Implementing the Right to Education Through the Courts: The Legal Resources Centre and Oxford University Host Workshop on Remedies and Enforcement
The courts are a very effective tool in enforcing socio-economic rights and filling gaps so often left by governments. The Legal Resources Centre (LRC) has litigated the right to education through the South African Courts for the past six years. In order to successfully litigate the right, there needs to be appropriate remedies and enforcement mechanisms available.
As part of the Ford Foundation’s Investing in a New Era of Global Human Rights Leadership, the LRC’s aim is to share its experience of litigating socio-economic rights, with the overall goal being to reshape the broader framework and agenda of international human rights. Lawyers in Eastern European countries have been engaged in litigation surrounding the discriminatory practices regarding Roma children. Given the similar hurdles faced in those countries as in South Africa, the LRC and Oxford University invited delegates from Hungary, Slovakia and Bulgaria to attend the workshop which took place in December.
Michael Bishop of the LRC gave a presentation on remedies and enforcement in South Africa, highlighting the importance of carefully drafting orders and settlement agreements in the most favourable manner. The courts in South Africa have a wide discretion when it comes to imposing remedies, and have begun to monitor the outcomes of cases by imposing a structural interdicts more frequently. This mechanism allows the court to supervise the implementation of the court order, meaning it can be a very effective way of ensuring compliance.
Adel Kegye from the Chance for Children Foundation (CFCF) outlined the disturbing practice of segregation of Roma children, which takes place in Hungary’s education system. CFCF have been engaged in litigation against segregated schools, as well as against the Ministry of Education for the misdiagnosis of Roma children, wrongly placed in schools for children with special needs. Although the courts have declared that segregation is illegal, they have not been prepared to go as far as imposing a desegregation order.
Vanda Durbakova from the Centre for Civil and Human rights (Poradna) explained that Poradna litigated the first and only case regarding segregation in education in Slovakian Courts. The court declared that the segregation of children was a violation of anti-discrimination laws and ordered the school to rectify the situation. However, problems then ensued in implementing the order, with resistance from teachers and a lack of support from state institutions.
Daniela Mihaylova of the Equal Opportunities Initiative Association described the situation in Bulgaria, where cases have been more successful when brought before the Commission for Protection Against Discrimination. One particularly effective remedy the Commission can impose is to put inspection measures in place. Cases through the courts, though, have proven more difficult and so far been unsuccessful.
Delphine Dorsi of the Right to Education Project presented on remedies and enforcement under international law, which is much weaker than domestic law, consisting mainly of opinions and declarations. On an international level, the Human Rights Council and International Court of Justice provide avenues whereby complaints can be made, and UN treaty bodies can provide opinions on specific issues. UNESCO’s convention against discrimination in education provides a confidential procedure by which parties can hopefully reach agreement.
The workshop also included a presentation on regulatory theory, by Professor Karen Yeung of King’s College London, which set out a different approach, whereby delegates were encouraged to consider regulation as an alternative to litigation.
Jaakko Kuosmanen and Meghan Campbell discussed the proposed Sustainable Development Goals (SDGs). In terms of education, it is clear that the Millennium Development Goals focussed too much on primary education and enrolment numbers. Within the SDGs it is, therefore, essential to establish indicators which measure the quality of education at different levels, rather than focussing on enrolment figures.
It was evident during the workshop that parallels can be drawn between the education systems in South Africa and countries in Eastern Europe. The event provided an opportunity to share experiences in different jurisdictions, and, more generally, to consider the role of education in the global development agenda. It is hoped that this discussion will continue through the Oxford Human Rights blog