binding legal so indeterminate as to allow for the possibility that pronouncements. However, over time General Comments the right holders possess no particular entitlement have arguably acquired a normative role.56 For example, to anything. Each right must therefore give rise to regional human rights commissions and courts often treat an absolute minimum entitlement, in the absence them as “internationally accepted ideas of the various obli- of which a state party is to be considered to be gations engendered by human rights”57 and as “authoritative in violation of it obligations.53 (emphasis added; statements of the law”.58 Many domestic courts consider internal citations omitted). In General Comment 3, dealing with obligations of states 53  Philip Alston, “Out of the Abyss: The Challenges Confronting the parties, the Committee noted that: New U.N. Committee on Economic, Social and Cultural Rights”, in Human Rights Quarterly, 9 (1987), p. 352-353 On the basis of the extensive experience gained by 54  Committee on Economic, Social and Cultural Rights, General the Committee, as well as by the body that preceded Comment 3, The nature of States parties’ obligations (Fifth session, it, over a period of more than a decade of examin- 1990), U.N. Doc. E/1991/23, annex III at 86 (1991), reprinted in ing States parties’ reports the Committee is of the Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 view that a minimum core obligation to ensure the at 14 (2003), para. 10. It is worthwhile to note that in the General satisfaction of, at the very least, minimum essential Comment 3, the CESCR adopted primarily the basic needs approach levels of each of the rights is incumbent upon every but required states to satisfy immediately (i.e., not progressively) “minimum essential” levels, such as the most basic forms of edu- State party. Thus, for example, a State party in which cation. However, the Committee also hints towards the obligations any significant number of individuals is deprived approach, by shifting the burden on the state to demonstrate that of essential foodstuffs, of essential primary health it has exhausted all the available resources to prioritize satisfaction of the minimum obligations where a state claims that it is unable care, of basic shelter and housing, or of the most to realize core rights due to lack of resources. basic forms of education is, prima facie, failing to 55  Committee on the Rights of the Child, Draft General Comment No. discharge its obligations under the Covenant. If 19 (2016) On Public Spending and the Rights of the Child (Article the Covenant were to be read in such a way as not 4), June 11, 2015 (“The Committee reiterates that a minimum core obligation to ensure the satisfaction of, at the very least, minimum to establish such a minimum core obligation, it essential levels of each of the rights is incumbent upon every State. would be largely deprived of its raison d’être. By the Lack of available resources is never a valid argument for States to same token, it must be noted that any assessment not comply with this core obligation. The core obligation should always be guaranteed, even in times of economic austerity” (internal as to whether a State has discharged its minimum citation omitted)) core obligation must also take account of resource 56  Conway Blake, “Normative Instruments in International Human constraints applying within the country concerned. Rights Law: Locating the General Comment”, Center for Human Rights and Global Justice Working Paper (2008), http://chrgj.org/ Article 2 (1) obligates each State party to take the wp-content/uploads/2012/07/blake.pdf necessary steps “to the maximum of its available 57  Legal Resources Foundation v Zambia, Communication No. 211/98, resources”. In order for a State party to be able to May 2001, paras 59, 63, 70; See for example, Hirst v. United Kingdom attribute its failure to meet at least its minimum core (No.2), Application No.74025/01 (2005); Öcalan v.Turkey, Application No.46221/99 (2005); Makaratzis v. Greece, Application No.50385/99 obligations to a lack of available resources it must (2004); Melnychenko v. Ukraine, Application No.17707/02 (2004) demonstrate that every effort has been made to use Kurt v. Turkey, Application No. 24276/94(1998). 58  Conway Blake, “Normative Instruments in International Human all resources that are at its disposition in an effort Rights Law”, supra. I n ter n ation al an d Reg ion al L eg al F rameworks 11 General Comments as supplementary means of interpretation age-range…. Moreover, compulsory education ought to be and often refer to them alongside judicial precedents.59 In free of charge …. examining the “minimum core” of the right to education, Acceptability of education [requires] governments to this paper thus turns first to the Committee. ensure that education which is available and accessible is of good quality. The minimal standards of health and safety, “Minimum core” of the Right to or professional requirements for teachers, thus have to be set Education According to the Committee and enforced by the government. The scope of acceptability has been considerably broadened through the development of In General Comment 13, the Committee outlined the international human rights law. …The focus on indigenous minimum core obligations for the right to education: and minority rights has prioritized the language of instruction, which often makes education unacceptable if the language - to ensure the right of access to public educational insti- is foreign to young children (and also often to the teacher). tutions and programmes on a non-discriminatory basis; The prohibition of corporal punishment has transformed - to ensure that education conforms to the objectives set school discipline in many countries further broadening the out in article 13 (1) (i.e., that education be directed to criteria of acceptability. the human personality’s “sense of dignity”, “enable all Adaptability has been best conceptualized through the persons to participate effectively in a free society”, and many court cases addressing the right to education of children “promote understanding among all “ethnic” groups, as with disabilities. Domestic courts have uniformly held that well as nations and racial and religious groups”); schools ought to adapt to children, following the thrust of - to provide primary education for all in accordance with the idea of the best interests of each child in the Convention article 13 (2) (a) (i.e., education must exhibit the elements on the Rights of the Child. This reconceptualization has of availability, accessibility, acceptability and adaptability; implicitly faulted the heritage of forcing children to adapt to must be universal, ensuring that the basic learning needs whatever schools may have been made available to them; the of all children are satisfied, must be “compulsory” and school effectively had a right to reject a child who did not “available free to all”,60 and must “take into account the culture, needs and opportunities of the community”); 59  For a review of domestic courts’ view of General Comments, see - to adopt and implement a national educational strategy Conway Blake, “Normative Instruments in International Human Rights Law”, supra. which includes provision for secondary, higher and 60  In General Comment 11, the CESCR interpreted the term “com- fundamental education; and pulsory” to mean that “neither parents, nor guardians, nor the State are entitled to treat as optional the decision as to whether the - to ensure free choice of education without interference child should have access to primary education” and “the education from the State or third parties, subject to conformity with offered must be adequate in quality, relevant to the child and must “minimum educational standards” (art. 13 (3) and (4)).61 promote the realization of the child’s other rights.” In the same (emphasis added) General Comment, the CESCR interpreted “free of charge” to me “the availability of primary education without charge to the child, parents or guardians.” The Committee further observed that “[f]ees The requirement that primary education for all be avail- imposed by the Government, the local authorities or the school, and able, accessible, acceptable and adaptability imports additional other direct costs, constitute disincentives to the enjoyment of the right and may jeopardize its realization. …Indirect costs, such as state obligations. Katarina Tomaševski, the former Special compulsory levies on parents (sometimes portrayed as being volun- Rapporteur on the Right to Education who introduced the tary, when in fact they are not), or the obligation to wear a relatively “4-A” framework explained that: expensive school uniform, can also fall into the same category.” Availability embodies two different governmental obli- At the same time, the Committee noted that “[o]ther indirect costs may be permissible, subject to the Committee’s examination on a gations: the right to education as a civil and political case-by-case basis.” Committee on Economic, Social and Cultural right requires the government to permit the establishment Rights, General Comment 11, Plans of action for primary education of educational institutions by non-state actors, while the (Twentieth session, 1999), U.N. Doc. E/C.12/1999/4 (1999), reprinted in Compilation of General Comments and General Recommendations right to education as a social and economic right requires Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/ the government to establish them, or fund them, or use a Rev.6 at 59 (2003), para. 6, 7. 61  Committee on Economic, Social, and Cultural Rights, Twenty-first combination of these and other means so as to ensure that session 15 November-3 December 1999, Implementation of the education is available. International Covenant on Economic, Social and Cultural Rights, [Accessibility requires the government] to secure access General Comment No. 13: The right to education (article 13 of the to education for all children in the compulsory education Covenant), E/C.12/1999/10, 8 December 1999, para. 57. 12 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” fit or could not adapt. Moreover, a conceptual dissociation 62  Katarina Tomaševski , “Human rights obligations: making edu- between ‘school’ and ‘education’ has taken place in attempts cation available, accessible, acceptable and adaptable”, available at http://www.right-to-education.org/sites/right-to-education.org/files/ to provide education to imprisoned or working children. They resource-attachments/Tomasevski_Primer%203.pdf. can seldom be taken to school and thus education has to be 63  The guidelines “aim to provide guidance in the review of national taken to wherever they are.62 education legal and policy frameworks in view of: Assessing the status of the right to education at country level and its compatibility The Committee’s list of “minimum core” obligations with international and regional human rights instruments; Identifying with respect to the right to education have been reaffirmed gaps in education norms and policies; Making recommendations for by UNESCO in its law & policy review guidance on the right the full alignment of national constitutions, legislations and policies to education.63 The UNESCO guidelines also outline some with international standards and provisions.” UNESCO, The Right to Education: Law and Policy Review Guidelines (2014), http://unesdoc. potential corresponding violations, which include: unesco.org/images/0022/002284/228491e.pdf. 64  UNESCO, The Right to Education: Law and Policy Review Guidelines - The introduction of legislation that discriminates against (2014) , http://unesdoc.unesco.org/images/0022/002284/228491e.pdf individuals or groups, or failure to repeal this kind of 65  Vienna Convention on the Law of Treaties, available https:// legislation, and the failure to take measures that address treaties.un.org/doc/Publication/UNTS/Volume%201155/volume- de facto educational discrimination; 1155-I-18232-English.pdf. 66  Inter-American Commission on Human Rights, “Human Rights - The use of curricula inconsistent with the educational of Migrants and Other Persons in the Context of Human Mobility objectives set out in international standards; in Mexico” (2013), available at https://www.oas.org/en/iachr/ migrants/docs/pdf/Report-Migrants-Mexico-2013.pdf. ( “While the - The failure to introduce, as a matter of priority, primary American Convention and the Protocol of San Salvador recognize education that is compulsory and available free to all, the progressive development of economic, social and cultural rights, and the failure to take ‘deliberate, concrete and targeted’ under Article 1 of the Protocol of San Salvador States parties undertake to immediately adopt the necessary measures, to the extent allowed measures towards the progressive realization of funda- by their available resources and taking into account their degree of mental, secondary, and higher education; development, for the purpose of achieving the full observance of the rights recognized in the Protocol. This obligation of immediate - The prohibition of private educational institutions and effect is recognized in Article 2 of the ICESCR. The inference of the failure to ensure private educational institutions the foregoing is that States are prohibited from adopting regressive conform to the ‘minimum educational standards’; measures in the area of economic, social and cultural rights.” At paras. 585-86); Annual Report 1979-1980, Inter-American Comm’n - The denial of academic freedom and the closure of edu- on Human Rights, OEA/Ser.L/V/II.50, doc. 13 rev. 1, at 2 (1980) cational institutions in times of political tension.64 (“The essence of the legal obligation incurred by any government in this area is to strive to attain the economic and social aspirations of its people, by following an order that assigns priority to the To get a fuller understanding of the “minimum core” of basic needs of health, nutrition and education. The priority of the the right to education, it is helpful to look at the regional ‘rights of survival’ and ‘basic needs’ is a natural consequence of the instruments (e.g., European Convention on Human Rights, right to personal security.”); Annual Report of the Inter-American African Charter on Human Rights) and institutions (e.g., Commission on Human Rights 1993, OEA/Ser.L/V.85 Doc. 9 rev. 11 February 1994, Chapter V (“The obligation of member states to European Court of Human Rights, the Inter-American Court observe and defend the human rights of individuals within their of Human Rights, the African Court on Human Rights and jurisdictions, as set forth in both the American Declaration and People’s Rights, etc.), as well as at national legislation and the American Convention, obligates them, regardless of the level of economic development, to guarantee a minimum threshold of jurisprudence. These sources are relevant as they represent these rights.”); Juvenile Reeducation Institute v. Paraguay, Judg- “subsequent practice” of state parties in implementation of ment (IACtHR, 2 Sep. 2004), available at http://www.worldcourts. the international “right of education” and thus relevant to com/iacthr/eng/decisions/2004.09.02_Juvenile_Reeducation_Insti- tute_v_Paraguay.pdf#search=%22basic needs%22 (“It is a basic the interpretation of the ICESCR.65 and elementary obligation of the State to ensure to its minors the juridical institutional and political-cultural conditions necessary “Minimum Core” of the right to education so that, at the very least, the mandatory and free public education that is the general norm in every country of the world is available according to Regional Human Rights within juvenile detention institutions….The State has a special role Instruments and Institutions to play as guarantor of the rights of those deprived of their freedom, as the prison authorities exercise heavy control or command over the persons in their custody. [ So there is a special relationship and The Inter-American Commission on Human Rights endorsed interaction of subordination between the person deprived of his the “minimum core” obligation although it appears to equate liberty and the State; typically the State can be rigorous in regulating what the prisoner’s rights and obligations are, and determines what it with obligation not to take regressive measures and with the circumstances of the internment will be; the inmate is prevented provision of basic services or satisfaction of basic needs.66 from satisfying, on his own, certain basic needs that are essential if It is worth emphasizing, however, that while the Protocol one is to live with dignity”). I n ter n ation al an d Reg ion al L eg al F rameworks 13 of San Salvador requires state parties to undertake immedi- however, goes further and states that “[w]here the State does ately the necessary measures to the extent allowed by their suffer from demonstrable resource constraints, caused by available resources and taking into account their degree of whatever reason, including economic adjustment, the State development, the Commission stated that “the obligation of should still implement measures to ensure the minimum member States to observe and defend the human rights of essential levels of each right to members of vulnerable and individuals within their jurisdictions, as set forth in both disadvantaged groups, particularly by prioritising them in the American Declaration and the American Convention, all interventions.” In other words, even where resources are obligates them, regardless of the level of economic develop- scarce or unavailable for realization of minimum core obli- ment, to guarantee a minimum threshold of these rights”.67 gations, whatever resources are available must be allocated Distinguishing between obligation and implementation, to the realization of minimum core obligations of the most the Commission added that “state’s level of development disadvantaged groups.70 may be a factor that is calculated into the analysis of its Specifically with respect to the right to education, the implementation of these rights, but this is not a factor that African Commission identifies the following “minimum core precludes the state’s obligation to implement, to the best of obligations”: its abilities, these rights.”68 i. ensuring that all children enjoy their right to free The African Charter on Human and Peoples’ Rights (also and compulsory primary education, which may known as the Banjul Charter), which has been ratified by entail special measures to ensure that children 53 African states, aims to promote and protect human rights belonging to disadvantaged or vulnerable groups and basic freedoms in the African continent. The African receive free primary education. To achieve this objec- Commission on Human and Peoples’ Rights is tasked with tive states are bound to progressively increase the the oversight and interpretation of the Banjul Charter. Like amount of national resources allocated to education. the international treaties discussed above, Article 17 of the Banjul Charter provides that “[e]very individual shall ii. implementing policies to eliminate or reduce the have the right to education”. The African Commission has costs of attending primary school which include the issued Principles and Guidelines on the Implementation of provision of stipends, providing free or subsidised Economic, Social, and Cultural Rights in the Banjul Charter uniforms (or lifting of uniform requirements), in which it specifically adopted the concept of “minimum providing free textbooks and free or subsidised core obligations”.69 Recognizing that the states have the obli- gation to progressively realize economic, social and cultural 67  Annual Report of the Inter-American Commission on Human rights, the Commission noted that the obligation “to take Rights 1993, OEA/Ser.L/V.85, Doc. 9 rev.11 February 1994, Chapter steps”, the prohibition of retrogressive steps, minimum core V, available at http://www.cidh.org/annualrep/93eng/chap.5.htm. obligations and the obligation to prevent discrimination in 68  Annual Report of the Inter-American Commission on Human the enjoyment of economic, social and cultural rights take Rights 1993, OEA/Ser.L/V.85, Doc. 9 rev.11 February 1994, Chapter V, available at http://www.cidh.org/annualrep/93eng/chap.5.htm. immediate effect upon ratification of the Charter. (Para. 16). 69  African Commission on Human and Peoples’ Rights, Principles Regarding the “minimum core obligations”, the Commission and Guidelines on the Implementation of Economic, Social and Cul- noted that states have an obligation to ensure the satisfaction tural Rights in the African Charter on Human and Peoples’ Rights, http://www.achpr.org/files/instruments/economic-social-cultural/ of, “at the very least, the minimum essential levels of each achpr_instr_guide_draft_esc_rights_eng.pdf. of the economic, social and cultural rights contained in the 70  At the same time, in other contexts, the African Commission African Charter”, which entails ensuring that “no significant appears to have interpreted “minimum core” as prohibiting ret- number of individuals is deprived of the essential elements rogressive measures or as failing to protect (rather than failing to fulfill) the right. Thus, for example, in Soc. and Econ. Rights Action of a particular right.” According to the Commission, this obli- Ctr. v. Nig, Comm. 155/96, 15th ACHPR AAR Annex V (2000-2001), gation exists regardless of the availability of resources and is the Commission noted that “At a very minimum, the right to shelter non-derogable. Similar to the Committee’s General Comment, obliges the Nigerian government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to the African Commission requires a state that claims that it rebuild lost homes” (at para 61) and “[w]ithout touching on the duty has failed to realize minimum essential levels of economic, to improve food production and to guarantee access, the minimum social and cultural rights “to show that it has allocated all core of the right to food requires that the Nigerian government should not destroy or contaminate food sources. It should not allow private available resources towards the realisation of these rights, parties to destroy or contaminate food sources, and prevent peoples’ and particularly towards the realisation of the minimum efforts to feed themselves…. (at para 65). http://www.worldcourts. core content.” (emphasis added) The African Commission, com/achpr/eng/decisions/2001.10_SERAC_v_Nigeria.htm 14 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” transportation or free school meals to encourage (vi) encouraging youth participation in community the attendance of poor children at school. (Para. 71) work as part of education to build a sense of civic duty; The African Charter on the Rights and Welfare of the Child does not isolate obligations that are subject to immediate (vii) providing financial assistance “to encourage realization and instead reaffirms that that states “shall take entry into post-primary school education and into all appropriate measures with a view to achieving the full higher education outstanding youth from disadvan- realization of [the right to education]”, including: taged communities, especially young girls”; (a) providing free and compulsory basic education: (viii) establishing “participation of all young men (b) encouraging the development of secondary and young women in sport, cultural and recreational education in its different forms and progressively activities as part of holistic development”. make it free and accessible to all; Neither the African Charter on the Rights and Welfare of the Child nor the African Youth Charter mention the “mini- (d) taking measures to encourage regular attendance mum core” obligations and the African Committee of Experts at schools and the reduction of drop-out rates; on the Rights and Welfare of the Child (which monitors the implementation of the Charter) does not appear to have (e) taking special measures in respect of female, adopted the concept in any of its communications, general gifted and disadvantaged children, to ensure equal comments, or concept notes. access to education for all sections of the commu- The “minimum core” obligation (or obligation subject nity. (Art. 11(3)). to immediate realization) is also absent from the the Arab The African Youth Charter similarly does not provide Charter on Human Rights, which provides that “[e]radicating for immediate obligations, although its list of measures that illiteracy is a commitment and an obligation”, “[e]ducation states must provide in order to achieve full realization of the is a right for every citizen”, “[e]lementary education is com- right to education is more detailed and (in addition to those pulsory and free” and “[s]econdary and university education listed in the African Charter on the Rights and Welfare of the shall be accessible to all.” (Art. 34) Child, the Banjul Charter and international human rights Within the European legal framework, Article 2 of the instruments), includes, among others, Protocol to the Convention for the Protection of Human (i) minimizing indirect costs of education Rights and Fundamental Freedoms (as amended by Protocol No. 11) provides that “No person shall be denied the right to (ii) strengthening participation in and the quality education.”71 The European Court of Human Rights does not of training in science and technology; explicitly adopt the “minimum core” concept although in the review of the Court’s jurisprudence, some commentators note (iii) availing “multiple access points for education that the certain statements of the Court could be interpreted and skills development including opportunities as recognizing the notion of a minimum core right to basic outside of mainstream educational institutions health services72 and social cash benefits.73 e.g., workplace skills development, distance learn- Article 17 of the Revised European Social Charter requires ing, adult literacy and national youth service states “to provide to children and young persons a free programmes”; primary and secondary education as well as to encourage regular attendance at schools.” The Appendix provides that (iv) allocating “resources to upgrade the quality of Article 17(2) does not imply that there is an obligation to education delivered and ensure that it is relevant to the needs of contemporary society and engenders critical thinking rather than rote learning”; 71  https://rm.coe.int/CoERMPublicCommonSearchServices/ (v) adopting “pedagogy that incorporates the bene- DisplayDCTMContent?documentId=090000168006377c 72  Cypres v. Turkey (2001), para. 219. fits of and trains young people in the use of modern 73  See generally I.E. Koch, Human Rights as Indivisible Rights: information and communication technology such The Protection of Socio-Economic Demands Under the European that youth are better prepared for the world of work”; Convention on Human Rights, Dordrecht (2009). I n ter n ation al an d Reg ion al L eg al F rameworks 15 provide compulsory education up to the age of 18,74 but the European Committee of Social Rights (ECSR), which moni- tors the implementation of the Social Charter, considers that education should be compulsory for a reasonable period in 74  European Social Charter (Revised) Strasbourg, 3.V.1996, general until the minimum age for admission to employment.75 https://rm.coe.int/CoERMPublicCommonSearchServices/ DisplayDCTMContent?documentId=090000168007cde4 The ECSR summarized the state’s obligations vis-à-vis the 75  The Right to Education under the European Social Charter, pre- right to education as follows: pared by the Secretariat of the ESC1 17 November 2006, http:// www.right-to-education.org/sites/right-to-education.org/files/ resource-attachments/ESC_The_Right_to_Education_under_the_Euro- The education system must also be both accessible pean_Social_Charter_2006_en.pdf 76  The Right to Education under the European Social Charter, pre- and effective. Accessibility requires firstly that there pared by the Secretariat of the ESC1 17 November 2006, http:// is a fair geographical and regional distribution of www.right-to-education.org/sites/right-to-education.org/files/ schools (in particular as regards urban/rural areas). resource-attachments/ESC_The_Right_to_Education_under_the_Euro- Secondly that the basic education system is free of pean_Social_Charter_2006_en.pdf 77  Autism-Europe (IAAE) v. France (2003), http://www.right-to-ed- charge; any hidden costs such as books, uniforms ucation.org/sites/right-to-education.org/files/resource-attachments/ etc must be reasonable and assistance must be ESC_The_Right_to_Education_under_the_European_Social_Char- available to limit their impact on the must vulnerable ter_2006_en.pdf ; see also European Roma Rights Center v. Bul- garia, ECSR, Complaint 48/2008 (holding that states are required groups. Thirdly equal access to education must be “to guarantee minimum income and social assistance for persons guaranteed for all children.76 without adequate resources”.) 78  Malcolm Langford, Alicia Ely Yamin, “Back to the Future: Recon- The ECSR does not employ the “minimum core” concept. ciling paradigms or development as usual?” in Malcolm Langford, It has stated that “[w]hen the achievement of one of the Andy Sumner, Alicia Ely Yamin, (eds.) Millennium Development rights in question is exceptionally complex and particularly Goals and Human Rights, Cambridge University Press, 2013. At the same time, one should exercise extreme caution in equating the expensive to resolve, a State Party must take measures that EFA, MDGs and their successors SDGs, with states’ (or international allows it to achieve the objectives of the Charter within a community’s writ large) understanding of international human reasonable time, with measurable progress and to an extent rights obligations, including the “minimum core”. Committee on Economic, Social and Cultural Rights, Report on the eighteenth consistent with the maximum use of available resources.” and nineteenth sessions. 31/05/99., E/1999/22, (27 April-15 May (emphasis added)77 1998, 16 November-4 December 1998), at para. 487-489 http:// In addition to its incorporation in the international and www.bayefsky.com/general/e_1999_22_1999.php. For an extensive analysis of the relationship between MDGs and human rights, see regional human rights regime, education has also been a Philip Alston, “Ships Passing in the Night: The Current State of the central feature of development agendas. Some have gone Human Rights and Development Debate Seen through the Lens of the so far as to suggest that reaffirmations of the Millennium Millennium Development Goals, Human Rights Quarterly, Vol. 27, Development Goals (MDGs) have allowed the minimum core Issue 3 (2005), pp. 755-829. In contrast to the MDGs, the post-2015 education agenda, barely mentions “basic education” and whose of certain human rights (at least those closest in content to aim is to engage developed and developing countries equally. Thus, the MDGs) to pass into customary international law.78 Without for example, the Incheon Declaration, Education 2030: Towards resolving definitively the question of whether or not MDGs inclusive and equitable quality education and lifelong learning for all, does not mention the terms “basic education” at all. Instead, states embody the consensus understanding of the “minimum commit to moving beyond just the basic minims towards “a single, core” of the right to education, at the very least, given the renewed education agenda that is holistic, ambitious and aspirational, widespread state commitment to development agendas, leaving no one behind… “Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all” …. It their content is relevant to the quest of ascertaining what is is transformative and universal, attends to the ‘unfinished business’ “minimum core”.79 of the EFA agenda and the education-related MDGs, and addresses global and national education challenges.” https://en.unesco.org/ Human Rights and Development world-education-forum-2015/incheon-declaration; see also Incheon Declaration and Framework for Action at http://unesdoc.unesco. org/images/0024/002432/243278e.pdf. At this stage, it is impossible In 1990, at the World Conference on Education for All Meet- to ascertain whether, and if so, to what extent, the SDGs reflect the ing Basic Learning Needs held in Jomtien, Thailand, states “minimum core” of the right to education. 79  Indeed, an argument could be made that the EFA, the Millenium adopted a World Declaration on Education for All and the Development Goals and the Sustainable Development Goals effective Framework for Action to Meet Basic Learning Needs. The shape the content of the right to education. For example, increasingly, Declaration recalls that education is a fundamental right for in reports to the human rights monitoring bodies, states refer to targets and commitments made under these development schemes all and recognizes that “sound, basic education” (emphasis as evidence of their implementation of the right to education. 16 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” added) is fundamental to the strengthening of higher level the aim of the EFA is solve the practical problem of lack of education and to self-reliant development (Preamble). The resources to implement the immediately realizable obliga- Declaration defines “basic educational needs” as encompass- tions (see cases discussed infra)83 by triggering obligations of ing literacy, oral expression, numeracy and problem solving developed, more resource-available countries to assist those (‘tools’), as well as knowledge, skills, values and attitudes whose current resources prevent the implementation of the (‘content’) “required by human beings to be able to survive, “minimum core” obligations,84 and by preventing states that 85 to develop their full capacities, to live and work in dignity, fail to achieve the goals from claiming lack of resources. to participate fully in development, to improve the quality Recalling the earlier discussion of invariant/variant of their lives, to make informed decisions and to continue approaches to “minimum core”, it is worth pointing out the learning.” Indeed, much of the Declaration appears to be EFA appears to take a bi-furcated international-minimum/ aspirational. Concluding that the state of basic education at state-specific “minimum core”: the time was inadequate to meet the basic learning needs All children must have the opportunity to fulfill their of all children, youth and adults, the Declaration calls for right to quality education in schools or alternative an expanded vision of basic education that encompasses five components: i. universalizing access to basic education activ- 80  Meeting Basic Learning Needs: A Vision for the 1990s, Background ities and promoting equity of treatment; focusing Document, World Conference on Education For All, Jomtien, Thailand on actual learning; 1990, http://unesdoc.unesco.org/images/0009/000975/097552e.pdf, at 71; see also Appendix for the text of the Declaration 81  The six goals are: ii. broadening the means and scope of basic edu- • expanding and improving comprehensive early childhood cation to cover a wide range of delivery systems care and education, especially for the most vulnerable and and population groups; disadvantaged children; • ensuring that by 2015 all children, particularly girls, children in difficult circumstances and those belonging to ethnic minorities, iii. enhancing the environment for learning in the have access to and complete, free and compulsory primary home and community; and education of good quality; • ensuring that the learning needs of all young people and adults are met through equitable access to appropriate learning and iv. strengthening partnerships at all levels among life-skills programmes; the various authorities, organizations, groups and • achieving a 50 per cent improvement in levels of adult literacy families involved in basic education”.80 by 2015, especially for women, and equitable access to basic and continuing education for all adults; At the World Education Forum (Dakar, 2000), 164 gov- • eliminating gender disparities in primary and secondary edu- ernments reaffirmed the Jomtien Declaration and pledged cation by 2005, and achieving gender equality in education by 2015, with a focus on ensuring girls’ full and equal access to to achieve Education for All (EFA), identifying six goals81 and achievement in basic education of good quality; to be met by 2015. The Dakar Framework for Action notes • improving all aspects of the quality of education and ensuring that “Education for All is a basic human right at the heart of excellence of all so that recognized and measurable learning outcomes are achieved by all, especially in literacy, numeracy development [which] must be a national and international and essential life skills. priority”.82 (emphasis added) In addition, in 2000, States 82  The Dakar Framework for Action; Education for All: Meeting adopted the United Nations Millennium Declaration, which our Collective Commitments, Dakar, Senegal 2000, http://unesdoc. unesco.org/images/0012/001211/121147e.pdf set eight Millennium Development Goals (MDGs) to end 83  Statistics cited to justify the need for EFA focus on (il)literacy rates, world poverty; these are also to be achieved by 2015. Two enrollment rates, drop-out rates and gender gaps suggesting that EFA of these goals relate to education: is supposed to ensure that children in all states are able to receive at least basic education (i.e., the internationally-acceptable floor). • Goal 2: Achieve universal primary education 84  ICESCR, Article 2. 85  Philip Alston, “Ships Passing in the Night: The Current State of • Goal 3: Promote gender equality and empower women the Human Rights and Development Debate Seen through the Lens of the Millennium Development Goals, Human Rights Quarterly, The focus on the “basic education” as the centerpiece Vol. 27, Issue 3 (2005), pp. 755-829, p.823 (“…the MDGs can, up of EFA, insistence that states prioritize EFA resembles the to a point, be taken as reflecting the minimum content of certain elements of the “minimum core” outlined above. At the same of the economic and social rights, so that states that fail to achieve their MDG commitments cannot easily seek to excuse themselves time, EFA and MDGs entail commitments that are clearly not by relying upon a lack of available resources or arguments based immediately realizable. It is possible and, indeed likely, that on progressive realization.”) I n ter n ation al an d Reg ion al L eg al F rameworks 17 programmes at whatever level of education is con- As becomes evident from the survey of international and sidered ‘basic’. All states must fulfill their obligation regional instruments, adoption of the “minimum core” to offer free and compulsory primary education in concept is not universal. The treaty monitoring bodies have accordance with the United Nations Convention tried to outline a set of “core” obligations although those on the Rights of the Child and other international vary among different bodies both in terms of content and commitments. (emphasis added).86 scope. Some regional instruments and institutions differentiate between obligations that have immediate effect and those that could be realized progressively; on the other hand, Summary other instruments do not. Some institutions state that states are obligated to guarantee a minimum threshold of human Box 1: “Minimum Core” obligations for the rights regardless of their economic development; others right to education view availability of resources as a relevant factor, although here, too, the institutions differ on whether states must use • to provide access to public educational all available resources, maximum resources, or reasonable institutions and programs without discrim- resources. Lastly, one regional institution—the African ination (this includes the requirement for Commission—suggests that the minimum core obligations government to establish and fund educa- are non-derogable. tional institutions as well to permit third In the development context, areas of prioritization iden- party to do so) tified by the EFA and the MDGs resemble elements of the “minimum core” outlined by the Committee. However, the • to secure access for all to primary education development context also emphasizes basic education, the that is compulsory and free of charge definition of which is left to the states (although, accord- • to ensure that education is of good quali- ing to the the Jomtien Declaration it encompasses literacy, ty (this includes the requirement that the oral expression, numeracy and problem solving, as well as government set minimal standards of health knowledge, skills, values and attitudes necessary for survival, and safety as well professional requirements development of full capacities, and life with dignity). Refer- for teachers) ences to “basic education” also feature in the state reports • to ensure that education is directed to the to the Committee. Those are discussed below as evidence development of human personality and of how states themselves have interpreted the “minimum sense of dignity, that it enables all persons core” of the right to education.87 to participate in a free society, and that it 86  Dakar Framework For Action, supra, http://unesdoc.unesco.org/ promotes understanding among ethnic, images/0012/001211/121147e.pdf, p. 15. This approach is consistent national, racial and religious groups with the statement in the background report accompanying the Decla- ration that “each country must first diagnose its own societal resources • to ensure that instruction is provided in and requirements in order to define the basic level of learning suited appropriate language so that the language to its context.” Meeting Basic Learning Needs: A Vision for 1990s, is not foreign to either the students or the supra, http://unesdoc.unesco.org/images/0009/000975/097552e. teachers pdf, at 41. Elsewhere, the document specifically states that interna- tional or other external measures of basic education should not be • to prohibit corporal punishment imposed on the states. 87  Vienna Convention on the law of treaties (with annex). Concluded • to adopt and implement a national educa- at Vienna on 23 May 1969 Article 31(2)(b). tional strategy which includes provision for secondary, higher and fundamental edu- cation; and • to ensure free choice of education without interference from the State or third parties, subject to conformity with “minimum edu- cational standards” 18 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” 3. “Minimum Core” in State Practice It is not easy to ascertain how a state interprets an inter- the state to its citizens. A number of these rights, such national treaty in practice. One indication might be reports as “education for all” (Art. 20(1)), provide objectives, submitted by states to the Committee and the CRC. Another requiring immediate implementation.” (emphasis added) indication might be national legislation, including national • Yemen’s report (submitted in 2014) notes that “Poverty Constitutions, particularly if they explicitly implement the is also one of the structural problems hampering the international agreement. Lastly, national jurisprudence process of development and innovation in the field of could indicate what the state and the courts consider as core human rights since current efforts are focused on ensur- obligations of the state. ing the minimum of rights and a decent life at a time It is worth noting the limitations of this methodology. when increasing demands are being made for qualitative With respect to state reports to treaty monitoring bodies, the improvement in public and private rights and freedoms”. rhetoric in the narratives may not always accurately reflect With respect to the right to education, Yemen focuses the actual practice. With respect to national laws and juris- on the provision of “basic education”, noting that “The prudence, the research herein has been severely limited both National Strategy for the Development of Basic Edu- due to language constraints and due to lack of accessibility cation 2003–2015 and the overall Strategic Programme to all relevant documents. Jurisprudential analysis is further contain numerous components embodying the concepts limited by the fact that in many states, socio economic rights of equality and non-discrimination, particularly in regard are not justiciable. to enrolment and awareness-raising, and programmes have been designed for children with special needs and State Reports children from poor families in rural and urban areas. The Ministry of Education is also helping to implement A review of state reports submitted to the CESCR suggests a number of education programmes for refugee children that states rarely use the term “minimum core” or “imme- in collaboration with the organizations and bodies con- diate obligations”.88 When such references are made, there cerned. The Strategic Programme consists of plans for is little accompanying discussion, as the following samples the reform and improvement of basic education and the illustrate. Moreover, states sometimes refer to “minimum determination and development of strategic performance needs”, “minimum demands”, “basic services” or “basic therein, as well as a national strategy for the development education”. It is difficult to ascertain whether those references of secondary education….” reflect the states’ views of their legal obligations or simply • Uganda’s report (submitted in 2012) provides that “ statements capturing their state-of-affairs. Under the National objectives and Directives Principles • Namibia’s report (submitted in 2014) provides that “ … the fundamental human rights and freedoms (Chapter 3) 88  State reports dating back 10 years were examined. For each, a provisions of the Namibian Constitution and its princi- search was done for words “minimum”, “core”, and “immediate”. ples of state policy provide a level of commitment… set In addition, in each report a section on “Right to Education” (or a precedent in terms of the scope of the commitment of “Education”) was examined in detail. “Min im um Core ” in State P ractice 19 of state policy provision is made that the State shall In some instances, state reports give indication of what make reasonable provision for the welfare and mainte- states do not consider to be immediately realizable obligations. nance of the aged, the state shall endeavor to fulfill the Thus, for example, Kenya report to CESR states that “[w] fundamental rights of all Ugandans to ensure that; all ith regard to children with disabilities, the Government has development efforts are directed at ensuring the maxi- progressively established programmes in various institutions mum social and cultural wellbeing of the people and all to cater for these learners.” (emphasis added)89 Similarly, Ugandans enjoy rights and opportunities and access to Burundy acknowledges without further explanation that “[t] education, health services, clean and safe water, decent here are no specific programmes of education for vulnera- shelter, adequate clothing, food security and pension ble children such as those with disabilities, orphans, street retirement benefits. The above national objectives and children and the Batwa minority, except for some initiatives directives for state policy create the basis for guaranteeing by UNICEF and a number of charitable organizations.”90 to people in Uganda minimum social economic rights.” Yet in other instances, it is difficult to discern whether (emphasis added). With respect to housing, the report states believe a certain element of the right to education is notes the following: “ Regarding habitability as a core subject to progressive realization (rather than immediate minimum state obligation which entails, adequate space realization) or whether they accept it as a core obligation but and protection from the effects of weather, threats to due to the scarcity of resources are unable to fully implement health, hazards and disease restrictions and regulations it. Consider, for example, Zimbabwe. While its Education on occupancy of wetlands have been made by institut- Act guarantees the right to basic education and while at the ing the National Environmental Management Authority presentation to the Human Rights Council, the Zimbabwe (NEMA) to monitor and regulate the use of water-logged delegation stated that “[e]very citizen of Zimbabwe had the areas and forest reserves.” right to State-funded primary education…”, the Committee on • Vietman’s report (submitted in 2011) states that: “the the Rights of the Child noted that education in Zimbabwe is right to suitable living standards, particularly food, neither free nor compulsory. In fact, the school fees had been clothing and housing—the minimum rights that people identified as the major contributor to falling enrolling rates. are entitled to—is always given the highest priority by In response, the Zimbabwe delegation offered the following: the Vietnamese State.” (emphasis added) With respect [t]he State had to take reasonable measures to to the right to food, the report notes that “Many policies, achieve progressive realization of those rights. The programmes and measures have been proposed to meet request for parents to pay was an interim measure the people’s minimum demand of food, provide nutrition and would be phased out as resources became for the people to maintain, develop their physical and available. Parents were made aware of the need mental strength, and ensure food safety and hygiene for for their children to remain in school. They did the people with particular focus on poverty reduction not have to pay all their fees at once and could and income improvement for the people.” come up with payment plans so that their children • An early report from Morocco (submitted in 1993) quotes could remain in school. No child should be denied then-King in his direction to attend to economic and education because of the non-payment of fees. social rights: “There are clearly human rights, but there Zimbabwe had one of the highest literacy rates in are also other rights which ought to be examined, even Africa.91 (italicized emphasis added) if they are not represented in other bodies, because they are among human rights. What are concerned here are 89  Committee on Economic, Social and Cultural Rights Consideration social rights, the minimum economic level and any right of reports submitted by States parties under articles 16 and 17 of of a kind to make a Moroccan citizen a worthy man in the International Covenant on Economic, Social and Cultural Rights full enjoyment of his liberties…Our Council must work Combined second to fifth periodic reports of States parties due in to guarantee the dignity of every Moroccan at the social 2013 Kenya, E/C.12/KEN/2-5, February 2014. 90  Committee on Economic, Social and Cultural Rights Consider- and economic level”. (E/1990/5/Add.13) ation of reports submitted by States parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Thus, even those few state reports that refer to minimum Rights Initial reports of States parties due in 1992 Burundi, E/C.12/ levels or immediate obligations, do so obliquely without BDI/1, January 2014 91  Committee on the Rights of the Child considers the report of Zim- elaboration of which elements of the rights correspond to babwe, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews. such minimum levels or trigger such immediate obligations. aspx?NewsID=16972&LangID=E 20 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” The reference to the progressive realization might sug- especially for disadvantaged and marginalized individuals gest that the government does not view provision of free and groups.”97 Its lack of guidance coupled with the recent education an immediate obligation. However, this is likely remarks might suggest that the Committee considers the not the case because, as described in the state report to the “minimum core” a state-set standard.98 CRC, the government had prioritized and already undertaken a number of schemes to secure additional funds for schools National Laws and Policies as well as funds for payments of school and other fees for those students who cannot afford them.92 It seems more likely Most of the states have provisions in national Constitutions that state reports (unlike court cases discussed infra) blur or other legal documents guaranteeing the right to educa- and do not differentiate between a state’s obligation and its tion. Yet the scope of those guarantees varies: most states implementation of that obligation. guarantee access to primary education while some provide a The Committee, in its Concluding Observations, has not guarantee to “basic” education (that may or may not include given further clarity to the “minimum core” concept. The Committee rarely refers to “minimum core” or immediate 92  Consideration of reports submitted by States parties under article obligations and when it does, it provides no guidance as 44 of the Convention Second periodic reports of States parties due to what actions it requires of the state. For example, in the in 2002 Zimbabwe, CRC/C/ZWE/2 http://daccess-dds-ny.un.org/ 1990s when a number of countries were in the throes of doc/UNDOC/GEN/G15/076/22/PDF/G1507622.pdf?OpenElement 93  Committee on Economic, social and Cultural Rights, Consideration economic crises, a number of states highlighted the limited fo Reports Submitted by States Parties Under Articles 16 and 17 of the resources as standing in the way of their implementation of Covenant, Concluding observations of the Committee on Economic, the rights. Such was the case, for example, with Suriname Social and Cultural Rights: Suriname, E/C.12/1995/6, June 1995. whose report clearly evidenced state’s struggle to fulfill its 94  Committee on Economic, social and Cultural Rights, Consider- obligation. Yet, in its Concluding Observations, the Committee ation fo Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant, Concluding observations of the Committee on does not mention “minimum core” obligations nor gives any Economic, Social and Cultural Rights: Zimbabwe, E/C.12/1/Add.12 guidance regarding prioritization.93 In its Concluding Obser- 95  Concluding Observations: Zimbabwe, supra E/C.12/1/Add.12 96  Open letter of 16 May 2012 from the Chair of the Committee to vation to Zimbabwe’s 1995 report, which also highlighted States parties on economic, social and cultural rights in the context the country’s economic struggles, the Committee oddly of the economic and financial crisis, http://www2.ohchr.org/english/ mentions only de jure non-discrimination and protection of bodies/cescr/docs/LetterCESCRtoSP16.05.12.pdf 97  Committee on Economic, social and Cultural Rights, Consideration cultural rights of minorities as rights subject to immediate fo Reports Submitted by States Parties Under Articles 16 and 17 of the realization independent of resources despite Zimbabwe’s Covenant, Concluding observations of the Committee on Economic, report outlining difficulty in realizing virtually every right.94 Social and Cultural Rights: Spain, E/C.12/ESP/CO/5, June 2012. With respect to the right to education, the Committee noted 98  Some state reports appear to reflect this approach: e.g., Uganda “as a signatory to the Covenant, [Zimbabwe] is committed state report provided the following: “Regarding habitability as a core minimum state obligation which entails, adequate space and to ensure compulsory, free primary education to all children protection from the effects of weather, threats to health, hazards and in Zimbabwe. Even though the Committee is aware of the disease restrictions and regulations on occupancy of wetlands have current difficulties in Zimbabwe and the State party’s efforts been made by instituting the National Environmental Management Authority (NEMA) to monitor and regulate the use of water-logged in this field, the Committee invites Zimbabwe to submit to areas and forest reserves.” Consideration of reports submitted by it within a year a plan of action and a progress report as to States parties under articles 16 and 17 of the International Covenant the implementation of this obligation.”95 on Economic Social and Cultural Rights Initial reports submitted by States parties due in 1990 Uganda, E/C.12/UGA/1, December 2013; More recently, in a letter to member states, the Committee Canada mentions a “core housing need” – a nationally defined cate- noted that while “some adjustments in the implementations of gory of “households that do not have sufficient income to access an [ICESCR’ rights] are at times inevitable”, any such adjustment adequate and suitable dwelling without spending 30 percent or more must, among other things, “the minimum core content of the of their household income”. There is no evidence that this is tied to the “minimum core” of the right to housing under international law rights…and ensure the protection of this core content at all and is surely above the core housing rights that many developing times.”96 Similarly, in Concluding Observations for Spain’s states could fulfill. Thus, this could be described as an attempt by 2012 report, the Committee recommended without further Canada to define its own national core minimum on which it feels obligation to report to the CESCR. Consideration of reports submitted elaboration that “that the State party ensure that all the aus- by States parties under articles 16 and 17 of the International Cove- terity measures adopted reflect the minimum core content of nant on Economic, Social and Cultural Rights Sixth periodic reports all the Covenant rights and that it take all appropriate mea- of States parties due in 2010 Canada, E/C.12/CAN/6, April 2013, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download. sures to protect that core content under any circumstances, aspx?symbolno=E%2fC.12%2fCAN%2f6&Lang=en “Min im um Core ” in State P ractice 21 adult education). Even when states use the term “basic levels of education, and (c) identification of obligations of education”, it is unclear whether they intend to connote immediate nature. Given the numerous limitations, at most, classification (e.g., Nambia’s Education Act defines ‘basic sporadic jurisprudence could provide only minimal guidance education’ as Grades 1-12; Venezuela considers “basic educa- on whether (and, if so, how) state and local authorities tion” as encompassing preschool, primary and intermediate engage with the concept of “minimum core” of the right levels; Gambia touts is expanded vision of basic education, to education. Efforts has been made to present a diverse which encompasses early childhood education, adult and sample of caselaw. non-formal education and nine years of continuous formal schooling—from grades 1–9; South African Constitution and South Africa United Kingdonm include “adult basic education” in the “Minimum core” guarantee of the right to basic education) or whether the term (also) encompasses qualitative dimension as suggested The South African Constitutional Court has explicitly consid- in the Jomtien Declaration and recently reaffirmed by the ered the “minimum core” concept in the context of the right Expert Consultation on the Operational Definition of Basic to housing, but ultimately questioned whether the Courts had Education (17-18 December 2007).99 capacity to define the “minimum core” and thus to evaluate According to the World Policy Center, 77% of low-income whether or not the state had complied with its minimum core states, 90% of middle-income states and 96% of high-income obligations.102 Indeed, the reasoning of the Court suggested states guarantee free and compulsory primary education.100 that it was under the impression that it was being urged to Additionally, according to UNESCO, as of 2014, 94 out of the define the South Africa’s state-specific minimum core (rather 107 low and middle-income countries have legislated free than determine if South Africa violated the international law lower secondary education.101 Of these, 66 have constitutional standard as implemented in national legislation103): guarantees and 28 enacted other legal measures. Although the vast majority of state reports to the Com- …the committee developed the concept of minimum mittee outline laws, programs and policies aimed at provision core over many years of examining reports by report- of education for people with disabilities, indigenous and ing states. This Court does not have comparable other vulnerable communities, improving literacy among the information. …it could not be done unless sufficient broader population, it is not clear if states themselves view such laws, programs and policies as realizations of imme- 99  UNESCO, Expert Consultation on the Operational Defi nition of diate obligations or as part of their progressive realization Basic Education 17-18 December 2007 http://www.right-to-education. of the right to education. The next section turns to consider org/sites/right-to-education.org/files/resource-attachments/UNES- whether further clarity regarding states’ understanding of CO_Expert_Consultant_on_the_Operational_Definition_of_Basic_Edu- cation_Conclusions_2007_EN.pdf; See also, e.g., Chiedza Simbo, the “minimum core” concept could be gleaned from national “Defining the term basic education in the South African Constitution: jurisprudence. An international law approach”, Law, Democracy and Development , Vol. 16 (2012), p. 162. (arguing that “basic education” in South African Constitution should be interpreted as connoting quality) National Jurisprudence http://www.ldd.org.za/images/stories/Ready_for_publication/ simbo%20defining%20basic%20education.pdf 100  World Policy Center, http://worldpolicycenter.org/policies/is-pri- At the outset, it should be re-emphasized that in many mary-education-tuition-free-and-compulsory Tuition-free includes states, even where national legislation provides guarantees cases where no tuition is charged in primary school, but there may of socio-economic rights, the claims of violation of those be other fees. These additional fees cannot be compared across rights are not justiciable. Moreover, there is no require- countries as there is not enough information available. Compulsory education can be specified by an age range, a number of years, or a ment in international or regional legal frameworks for the level of education during which children are required to go to school. “minimum core” rights to be justiciable. Lastly, litigation 101  UNESCO, Global Database on the Right to Education. at national levels most frequently entails challenges to the http://www.unesco.org/education/edurights/index.php?ac- right to education guaranteed by national constitutions or tion=home&lng=en (analyzed at http://unesdoc.unesco.org/ images/0023/002322/232205e.pdf) other national laws. Those do not necessarily correspond 102  Government of the Republic of South Africa & others v Groot- to the guarantees pursuant to international human rights. boom & others, (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 Accordingly, jurisprudential search was focused on the courts’ (11) BCLR 1169 (4 October 2000), http://www.saflii.org/za/cases/ ZACC/2000/19.html (a) engagement with the “minimum core” terminology, (b) 103  The guarantees of socio-economic rights in the South African interpretation of the fundamental/essential/basic/minimal Constitution very closely the provisions of the ICESCR. 22 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” information is placed before a court to enable it to Court in Section 27 and Others v Minister of Education,109 determine the minimum core in any given context. wherein it held that provision of textbooks was an essential In this case, we do not have sufficient information component of the right to basic education and is subject to to determine what would comprise the minimum immediate realization under the Constitution. In that the core obligation in the context of our Constitution.104 judgment, Justice Kollapen further emphasized that, in order to be meaningful, the right to basic education includes ‘such issues as infrastructure, learner transport, security at schools, Basic Education/Immediate Realization nutrition and such related matters’.110 Most recently, the High Independent of Resources Court of South Africa also held that states must provide transportation to those students who would otherwise not The right to basic education under the South African Con- be able to attend school.111 stitution is different from the right to housing in that it is not subject to progressive realization: Everyone has the right: a. to a basic education, including adult basic education; and b. to further education, which the state, through reason- able measures, must make progressively available and accessible. (Article 29) 104  Government of the Republic of SouthAfrica & others v Grootboom & others, supra at para. 33. 105  Ex parte Gauteng Provincial Legislature: In re dispute concerning the Although never explicitly invoking the “minimum core” constitutionality of certain provisions of the Gauteng School Education standard, the courts have essentially ascribed the content to Bill of 1995; Tripartite Steering Committee and Another v Minister the right to basic education that recalls some of the features of Basic Education and Others (1830/2015) [2015] ZAECGHC 67 (25 June 2015). For a review of South African jurisprudence related to and components of the “minimum core” standard envisioned the right to education, see http://www.scielo.org.za/scielo.php?pi by international instruments and institutions. Thus, for d=S2225-71602013000100002&script=sci_arttext&tlng=pt 106  Governing Body of Juma Musjid Primary School and Others v example, the courts have held that the “right to education” is Essay NO and Others (2011), http://www.seri-sa.org/images/stories/ a positive right that obligates the state to provide education jumamusjidccjudgment_apr11.pdf, at para. 37 for every person and “not merely a negative right that such a 107  Madzodzo et al v. Minister of Basic Education et al (2014), https:// person should not be obstructed in pursuing his or her basic www.escr-net.org/sites/default/files/Madzodzo%20Cour%20 order%20%2820%20Feb%202014%29_2.pdf, at para. 17 education”.105 Moreover, the Constitutional Court of South 108  The Court held that the government’s failure to budget adequate Africa has held that the right to basic education is subject amounts to secure purchase of necessary furniture does not excuse to immediate realization and not subject to availability of its nonperformance and that it should have realized the amounts resources: “There is no internal limitation requiring that the were insufficient and made appropriate arrangements to ensure its ability to fulfill the immediately realizable right to basic education. right be ‘progressively realized’ within ‘available resources’ This case, however, also highlights that immediate realisability of subject to ‘reasonable legislative measures. … This right the right requires, at minimum, that the breaching part offers (and is therefore distinct from the right to “further education” abides by) a clear timetable for relief. 109  Section 27 and Others and Another (24565/2012) [2012] ZAGPPHC provided for in section 29(1)(b).”106 114; [2012] 3 All SA 579 (GNP); 2013 (2) BCLR 237 (GNP); 2013 (2) In Madzodzo et al v. Minister of Basic Education et al SA 40 (GNP) (17 May 2012); Minister of Basic Education v Basic (2014)107, the Constitutional Court held that the right to basic Education for All (20793/2014) [2015] ZASCA 198 (2 December 2015) 110  Section 27 & others v Minister of Education & another [2012] 3 education requires the state to take “all reasonable measures All SA 579 (GNP), para. 23 to realize the right to basic education with immediate effect. 111  Tripartite Steering Committee and Another v Minister of Basic This requires that all necessary conditions for the achievement Education and Others (1830/2015) [2015] ZAECGHC 67 (25 June of the right to education be provided” (italicized emphasis 2015). A similar finding was made by the Brazilian Tribunal of the State Minas Gerais. See UN Comm’n on Human Rights, Information added). The Court proceeded to find that access to school, Provided by the Special Rapporteur on the Right to Education, Ms. provision of teaching and non-teaching staff and adequate Katarina Tomasevski, UN Doc. E/CN.4/2004/WG.23/CRP.4, 3 Feb- teaching and learning resources, as well as appropriate ruary 2004, p. 7 (citing decision of the Tribunal of the State Minas Gerais (TMG)) concerning Apelação Civel No. 000.197.843-6/2000 furniture all constitute necessary conditions that the state (holding that the right to free and compulsory education includes free must provide.108 A similar approach had been taken by the transportation if students are otherwise unable to attend school)). “Min im um Core ” in State P ractice 23 Swaziland India Immediate Realization Independent of Immediate Realization Independent of Resources Resources/Content of the Right In Swaziland National Ex-Miners Workers Association v In India, the right to free and compulsory education is a fun- The Minister of Education (2010) applicants alleged that the damental right under Article 21A of India’s Constitution and, government was in violation of s 29(6) of the Swaziland in 2009, has been further clarified in the Right to Education Constitution, which provides that “[e]very Swazi child shall Act (RTE). In case before it (prior to the enactment of the within three years of the commencement of this Constitution RTE), the Indian Supreme Court held that “[t]he State is duty have the right to free education in public schools at least up bound to implement [Article 21A] on a priority basis.”112 Not- to the end of primary school, beginning with the first grade.” ing the laxity in the government’s implementation, the Court The government claimed that “‘free education’ referred to directed the Central Government “to set a time-limit within ‘a consolidated programme aimed at creating an environ- which this Article is going to be completely implemented. ment characterised by minimum barriers to quality primary This time limit must be set within six months.” The Court education”, that it had prioritized orphans and vulnerable proceeded to direct that the government enact legislation that children and had a plan for incremental implementation of (a) provides low-income parents/guardians with free education, starting with the first grade. financial incentives such that they may afford to The Court at first instance refused to read in an ele- send their children to school; ment of progressive realization as it found such reading to be unsupported by international legal commitments made (b) criminally penalizes those who receive financial by Swaziland. It held the government to be in violation incentives and despite such payment send their of the Constitution, which unequivocally guaranteed free children to work; education to all children (not just those in first grade) with- in the Constitutionally prescribed time period. The court (c) penalizes employers who preclude children then issued a declaratory order that every child in primary from attending school or completing homework; school was “entitled to education free of charge, at no cost and not requiring any contribution from any such child (d) the penalty should include imprisonment; …The regarding tuition, supply of textbooks, and all inputs that State is obligated under Article 21A to implement ensure access to education” and that it was the obligation free and compulsory education in toto; of the Government of Swaziland to make such provisions. However, when the applicants filed a second claim seeking (e) Until we have achieved the object of free and a mandatory order to make free primary education imme- compulsory education, the Government should diately available, the High Court dismissed the application. continue to increase the education budget; It noted that there is a difference between recognition of a right and enforcement of that right, which depended on (f) the Parliament should set a deadline by which available resources. The Court found that the government’s time free and compulsory education will have staggered approach to free education was ‘reasonable and reached every child. This must be done within six satisfactory in view of the limited resources.’ Importantly, months.113 however, the Supreme Court affirmed but went further to The Court further emphasized that in addition to free hold that the right to education, as a socio-economic right, education and/or other financial assistance, poor families could only be progressively realized subject to the available should also be given books, uniforms and any other necessary financial and infrastructural resources. benefits, noting that “the State cannot avoid its constitutional obligation on the ground of financial inabilities.”114 Similarly, in Amiya Sinha and Ors. V. State of Tripura and Ors, the Gawahati High Court reaffirmed that “Right to education… 112  Ashoka Kumar Thakur v. Union of India & Ors, [2008] 4 S.C.R. 1 113  Ashoka Kumar Thakur v. Union of India & Ors, [2008] 4 S.C.R. 1 24 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” means: (a) every child/citizen of this country has a right to Costa Rica free education until he completes the age of fourteen years Fundamental Right and (b) after a child’ citizen completes 14 years, his right to education is circumscribed by the limits of the economic In Costa Rica, the Constitutional Court has declared that school capacity of the State and its development.”115 In Environmental fees or charges of any kind, whether direct or indirect, are & Consumer Protection Foundation v Delhi Administration unconstitutional. This interpretation of the Constitution as & Others [2012] INSC 584, the Supreme Court of India held guaranteeing state-sponsored free education occurred following that failure to provide working toilets, drinking water facil- the filing of a petition by parents against a state educational ities, sufficient classrooms, and necessary staff violated the institution for refusing to enroll their son after they could not right to education and ordered all states to do so within six afford to pay the ‘voluntary contributions’ that the school months of the order. required for enrolment. Specifically, the Court declared that In a landmark 2012 case,116 the Supreme Court of India fees imposed by educational institutions violate Article 78, upheld the constitutionality of section 12 of the RTE, which which states that: ‘Preschool and general basic education are requires all schools, both state-funded and private, to accept obligatory. These and diversified education in the public system 25% intake of children from disadvantaged groups. However, are free and supported by the Nation.’121 The Court reasoned the Court held that the RTE could not require private, minority that ‘[c]onditioning school attendance on the payment of a schools to satisfy a 25% quota, as this would constitute a sum of money, no matter what it is called, is to ignore what violation of the right of minority groups to establish private the Constitution provides’, in violation of the fundamental schools under the Indian Constitution.117 The Court affirmed right to education. that the State can regulate private schools by imposing rea- sonable restrictions in the public interest under Article 19(6) 114  Ashoka Kumar Thakur v. Union of India & Ors, [2008] 4 S.C.R. 1; and held that the imposition of 25% quota was a reasonable In Avinash Mehrotra Vs UOI and Ors, Indian Supreme Court held that restriction in the public interest. the fundamental right to receive education includes an obligation on the part of the state to ensure safety and soundness of the facilities. Colombia118 Writ Petition (Civil) No. 483 of 2004, April 13, 2009. 115  Amiya Sinha and Ors. Vs State of Tripura and Ors., © Nos. 360 of Immediate Realization Independent 2008AND 235 of 2009, Gawathi High Court. of Resources 116  Society for Unaided Private Schools of Rajasthan v Union of India and Another (2012) 6 SCC; Writ Petition (C) No. 95 of 2010. 117  Society for Unaided Private Schools of Rajasthan v Union of India The Constitutional Court of Colombia, in the context of a and Another (2012) 6 SCC; Writ Petition (C) No. 95 of 2010. 118  In the context of the right to health, Columbia Constitutional Court challenge to the Government’s imposition of fees for primary equated the two tiers of health benefits—contributory regime (Plan education, held that the Government had an obligation to Obligatorio de Salud, or POS) for those formally employed or earn- guarantee free primary education for all children.119 Referring ing more than twice the minimum wage, and the subsidized regime to international and regional treaties, as well as to General (Plan Obligatorio de Salud Subsidiado, POSS)—to “minimum core” as defined in the Committee’s General Comment 13. It reaffirmed Comment 13, the Court held that the obligation to provide in its jurisprudence that POS and POSS are subject to immediate free primary education is not subject to progressive reali- realization and distinguished the obligation from implementation. See zation but is an obligation of immediate compliance. The e.g., Sentencia T-016/07; Sentencia T-227/ 03; Sentencia T-760/2008; Court did not, however, address the imposition of indirect For a discussion, see e.g., Alicia Yamin, “How Do Courts Set Health Policy? The Case of the Colombian Constitutional Court”, PLoS Med. fees such as the costs of books, food and travel and it has 2009 Feb; 6(2); Katharine G. Young & Julieta Lemaitre, “The Com- been therefore assumed that those costs are permissibly parative Fortunes of the Right to Health: Two Tales of Justiciability born by the families.120 In Dec 2011, the Colombian national in Colombia and South Africa”, Harvard Human Rights Journal, Vol. 26 (2013), 179-216. Government issued National Decree 4807/2011 establishing 119  Decision C-376/2010 (DeJusticia vs Government of Colombia), that education shall be free in public institutions at the pri- Colombian Constitutional Court (19 May 2010). For translated excerpts mary and secondary levels. see http://www.crin.org/ Law/instrument.asp?InstID=186 120  CRIN, COLOMBIA: Free education secured for 12 million children, http://www.right-to-education.org/sites/right-to-education.org/ files/resource-attachments/CRIN_Colombia_Education_for_12mil- lion_Children_2016_En.pdf, p. 4 121  Constitutional Chamber of the Supreme Court of Justice of Costa Rica, Decision 10/5/2000, No. 2000- 03954 of 14:55 of 10 May 2000 (dis- cussed at http://www.right-to-education.org/sites/right-to-education. org/files/resource-attachments/Interights_Bulletin_17.2_2013_en.pdf). “Min im um Core ” in State P ractice 25 Nigeria right to a sound basic education which would prepare the child to participate fully in society as it existed in his or her Immediate Realization Independent of lifetime.”126 The Court defined a sound basic education as Resources one that will provide students with each of the following abilities, skills, and areas of knowledge: In SERAP v The Federal Republic of Nigeria & Anor (2010), the Community Court of Justice of ECOWAS (the CCJ) heard (1) Sufficient ability to read, write, and speak the allegations of the mismanagement of funds allocated for basic English language and a sufficient knowledge of education, leading to the denial of free and compulsory educa- fundamental mathematics and physical science to tion guaranteed by national and international instruments.122 enable the student to function in a complex and The Court held that “whilst steps are being taken to recover rapidly changing society; the funds or prosecute the suspects, as the case may be, it is in order that the [Government] should take the necessary (2) Sufficient fundamental knowledge of geography, steps to provide the money to cover the shortfall to ensure a history, and basic economic and political systems to smooth implementation of the education programme, lest a enable the student to make informed choices with section of the people should be denied a right to education.” regard to issues that affect the student personally or affect the student’s community, state, and nation; Czech Republic (3) Sufficient academic and vocational skills Content of the Right to enable the student to successfully engage in post-secondary education or vocational training; The Constitutional Court of the Czech Republic held that and the State is required to cover costs related to establishing and maintaining educational facilities and may not charge (4) Sufficient academic and vocational skills to tuition in primary and secondary education.123 However, the enable the student to compete on an equal basis state is not responsible for covering all costs directly related with others in further formal education or gainful to attendance and fees imposed on students for basic school employment in contemporary society.127 materials did not violate the right to education under the European Charter on Human Rights, the Convention on the At a subsequent trial, The Court offered general guide- Rights of the Child, and the ICESCR.124 lines for a proper resource allocation system: [that] every classroom be staffed with a competent, certified, well-trained United States teacher; that every school be led by a well-trained, compe- tent principal; that every school be provided, in the most In the United States the right to education is not enshrined cost-effective manner, the resources necessary to support the in the U.S. Constitution and federal courts have generally refused to recognize the fundamental right to education of all citizens. However, the right to basic (or adequate) edu- 122  The Registered Trustees of the Socio-Economic Rights and Account- cation appears in state constitutions and has been litigated ability Project (SERAP) v The Federal Republic of Nigeria and Universal extensively across the states. A comprehensive survey of U.S. Basic Education Commission (UBEC) (30 November 2010) ECW/CCJ/ JUD/07/10 (ECOWAS Community Court of Justice). caselaw is beyond the scope of this paper. As a result, only a 123  See Czech Republic Constitutional Court, School Material Decision, sample of seminal cases is provided here. The vast majority Pl. ÚS 25/94, CZE-1995-2-008, Judgment, 13 June 1995 (Czech only), of the cases speak to the content of “basic education” and summarized at http://www.ijrcenter.org/thematic-research-guides/ the corresponding duty on the part of the state to provide education/ 124  See Czech Republic Constitutional Court, School Material Decision, funding necessary for the realization of students’ rights to Pl. ÚS 25/94, CZE-1995-2-008, Judgment, 13 June 1995 (Czech only), basic education. summarized at http://www.ijrcenter.org/thematic-research-guides/ In 1997, the North Carolina Supreme Court held that education/ 125  Leandro v. State, 346 N.C. 336, 347 (1997) (“Leandro I”). North Carolina’s state constitution “guarantee[s] every 126  Leandro v. State, 346 N.C. 336, 347 (1997) (“Leandro I”). child in this state an opportunity to receive a sound basic 127  For an extensive discussion of Leandro I, see North Carolina Bar education in our public schools.”125 The Court stated, “The Association, “Guide to Student Advocacy in North Carolina; Chapter 1: The Constitutional Right to A Sound Basic Education” https:// intent of the framers was that every child have a fundamental www.ncbar.org/media/558490/gsa15-toc.pdf 26 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” effective instructional program within that school so that the Other educational needs of all children may be met.128 In another seminal decision, the Court stated that adequate A number of court cases across different countries deal with education must include (in addition to traditional reading states obligations towards vulnerable children, including and mathematical skills): knowledge of the physical scienc- children of indigenous communities, minorities, children es; “sufficient knowledge of economic, social and political with disabilities and children in detention centers. Generally systems to enable the student to make informed choices”; speaking, national courts recognize that the right to education “sufficient understanding of governmental processes to must be implemented without discrimination and that the state enable the student to understand the issues that affect his has a general obligation to ensure access for such children. or her community, state and nation”; and “sufficient levels of academic or vocational skills to . . . compete favorably . Summary . . in the job market.”129 In New York, the highest state court ruled that school- A review of selected jurisdictions suggests that it is very rare children were constitutionally entitled to the “opportunity for states to employ the “minimum core” terminology.135 for a meaningful high school education, one which prepares “Basic education” is a more common terminology employed them to function productively as civic participants.”130 The in national laws and, to various extents, it resembles the court stressed that although in the nineteenth century, when international “minimum core” concept and particularly the the state’s adequacy clause was adopted, a sound basic recognition that the right to free and compulsory education education may well have consisted of an eighth- or ninth- triggers an immediate obligations irrespective of available grade education, “the definition of a sound basic education must serve the future as well as the case now before us.”131 Some state courts have begun to recognize that stu- dents who come to school disadvantaged by the burdens of 128  Hoke County School Board v. State, 358 N.C. 605,. 599 S.E.2d severe poverty need a more comprehensive set of services 365 (2004) (Leandro II) and resources in order to have a meaningful educational 129  Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 186 (Ky. opportunity. For example, the New Jersey Supreme Court 1989). The Rose standards have been explicitly adopted by courts observed that “the educational needs of students in poorer in Massachusetts and New Hampshire, and they have substantially influenced the constitutional definitions adopted by the courts in urban districts vastly exceed those of others, especially those Alabama, North Carolina, and South Carolina. For a discussion, see from richer districts. The difference is monumental, no mat- Michael Rebell, “The Right to Comprehensive Educational Oppor- ter how it is measured. Those needs go beyond educational tunity”, Harvard Civil Rights-Civil Liberties Law Review, Vol. 47 (2012), 47-117, http://harvardcrcl.org/wp-content/uploads/2012/03/ needs; they include food, clothing and shelter, and extend Rebell.pdf to lack of close family and community ties and support, and 130  Campaign for Fiscal Equity, 801 N.E.2d at 332 lack of helpful role models. They include the needs that arise 131  Campaign for Fiscal Equity, 801 N.E.2d at 332 132  Abbott v. Burke, 575 A.2d 359, 400 (N.J. 1990) from a life led in an environment of violence, poverty, and 133  Abbott v. Burke, 710 A.2d 450 (N.J. 1998) despair. . . .The goal is to motivate them, to wipe out their 134  See Rebell, supra. disadvantages as much as a school district can, and to give 135  Similarly, in reviewing laws on social protection in India and them an educational opportunity that will enable them to Indonesia, Chopra notes that although “[j]udicial decisions that require a particular service to be delivered could be understood as use their innate ability.”132 The Court ordered the state to impliedly including that service in the state’s minimum, immediately provide the low income and minority students attending the effective obligations…courts have not engaged with the concept urban schools a range of comprehensive services, including of the minimum core or sought to define it.” Surabhi Chopra , “Legislating Safety Nets: Comparing Recent Social Protection Laws after-school and summer supplemental programs, school in Asia”, Indiana Journal of Global Legal Studies, Vol. 22, No. 2 based health and social services, and preschool services for (Summer 2015), pp. 573-629. At the same time, Chopra observes children ages three and four.133 In a number of other cases, that when Indian government attempted to prescribe the minimum courts held that states had an obligation to fund pre-schools, requirements for ensuring “adequate quantity of quality food at affordable prices” in the National Food Security Act (2014), it created particularly for for children with poverty background.134 an unambiguous but extremely spare right that was far thinner than the conception of right to food under international standards. By contrast, Indonesia created a universal system of social security that avoids assigning immediately deliverable, minimum core duties to the state, but instead “conceptualizes social security as a right to be progressively realized, thereby creating expansive but weak rights”. “Min im um Core ” in State P ractice 27 resources.136 Obligations subject to immediate realization f. when resources are scarce, prioritization is to be include: given to vulnerable children • provision of inclusive and non-discriminatory access to schools (this may include provision of school meals, g. only the African Commission takes the view that transportation, parental incentives, etc.) “minimum core” obligations are non-derogable • provision of learning resources such as furniture and core obligations: providing access to schools h. textbooks without discrimination (incl. establishing and • provision of adequate facilities, including toilets, drinking funding school as well as permitting others to water, etc. do so), securing access for all to compulsory and • provision of teachers, free primary education, ensuring that education • prohibition against imposition of tuition (i.e., direct costs) is of good quality (incl. obligation to set health, safety and teacher standards), ensuring that the The interpretation of a requirement that primary edu- object of education complies with international cation be free is least consistent across states. Some states standards, ensuring that instruction is provided in offer fully free primary education (i.e., imposing no direct appropriate language, adopting and implement- or indirect costs), others offer tuition-free primary education ing national education strategy for progressive but impose other fees (e.g., for uniforms, books, exams, realization the right to secondary, higher and etc).137 Very few states outright charge fees for attendance fundamental education, ensuring education with- of primary schools. out interference from the state or third parties, subject to conformity with “minimum educational standards”, education must be adaptable to the Summary child Despite some inconsistencies, it is possible to sketch out i. tuition fees for primary schools are prohibited the contours of what is the “minimum core” of the right to and the CESCR indicated that in some instances education and corresponding obligation. The concept appears indirect fees may be prohibited as well if they to develop along two tracks: impede access to school without discrimination (i) at international and regional level: (ii) at domestic level: a. “minimum core” is defined predominantly by treaty bodies for purposes of evaluating states’ a. “minimum core” term is rarely used in national compliance with the ICESCR laws, state reports to human rights bodies or jurisprudence b. the treaty bodies define a set of core obligations b. the term “basic education” is more commonly c. lack of clarity if the “minimum core” is universal, used in national context “Basic” sometimes corre- state-specific or both sponds to “primary” and sometimes to “primary” and “secondary” levels; at times, it includes adult the minimum core obligations are subject to d. immediate realization 136  Importantly, some courts distinguish between the existence of immediate obligation and enforcement of its implementation, e. minimum core is not subject to availability of suggesting that resources have a practical effect on the children’s resources and not dependent on the level of ability to enjoy even the minimum level of education. 137  Even in wealthy states, like the United States, where public schools development, although the regional treaty bodies (and some national courts) differentiate between are free and no textbook or other fees are generally imposed on the existence of the minimum core obligation and students, low or decreasing budgets for schools often lead parent associations to raise their own funds (i.e., from parent contributions) implementation of the said obligation (the latter to cover the costs of school supplies, school trips, reduced class is subject to availability of resources) sizes, additional assistance for struggling students, etc. 28 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” education. In the United States, “basic education” furniture, textbooks, and transportation. These refers to the content of education. are considered to be essential conditions to the realization of the right to basic education c. Many national courts identify elements of the right to education that give rise to immediate f. Increasingly, tuition fees for primary schools are obligations irrespective of availability of resources prohibited. Indirect costs like textbooks, uniforms, etc. may be permitted. d. African courts differentiate between the existence of the minimum core right (which is not subject to g. General recognition that the right to primary availability of resources) and the implementation education for all includes obligation to provide of the right (which is) education to children with disabilities, children in detention and other vulnerable groups e. Most (but not all) states’ national laws guarantee the right to compulsory free primary education— this generally includes, provision of schools, The Role of I n dicators 29 4. The Role of Indicators IAs early as 1990, then-Special Rapporteur on Economic, more indicators can be introduced and the indicators can be Social and Cultural Rights, Danilo Türk noted that “indica- designed to measure inputs, process and outcomes.142 Still, tors can . . . assist in the development of the ‘core contents’ not everything that matters can be measured, and capacity of some of the less developed rights …, and can provide a and resources often limit what can be measured regularly. basis from which a ‘minimum threshold approach’ can be One might argue that indicators’ ability to strip all but what developed.”138 In 1993, participants at the World Conference makes it possible to render different units (in this case on Human Rights in Vienna in 1993, convened to consider states) comparable143 is precisely what makes it suitable for the use of indicators, ultimately agreed that “the first priority definition of “minimum core”, which, too, arguably aims to was to identify and clarify the content of the various rights identify the minimum levels common to all states. However, and obligations. Only then would it be possible to identify the creation of global indicators is often a highly political the most appropriate way to assess progressive achieve- process, as negotiations over SDG indicators aptly illustrat- ment, which may or may not involve the use of statistical ed, where deciding which indicator to chose often has little indicators.”139 Since then, the popularity of indicators has to do with what is normatively desirable or relevant to the increased exponentially although their intended use has been for monitoring compliance rather than defining the content of the rights.140 Thus, for example, in reports to the Committee, 138  U.N. Econ. & Soc. Council [ECOSOC], Realization of Economic, states routinely report on literacy rates, enrollment ratios, Social and Cultural Rights, ¶ 7, U.N. Doc. E/CN.4/Sub.2/1990/19 teachers rates, number of textbooks, number of school seats, (July 6, 1990). Young advocates for such use of indicators as well. Young, supra. budget allocation and expenditures on education, among 139  World Conference on Human Rights, Apr. 19-30, 1993, Report on other data.141 the Seminar on Appropriate Indicators to Measure Achievements in Although a complete analysis of impact of using indica- the Progressive Realization of Economic, Social and Cultural Rights, tors to define content of a human right is beyond the scope 3, U.N. Doc. A/CONF.157/PC/73 (Apr. 20, 1993). 140  For an excellent analysis on the use of human rights indicators, of this paper, a few observations regarding the limitation of see AnnJanette Rosga and Meg Satterthwaite, “The Trust in Indicators: such an approach are worth noting. Indicators are inherently Measuring Human Rights,” 27 Berkeley J. Int’l L. 256 (2009), http:// reductive. They strip context and nuances to reduce highly its.law.nyu.edu/faculty/profiles/representiveFiles/satterthwaite%20 -trustinindicators_F87546AC-1B21-6206-60D8FF1DE73901F1.pdf. complex information into an easily digestible number. Thus, 141  The type of reported data varies among states. for example measures as the number of children enrolled at 142  See e.g., http://www.lawschool.cornell.edu/Clinical-Programs/ each level of school may tell us about how many children are international-human-rights/upload/-B9-Sital-Kalantry.pdf. 143  This process is known as commensuration. For a discussion of registered—but not, for example, how many children attend commensuration, see W. E. Espeland and M.L. Stevens, “Commen- on a regular basis; the number of children who complete suration as a social process”, Annu. Rev. Sociol. 1998. 24:313.43; for the last grade will note tell us if the children learned any- commensuration and indicators, see W. E. Espeland and M. Sauder, thing, the number of textbooks will not provide information “The Dynamism of Indicators” in Governance by Indicators: Global Power through Quantification and Rankings (Kevin E. Davis, Ange- about whether their content is relevant, and the number of lina Fisher, Benedict Kingsbury, Sally Engle Merry, eds.), Oxford teachers will not tell us about their effectiveness. Of course, University Press. 30 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” rights regime but rather with what is measurable and what rights, especially if states prioritize such indicators due to data is available. political or economic incentives. It is possible, of course, for the Committee to develop a It is worth noting, however, that indicators—particularly list of indicators with the overt purpose of giving clarity to national or sub-national—also have potential to amplify real- the content of the rights. However, this process will likely ization of rights. For example, in the United States, students’ prove to be highly contentious144 and may not enjoy legitimacy performance on standardized tests (a form of indicators) without the states’ buy-in. Moreover, while the content of has been used successfully in cases litigating inequitable rights, including the “minimum core” is dynamic, shaped financing of schools, gave meaning to the content of “basic” by state practices, jurisprudence, and economic and social or “adequate” education in state constitutions, and has improvements, the indicators tend to crystalize standards, increased the role of the courts in framing and evaluating granting them saliency rather than flexibility. Rosga and Satterthwaite eloquently demonstrate that, as fixed features, 144  Cf. states’ position on whether Human Rights Committee is indicators can flout rather than enhance the substantive promise of human rights.145 This problem is compounded by empowered to determine the appropriateness of treaty reservations. Observations by the Governments of the United States and the the fact that as indicators circulate, they acquire “taken for United Kingdom on Human Rights Committee General Comment grantedness” status, often becoming impervious to change. No. 24 (52) relating to reservations, http://www.iilj.org/courses/ Consider for example the quality aspect of education. Literacy documents/USandUKResponses.pdf. 145  Rosga and Satterthwaite, supra. rates capture but a sliver of quality feature of the right to 146  The SDG indicator related to quality of education is the percent- education, but they become prominent indicator consistently age of children “at the end of lower secondary achieving at least a reported to the Committee and used in other contexts.146 minimum proficiency level in (i) reading and (ii) mathematics.” It is unclear how minimum proficiency level will be determined but Literacy is the only quality-related indicator among the illus- it will likely include literacy rates. trative indicators for the right to education proposed by the 147  OHCHR, Human Rights Indicators: A Guide to Measurement OHCHR.147 Of course, it is possible to design more indicators, We should never forget that behind every piece of statistical and which, when aggregated would more closely represent the Implementation, http://www.ohchr.org/Documents/Publications/ Human_rights_indicators_en.pdf. quality of education.148 However, collecting and reporting data 148  See, e.g., indicators proposed by the Right-to-Education proj- is a resource-intensive process. States are already mandated ect, founded by the former Special Rapporteur on the Right to to report a plethora of indicators and data,149 and given the Education, Katarina Tomaševski: http://www.right-to-education. org/monitoring/sites/right-to-education.org.monitoring/files/ scarcity of resources and lack of capacity experienced by RTE_Right_to_Education_Indicators_List_2016_En.pdf. many countries, it is inevitable that states will prioritize 149  See Follow-Up and Review of the Sustainable Development Goals collection of certain data over others. Under the High Level Political Forum (2015), Annex 1, report prepared by the NYU Law International Organizations Clinic and UNDP. In A recent study by Helena Hede Skagerlind of MDG-3 addition to mandated reporting, a list of proposed human rights (gender equality) shows that MDGs were particularly effective indicators has been prepared y the Office of High Commissioner for in causing states to promulgate national policies when they Human Rights; the Right To Education Project provides a public list were tied to financial incentives.150 This finding is perhaps of 150 indicators for measuring the right to education (the project is in the process of creating a Right to Educations Index); SDGs has 11 not surprising, but it reinforces the fact that those indicators indicators for Goal 4 (Ensure inclusive and equitable quality educa- that carry with them a financial incentive (or substantial tion and promote lifelong learning opportunities for all), the World threat of incentive withdrawal) will result in prioritization Bank has over 3000 education-related indicators (which includes education-related indicators produced by other organizations, like the of data collection for (and performance improvement on!) OECD), and there is an additional group of indicators that measure those aspects that are measured by the indicator. Drawing learning (e.g., TIMSS, PIRLS, PISA, UWEZO, etc.). 150  Helena Hede Skagerlind, “Assessment Power in Global Devel- content from the indicators thus would skew the analysis opment Policy: The Millennium Development Goals” (2016) (on toward what is measurable, available, and politically and/ file with author). or economically favorable for the states. 151  Generally on uses and effects of indicators on global governance, However, even though the use of indicators for purposes see Kevin E. Davis, Benedict Kingsbury, Sally Engle Merry, “Indicators of deriving content of human rights may be normatively as a Technology of Global Governance”, Law and Society Review vol. 46, issue 1 (March 2012); Governance by Indicators: Global Power undesirable, as a practical matter, the prevalence of indica- through Quantification and Rankings (Kevin E. Davis, Angelina tors undoubtedly has influenced both the content of human Fisher, Benedict Kingsbury, Sally Engle Merry, eds.), Oxford Uni- rights and the national priorities.151 Indeed, there is increasing versity Press; specifically on indicators and human rights, see S. E. Merry, “Human Rights Monitoring and the Question of Indicators” concern that, if not aligned with human rights standards, in Human Rights at the Crossroads (Mark Goodale, ed.), Oxford development indicators might lead to the dilution of human University Press, 2013. The Role of I n dicators 31 compliance with educational standards. Although litigation have steadily improved over time, even while tests surrounding inequitable funding in education has a long and curriculum have been made more difficult.”158 history in the United States, it was not until the introduction Similarly, in Connecticut Coalition for Justice in Educa- of standards-based reforms and corresponding assessments tion Financing, Inc., et al v. Rell,159 the state actually cited that plaintiffs began to enjoy substantial victories. standardized testing statistics indicating the Connecticut’s Availability of metrics of students’ performance provided students already have a “better-than-average change for challengers with evidence on the basis of which they could success at every stage” and emphasized that students are claim that states had failed to comply with their constitutional already performing above national average. The Court noted obligations to provide “adequate”152 education under the that these statistics “will have their place in determining at states’ constitutions (“adequacy litigation”). The availabil- trial whether a constitutional violation requiring remedial ity of state standards and corresponding learning outcome action actually exists as a question of fact.” indicators facilitated not only judicial finding of states’ legal Another reason that over-reliance by courts on outcome duties but also judicial determination of the content of that metrics may be misplaced is that it doesn’t capture the duty (i.e., what was the state obligated to provide to its sustainability of measures designed to provide “adequate” children). Learning outcome indicators became the missing education. Michael Rebell, a prominent litigator in the field objective “scientific evidence” in decision-making process of education rights in the United States, notes that on education,153 enabling courts to examine standard-based accountability schemes through constitutional lens. Indeed, for the constitutional right to a sound basic edu- the court in Idaho Sch. For Equal Educ. Opportunity v. State cation to be satisfied, outcome measures that are noted that “balancing our constitutional duty to define the meaning of the thoroughness requirement of art. 9 para. 1 [state constitution’s provision regarding education] with the political difficulties of that task has been made simpler for 152  The precise language in state constitutions varies slightly. this Court because the executive branch of the government 153  K. Welner, “Education Rights and Classroom-Based Litigation: Shifting the Boundaries of Evidence”, Review of Research in Educa- has already promulgated educational standards pursuant to tion, March 2010, Vol 34, pp. 85-112, p. 104). the legislature’s directive….”154 154  Idaho Sch . for Equal Educ. Opportunity v. State, 976 P2d 913 Use of learning outcome measures by courts to define , 919 (Idaho 1998) However, in Haridopolos v. Citizens for Strong Schools, Inc. 81 So.3d 465 (2011), rehearing denied (2012) (quoting ambiguous standards, however, is not without peril and some Bush v. Holmes 919 So.2d 392,Fla.,2006, noted that amendment of the concerns raised in the domestic context echo those to Florida Constitution in 1998 provided as “standards by which already mentioned above with respect to global indicators.155 to measure the adequacy of the public school education provided by the state”… revised constitutional provision “sets forth how the James Ryan notes, for example, that when “tests are used state is to carry out [the] education mandate, specifically, that ‘ [a] to assess whether [adequate] education is being provided, dequate provision shall be made by law for a uniform, efficient, the scope of a student’s right to an “adequate” educational safe, secure, and high quality system of free public schools.’ ” ) See opportunity will likely contract.”156 Indeed, many states have also Hancock v. Driscoll (“data from standards-based assessments have been used by courts as a yardstick to measure whether states “temporized, delayed and manipulated standards and assess- are meeting their constitutional burden of providing students with ments to avoid sanctions …, rather than ensuring that the an adequate education”). see Superfine, “School Finance Reform resources and other inputs necessary to allow all students to Litigation”, p. 495 155  See also H. Hershkoff, “Positive Rights and State Constitutions: succeed.157 States have also successfully used the test scores The Limits of Federal Rationality Review, 112 Harv. L. Rev. 1131, to show that they satisfy their constitutional duties, often 1176 (1999); K. W. Welner & H. Kupermintz, “Rethinking Expert leading to the “race to the bottom”. Ryan notes that in Neeley Testimony in Education Rights Litigation”, 26 Ed. Evaluation and Pol’y Analysis, 127, 127, 132-140 (2004); see also Superfine, “Using [t]he court recognized that there were still funding the Courts to Influence the Implementation of No Child Left Behind”, disparities and that funding might not be sufficient 28 Cardozo L. Rev. 779, 830 (2006); BUT see M. Heise, “The Courts, Educational Policy, and Unintended Consequences”, 11 Cornell J.L. to meet all curricular demands. It recognized & Pub. Pol’y 633, 634 (2002). that there were still wide gaps in performance; 156  James E. Ryan, Standards, Testing and School Finance Litigation, that dropout rates were high; that relatively few 86 TEX. L. REV. 1223, 1244–45 (2008) (p. 1240) 157  Michael A. Rebell, Jessica R. Wilff, Moving Every Child Ahead: students were prepared to enter college and that From NCLB Hype to Meaningful Educational Opportunity ( 2007) there was a shortage of highly qualified teachers. 158  James E. Ryan, Standards, Testing and School Finance Litigation, But none of this ultimately mattered because “the 86 TEX. L. REV. 1223, 1244–45 (2008), 1244. 159  295 Conn. 240, 990 A.2d, 206 (S.C. Ct, 2010) (at 311-312) undisputed evidence is that standardized test scores 32 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” indicative of success must be maintained over time. level. The next year, the fourth graders’ pass rate A constitutional guarantee is a permanent right: was 47.5 percent, and the previous year’s fourth students must be provided with appropriate educa- graders who were now in fifth grade had a pass tional opportunities not just for a particular point in rate of only 41.1 percent. A key issue in assessing time but throughout their educational experience. success in sound basic education cases, then, is Examples abound of schools achieving large but whether reforms, even if they lead to increased short-term test score gains that can be attributed to funding for underperforming schools and higher teaching to the test, changes in school population, or test scores and other outcome indicators, remain outright cheating. For example, on New York City’s in place over a long period of time.”160 [internal fourth grade reading exams in 2005, 83 percent of citations omitted] the fourth graders at P.S. 33 in the Bronx scored at or above proficiency, although only 35.8 percent of 160  Michael A. Rebell, Michael A. Rebell, Courts and Kids: Pursuing the fourth graders the year before had reached this Educational Equity Through the State Courts, (2009), Ch. 3 Co n clu s i o n : “ M i n imu m Co re ” an d its Releva n ce to the Developmen t Works 33 Conclusion: “Minimum Core” and its Relevance to the Development Works B efore analyzing what the “minimum core” concept ought to mean for the development community, this section very briefly considers why the development community should engage with human rights (particularly with the right to education) at all. Value-Added of Human Rights where people do not speak the language of human rights in local communities, the international human righs ideas Apart from the obvious fact that human rights obligations, permeate the local discourse with positive outcomes.166 Based particularly those codified in international agreements, are on extensive empirical research, Levitt and Merry observe: legal commitments voluntarily undertaken by states, there are practical advantages to recognizing and considering human rights in development work. Indeed, there is growing recog- 161  See, e.g., Common Understanding on the Human Rights Based nition of the benefits of human rights approach to develop- Approach to Development Cooperation” undertaken by a number of ment.161 Without reproducing the extensive literature on the UN and development agencies, available at http://hrbaportal.org/ benefits of the rights-based approach to development,162 two the-human-rights-based-approach-to-development-cooperation-to- things are worth highlighting here. First, if the development wards-a-common-understanding-among-un-agencies 162  See, e.g., Urban Jonsson, Human Rights Approach to Development community is truly interested in enhancing global develop- Programming 38 (UNICEF, 2003). ment and economic growth and, as a necessary precondition, 163  See The Right to Education in Uganda: Saving the Future Gen- ensuring that all citizens obtain meaningful and relevant eration, Report of the fact finding mission to Katanga, Kikoni, Kikumikikumi and Wandegeya assessing the enjoyment of ht education, it must realize and acknowledge that citizen eright to education of children living in these communities, demand is critical to the successful the outcome. Even where available at https://dbazekuketta.wordpress.com/2015/12/28/ a human right is unequivocally recognized and implemented the-right-to-education-in-uganda-saving-the-future-generation/ 164  Even where governments have made international commitments, at a national level, the downward implementation of such it is difficult for individuals to hold the governments accountable for policies often fails where citizens are not aware of and are those commitments (or even to know about those commitments) not empowered to demand what is due to them.163 However, 165  See, e.g., Ruth W. Grant & Robert O. Keohane, Accountability where a service provided by a state is not framed in terms and Abuses of Power in World Politics, 99 Am. Pol. Sci. Rev. 29, 29–30 (2005). of individual right to it, the building blocks for empowering 166  Sally Engle Merry, Peggy Levitt, Mihaela Rosen and Diana Yoon individuals and communities to demand the service are not “Law from Below: Women’s Human Rights and Social Networks in even available, particularly in states where citizen participa- New York City” (2010) 44 Law & Society Review 101, Sally Engle Merry and Peggy Levitt ‘‘Vernacularization on the Ground: Local Uses of tion in governance is generally limited.164 The existence of Global Women’s Rights in Peru, China, India and the United States’’ a right, even if not justiciable, both empowers and provides (2009) 9 Global Networks 441 and Sally Engle Merry and Rachel a basis on which citizens can hold the state accountable for Stern “The Female Inheritance Movement in Hong Kong: Theorising the Local/Global Interface” (2005) 46 Current Anthropology 387 provision of services.165 It has been documented that even 34 “M INIM U M COR E ” A N D T H E “ R I G H T TO E D UCATI ON ” That a global women’s rights package exists, that Bank176 had already acknowledged that human rights and it is formally articulated and institutionalized in development is a two-way relationship: various UN conventions and documents that in The world now accepts that sustainable development some cases ‘have teeth’, is important. We found, is impossible without human rights. What has been however, that perhaps even more important were the opportunities this package created, the possibilities 167  Sally Engle Merry and Peggy Levitt ‘‘Vernacularization on the it opened up, the slight shift in basic assumptions Ground: Local Uses of Global Women’s Rights in Peru, China, India it brought about, and the new tools it added to and the United States’’ (2009) 9 Global Networks 441, p. 447. 168  Development policies and aid programs on education require local women’s cultural repertoires. Because these a particularly careful consideration. This is because the theory of ideas and practices were out there, sanctioned and education that tends to dominate in the area of development - the promoted by the magic and financial influence of human capital theory - is not necessarily or always compatible with the West, the range of the acceptable and the good the aims and objectives of education envisioned in the human rights documents, which value personal development and have the best expanded.167 interests of the child as the guiding principle. For an overview, see Theodora Lightfoot-Rueda, Ruth Lynn Peach (eds.), Global Perspectives Second, human rights approach to development miti- on Human Capital in Early Childhood Education: Reconceptualizing gates risks of development policies.168 Globalization is not Theories, Policies and Practice (Palgrave MacMillan, 2015) 169  Philip Alston, “The Myopia of the Handmaidens: International value-neutral. There is extensive literature now documenting Lawyers and Globalization”, 3 EJIL (1997) 435-48. the links between globalization and market liberalization, 170  Zulfiqar Ahmed Bhutta, “Structural adjustments and their impact deregulation and decentralization, including in the areas like on health and society: a perspective from Pakistan”, Int. J. Epidemiol. provision of education services. These trends, which have (2001) 30 (4):712-716.(“The ostensible purpose of these economic themselves been arguably transformed into values,169 are measures is to improve debt repayments, reduce fiscal deficits, encour- age private sector investment and move towards an export-oriented touted as necessary to alleviating global poverty. It is worth economy. The measures are targeted to allow the governments to remembering that similar claims had been made in the past undertake better long-term planning. It is thus anticipated that the about structural adjustment programs;170 yet not only has the consequent improvement in national economic efficiency will lead to stimulation of growth with subsequent ‘trickle-down’ benefits to assertion that these programs benefit the developing countries the poor and vulnerable groups of the population.”) been shown to be dubious at best, but in a number of cases, 171  See also, Doris A. Oberdabernig, “The Effects of Structural Adjust- the programs actually led to reversals in school enrollments ment Programs on Poverty and Income Distribution”, at http://www. wiiw.ac.at/the-effects-of-structural-adjustment-programs-on-pover- and literacy rates.171 Thus for example, in its report to the CRC, ty-and-income-distribution-paper-dlp-2017.html. Zimbabwe government noted that “Government’s objective 172  Consideration of reports submitted by States parties under article to make primary education free was carried through for a 44 of the Convention Second periodic reports of States parties—Zim- period of approximately ten (10) years after independence. babwe, CRC/C/ZWE/2, available at http://daccess-dds-ny.un.org/ doc/UNDOC/GEN/G15/076/22/PDF/G1507622.pdf?OpenElement This could not be sustained due to inadequate resources, as 173  E.g., F. Coomans & Hallo de Wolf, “Privatisation of Education well as compliance with the Economic Structural Adjustment and the Right to Education” in Privatisation and Human Rights in Programme undertaken in 1992.”172 the Age of Globalisation (de Feyter & Gomez (eds.), 2005; The UK’s support of the growth of private education through its development Similar concerns are being raised presently, for example, aid: Questioning its responsibilities as regards its human rights extra- with respect to increasing role of private actors in provi- territorial obligations, Alternative report presented to the Committee sion of education the impact of this trend on the right to on the Right of the Child (CRC) on the occasion of the consideration of the list of issues related to the fifth periodic report of the United education.173 An alternative report submitted in connection Kingdom of Great Britain and Northern Ireland (UK) during the 72nd with the CESCR’s review of Uganda’s compliance with session of the Committee, available at http://www.right-to-educa- and implementation of the ICESCR, illustrates vividly how tion.org/sites/right-to-education.org/files/resource-attachments/ unregulated and unmonitored privatization of schools leads RTE_Alternative_Report_CRC_ETO_UK_FINAL_October_2015.pdf 174  Privatisation, Discrimination and the Right to Education in Uganda, to discrimination and growing inequality.174 Even in wealthy Alternative Report Submitted by the Initiative for Social and Economic countries, evidence is mounting that movement to privatize Rights and the Global Initiative for Social and Economic Rights (sub- education, including by introducing charter schools (privately mitted June 2015), available at http://www.iser-uganda.org/images/ downloads/privatisation_discrimination_and_right_to_education.pdf funded public schools) jeopardize inclusiveness of education, 175  See e.g., Diane Ravitch, Reign of Error: The Hoax of the Pri- undermine the rights of students, teachers and parents, and vatization Movement and the Danger to America’s Public Schools do not improve learning outcomes.175 (Vintage, 2014) 176  Available here http://siteresources.worldbank.org/BRA- Nearly twenty years go, the World Bank report on the ZILINPOREXTN/Resources/3817166-1185895645304/4044168- Development and Human Rights: The Role of the World 1186409169154/08DHR.pdf Co n clu s i o n : “ M i n imu m Co re ” an d its Releva n ce to the Developmen t Works 35 missing is the recognition that the advancement of core obligations on the right to education, for example, by an interconnected set of human rights is impossible outlining priorities, targets and specific benchmarks. Where without development. Enlightened legislation and such state-specific standard falls below the international vigorous civil society are essential. But they are minimum (e.g., inability to fund building of schools for all), not enough. Human rights are in a sense both the the development agencies should ensure that its resources design and the product of people organized through (loans, grants, technical assistance) are directed as a matter of government. They don’t just happen. Many public priority to assisting the state meet the international minimum services will only reach the poor if governments standard. However, where the state-specific “minimum core” are both capable of delivering them, and do so is above the international core, the development community without the obstacles of corruption; laws created should, at a minimum, ensure that its projects neither violate to end child labor will be more effective in eco- the state-specific core nor cause the state to regress beyond nomic conditions that allow families to live off of that core. This approach is consistent with how states them- the incomes of parents; and legal rights are better selves appear to interpret “minimum core” or the obligations pursued in effective court systems. subject to immediate realization. It also takes into account the importance of context to the meaningful realization of The link between human rights and economic outcomes the right to education - what is required in order to “enable is particularly apparent in the area of education. Education all persons to participate effectively in a free society” (core is consistently being proclaimed as a necessary precondition content of the right to education) is different in Zimbabwe to positive sustainable development outcomes, economic and Colombia. Additionally, encouraging states to set their growth, and alleviation of poverty. Yet, as some examples own state-specific “minimum core” through a political process demonstrate, even the best-intentioned initiatives to can will render the resulting standard more legitimate in the eyes produce deleterious effects on education. At the same time, of the state and its citizens, will reduce the likelihood of a as cases in the African region illustrate, lack of resources gap between the existing obligation and the ability of the prevents effective realization of the right to education, even state to effectively and immediately implement it, and will where there is recognition that states have an obligation to provide a standard to which both citizens and the develop- realize it immediately. Thus, the need to incorporate consid- ment community could hold the state accountable. eration of the right to education into development projects Development agencies could also incorporate the “mini- is particularly acute. mum core” (whether the international minimum or state-spe- To be clear, understanding and engaging with the “mini- cific) into an impact assessment in the same fashion as mum core” concept will not, in and of itself, build the bridge development banks incorporate various environmental and for linking development and human rights. At best it will be social standards into environmental and social impact assess- a small building block that must form part of a principled ments of their projects. This would allow for the evaluation approach to human rights developed by the development a priori of the impacts of the all development projects (even community.177 With that preface, the next section considers if not education-focused) on the core education rights. The how the development community ought to engage with the claim that human rights cannot be incorporated into impact “minimum core” concept. assessments due to their indeterminacy would certainly not be applicable in the case of a state-defined minimum core “Minimum Core” for Development standard. Recognizing that all states must immediately satisfy the “minimum core” of the right to education necessarily entails 177  For a suggestion on how the World Bank might integrate human ensuring that development financing does not interfere with rights effectively see, for example, World Resource Institute, A that obligation. This includes ensuring that the development Roadmap for Integrating Human Rights into the World Bank Group (2010), available at http://www.wri.org/sites/default/files/pdf/ projects do not result in (re)prioritization of national resources roadmap_for_integrating_human_rights.pdf so as to make effective immediate implementation of the “minimum core” right impossible or difficult. In doing so, the development agencies should take account not only the international minimum standard, but should also request that the client state define and specify its own minimum Co n clu s i o n : “ M i n imu m Co re ” an d its Releva n ce to the Developmen t Works 37