Human Rights Law Review

Human Rights Law Review Advance Access originally published online on November 1, 2005
Human Rights Law Review 2005 5(2):205-237; doi:10.1093/hrlr/ngi014

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Has the Right to Education a Future Within the United Nations? A Behind-the-Scenes Account by the Special Rapporteur on the Right to Education 1998–2004

Katarina Tomaevski^*

^* Professor of International Law and International Relations, Lund University

	Abstract

Top Abstract 1. Introduction 2. The UN: From... 3. The Right to... 4. Enforcing the Right... 5. Creating Foundations for... 6. A Look Forward

 
This article ponders over the future of human rights work within the United Nations on the basis of the author's six years of experience as the Special Rapporteur on the right to education of the Commission on Human Rights. This broadens the analysis to the factors shaping the work of the Commission on Human Rights that are not formally documented, and generates a series of questions concerning the Commission's recent past and uncertain future.

	1. Introduction

Top Abstract 1. Introduction 2. The UN: From... 3. The Right to... 4. Enforcing the Right... 5. Creating Foundations for... 6. A Look Forward

 
This article belongs to a genre called dietrologia,¹ it looks behind the scenes and describes how the right to education is shaped by governments acting collectively within the United Nations (UN). Asking whether the right to education has a future is necessary because the right to education ends with the UN Commission on Human Rights (Commission) and does not inform the General Assembly and, least of all, parts of the UN ‘family’ such as the World Bank. The article draws on my six years as one of the ‘thematic mechanisms’ of the Commission: the Special Rapporteur on the right to education. Thus, it focuses less on the substance of the right to education,² and more on its past and future as decided behind the scenes.

Proposals for the Commission's reform have raised interest in what it does and how, especially because they were preceded by widespread critiques. Indeed, if the reforms proposed in 2004–2005 are accepted and implemented,³ the Commission might disappear. Institutional choices that will shape the UN's policy-making in human rights will, as always, be made by governments acting collectively. Although we will learn about these choices after they have been made, proposals to change the way in which the Commission works have created space for input by outsiders. My experiences as a participant-observer form the background of this text. Its aim is to bring to light some of the questions which should inform the process of change, but are unlikely to be discussed as long as what happens behind the scenes remains unknown and unknowable.

The purpose of this text is to facilitate seeking answers to the questions I found pertinent for the future of the right to education. Only some relate to all the UN's human rights work, but most, if not all, are important for each of those rights which have been classified as economic, social and cultural. Having been only a small cog in the huge, complex and non-transparent machinery created within the Commission, there are questions that I cannot possibly answer but I feel should be posed nevertheless. Gareth Evans has provided a useful starting point for venturing along this path by saying that ‘loving intergovernmental structures while leaving them inefficient and ineffective’⁴ is not likely to help the UN. Hence my focus is on the shortcomings, against which I unsuccessfully battled for six years, which impede rather than facilitate human rights work.

Assessing the efficiency and effectiveness of the Commission's human rights work requires specifying the yardstick for such an assessment. The Office of the High Commissioner for Human Rights (OHCHR) has done so, positing that the Commission is ‘the premier global forum for debate of human rights issues and denunciation of abuses.’⁵ In the case of the right to education, the Commission should have operationalised this right so as to clarify what it is and is not. Denouncing abuses becomes possible only after a right has been properly defined by the governments themselves. Failing that, the Commission may discuss lifelong learning or lament the fate of millions excluded from education, which repeats what is done by other actors within the UN without adding anything. Moreover, because these other actors do not necessarily take the right to education as their point of departure, the Commission also fails in its task of being the principal UN organ for the development of a human rights policy for education.

The need to define the right to education is heightened by its uncertain fate in today's world. Proponents of globalisation object to education being provided by governments ‘and so closed to foreign companies’.⁶ In that vision, education should be traded just like any other service and its financing by a government would be defined as an illegal state subsidy. In contrast, human rights advocates portray in their writings the right to education as defined in international human rights treaties whereby most, if not all education, would be provided or at least financed by government. The human rights literature is couched in terms of ‘should’ rather than ‘is’⁷ because most countries have moved away from definitions of the right to education in older human rights treaties, especially from a guarantee that all education should be provided free of charge.⁸ In the world as it is today, education is described in terms of market shares and competitive prices, with university education, in particular, traded like any other service.⁹

The two bodies of literature, education-as-a-right and education-as-a-traded-service, do not overlap. They describe two different worlds which, in theory, co-exist in parallel, but an inquisitive reader would suspect that they must overlap and collide in reality. A search for UN documents using ‘right to education’ as the keywords would lead to the Commission because the General Assembly does not adopt resolutions on the right to education.¹⁰ This is indicative of the absence of a link between the UN's human rights work and its policy on education. The Secretary-General's call for ‘links between the normative and the operational work’ has remained unheeded and the right to education has not been mainstreamed throughout the work of the UN.¹¹ Also, the Commission's annual resolutions on the right to education do not mention the fact that education is traded. A further search would lead to my 14 reports as the Special Rapporteur on the right to education. Again, two parallel worlds emerge as there is almost no correspondence between my reports and the Commission's resolutions. Indeed, in my last annual report I recommended that the Commission not renew the mandate on the right to education. Inevitably, an inquisitive reader would ask: why?

Answering this question is the purpose of this article. First, it highlights the fragile state of education as a human right, underlining why a UN policy to safeguard it is needed. The Commission would be the obvious originator of such a policy. Its creation of a Special Rapporteur on the right to education in 1998 gave rise to an expectation that it would embark on a debate on the right to education and, then, denounce abuses. This has not happened. The reasons reach beyond the inter-governmentalism that affects all its human rights work. Defining the right to education today requires reviewing the heritage of the Cold War, which imported into the UN's human rights policy a ‘right to education’ defined as provided, financed and controlled by government.¹² Although that model denied freedom of and in education, it was not challenged by the UN. Although the end of the Cold War apparently opened the way for eliminating its heritage, the Cold War has not ended within the Commission. It colours much of what the Commission does in economic, social and cultural rights. Most importantly, it has prevented the Commission from performing its key task of denouncing abuses. Thus, violations of the right to education committed through governments’ imposition of education incompatible with human rights continue unchallenged, as do denials that education is a human right through its conversion to a freely traded service. This article retraces the steps I took to articulate the prerequisites for addressing education as a human right and the obstacles I encountered. Those ought to be addressed if the Commission—or its functional equivalent that might emerge in the future—is to start debating the right to education and denouncing its violations.

	2. The UN: From the Inside, Looking Out

Top Abstract 1. Introduction 2. The UN: From... 3. The Right to... 4. Enforcing the Right... 5. Creating Foundations for... 6. A Look Forward

 
Very few people know what the Special Rapporteur on the right to education of the Commission does. An important obstacle has been described by Stanley Cohen as ‘a family partnership of lawyers and international bureaucrats’ that works like this:

Communication takes place through a formal discourse of covenants, treaties, conventions, declarations, reports, protocols and resolutions. Work is carried out by officials, experts, professionals and bureaucrats. Their particular style of communication is ‘UN-speak’: bland, technocratic, legalistic and designed not to offend. The language is impenetrable to those outside the loop—often so abstract, non-pictorial and non-specific that it is unclear what exactly is being talked about.

This information is self-referential in the sense that its impact is measured in terms of criteria generated within the loop itself. Has this report led to a special rapporteur being appointed? Has a working party been set up to ‘consider the applicability of the Optional Protocol to the Covenant?’¹³

Those who have overcome this initial obstacle, tend to focus on the potential of the Commission's thematic mechanisms to reduce its proverbial reluctance to denounce abuses and extrapolate from the earliest ones, established more than 20 years ago.¹⁴ I am also a guilty party, having written about the early thematic mandates as an excellent innovation,¹⁵ without knowing that I would become a holder of one of them. My mandate was substantially different—in many ways not really a human rights mandate. Thus, I have amplified my work as Special Rapporteur through the Right to Education Project,¹⁶ so as to be able to speak about and to the UN with the independence which my mandate required. More importantly, the need for education-on-the-right-to-education was best met through a virtual resource centre with free public access.¹⁷

As my annual reports show,¹⁸ I divided my work into three parts. One was to summarise key developments relevant for the right to education in the particular year; the second to clarify the nature and scope of the right to education by defining the corresponding governmental human rights obligations; and the third to address particularly important or controversial issues. These issues ranged between trade in education services and access to sex education. As our reports were cut down in length, from 40 to 20 pages, there was less and less space to do justice to any topic.

My six years as Special Rapporteur have revealed the full panoply of obstacles faced by economic, social and cultural rights as well as ways to overcome them. My mandate lacked the supportive infrastructure which made the early thematic mechanisms successful. Three elements were lacking: (1) a strong and vocal non-governmental organisation (NGO) constituency, such as is found for freedom from torture or freedom of expression, does not exist for the right to education; (2) professional and academic literature which clearly explains what the right to education is and what constitutes a violation does not exist as yet; and, most importantly, (3) clearly defined universal human rights standards for the right to education, which can be inferred from international human rights law but have not yet been broadly accepted, not even by the Commission.

The Commission's decision to appoint a Special Rapporteur on the right to education in 1998 derived from a widely shared assessment that economic, social and cultural rights had been marginalised. The previous practice of addressing all economic, social and cultural rights together did not get far due to the sheer vastness of the subject matter. The right to education was chosen as the first right-specific mandate, but the resolution on what was to become my mandate was inexact in its contours. The future Special Rapporteur was mandated to:

(i) Report on the status, throughout the world, of the progressive realization of the right to education, including access to primary education, and the difficulties encountered in the implementation of this right; (ii) Promote assistance to Governments for urgent plans of action to secure the progressive implementation of the principle of compulsory primary education free of charge for all; (iii) Focus on gender, in particular the situation and needs of the girl child, and to promote the elimination of all forms of discrimination in education; ... (v) Develop regular dialogue with actors such as UNESCO or UNICEF, and with financial institutions, such as the World Bank.¹⁹

The title of the resolution referred to all economic, social and cultural rights, and the mandate could have been interpreted in line with the previous practice of dealing with all economic, social and cultural rights with a focus on the right to education. I decided to deal with the right to education alone, applying an unwritten rule that it is always easier to get pardon than permission. However, I called my first two annual reports ‘preliminary’ and ‘progress’ so as to demonstrate that I was building a mandate on the right to education. There were supportive voices,²⁰ and after two years the right to education progressed to its own resolution describing the corresponding mandate.

Nonetheless, my mandate was weak and ill-defined. The mandate-creating resolution and its progeny exhibited the consequences of the need to generate and sustain what is known as ‘consensus-minus-one’.²¹ The annual resolutions of the Commission are negotiated on the basis of those adopted the previous year and much of the text is repeated each year.²² Because many of these resolutions, including that on the right to education, are adopted by consensus, the final text represents the lowest common denominator acceptable to all governments involved in negotiations.²³ Only primary schooling was addressed in the Commission's resolutions on the right to education—secondary or university education was not mentioned. My reports broadened my remit beyond primary education²⁴ and introduced key qualitative dimensions.²⁵ This did not carry into the Commission's resolutions. Most importantly, the Commission's failure to mention violations precluded the essence of human rights work: exposing and opposing abuses.²⁶

This situation was a huge challenge. I had to do all the work and writing myself in order to clarify the legal framework of the right to education, elucidate its human rights dimensions, and keep my mandate firmly within law. This elicited some support from within the Commission. The statement made on behalf of the European Union by Germany in 1999 welcomed my report, endorsing my analysis of governmental human rights obligations and my contribution to enhancing legal clarity through reviewing the existing jurisprudence on the right to education.²⁷ An NGO commentary on my first report noted that ‘it marks a strong break with the number-crunching approach adopted by most international agencies.’²⁸ Portugal, on behalf of the European Union, highlighted in 2000 my analytical approach (the ‘4-A scheme’)²⁹ as did Norway.³⁰ The delegation of Sri Lanka stated before the Commission in 2003 that ‘the studies of the Special Rapporteur on the right to education have been useful and relevant for the implementation of this right in our country.’³¹

Expressions of support by individual delegations were gratifying³² but obviously insufficient to alter the contents of the Commission's resolutions and create a proper human rights mandate. Outside the Commission, Education International noted that I had inserted the right to education on the international agenda,³³ while the Education for All (EFA) 2002 Global Monitoring Report emphasised the need for increased attention to the right to education and for supporting my work.³⁴ The Commission's resolutions on a particular issue are the outcome of the particular political constellation at the time. One lesson which I have learned is that the Commission is a world of its own, with very little input outside its circle but also very little impact on the outside world.

A. The Politics of the Commission's Policy

I ended my mandate by recommending to the Commission not to renew the mandate on the right to education,³⁵ but the Commission did renew it,³⁶ and a new Special Rapporteur was appointed.³⁷ The purpose of my recommendation was to alert all those willing to listen to the risk of doing more harm than good by formally keeping the right to education on its agenda while refusing to deal with the substance.³⁸ The Commission's principal protective function was undermined through a weakened political support for exposing and opposing human rights violations. I was not a lone voice in critiquing the avoidance of tackling human rights by the body which has ‘human rights’ in its very name. A colleague of mine used to refer to the Commission as sindicado de violadores (trade union of violators). The Secretary-General of the UN warned the Commission in 2002 that it should return to its true purpose otherwise ‘the credibility and usefulness of the Commission will inevitably be eroded.’³⁹ The World Economic Forum diagnosed ‘the loss of credibility’ in 2004.⁴⁰ Such critiques led to the proposal in 2005 that the Commission be replaced by a Council.⁴¹

Moreover, the mandates on economic, social and cultural rights are routinely, but erroneously, added to those on foreign debt or structural adjustment. These have exacerbated political divisions within the Commission.⁴² Such ‘economic mandates’ are perceived as a counterweight to global monitoring and response to human rights violations. They have an uncertain basis in law, have overloaded the Commission's agenda, and – most importantly – have diverted attention from human rights to relations between states. This situation has been worsened by creating new mandates without any additional funding, giving conspiracy-theorists excellent grounds for believing that there is an underlying master plan to paralyse all human rights work by overwhelming the system with numerous tasks with which it simply cannot cope. As the Chairperson of the Special Rapporteurs for 2000–2001, I drew the Commission's attention to this fact in my speech at the autumn session of the Commission on 15 September 2000.⁴³ The kind and congratulatory words in response have not led to any change as yet. Change may be forthcoming if the Secretary-General's initiative to substitute the Commission by a Human Rights Council gains support.⁴⁴

B. Economic, Social and Cultural Rights as an Orphan of the Cold War

The right to education, and indeed all economic, social and cultural rights, ought to be defended against distortions, not only denials and violations. The Commission has not defined education as a human right because this would imply that this right can be violated and, then, violations ought to be exposed and opposed. Rather, its resolutions have followed a more-and-better approach—more schools or literacy courses. I described and critiqued this distortion, incurring a penalty that is severe in the Commission's practice but invisible to the outside world.⁴⁵

Distortions of economic, social and cultural rights were prevalent during the Cold War and many continue, with almost no opposition within the UN and little challenge outside. The UN is, as it always has been, an inter-governmental organisation. Its constituency comprises whichever governments may be in power at the moment. There is no link between the human rights record of a government and its membership in the Commission.⁴⁶

During the Cold War, the Soviet model of what passed at the time for ‘the right to education’ was praised, regardless of the fact that it denied freedom of education and in education, and was incompatible with international human rights law.⁴⁷ The courage of human rights organisations on the other side of the iron curtain in exposing and opposing that distortion was both historic and historical. As the Cold War has not ended as yet within the Commission, economic, social and cultural rights are still a casualty.⁴⁸ The governmental constituency for them is minuscule. This is illustrated by, thus far fruitless, inter-governmental negotiations regarding an optional protocol to the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR).⁴⁹ Outsiders such as myself could furnish substantive input,⁵⁰ but not overcome the paralysis within the Commission.

The positions of Pakistan and the US illustrate the reasons for this paralysis. In the negotiations about the fate of an optional protocol to the ICESCR, Pakistan identified as a deficiency the lack of emphasis on assisting ‘developing countries in the realization of economic, social and cultural rights’ and criticised the fact that complaints lodged before the International Labour Organisation for violations of economic and social rights ‘had targeted developing countries.’⁵¹ In contrast, the US Government continues its opposition to economic, social and cultural rights, claiming that ‘the communist system promised to fulfil economic, social and cultural rights but failed to deliver them’,⁵² or that, ‘at best, economic, social and cultural rights are goals that can only be achieved progressively, not guarantees. Therefore, while access to food, health services and quality education are at the top of any list of development goals, to speak of them as rights turns the citizens of developing countries into objects of development rather than subjects in control of their own destiny.’⁵³

The year 2001 was particularly bad for economic, social and cultural rights. The Commission's resolution concerning housing, for example, reflected the US position through alterations of its vocabulary away from human rights.⁵⁴ This was criticised by NGOs. Their key objection was that the Commission was generating resolutions which were ‘meaningless or, worse, negative in both form and contents.’⁵⁵

A separate resolution on the right to education was adopted in 2001, for the first time, but efforts to generate consensus behind it led to a text from which almost all human rights content had been eliminated. This practice continued. The outcomes of the Commission's subsequent sessions further weakened economic, social and cultural rights as well as thematic mechanisms.⁵⁶ NGO criticism was exemplified by Manoj Mitta's harsh words about the resolution on the right to education negotiated in 2003:

It is indeed disappointing that the five-page draft resolution circulated last week among the delegations fails to follow up meaningfully on the recommendations made by the Special Rapporteur on education, Katarina Tomaevski. ... Portugal's draft resolution shares the failings of the Dakar document: a surfeit of noble objectives but no attempt to provide a mechanism to enforce the various measures needing to be taken around the world ... More importantly, the draft fails to lend support in any substantive manner to Tomaevski in the battle she has been waging so valiantly against all odds.⁵⁷

Also, the continued creation of new Special Rapporteurs without additional resources for their servicing further exacerbated our difficulties.⁵⁸ The OHCHR has described the Special Rapporteurs⁵⁹ as ‘individuals of high standing who are willing to provide quality services to the UN without remuneration.’⁶⁰ The expenses related to our work, however, should be paid by the UN, but often were not in my case. References to large amounts of my own funds for carrying out my work as Special Rapporteur created a stir.⁶¹ Analytical reports by the International Service for Human Rights had earlier noted the lack of support by the OHCHR, saying ‘Ms Tomaevski submitted three outstanding reports concerning the right to education. However, it is deeply regrettable that the Special Rapporteur's ability to fully realise the potential of her mandate is being constrained by a lack of funds.’⁶² In 2003, NGOs pointed out with regard to my report on Indonesia that it is ‘ironic and unfortunate that a report on one of the most significant economic and social rights in Indonesia—a nation currently beset by massive fiscal problems—should be so limited due to lack of UN funding for human rights.’⁶³ One year later, things became even worse than before, and I ultimately filed two complaints against the OHCHR for hindering my work.

As a part of the UN, the OHCHR exhibits the tension between supporting human rights and loyalty to its constituents, the originators of resolutions and targets of naming-and-shaming which these resolutions facilitate or hinder. The OHCHR is part of the UN Secretariat, with ‘some 500 professionals.’⁶⁴ The Commission may demand from the OHCHR support for the mandates it has created, but the proliferation of demands prevents meeting them all. What is done and how depends on decisions unknown to outsiders. Why some work is done but other work is not, is a matter of endless speculation. The proverbial excuse for all ills is lack of resources, but my experience is different. I filed two complaints against the OHCHR for hindering my work.⁶⁵ To balance the conflicting values of exposing abuses of power by governments and shielding them from public opprobrium is by definition difficult within an inter-governmental bureaucracy.⁶⁶ The questions are not new, but the answers vary. As we learnt 30 years ago, ‘making a bargain with the devil’⁶⁷ has long been the key reason for failures to respond to human rights violations.

C. A Right that Cannot be Violated?

The Commission is a political actor and its output is shaped by politics rather than human rights. The Cold War heritage leads it to deem any provision of education (even if it is purchased against a price, or delivered as charity) as if it equalled the realisation of the right to education. The lack of education is attributed to poverty.

A specific feature of economic, social and cultural rights is the need to analyse individual as well as collective government obligations. This necessitates exposing and opposing global strategies which impede the ability of individual governments to implement their human rights obligations. The Commission's practice is to deal with such issues instead of domestic human rights problems, rather than alongside them. Its output creates an unfortunate—but accurate—image that the work of the Commission and the OHCHR does not add anything to the work done elsewhere.⁶⁸ The institutionalised response to allegations of human rights violations was the biggest success of the UN. Also, it reflected the principle whereby governments are not the final arbiters in deciding on rights and violations, and affirmed that victims (or their advocates) have the right to make their case internationally so as to make the respective governments publicly accountable.

I invested considerable effort in shaping my mandate so as to comprise responding to alleged human rights violations in education.⁶⁹ Without the Commission's authorisation, this required creativity. There has been no open challenge to this approach, with one exception, that of Ethiopia.⁷⁰ In 2001, my annual report included references to ‘obstacles and difficulties’ I had faced regarding Ethiopia and Turkey.⁷¹ I subsequently managed to carry out a mission to Turkey⁷² and continued corresponding with its government until the end of my mandate.⁷³

The case of Ethiopia was my biggest disappointment. The feeling of helplessness for being unable to do anything in the face of serious human rights violations in education, despite bearing the title of Special Rapporteur on the right to education, will never go away. For me, this was the point of no return. I decided to make the Commission's unwillingness to address violations of the right to education as public as possible and to argue, openly and persistently, that the mandate should not be renewed because it was not a human rights mandate.

Well-documented human rights violations in Ethiopia did not trigger any debate within the Commission and my request for a mission was rejected. In my statement on 3 April 2002, I made the problem public. The Government of Ethiopia had refused my request for an invitation to a mission. Also, it failed to furnish substantive replies to the correspondence from myself and other Special Rapporteurs regarding many well-documented human rights violations. This reminded me of Bacre Ndiaye, who had alerted the Commission to the then forthcoming genocide in Rwanda also to encounter unwillingness to do more than try to wish the problem away.⁷⁴ A basic feature of human rights work is persistence, and I kept trying.⁷⁵ Obstacles are huge but human rights work cannot, by definition, be easy. Within the UN, Ethiopia was in a strong position because its Ambassador led Ethiopia's delegation to the Commission and was also a member of its Sub-Commission as an independent expert.⁷⁶ This was a sobering lesson in ‘obstacles and difficulties’ for doing human rights work within the UN. A painful, albeit necessary lesson.

The broader lesson of my inability to do anything regarding the violations of human rights in Ethiopia's education was the need for outreach. International support for education in Ethiopia was—and is—considerable. The donors differ in whether or not they have committed themselves to rights-based development. Hence, my priority was to forge a link between human rights and education so that people working in education, and in international cooperation, would know how to recognise human rights violations. Best formulated by the International Committee of the Red Cross (ICRC), the requirement is to create a situation ‘in which no one—neither those who give orders, nor those who carry them out, nor those who let the abuses happen—can say: "I didn't know." ’⁷⁷

A particular challenge was to show that the right to education was a clearly defined human right, so that one could then spell out the criteria for determining violations. Indeed, the jurisprudence on the right to education demonstrated that the Commission's preferred term—‘obstacles and difficulties’—could and should be replaced. The Commission imported this term from the reporting procedure under human rights treaties, whereby governments are asked to indicate factors beyond their control which impede the translation of human rights guarantees into practice.⁷⁸ This formulation implies the states’ commitment to the right to education and indicates that it would be fully realised were it not for ‘obstacles and difficulties.’ In every report to the Commission, I have emphasised differences between ‘education’ and ‘the right to education’ in order to nudge the Commission towards the human rights dimensions of education. The easiest entry point was to focus on governments’ human rights obligations and enforcement, domestically and internationally. In my progress report, I explained that I was addressing ‘obstacles and difficulties’ through correspondence with individual governments,⁷⁹ imitating the procedures established for civil and political rights. In my third annual report, I broadened the definition of ‘obstacles and difficulties’ to systemic problems of a domestic, as well as global, origin.⁸⁰

The Commission's designation of the right to education as an economic, social and cultural right only shaped its resolutions and the OHCHR's servicing of my mandate,⁸¹ but not my own work. The responsibility of being the first Special Rapporteur on the right to education was mine. I defined it as doing my best for the right to education by grounding my mandate in the law, benefiting from the unique feature of the right to education that it is a cross-cutting right.

	3. The Right to Education as an Operational Concept: The Potential and Limitations of the Law

Top Abstract 1. Introduction 2. The UN: From... 3. The Right to... 4. Enforcing the Right... 5. Creating Foundations for... 6. A Look Forward

 
Creating an operational definition of the right to education for the purpose of my mandate was both easy and difficult. The abundance of provisions on the right to education in a large number of international human rights treaties, supported by national constitutions and ample jurisprudence, made things easy. The difficult part was forging a clear and simple legal framework to comprise all its different facets. The right to education defies classification either as a civil and political right or an economic, social and cultural one. It forms part of both Covenants and, indeed, all core human rights treaties. I emphasised that the right to education represented an interface between civil and political, and economic, social and cultural rights.⁸² Furthermore, it is not only human rights law that regulates education, internationally or domestically. There is also refugee law and humanitarian law, migration law and trade law. Reaching out of human rights law became hugely important because the advent of trade in education services challenged the very notion that education is a human right. Reaching out of the law was even more important. Ministries of education in the Organisation for Economic Co-operation and Development (OECD) countries monitor the rank of their countries in the global assessments of educational performance.⁸³ These, and the general education statistics,⁸⁴ are not informed by human rights law. Ministries of education in developing countries are likely to be influenced by the World Bank's education strategy, discussed below, which is also not informed by human rights law.

Surveying this landscape has revealed to me the minuscule size of the realm of human rights and the enormity of the world of education. Many UN or NGO documents which nominally deal with the right to education merely reproduce education statistics as they were created in education and for education. Calls for more education and better education ensue. I defined as my principal task explaining how and why human rights change education. The easiest example is the imposition of education on minorities or indigenous people which denies their very identity.⁸⁵ Although the government in question may say that this constitutes the realisation of the right to education, the minorities or indigenous peoples may call it a form of cultural genocide. Demonstrating that education ought to conform to human rights requirements or, otherwise, may amount to a human rights violation is the key.

There are two lessons I have learnt by trial and error. The first one is to acknowledge that human rights is a minuscule discipline, overpopulated by lawyers, and that it neither can, nor should, promise more than it can deliver. Thus, I have abandoned what I call ‘the chewing-gum approach’, whereby the remit for economic, social and cultural rights is constantly stretched and an image created whereby there is a human rights answer to every question. Stretching human rights concepts makes them weaker and thinner until they break. Common sense tells us that expanding an issue to cover everything reduces it to nothing. Experience tells us that human rights organisations which proved successful did exactly the opposite and defined their mandates narrowly.⁸⁶

The second lesson was that most people have never heard of the human rights treaties whose wording is cited as an answer to any real-life problem. Reaching out to people working in education, or in international cooperation, required explaining what the right to education is in five minutes without mentioning any human rights treaties but, rather, conveying their underlying logic. Audiences ranged between school teachers, World Bank officials, mothers and ministers of education. Child labour is a good example, and the human rights rationale is that child labour cannot be eliminated unless education is free and compulsory. This is also an excellent investment for governments because they gain an educated labour force and electorate. Also, the International Labour Organization (ILO) conventions prohibiting child labour as of 1919⁸⁷ form part of the earliest international human rights law, now more than 80 years old. They are a helpful reminder to those who divide human rights into ‘generations’ that, on the international level, economic and social rights are older than civil and political rights.

A. The Right to Education in a Nutshell

Experimenting with alternative strategies for conveying the gist of the right to education led me to two self-made rules. First, extract the essence of the right to education from the sum total of international human rights law. Use treaties as guidance but verify which human rights guarantees exist in the majority of countries so as to discern whether treaty provisions are reflected in the practice of states.⁸⁸ Second, describe how similar problems have been solved in other countries in order to show how formal human rights guarantees are translated into practice. Implementing these two rules required a great deal of desk research, which was then field-tested through country missions and summarised in my reports.⁸⁹

A large part of my work initially focused on dismantling a myth whereby economic, social and cultural rights, including the right to education, are not justiciable and thus ‘not-quite-rights’. My first priority in developing my mandate was to gather evidence that the right to education is legally enforceable, domestically and internationally.⁹⁰ The existing jurisprudence has enabled me to argue that a paradigm shift is overdue: the right to education is litigated worldwide. Analyses of the existing jurisprudence have led me to structure governmental human rights obligations into a ‘4-A scheme’: governments have to make education available, accessible, acceptable and adaptable.⁹¹ This has proved an attractive model and has been followed by the Committee on Economic, Social and Cultural Rights;⁹² praised by governmental delegations before the Commission;⁹³ used by the national human rights institutions;⁹⁴ and adapted by NGOs to their own work.⁹⁵

An important part of my work was assessing the human rights performance of governments that claim to be committed to the right to education, such as China,⁹⁶ and those that do not, such as the US.⁹⁷ A clear conceptual framework with a universally applicable yardstick was essential. The difference between education policies and structures in the US and China are huge, as is the difference in wealth. I argued that economic, social and cultural rights are not about poverty but policy, and the US and China are excellent examples. Solving problems in poor countries, such as China, is more difficult than in wealthy countries, such as the US. This line of argument was contrary to the Commission's resolutions on the right to education, but I pursued the human rights rationale summed up in two questions. First, if economic, social and cultural rights have not even been addressed, let alone realised, in a country as wealthy as the US, what chance do poor countries have? And, second, since it is so much easier to realise economic, social and cultural rights in wealthy countries, should one not look at them and discern which models might work universally?

Although the countries I visited are different, problems with the realisation of the right to education are similar. Military expenditure is prioritised in the budgetary allocations of many countries while the investment in education is low. This is contrary to the thrust of international human rights law which mandates priority for human rights. Budgetary allocations represent effective – as different from rhetorical – priorities. There is global consensus behind the internationally recommended changes of budgetary allocations. The World Bank has, for example, emphasised the negative ‘impact of nonproductive expenditures, such as military expenditures’ on poverty reduction.⁹⁸ Paradoxically, the allocations to education had the highest priority in the poorest country that I visited, Uganda.⁹⁹

My first mission, to Uganda, looked into the investment of funds freed by diminished debt servicing into universalising primary education through the abolition of school fees.¹⁰⁰ I introduced a follow-up dimension to my country missions and outlined some of the problems behind that success. One was evidenced in the official statistics on governmental expenditure on education: the figures did not match.¹⁰¹ These statistical discrepancies were later brought to international attention by a Security Council Panel of Experts.¹⁰² In 2003, Uganda's delegation delivered a statement before the Commission referring to my mission in 1999 and endorsing my objections to the World Bank's exclusive focus on primary education.¹⁰³ By that time, the first generation of children had finished school and the absence of secondary education had become painfully visible.

All my missions revealed the same problem: there are gaps in the coverage of primary education, even in the wealthiest countries. Often, the statistics regarding out-of-school children of compulsory education age do not cover all children but only those who comply with the requisite administrative regulations. Requirements of birth registration or residence certificates¹⁰⁴ deny children's right to education. This, again, demonstrated that problems originated in policy rather than poverty.

Analysing problems and recommending how they can be solved by applying human rights law is the routine task we perform. It is based on the assumption that human rights law is known and internalised. Alas, this is not the case. The widespread ignorance about human rights law was a permanent finding, wherever I went. Moreover, education was not guided by human rights considerations. The sources of guidance were requirements for debt servicing in poor and indebted countries or considerations of profitable exports of education services for wealthy countries.

B. Reality Check: Do Human Rights Treaties Really Matter?

An important dimension of economic, social and cultural rights is the interplay between global and domestic policies. Its relevance increased with the advent of international law on trade in services and the pressures upon governments to also start charging for education. My mission to the United Kingdom revealed that the government openly breached the ICESCR by introducing fees in university education.¹⁰⁵ It was a sobering experience to learn how few people knew about the Covenant, how easy it was for the government to do the opposite of what it required, and how rapidly the fees became accepted as a fact of life. Subsequent debates have revolved only around the amounts that should be paid. When such a wealthy country introduced cost-sharing in education, how does one argue that poor countries should follow the precepts of the Covenant? The United Nations Children's Fund (UNICEF) has, for example, endorsed payments for post-primary education because ‘its’ treaty, the Convention on the Rights of the Child, is silent on the issue.¹⁰⁶

International treaties are meant to be tools to vindicate human rights. Alas, they are not known beyond small circles around ministries of foreign affairs and international human rights organisations that can afford to travel to Geneva. The gap between what I observed during country missions and the human rights literature based on what the ICESCR and other international human rights treaties say is enormous. In Colombia, the government's education strategy did not even mention the right to education.¹⁰⁷ China's law defines education as an individual duty, adding ‘a right to receive education’ but not freedom to impart it.¹⁰⁸ The status of international human rights treaties in Indonesia is uncertain, but the operative rule is probably that the lowest legal source, local regulations, effectively guide education.¹⁰⁹ For Turkey, the catalyst for change has been prospective membership in the European Union rather than the precepts of international human rights law.¹¹⁰ In the US, regardless of the federal government's denial that education is a human right, it is guaranteed in most states.¹¹¹ This bewildering panorama shows how much effort is necessary to take stock of the fate of the right to education and to discern which domestic factors are shaping its future. My key finding has been that the variables that we tend to look for, such as ratification of human rights treaties or governments’ formal positions in the international human rights fora, do not matter all that much. The lesson which I have learnt is that education matters, and any opening whereby people can demand it—especially as a right—is enthusiastically used.

Human rights commissions and ombudsmen have been set up in many countries, as a complement to courts and, also, as a bridge between legal and political processes. Such institutions provide a wealth of approaches and experiences in translating the spirit and wording of international human rights law into domestic practice. For example, 44.5 per cent of the caseload of Indonesia's Human Rights Commission was in 2001 classified as ‘violations of the right to welfare.’¹¹² In India, it took the mobilisation of every public body, from the Supreme Court to the National Human Rights Commission, and a huge number of NGOs to convert primary education into a fundamental right.¹¹³

National human rights commissions in countries such as Uganda¹¹⁴ have been dealing with complaints against violations of the right to education. Uganda's Commission has defined the refusal of parents to pay school fees for their children as a human rights violation.¹¹⁵ This practice points to a risky trend of negating that governments—but not private individuals—have undertaken international human rights obligations. This demonstrates how much further research is needed to identify the boundaries between parental and governmental obligations.

	4. Enforcing the Right to Education

Top Abstract 1. Introduction 2. The UN: From... 3. The Right to... 4. Enforcing the Right... 5. Creating Foundations for... 6. A Look Forward

 
There is a rule of inverse proportion in educational jurisprudence. There is much of it where education has been legally guaranteed for a long time. Bulky volumes summarising and analysing the existing jurisprudence have been published in Canada,¹¹⁶ the US,¹¹⁷ and the United Kingdom.¹¹⁸ Little or none is found under the name ‘the right to education’. Because education is such a huge and complex endeavour, law follows the institutionalisation of education as a public service. Where free public education has yet to be extended to all children, there is little or no jurisprudence. It is the commitment of successive governments that translates the right to education into practice, whereupon individual cases are adjudicated. Resort to courts is a feature of the Anglo-American world: there is much less jurisprudence in the Nordic countries, for example.¹¹⁹ This is also the case in Spain.¹²⁰ Within Europe,¹²¹ controversies revolve around individual rights and freedoms rather then systemic or policy issues. This raises an important question: what can litigation on the right to education accomplish in countries where all-encompassing public education has not been universalised? My own answer is that it can accomplish a great deal. It cannot furnish lacking funding or instantly create a country-wide educational infrastructure where none exists. What litigation can do is seek and obtain an authoritative finding that a government has violated the right to education. This is a powerful lever for change and, also, an excellent method of human rights education.

I have learned most about effective and passionate defence of the right to education in Latin America. Continuous doubts over whether economic, social and cultural rights are legally enforceable in the literature are belied by the work of international human rights organisations like CEJIL (Centro por la justicia y el derecho internacional), which has secured a series of decisions vindicating economic, social and cultural rights within the Inter-American system.¹²² Global minimum standards, especially the do-no-harm rule, have been dealt with in cases submitted to the World Bank Inspection Panel or the Independent Evaluation Office of the International Monetary Fund, by CELS (Centro para estudios legales y socials), for example.¹²³ A domestic example can be drawn from Colombia, from its rich constitutional jurisprudence in safeguarding economic, social and cultural rights. Alongside violations of individual rights, the Constitutional Court diagnoses situations of unconstitutionality where governmental policies and budgetary allocations impede the enjoyment of constitutionally guaranteed rights. The Court found in February 2004 that formal constitutional guarantees relating to economic and social rights of a particularly vulnerable category, the internally displaced, had not been translated into government policies and supported by appropriate budgetary allocations.¹²⁴ The plight of the internally displaced, after four decades of armed conflict and political violence, was known to all. Nevertheless, they were marginalised rather than prioritised. Hence, the government was ordered to develop a time-bound plan and allocate resources for the basic rights of the internally displaced under the continued supervision of the Court. An example of successful defence of the right to free university education can be drawn from Venezuela, from the work of PROVEA (Programa Venezolano de educación-acción en derechos humanos).¹²⁵

These few examples show that legal enforcement of the right to education has been far more widespread—and successful—than is generally known. Applying the same approach to systemic problems has been one of my priorities. I chose the World Bank and its practice of supporting and, often, imposing charges in public primary education as the case in point. For me, this was the test case for the persuasiveness of the right to education. The target was an institution hostile to economic, social and cultural rights and exempt from the rule of law, with huge influence in shaping educational practice in most developing countries and countries in transition. The method could not be to take the World Bank to court because this is impossible. Arguing that it should take human rights into account would have also been futile because it does not do so. However, the imposition of payments upon poor children entitled to free primary schooling worked against the logic of poverty reduction. How could the World Bank explain the illogic of precluding poor children from school, which was supposed to be their pathway out of poverty, because they were too poor to pay for education?

	5. Creating Foundations for the Right to Education: The Roll-Back of School Fees in Africa

Top Abstract 1. Introduction 2. The UN: From... 3. The Right to... 4. Enforcing the Right... 5. Creating Foundations for... 6. A Look Forward

 
In the free and for-fee models of primary education, the rule of inverse protection also reigns. The poorest countries have been subjected to the strongest pressures to introduce payments for public education. All-encompassing, free compulsory education has been institutionalised in the OECD countries, while in most African countries not even primary education is free, as I showed in my last annual report.¹²⁶ I turned the usual UN rationale whereby poverty is to blame for the lack of schooling upside-down by asking: is poverty really the problem? My own answer: the problem is, rather, wealth.

There is much too little in the discourse on economic, social and cultural rights about taxation, despite the frequent mention of ‘governments should’ with the addition of ‘to the utmost of the available resources’. Resources lead inevitably to taxation, as a generally accepted duty. There is ample jurisprudence under the European Convention on Human Rights on taxation.¹²⁷ This is a reminder that all public services are paid for, whether through taxation or direct charges. However, the difference between taxation and direct charges is fundamental. The human rights jurisprudence regarding taxation has affirmed the principle of ability to contribute: those with insufficient income are not taxed. The imposition of charges for basic public services (such as primary schooling) upon those who cannot pay them, amounts, then, to regressive taxation. Legal challenges have been mounted, successfully, in countries as different as the Czech Republic and the Dominican Republic.¹²⁸

To help roll back payments imposed in public primary education which should be (but is not) free in the poorest countries was—and remains—my focus. Supplanting previously free by ‘for-fee’ education is, in my view, the biggest challenge to education as a human right. Progressive liberalisation of trade in education is replacing progressive realisation of economic, social and cultural rights. Unless this is effectively countered, purchasing power replaces entitlements.

One of the joys I have experienced in the past five years has been the roll-back of school fees in primary education in Africa. Malawi led in 1994, Uganda abolished fees in 1997, Tanzania followed in 2002, and Kenya in 2003.¹²⁹ The enthusiasm following the abolition of the hated school fees carries me on to help in the battle for free education there and elsewhere.

I made free primary education one of the foci of my mandate and relentlessly challenged the World Bank until it changed its policy. Now it opposes the charging of fees in primary education.¹³⁰ My ‘dialogue’¹³¹ with the World Bank was an example of the need to expose and oppose abuses of power which obliterate the ability of many indebted and impoverished countries to meet any obligations except those of servicing their debts. My mission to Uganda, just after it had abolished primary school fees, showed me how irrelevant human rights law is where the pressure of debt repayments reigns.¹³² Showing that the World Bank introduced school fees into African primary education in 1983¹³³ led to my recommendation that the Bank carry out an in-house survey of the charges in the countries where it works,¹³⁴ which it did. Numerous meetings (both at the World Bank headquarters and in the field) and extensive correspondence helped the process of change, which is far from finished. What has proved to work is naming-and-shaming. Although the target has not been a government, the violation, violator and remedy have been clear. We have not secured remedies for all those who were deprived of schooling because they were too poor to pay, but the roll-back of fees demonstrates that change is possible.

In my preliminary report, I noted the increasing visibility of the World Bank amongst key global actors in education.¹³⁵ In my progress report, I critically analysed the Bank's education strategy which had just been adopted,¹³⁶ and announced that I would continue my dialogue with the Bank by visiting its headquarters, which I did once a year. In my 2001 report, I subsumed my summarised analysis of the World Bank's work in education under ‘obstacles and difficulties’.¹³⁷ Our disagreement on the approach to financing education was exacerbated by the World Bank's tendency to view itself as exempt from the rule of law. My objection to the World Bank's self-exemption from the rule of law was labelled ‘overly legalistic’.¹³⁸ I analysed the documentation generated by the Bank's Inspection Panel and reproduced the critical remarks which the Panel addressed to Management. The World Bank's submission to the Commission had this to say: ‘If the impression is left that the Bank's management is somehow hiding its responsibility, it is essential that such impression be totally eradicated.’¹³⁹ What happened was the opposite: the Inspection Panel's remit was constrained and the applicants subjected to a much heavier burden of proof. Similar conduct followed a corruption scandal in the World Bank, when the pertinent questions from Sweden elicited ‘quite arrogant answers.’¹⁴⁰

The open contradiction between the world of law and the world of international finance made my dialogue with the World Bank crucial, albeit difficult.¹⁴¹ The World Bank's comments on my 2001 Annual Report included a statement whereby ‘the poor people do not like to have handouts and are willing to pay for services.’¹⁴² This illustrates how alien the notion that people have rights is for the World Bank. Illustratively, it has opted for ‘a chance to learn’ for African children,¹⁴³ clearly differentiating its vocabulary from the human rights language. Observers of the World Bank's vocabulary and its policies tend to emphasise its similarity to the vocabulary and policies of the US government,¹⁴⁴ especially regarding denials of the right to education and other economic, social and cultural rights. The underlying logic is apparently that demands to realise the right to education will be overwhelming just as soon as its existence is formally acknowledged, and complaints of its violations will be hugely expensive. The challenge is, then, to effectively demonstrate that the right to education exists.

	6. A Look Forward

Top Abstract 1. Introduction 2. The UN: From... 3. The Right to... 4. Enforcing the Right... 5. Creating Foundations for... 6. A Look Forward

 
Long ago, I learned that human rights are too important to be left to governments. Whether they are acting collectively within the World Bank or the Commission, the outcomes are not necessarily favourable for the right to education, regardless of what the rhetoric may be. It is within these constraints that battles for human rights have always been fought.

By commonly held estimates, a thematic mechanism takes at least 10 years to develop, so, perhaps, there might be a fully-fledged mandate on the right to education by the year 2008, if the Commission continues until then, and if a constituency for the right to education develops within it. However, yet another reform of the UN is underway, and both the Commission and its thematic procedures may disappear. The vagaries of international politics make anticipating the future of the mandate on the right to education uncertain. The right to education itself has a future if the human rights challenges of its denials and violations continue and amplify their impact. Whether the right to education has a future I have asked myself in moments of frustration, which were many. They were more than compensated by the roll-back of school fees in Africa; by the increasing opposition to selling and purchasing education; by the people writing to the UN horrified that a child had been beaten to death by a teacher; or by school children writing to seek help to vindicate their rights. So much could and should be done.

The right to education requires bridge-building, translating human rights into the languages of economics and statistics. I have helped to mainstream human rights in global monitoring of EFA,¹⁴⁵ and summarised international human rights law in the form of a manual for education policy and practice.¹⁴⁶ Conversely, transliterating the language of education economics and statistics for human rights professionals is a further challenge because the discipline of human rights is overpopulated by lawyers.

The novelty of my mandate and the paucity of knowledge about the right to education required careful strategising and hard work to map out the contours of the landscape. The risk of global retrogression in economic, social and cultural rights makes this type of work urgent, including a concerted effort to generate governmental and non-governmental constituencies in support of the right to education and economic, social and cultural rights in general.

Advancing human rights is a process—a marathon rather than sprint. The initial tasks have to be defined narrowly and cautiously, to be broadened as work progresses. A great deal of work was—and still is—needed to redress the neglect of the right to education. Too little can be done within the UN, where the right to education is one out of very many issues on the agenda. The lead agency in education is, in practice, the World Bank, which does not recognise education as a human right. Hence the need for academic and professional work, human rights activism, dissemination of knowledge to the constituencies supportive of the right to education, and the creation of new constituencies.

	Footnotes

 
¹ The Economist imported this term into English from Italian to denote ‘the study of what you cannot see’, what happens behind the scenes and why it happens exactly as it does, ‘Terrorism in Italy: The Life and Death of Aldo Moro’, The Economist, 15 August 2002, 65.

² The documents I wrote as the Special Rapporteur on the right to education have clarified the nature and scope of the right to education through my annual reports, and examined its realisation in situ through the reports on my missions to individual countries. There are 14 reports altogether, available at: www.right-to-education.org. Further analysis is contained in the four primers on the right to education that are also available on the website. An account of the uncertain fate of the right to education has been furnished in Tomaevski, Education Denied: Costs and Remedies (London: Zed Books, 2003) which is also published in Spanish (El asalto a la educación (Barcelona: Intermón-Oxfam, 2004)).

³ The proposal to replace the Commission with a Human Rights Council was made public by the UN Secretary-General in March 2005. He repeated his previous criticism of the Commission's credibility deficit and declining professionalism to argue that ‘if the Organization is to take the cause of human rights as seriously as those of security and development – then Member States should agree to replace the Commission on Human Rights with a smaller standing Human Rights Council’, Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, 21 March 2005, A/59/2005 at paras 181–3. In December 2004, the High-Level Panel on Threats, Challenges and Change concluded that ‘the Commission on Human Rights suffers from a legitimacy deficit that casts doubts on the overall reputation of the United Nations’, Report of the High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, 2 December 2004, A/59/565, synopsis at 14.

⁴ Evans, ‘Optimism Rises After the Tsunamis’, Financial Times, 11 January 2005.

⁵ Editorial, ‘Changes and Permanence’, (2005) 4 Respect: The Human Rights Newsletter 1.

⁶ Legrain, Open World: The Truth about Globalization (London: Abacus, 2002) at 110–1.

⁷ See Spring, The Universal Right to Education: Justification, Definition, and Guidelines (Mahwah, New Jersey: Lawrence Erlbaum Associates, 2000); and Hodgson, The Human Right to Education (Aldershot: Ashgate Publishing, 1998).

⁸ The Universal Declaration of Human Rights (1948) influenced national constitutions. The right to education had been affirmed in 37 per cent of the constitutions adopted between 1788 and 1948, increasing to 78 per cent in the constitutions adopted between 1949 and 1965. However, it fell again to 38 per cent in the constitutions adopted by the newly formed states. See van Maarseveen and van der Tang, Written Constitutions: A Computerized Comparative Study (Alphen aan den Rijn: Oceana Publications and Sijthoff & Nordhoff, 1978) at 204.

⁹ See Vision 2020 – Forecasting International Student Mobility: A UK Perspective (London: British Council, Universities UK and IDP Education Australia, 2004); and, UNESCO, Globalization and the Market in Higher Education: Quality, Accreditation and Qualifications (Paris: UNESCO Publishing, 2002).

¹⁰ At its 59th session, in 2004, the General Assembly's 218 resolutions included 4 with ‘education’ in their name. These dealt with the United Nations Decade of Education for Sustainable Development, GA Res. 59/237, 24 February 2005, A/RES/59/237; the United Nations Literacy Decade: Education for All, GA Res. 59/149, 1 February 2005, A/RES/59/149; the World Programme for Human Rights Education, GA Res. 59/113, 17 February 2005, A/RES/59/113; and, Sport as a Means to Promote Education, Health, Development and Peace, GA Res. 59/10, 8 December 2004, A/RES/59/10. The full list of resolutions is available at: www.un.org/Depts/dhl/resguide.

¹¹ Report of the Secretary-General, supra ^{n. 3} at para. 144.

¹² Constitutional guarantees whereby the right to education is ‘ensured by free education at all levels’ were found in the USSR and her allies at the time, as were definitions of education in terms of ‘communist upbringing’; see Simons, The Constitutions of the Communist World (Alphen aan den Rijn: Sijthoff & Noordhoff, 1980).

¹³ Cohen, ‘Witnessing the Truth’, (1996) 1 Index on Censorship 40.

¹⁴ The creation of the first thematic mechanism in 1980, the Working Group on Disappearances, due to the Commission's inability to respond to disappearances in Argentina, is described in Guest, Behind the Disappearances: Argentina's Dirty War against Human Rights and the United Nations (Philadelphia: University of Pennsylvania Press, 1990) especially at 197–211. It was followed by Special Rapporteurs on summary executions in 1982 and torture in 1985. Miko Lempinen summed up a common assessment thus: ‘Because of the global character of a thematic mandate, governments made themselves vulnerable by creating a mechanism which is empowered to effectively place every government under scrutiny’, Lempinen, Challenges Facing the System of Special Procedures of the United Nations Commission on Human Rights (Åbo/Turku: Institute for Human Rights, Åbo Akademi University, 2001) at 10.

¹⁵ Tomaevski, Responding to Human Rights Violations 1946–1999 (The Hague: Martinus Nijhoff Publishers, 2000) at 384–8.

¹⁶ My website on the Right to Education Project was launched on 15 March 2001 (www.right-to-education.org), just as the Commission was renewing my mandate. In line with transparency, an announcement had been included in the Annual Report of the Special Rapporteur on the right to education, Katarina Tomaevski, 11 January 2001, E/CN.4/2001/52, (‘Annual Report 2001’), executive summary and para. 70.

¹⁷ On 7 April 2003, I launched my book, Education Denied: Costs and Remedies while the Commission was in session. To my publisher's dismay, I included anti-acknowledgements in my preface, explaining that ‘acknowledgements’ would have presented a distorted image of the fate of the right to education. Also to his consternation, I made a reference to putting up with more verbal abuse than I imagined possible. This proved accurate because verbal abuse increased with the specificity of my annual and mission reports. See Tomaevski, supra ^{n. 2} at xiii–xiv.

¹⁸ Preliminary Report of the Special Rapporteur on the right to education, Katarina Tomaevski, 13 January 1999, E/CN.4/1999/49 (‘Preliminary Report’); Progress Report of the Special Rapporteur on the right to education, Katarina Tomaevski, 1 February 2000, E/CN.4/2000/6 (‘Progress Report’); Annual Report 2001, supra ^{n. 16}; Annual Report of the Special Rapporteur on the right to education, Katarina Tomaevski, 7 January 2002, E/CN.4/2002/60 (‘Annual Report 2002’); The Right to Education: Report of the Special Rapporteur, Katarina Tomaevski, 21 January 2003, E/CN.4/2003/9 (‘Annual Report 2003’); and, The Right to Education: Report submitted by the Special Rapporteur, Katarina Tomaevski, 15 January 2004, E/CN.4/2004/45 (‘Annual Report 2004’).

¹⁹ Question of the Realization in all Countries of the Economic, Social and Cultural Rights Contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and Study of Special Problems which the Developing Countries Face in their Efforts to Achieve these Human Rights, 17 April 1998, E/CN.4/RES/1998/33.

²⁰ A Joint NGO statement of 29 March 2000 reads: ‘First of all, we wish to express our sincere appreciation for the high quality of the work done by Ms Katarina Tomaevski, Special Rapporteur on the right to education. We congratulate her on her report and, in particular, for the approach taken in identifying with a view to eliminating obstacles to the realization of the right to education as well as forcefully reminding states of their binding obligations.’ The delegation of Japan welcomed my work and stated on 3 April 2000 that the right to education deserved ‘its own resolution.’ Statement by H.E. Ambassador Koichi Haraguchi on Agenda item 10: Economic, Social and Cultural Rights, 56th Session of the Commission on Human Rights, 3 April 2000.

²¹ Resolution 1998/33 was adopted by a vote of 52–1, with the delegation of the US voting against because of the financial implications of the creation of a new mandate without any available funding, Report of the Commission on Human Rights on its 54th Session, 1 January 1998, E/CN.4/1998/177 at paras 28–39.

²² The large volume of documentation generated by the Commission is illustrated by the Annual Report of its 60th Session, 19 April 2004, E/CN.4/2004/127, which is 600 pages long.

²³ The following description of the General Assembly's practice also applies to the Commission:

In recent years, the number of General Assembly resolutions approved by consensus has increased steadily. That would be good if it reflected a genuine unity of purpose among Member States in responding to global challenges. But unfortunately, consensus (often interpreted as requiring unanimity) has become an end in itself. It is sought first within each regional group and then at the level of the whole. This has not proved an effective way of reconciling the interests of Member States. Rather, it prompts the Assembly to retreat into generalities, abandoning any serious effort to take action. Such real debates as there are tend to focus on process rather than substance and many so-called decisions simply reflect the lowest common denominator of widely different opinions.

Report of the Secretary-General, supra ^{n. 3} at para. 159.

²⁴ Progress Report, supra ^{n. 18} at paras 46–8.

²⁵ See Report submitted by Ms Katarina Tomaevski, Special Rapporteur on the right to education: Mission to Uganda, 26 June–2 July 1999, 9 August 1999, E/CN.4/2000/6/Add. 1 (‘Uganda Report’) at paras 76–87; Report submitted by Katarina Tomaevski, Special Rapporteur on the right to education: Mission to the United Kingdom of Great Britain and Northern Ireland (England), 18–22 October 1999, 9 December 1999, E/CN.4/2000/6/Add. 2 (‘England Report’) at paras 75–87; and, Annual Report 2001, supra ^{n. 16} at paras 73–7.

²⁶ The simplest definition of human rights work is contained in Article 8, Universal Declaration of Human Rights, which postulates the right to a remedy for acts violating the fundamental rights granted by the constitution or by law. This relies on the ancient principle ubi ius ibi remedium, which reminds us that only law bestows rights and that they entail remedies.

²⁷ Statement by Ambassador Wilhelm Höynck, head of the delegation of Germany on behalf of the European Union, 8 April 1999.

²⁸ ‘ELIMU Update’, Newsletter of the Education is Life Campaign, Summer 1999.

²⁹ Statement by Ambassador Alvaro Mendonça e Moura, head of the delegation of Portugal, on behalf of the European Union, 3 April 2000.

³⁰ Statement by Ambassador Sverre Bergh Johansen, 2 April 2001.

³¹ Statement by the delegation of Sri Lanka at the 59th Session of the Commission on Human Rights, Agenda item 10: Economic, Social and Cultural Rights, April 2003.

³² During the debate on economic, social and cultural rights on 2 and 3 April 2001, all government delegations made supportive statements. Sweden referred to the need to overcome the obstacles facing mandate-holders; Sri Lanka quoted excerpts from my annual report highlighting their agreement with my approach; Swaziland, Nigeria and India described developments in their countries aimed at enhancing the right to education; Cuba noted the insufficient support to my mandate; and Malaysia suggested a stronger focus on violations of the right to education.

³³ EI BAROMETER 2001 on Human and Trade Union Rights in the Education Sector (Brussels: Education International, 2001) at 3.

³⁴ Education for All: Is the World on Track? EFA Global Monitoring Report 2002 (Paris: UNESCO Publishing, 2002) at 106.

³⁵ Annual Report 2004, supra ^{n. 18} at para. 1.

³⁶ In its Resolution 2004/25, 16 April 2004, E/CN.4/RES/2004/25, the Commission extended the mandate of the Special Rapporteur on the right to education for a period of three years (para. 8), keeping the substantive description of the mandate unchanged. The Special Rapporteur was invited ‘to intensify efforts aimed at identifying ways and means to overcome obstacles and difficulties in the realization of the right to education’ (para. 9(b)). The only mention of ‘violations’ in the resolution related to the Commission's urging all states to protect children from abuse and violence, including sexual abuse and corporal punishment in schools and ‘to incorporate in their legislation appropriate sanctions for violations’ (para. 7(m)).

³⁷ In July 2004, Vernor Muñoz Villalobos (Costa Rica) began his mandate as the Special Rapporteur on the right to education.

³⁸ The Commission has not accepted that the logical consequence of the right to education is that this right can be violated. In its first resolution on the right to education, it acknowledged that there are ‘obstacles limiting access to education’ (UNCHR Res. 2001/29, The Right to Education, 20 April 2001, E/CN.4/RES/2001/29 at para. 3(b)) somewhat simplifying the clumsy formulation used previously, in the ‘omnibus resolution’ regarding ‘obstacles and difficulties in the realization of the right to education.’ (UNCHR Res. 2000/9, Question of the Realization in all Countries of the Economic, Social and Cultural Rights Contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and Study of Special Problems which the Developing Countries Face in their Efforts to Achieve these Human Rights, 17 April 2000, E/CN.4/RES/2000/9 at para. 10).

³⁹ Report of the Secretary-General, Strengthening of the United Nations: An Agenda for Further Change, 9 September 2002, A/57/387 at para. 46.

⁴⁰ World Economic Forum, ‘Global Governance Initiative: Executive Summary 2004’, 15 January 2004, available at: www.weforum.org.

⁴¹ See supra ^{n. 3} and accompanying text.

⁴² Cuba is the most active government in this area as the initiator of resolutions on structural adjustment and foreign debt, social justice, equitable international order, international solidarity and the right to food. The resolutions on the rights to development and unilateral coercive measures (i.e. economic sanctions) were initiated by the Non-Aligned Movement (NAM), the resolution on toxic waste by the African Group, and the resolution on globalisation by Pakistan. This is described in Tomaevski, supra ^{n. 2} at 90–1.

⁴³ In our joint statement before the Commission, I emphasised that the Commission was creating new mandates without political or financial support, using a formulation from ‘the Brahimi Report’: ‘the Member States crafted ambiguous and underfunded mandates and then stood back and watched as they failed.’ At the time, there were 34 mandates, 19 short of the number of members of the Commission, and we anticipated that the number would exceed 53 and keep growing. The absence of political support for the work of the Commission was the key point of our statement. We pointed out Malaysia, Myanmar and Equatorial Guinea as countries that refused cooperation, asking the Commission to halt and reverse such practices. See Statement of Katarina Tomaevski, Chairperson of the Special Rapporteurs, Representatives, Experts and Chairpersons of Working Groups of the special procedures of the Commission and the Advisory Services Programme, Informal session of the Commission on Human Rights, 15 September 2001.

⁴⁴ The Secretary-General's proposal for ‘a smaller standing Human Rights Council’ instead of the Commission was justified by ‘its declining credibility and professionalism’, evidenced by individual states seeking ‘membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticise others’. Remedying that ‘credibility deficit’ will apparently preserve the two facets of the Commission's work which were assessed positively, namely ‘a unique system of independent and expert special procedures to observe and analyse human rights compliance by theme and by country’ and the ‘close engagement with hundreds of civil society organizations’. See Report of the Secretary-General, supra ^{n. 3} at paras 181–3.

⁴⁵ Subtle linguistic changes in Commission resolutions indicated its increased disapproval of its first Special Rapporteur on the right to education. In 1999 the Commission ‘welcomed’ my preliminary report (UNCHR Res. 1999/25, Question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in their efforts to achieve these human rights, 26 April 1999, E/CN.4/RES/1999/25 at para. 1(a)); in 2001 it noted my Progress Report ‘with interest’ (UNCHR Res. 2001/29, supra ^{n. 38} at para. 1); and by 2004 it merely ‘took note’ of my Annual Report (UNCHR Res. 2004/25, supra ^{n. 36} at para. 1).

⁴⁶ A press comment in 2004 questioned ‘the principle that UN members should be treated as sovereign equals regardless of the character of their government’ using as an example the voting of ‘Sudan that wages a genocidal war on to the UN Human Rights Commission’: Daalder and Lindsay, ‘Our Way or the Highway’, Financial Times, 6–7 November 2004.

⁴⁷ In 1975, the report on the realisation of economic social and cultural rights praised the Socialist countries of Eastern Europe for providing education free of charge to note, at the end, that ‘there appears to be no provision for confessional schools or schools only run by religious or voluntary associations or private individuals’, Ganji, The Realization of Economic, Social and Cultural Rights (New York: United Nations, 1975) at 198.

⁴⁸ This is described in Tomaevski, supra ^{n. 2} at 63 and 90–1.

⁴⁹ In 2004, ‘the Working Group could not reach consensus with respect to beginning to draft an Optional Protocol. Given this degree of disagreement, the Working Group simply recommended that its mandate be extended for a further two years’, Thiele and Gomez, ‘A Review of the Sixtieth Session of the United Nations Commission on Human Rights’, (2004) 22 Netherlands Quarterly of Human Rights 469 at 491.

⁵⁰ Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Contribution from Katarina Tomaevski, Special Rapporteur on the right to education, 4 January 2004, E/CN.4/2004/WG23/CRP.4.

⁵¹ Statements of Shaukat Umer (Pakistan) regarding the Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. See ‘Commission Approves Six Measures on Economic, Social and Cultural Rights’, UN Press Release, 16 April 2004; and, ‘Commission Adopts Resolutions on Economic, Social, Cultural, Civil and Political Rights, Rights of Women’, UN Press Release, 10 April 2004.

⁵² Remarks by US Delegate Richard Wall, 59th UN Commission on Human Rights, Item 10: Economic, social and cultural rights, 4 April 2003.

⁵³ Comments submitted by the US in the Report of the Open-Ended Working Group on the Right to Development, 20 March 2001, E/CN.4/2001/26, Annex III at para. 8.

⁵⁴ For example, subsequent to the appointment of the Special Rapporteur on housing rights, UNCHR Res. 2000/9, supra ^{n. 38} at para. 1(e), the title of Commission resolution 2001/28 was altered from the original ‘housing rights’ or ‘right to housing’ to ‘adequate housing as a component of the right to an adequate standard of living’, Report on the Fifty-Seventh Session of the Commission, 1 December 2001, E/CN.4/2001/167 (Part II) at para. 258.

⁵⁵ The statement also emphasised that ‘a deliberate, organized and concerned effort is being made by participating states to weaken or abandon a wide spectrum of hard-won principles’, and added that ‘economic, social and cultural rights – notably the rights to food, education and housing – have been challenged, both in terms of their justiciability and in terms of their content.’ It concluded: ‘It is painfully apparent from the statements of governments at this Commission that there is also a systematic attempt being made to weaken the terms of reference and narrow the range of issues that thematic special rapporteurs, experts and working groups may address’ (Joint statement by 11 NGOs (endorsed by additional 32), reproduced in 8 Human Rights Tribune/Tribune des droits humains 15–6).

⁵⁶ In 2001, the Commission failed to adopt its annual resolution on special procedures. The resolution which was adopted one year later (UNCHR Res. 2002/84, Human Rights and Thematic Procedures, 26 April 2002, E/CN.4/2002/84) diluted the previous language by stating that the Commission ‘encourages all governments to cooperate with the Commission,’ and asked them to ‘consider’ inviting Special Rapporteurs on country missions. Human Rights Features has commented: ‘A calculated attempt to undermine the special procedures of the Commission is underway, and the most likely protectors of the procedures seem incapable of mounting a worthy defense’, Human Rights Features, 14 March 2003, available at: http://www.hrdc.net/sahrdc/hrfeatures/HRF73.htm.

⁵⁷ Mitta, ‘Education: Resolution Drafters Need to Study Harder’, Human Rights Features, 14–20 April 2003, at 7, available at: http://www.hrdc.net/sahrdc/hrfchr59/Issue5/pdf.pdf.

⁵⁸ It is unfortunate that funding for the mandates on economic and social rights is defended by countries such as Algeria, Cuba or Pakistan. On 4 April 2003, Pakistan's statement before the Commission on Human Rights included the ‘Government's deep appreciation for the work being undertaken by the Special Rapporteur on the right to education, Ms Katarina Tomaevski. We are concerned that the Special Rapporteur is not being provided sufficient financial resources to fulfil her mandate. We would request the High Commissioner to kindly look into her request and alleviate the difficulties which she is facing.’

⁵⁹ Cees Flinterman has found that ‘around 180 individual experts are presently working within the United Nations human rights system: 105 experts in the framework of the now existing six treaty bodies, 26 independent members of the Sub-Commission on the Promotion and Protection of Human Rights and around 50 individual experts who serve as Special Rapporteurs or are members of Working Groups of the United Nations Commission on Human Rights.’ See Flinterman, ‘United Nations Human Rights Reform: Some Reflections of a CEDAW Member’, (2003) 21 Netherlands Quarterly of Human Rights 620 at 621.

⁶⁰ Seventeen Frequently Asked Questions about United Nations Special Rapporteurs, Fact Sheet No. 27, OHCHR, April 2001, at 6.

⁶¹ I consistently noted in my reports to the Commission the diminishing support by the OHCHR and that I had to finance an increasing part of the expenses related to my work as the Special Rapporteur out of my own pocket. See Annual Report 2001, supra ^{n. 16} at para. 2; and, Annual Report 2004, supra ^{n. 18} at para. 1. At the beginning of my mandate, the OHCHR anticipated professional servicing of my mandate at the cost of $30,700, which translated into about four months of full-time work by a junior professional.

⁶² Coomber, ‘Analytical Report of the 56th Session, Geneva, 20 March–28 April 2000’, (2000) 49–50 Human Rights Monitor 32.

⁶³ ‘Education: The Sums Don't Add Up’, Human Rights Features, 17–21 March 2003, available at: http://www.hrdc.net/sahrdc/hrfchr59/Issue1/indonesia.htm.

⁶⁴ Boyle, ‘Marking Another Birthday: Ten Years of the United Nations High Commissioner for Human Rights’, (2004) 22 Netherlands Quarterly of Human Rights 301 at 306.

⁶⁵ The first complaint addressed the OHCHR's refusal to allow me to issue a press release on the eve of my mission to Colombia, the alteration of my travel schedule (supposedly to save OHCHR's funds), and the deployment of a professional staff member to accompany me who did not speak the language in which the mission was carried out (incurring, for the OHCHR, a considerable expense). It was sent to the Executive Office of the Secretary-General on 15 October 2003 and, again, on 12 January 2004, as there had been no response. The second complaint, of 28 March 2004, dealt with the mistranslation of the report on my mission to Colombia, which turned around some of my findings, whereupon I issued a corrected translation myself for informal circulation during my last oral report to the Commission. Copies were made available to all who were interested on 30 March 2004 and remain on file.

⁶⁶ Staff members of the OHCHR are international civil servants and ‘responsible to their respective supervisors within the OHCHR’ rather than the mandate holders. Also, ‘OHCHR management decides on the funding of particular activities of special procedures in accordance with given priorities at a certain time’, Guiding principles regarding the working relations between special procedures mandate-holders and OHCHR Staff, 20 August 2002.

⁶⁷ Van Boven, People Matter: Views on International Human Rights Policy (Amsterdam: Meulenhoff, 1982) at 5.

⁶⁸ The voting records and accompanying explanations of votes demonstrate a deep North–South split within the Commission regarding the whole cluster of development-related issues. In 2004, for example, the resolution on globalisation (UNCHR Res. 2004/24, 16 April 2004, E/CN.4/RES/2004/24) was adopted by 38 votes in favour and 15 opposed. The resolution on structural adjustment and foreign debt (UNCHR Res. 2004/18, 16 April 2004, E/CN.4/RES/2004/18) was adopted by 29 votes in favour, 14 opposed and 10 abstentions. In both cases, the dissenting votes were from the North. In the background are two intertwined issues. The first is the resistance of the North to affirming the human rights impact of globalisation or debt servicing. The second is the contents of Commission resolutions and the reports which they generate, which deal with relations between states rather than human rights.

⁶⁹ The Commission does not explicitly include a mention of violations of the right to education in its resolutions, but I consistently dealt with violations using as justification that (1) the right to education is a civil and political right alongside being an economic, social and cultural right, and (2) the text of the resolutions on the right to education refers to ‘obstacles and difficulties’ in the realisation of the right to education, and I subsumed exposing and opposing violations under that formulation.

⁷⁰ My correspondence with governments regarding cases of apparent violations of the right to education triggered only one letter questioning my queries. It was the letter from the Permanent Mission of Ethiopia to the United Nations of 27 August 1999. I had written to seek clarification regarding, inter alia, the trial and imprisonment of Dr Taye, a former President of ETA (Ethiopian Teachers’ Association). The Mission replied that this ‘had nothing to do with the right to education’ and that it failed to understand the connection of that case with the resolution which established my mandate. I replied citing the Commission's annual resolutions on thematic procedures. The subsequent correspondence focused on that case and many others followed, so I requested on 15 November 2001 an invitation from the government to carry out a mission to Ethiopia, to be ultimately told by Ambassador Fisseha Yimer that no invitation would be forthcoming.

⁷¹ Annual Report 2001, supra ^{n. 16} at paras 19 and 21.

⁷² Report submitted by Katarina Tomaevski, Special Rapporteur on the right to education: Mission to Turkey, 3–10 February 2002, 27 March 2002, E/CN.4/2002/60/Add.2 (‘Turkey Report’).

⁷³ After protracted negotiations, my mission to Turkey took place from 3 to 10 February 2002, in a particularly eventful week. Legislative changes (the first harmonisation package) focused on Turkey's application for membership of the European Union and a students’ initiative to introduce Kurdish as an optional university course was in full swing, while difficult relations with the government made the schedule for my mission a topic of repetitive and immensely unpleasant negotiations. The unpleasantness continued after my mission, with the government's attempt (supported by the OHCHR) to force me to delete references to the Armenian genocide and to Cyprus from my report. The presentation of my report to the Commission on Human Rights on 3 April 2002 triggered an outburst from Turkey's delegation. As subsequently become customary, I was accused of being abrasive, prejudiced, overstepping my mandate and much else.

⁷⁴ He summed up the situation thus: ‘the Special Rapporteur fears that with the Commission showing little or no interest in the reports of its special rapporteurs, representatives, independent experts or working groups, whatever impact these procedures may have with regard to early warning and prevention of imminent human rights and humanitarian crises is simply lost’, Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur, Mr Bacre Waly Ndiaye, 14 December 1994, E/CN.4/1995/61, at para. 276.

⁷⁵ Seeking avenues to overcome the barrier of the Commission's silence, I wrote on 28 October 2002 to the governments of the United Kingdom and the US as follow-up to my missions to both countries. The purpose was to explore possibilities for integrating human rights considerations in aid to Ethiopia for education and to overcome the refusal of the Government of Ethiopia to cooperate with United Nations human rights mechanisms. The response by the United Kingdom's Department for International Development was immediate and positive, and we had a series of informal meetings. The response from USAID was evasive, highlighting two facets of the lack of linkage between aid and human rights. Firstly, ‘U.S. efforts to strengthen democracy and governance most often fall short because they lack unified support from the entire U.S. government.’ (USAID, ‘Foreign Aid in the National Interest’, 2002, at 9). This facet is exhibited in the criticism of Ethiopia's human rights record in annual reports of the US State Department and positive assessments by USAID. Secondly, ‘a senior State Department official told Human Rights Watch that, after the attacks in the U.S. on September 11, 2001, the U.S. is even less inclined to demand respect for human rights in Ethiopia because it is completely dependent on the cooperation of this strategically located country.’ (Human Rights Watch, Lessons in Repression: Violations of Academic Freedom in Ethiopia, January 2003, at 4).

⁷⁶ The Commission rhetorically frowns upon such evident breaches of its own rules but does nothing to counter them. The lists of governmental delegations to the Commission as well as those of nominally independent experts are public documents and it would be easy to identify all those who are both members of governmental delegations and independent experts. In its resolution 2001/60, the Commission requested governments ‘when nominating and electing members of the Sub-Commission, to be conscious of the strong concern to ensure that the body is independent and seen to be so.’ The nominations are left to the discretion of each government, while there is no peer pressure against evident conflicts of interests. Moreover, this illustrates how ill-suited the Commission and the Sub-Commission are to upholding their own rules.

⁷⁷ ICRC, ‘Stemming the Tide of Violence: ICRC Activities in Relation to the International Community's Prevention Strategies. Special Report’, 1 May 1998, at 5.

⁷⁸ A frequent formulation in treaty provisions concerning government reports asks them to include in their reports ‘the factors and difficulties, if any, affecting the implementation’ of the treaty. See Article 40(2), International Covenant on Civil and Political Rights 1966. Article 17(2), ICESCR says that reports by states parties ‘may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Covenant; and, Article 44(2), Convention on the Rights of the Child 1989 contains an identical provision. In the practice of treaty bodies, the concluding observations which follow the examination of a state's report, summarize after listing the positive aspects ‘factors and difficulties impeding the implementation of the treaty.’ That same formulation in the Commission's resolutions on the right to education conveys the message that the right to education would have been realised everywhere were it not for ‘obstacles and difficulties’ outside the government's control.

⁷⁹ Progress Report, supra ^{n. 18} at paras 10–1.

⁸⁰ Annual Report 2001, supra ^{n. 16} at paras 15–41.

⁸¹ A different part of the OHCHR services the special procedures, the mandates concerning torture, summary executions or disappearances, while my mandate was allocated to what was called ‘Research and the Right to Development.’

⁸² Annual Report 2001, supra ^{n. 16} at para. 6.

⁸³ The major surveys used in the construction of global league tables in education are the Programme for International Student Assessment (PISA), the Trends in International Mathematics and Science Study (TIMS), and the International Adult Literacy Survey. Their summarised results have been provided in, for example, ‘A League Table of Educational Disadvantage in Rich Nations’, Innocenti Report Card, Issue No. 4, November 2002.

⁸⁴ The annual ‘Education at a Glance: OECD Indicators’ has the self-description ‘the consensus of professional thinking on how to measure the current state of education internationally’, ‘Education at a Glance: OECD Indicators 2002’ at 7.

⁸⁵ In the report on my mission to China, I noted the prevalent view that ‘any schooling equals the right to education.’ China's law defines education as an individual duty and recognises only ‘the right to receive education’ but not freedom to impart it. For example, religious education remains prohibited in both public and private institutions. (Report submitted by the Special Rapporteur, Katarina Tomaevski: Mission to the People's Republic of China, 10–19 September 2003, 1 November 2003, E/CN.4/2004/45/Add.1 (‘China Report’) at paras 6–7) In Colombia, the law mandates differentiated treatment of the communities ‘that have their own indigenous culture, language, traditions and codes of behaviour’ but their ‘right to remain different’ has not been translated into practice. (The Right to Education. Report submitted by Katarina Tomaevski, Special Rapporteur: Mission to Colombia, 1–10 October 2003, 20 March 2004, E/CN.4/2004/45/Add.2/Corr.1 (‘Colombia Report’) at paras 35–8).

⁸⁶ Cosmas Desmond put it thus: ‘Amnesty was originally concerned not with human rights as such, nor even with the right to individual liberty, but simply with freedom of opinion and freedom of religion.’ Desmond, Persecution East and West: Human Rights, Political Prisoners and Amnesty (London: Penguin, 1983) at 41.

⁸⁷ The first session of the International Labour Conference, in 1919, adopted two conventions against child labour and as of 1921 the elimination of child labour was linked to free and compulsory education. See A Future without Child Labour: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work 2002, International Labour Conference, 90th session, Report I(B) 2002, at 7–9.

⁸⁸ My survey of written constitutions showed that the right to education is guaranteed in 142, while 44 countries had no constitutional guarantee. See Annual Report 2001, supra ^{n. 16} at paras 66–7.

⁸⁹ Uganda Report, supra ^{n. 25}; England Report, supra ^{n. 25}; Report submitted by Katarina Tomaevski, Special Rapporteur on the right to education: Mission to the United States of America, 24 September–10 October 2001, 17 January 2002, E/CN.4/2002/60/Add.1 (‘US Report’); The Right to Education: Report submitted by Katarina Tomaevski, Special Rapporteur: Mission to the United Kingdom (Northern Ireland), 24 November–1 December 2002, 5 February 2003, E/CN.4/2003/9/Add.2 (‘Northern Ireland Report’); Turkey Report, supra ^{n. 72}; The Right to Education: Report submitted by Katarina Tomaevski, Special Rapporteur: Mission to Indonesia, 1–7 July 2002, 4 November 2002, E/CN.4/2003/9/Add.1 (‘Indonesia Report’); China Report, supra ^{n. 85}; Columbia Report, supra ^{n. 85}.

⁹⁰ The current tendency to transform human rights into development targets has reinforced my focus on the law. The reason is the underlying acceptance of the denial of the right to education. Through the human rights lens, the commitment to secure some primary education for all children in 2015 implies accepting that the right to education of today's children is denied, while the likely failure to remedy that by 2015 would repeat the previous failures of identical commitments made every decade in the past 50 years without anybody being held accountable.

⁹¹ Consecutive analysis has been summarised in my annual reports to the Commission: see Preliminary Report, supra ^{n. 18} at paras 42–74; Progress Report, supra ^{n. 18} at paras 30–65; and, Annual Report 2001, supra ^{n. 16} at paras 64–72.

⁹² Committee on Economic, Social and Cultural Rights, General Comment No. 13: The Right to Education, 2 December 1999, E/C.12/1999/10; 7 IHRR 303 (2002).

⁹³ Intervención de la delegación del Uruguay en el tema 10 (derechos económicos, sociales y culturales), 56 Commission de Derechos Humanos.

⁹⁴ See Defensoria del Pueblo, ‘El derecho a la educacion en la Constitucion, la jurisprudencia, y los instrumentos internationacionales’, 2003; and Human Rights Commission, ‘The Right to Education: A Discussion Document, New Zealand Plan of Action for Human Rights’, 2003.

⁹⁵ See Centre for Studies on Inclusive Education, ‘Social and Educational Justice: The Human Rights Framework for Inclusion’, 2002; and, National Human Rights Institutions and Economic, Social and Cultural Rights in Conflict Situations, ACHR Features, 1 September 2004, ACHRF/36/2004.

⁹⁶ China Report, supra ^{n. 85}.

⁹⁷ US Report, supra ^{n. 89}.

⁹⁸ World Bank Operational Directive (OD) 4.15 as revised in 1993.

⁹⁹ Two indicators are used to depict the importance of education in public expenditure. One compares budgetary allocations to education with gross national product (GNP), and countries are ranked from the highest allocation of 8 per cent of GNP or more to as low as 2 per cent or less. The other indicator is the percentage for education in a government's budget, where more than 20 per cent is deemed to be exceptionally high. In 2000, Uganda reached 33 per cent. See Tomaevski, supra ^{n. 2} at 138.

¹⁰⁰ Uganda Report, supra ^{n. 25}.

¹⁰¹ Annual Report 2001, supra ^{n. 16} at para. 53.

¹⁰² Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo, 12 April 2001, S/2001/357.

¹⁰³ That statement also focused on education in post-conflict societies: ‘We also thank the Special Rapporteur on the right to education for her report on her visit to the United Kingdom during which she examined the role of education in peace-making in Northern Ireland. Her analysis and recommendations are of particular interest to us, and no doubt to many African countries, as well as other countries facing the challenges of upholding the right to education in a post-conflict environment. We shall study her report with keen interest, particularly in relation to the report she wrote after her visit to Uganda during 1999.’ UN Press Release, 7 April 2003.

¹⁰⁴ Annual Report 2003, supra ^{n. 18} at para. 23; and, Annual Report 2002, supra ^{n. 18} at paras 31–4.

¹⁰⁵ England Report, supra ^{n. 25} at paras 65–9.

¹⁰⁶ International human rights law defines free and compulsory primary education as a public responsibility. The key provisions of human rights treaties reflect changes in the law during the past decades. Article 4(a), UNESCO Convention against Discrimination in Education 1960, stipulates that primary education should be free and compulsory. Article 13(2)(a), ICESCR says that ‘primary education shall be compulsory and available free for all’; while Article 27(1)(a), Convention on the Rights of the Child obliges states to ‘make primary education compulsory and available free for all’ urging governments to progressively achieve every child's right to education on the basis of equal opportunity. UNICEF's interpretation has been that the Convention on the Rights of the Child ‘countenances fees for private institutions, state kindergartens, secondary schools and universities.’ (‘A Decade of Transition’, The MONEE Project CEE/CIS/Baltics 2001, at 81) With the advent of the General Agreement on Trade in Services, education has also become a traded service. The evolving law that regulates international trade in education services recognises that compulsory education may remain an individual entitlement and a corresponding government responsibility, but allows individual states to regulate education as a traded service, especially at post-compulsory stages. See Annual Report 2003, supra ^{n. 18} at paras 18–9; and, Annual Report 2002, supra ^{n. 18} at paras 19–21.

¹⁰⁷ Colombia Report, supra ^{n. 85} at para. 8.

¹⁰⁸ China Report, supra ^{n. 85} at paras 6–7.

¹⁰⁹ Indonesia Report, supra ^{n. 89} at paras 10 and 20.

¹¹⁰ Turkey Report, supra ^{n. 72} at paras 18–21.

¹¹¹ US Report, supra ^{n. 89} at paras 40–5.

¹¹² The National Commission on Human Rights Indonesia, ‘Annual Report’, 2001 at 69.

¹¹³ In India, the 93rd Constitutional Amendment transformed the right to education from a directive for state policy (as it still is in Bangladesh) into an individual right. The Constitution 93rd Amendment Bill 2001 was passed by unanimous vote in the Lok Sahba on 27 November 2001 and by Rajya Sahba on 14 May 2002. It says: ‘The State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may by law determine.’ See Tomaevski, supra ^{n. 2} at 129–31. The new UPE (United Progressive Alliance) government in 2004 prioritised education in its Common Minimum Programme, and a 2 per cent surcharge on all taxes (individual and corporate, including excise and customs duties) was introduced so as to generate additional funds. See Luce, ‘Finance Minister Makes Downpayment on Future Reforms’, Financial Times, 9 July 2004.

¹¹⁴ Uganda Report, supra ^{n. 25} at para. 37.

¹¹⁵ During its second year, the Commission described ‘a marked increase in the number of complaints filed against private individuals’. Indeed, ‘more complaints were filed against private individuals than state organs’ and many included what the Commission defined as ‘the right to education’, which was the duty of a parent to pay the cost of education for a child. See Uganda Human Rights Commission, ‘Annual Report 1998: The Second Annual Report to Parliament, 1 January–31 December 1998’, 1999, at 9 and 18.

¹¹⁶ Brown and Zuker, Education Law, 2nd edn (Scarborough, Ontario: Carswell, 1998).

¹¹⁷ See Yudof, Kirp and Levin, Educational Policy and the Law, 2nd edn (St Paul: West Publishing Company, 1992).

¹¹⁸ See Hyams, Law of Education (London: Sweet & Maxwell, 1998).

¹¹⁹ Tjeldvoll (ed.), Education and the Scandinavian Welfare State in the Year 2000: Equality, Policy and Reform (London: Garland/Taylor & Francis, 1998).

¹²⁰ Martínez de Pisón, El derecho a la educación y la libertad de enseñanza, Cuadernos ‘Bartolomé de Las Casa’ No. 27, Universidad Carlos III de Madrid, Dykinson, 2003.

¹²¹ See Hervey and Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford: Hart Publishing, 2003); and, Gori, Towards an EU Right to Education (The Hague: Kluwer Law International, 2001).

¹²² See Derechos económicos, sociales y culturales en el sistema Interamericano, CEJIL Gaceta, No. 12, 2000, available at: www.cejil.org.

¹²³ These cases sometimes lead to the rectification of the prospective harm to economic and social rights by the very filing of a case and the expected publicity surrounding it. An illustrative request was filed in 1999 from Argentina because budgetary reductions had threatened to annihilate a programme assisting the poorest to grow their own food and produced immediate changes: the budget for that programme was doubled. (Argentina: Special Structural Adjustment Loan 4405-AR). Information on that case and a similar one submitted to the Independent Evaluation Office of the International Monetary Fund is available at: www.cels.org.ar.

¹²⁴ The Constitutional Court, in the words of Manuel José Cepeda, who delivered the judgment, has emphasised the denial of constitutionally guaranteed rights of the displaced. As a consequence, an unknown, but large, number of the displaced were neither registered nor informed of the rights they had. Only a minority were provided with humanitarian assistance or housing, while budgetary allocations were diminished rather than increased. Having defined this situation as unconstitutional, the Court elaborated the list of basic rights of the displaced and laid down the time-frame for government's compliance with its human rights obligations. Corte Constitucional de Colombia, T-025 de 2004.

¹²⁵ PROVEA – La defensa de los derechos económicos, sociales y culturales: Algunos mecanismos nacionales, 2004, available at: www.derechos.org.ve.

¹²⁶ Annual Report 2004, supra ^{n. 18} at paras 19–28.

¹²⁷ The human rights discourse tends to be hostile towards the concept of individual duties although they represent the logical consequence of rights. One cannot imagine how any state would raise revenue to finance health, education, water and sanitation, or assistance for those too young or too old to work, were it not for taxation. The European Court of Human Rights has legitimised ‘the States’ power to pass whatever fiscal laws they considered desirable’ so as to secure the payment of taxes, provided that judicial remedies exist lest taxation would amount to arbitrary confiscation. See Gasus Dosier- und Fördertecknik GmbH v Netherlands A 306-B (1995); (1995) 20 EHRR 403.

¹²⁸ Constitutional Court of the Czech Republic, judgment US 25/94 of 13 June 1995; Inter-American Commission on Human Rights, Case no. 12.189, Dilcia Yean and Violeta Bosica v Dominican Republic Report No. 30/03 (2003).

¹²⁹ Annual Report 2002, supra ^{n. 18} at para. 13; Annual Report 2003, supra ^{n. 18} at paras 5–13; and, Annual Report 2004, supra ^{n. 18} at paras 19–28.

¹³⁰ John Daniel, the UNESCO Assistant General for Education at the time, noted in his editorial entitled ‘The price of school fees’ in the summer of 2004 that ‘in the 1990s some of our partners flirted with the idea of creating a market and charging fees for primary education, adding that UNESCO believes that it is better to uphold the principle of free primary education and to address energetically the quality challenge posed by an enrolment surge than to ration access to school through fees’ and that ‘the unity of view on this issue between UNESCO and the World Bank is most encouraging’. See Education Today, July–September 2004, available at: www.unesco.org/education.

¹³¹ All annual resolutions of the Commission on Human Rights on the right to education included, at my insistence, a complement to the usual formulation asking the Special Rapporteur to cooperate with a range of international organisations, and stated that I should continue my dialogue with the World Bank. That paragraph was carried verbatim from one annual resolution to another: ‘[The Commission on Human Rights] Encourages the Special Rapporteur to pursue her collaboration with the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child and her cooperation with the United Nations Children's Fund, the United Nations Educational, Scientific and Cultural Organization, the International Labour Organization and the Office of the High Commissioner for Refugees and her dialogue with the World Bank.’

¹³² Uganda Report, supra ^{n. 25}.

¹³³ Progress Report, supra ^{n. 18} at para. 48.

¹³⁴ That recommendation followed from my visit to the World Bank in November 2000 (Annual Report 2001, supra ^{n. 16} at para. 81). The in-house review was initiated in 2001 (Annual Report 2002, supra ^{n. 18} at para. 16). I sent comments on the draft in June 2002 and discussed this further during my visit to the World Bank in November 2002. (Annual Report 2003, supra ^{n. 18} at para. 9). The review was finalised in July 2004. See Bentaouet Kattan and Burnett, ‘User Fees in Primary Education’, available at: www.worldbank.org.

¹³⁵ Preliminary Report, supra ^{n. 18} at para. 20.

¹³⁶ Progress Report, supra ^{n. 18} at paras 23–9.

¹³⁷ Annual Report 2001, supra ^{n. 16} paras 31–41.

¹³⁸ Statement by the World Bank Special Representative, ‘Economic, Social and Cultural Rights: The contribution of the World Bank’, 2 April 2001, at 19–23.

¹³⁹ Ibid. at 21.

¹⁴⁰ ‘WB Kept Silent About Embezzlement. Sida Hard Line Forcing Bank to Extend Investigation of Trust Fund Corruption’, Development Today, 15 December 2000, at 6.

¹⁴¹ Greg Thompson has commented: ‘The resistance to dialogue by the World Bank as experienced by the Special Rapporteur on the right to education, Katarina Tomaevski, is telling. Ms Tomaevski sought to remind those institutions of their obligation to ensure the realization of the right to education and the reaction of these institutions reflects the lack of what the High Commissioner has called ‘multi-lingualism’ on the part of economic institutions.’ Thompson, ‘Towards Humanising Globalization’, Human Rights Features, 2–7 April 2002.

¹⁴² Supra ^{n. 138} at 22.

¹⁴³ World Bank, ‘A Chance to Learn: Knowledge and Finance for Education in Sub-Saharan Africa’, February 2001.

¹⁴⁴ The president of the World Bank as of 2005, Paul Wolfowitz, was the sole candidate for this position. As is customary, the nomination was made by the US Government and was not opposed. The Financial Times commented on the stir that the nomination had created for ‘his role as the intellectual architect of the US war in Iraq’ (‘Wolfowitz Secured Unanimous Vote from World bank’, Financial Times, 1 April 2005). Development Today was less kind and asked whether the Nordic funding for the World Bank may ‘turn out to be a grave mistake’ with ‘Bush's Iraqi wolf at the helm.‘ (Development Today, 21 March 2005).

¹⁴⁵ EFA Global Monitoring Report 2003/4, Gender and Education for All: The Leap to Equality (Paris: UNESCO Publishing, 2003).

¹⁴⁶ Tomaevski, Manual on Rights-Based Education: Global Human Rights Requirements Made Simple (Bangkok: UNESCO, 2004).

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