March 26, 2018

Accountability from a human rights perspective: The incorporation and enforcement of the right to education in the domestic legal order

Paper commissioned for the 2017/8 Global Education Monitoring Report, Accountability in education: Meeting our commitments

In 2015 the international community made a clear political commitment to education through the adoption of the 2030 Agenda for Sustainable Development (‘2030 Agenda’) and Incheon Declaration and Framework for Action. Whilst this commitment is laudable and expected to drive significant change, it is not legally binding
for Member States, in contrast to States extant legal obligations under international human rights law to implement the right to education.

The fact that States commit both politically and legally to education does not mean that measures taken to comply with the realisation of either are mutually exclusive. Rather, these commitments aggregate and interact with each other, requiring States to ensure that efforts taken to achieve Education 2030 (Sustainable Development Goal Four and the Incheon Declaration and Framework for Action) and the broader 2030 Agenda are human rights compliant. This applies to both the normative content of such measures and the processes that underpin their formulation and implementation. The 2030 Agenda recognises this and is a political
reaffirmation of States’ legal commitments to human rights.

One of the biggest criticisms of the 2030 Agenda is the weakness of inbuilt accountability mechanisms. The architecture of the 2030 Agenda establishes voluntary ‘follow-up and review’ processes at the national, regional, and global levels designed to promote accountability. However, the onus is on States—although there
is no formal obligation—to establish effective, inclusive, participatory, and transparent accountability mechanisms at the national and regional levels as ‘national ownership is key to achieving sustainable development’.

This lack of entrenched accountability is a concern from a human rights perspective as it may lead to negative human rights impacts. For example, States may implement laws and policies that prioritise economic growth to the detriment of human rights enjoyment or it may discourage States from addressing systemic education issues primarily affecting marginalised groups. Part of the reason there is concern over the weakness of external processes to hold States to account is
because in many States (across income levels) domestic conditions are not, in general, conducive to accountability in matters of public policy. Accountability, as a global governance issue, is itself addressed in the 2030 Agenda under Goal 16. A human rights-based approach offers insights and practical solutions to address
the accountability deficits found in both public policy decision-making and implementation, and the 2030 Agenda itself.

The aim of this paper is to reframe States’ political commitment to education under Education 2030 as a legal commitment the vast majority of States have already made under international human rights law.

This paper focuses on the following questions:

  1. What is the right to education and what is its relationship with SDG Four?
  2. How do States implement the right to education at the international and national levels?
  3. What is justiciability and what are the barriers to a justiciable right to education?
  4. How has the right to education been adjudicated?
  5. What are the enabling conditions that allow for the adjudication of the right to education? 6. What have been the impacts of adjudication on the realisation of the right to education?

Read the full background paper here>>

Read the full report here>>