Unasked questions about economic, social, and cultural rights from the experience of the Special Rapporteur on the Right to Education (1998-2004): A response to Kenenth Roth, Leonard S. Rubenstein, and Mary Robinson

Human Rights Quarterly

Volumn 27, Issue 2, 2005, Pages 709-720

  Tomaševski, Katarina ^a  

^a LUND UNIVERSITY   (Sweden)

Author keywords

[No Author keywords available]

Indexed keywords

EDUCATION;

EID: 19844373403     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (67)

1. United Nations Education, Scientific and Cultural Organization (UNESCO), Global Monitoring Report 2003/4: Gender and Education for All: The Leap to Equality (2003), available at www.unesco.org/education/ efa_report/summary_en.pdf.
2. Katarina Tomaševski, Manual on Rights-Based Education: Global Human Rights Requirements Made Simple (2004), available at www.unescobkk.org/ips/ebooks/documents/ManualRight Based/ manualg̊htsbased.pdf
3. Report submitted by the Special Rapporteur, Katarina Tomaševski: Mission to the People's Republic of China, 10-19 Sept. 2003, U.N. ESCOR, Comm'n Hum. Rts. 60th Sess., Agenda Item 10, U.N. Doc. E/CN.4/ 2004/45/Add.1.
4. Report submitted by Katarina Tomaševski, Special Rapporteur on the Right to Education: Mission to the United States of America, 24 September-10 October 2001, U.N. ESCOR, Comm'n Hum. Rts., 58th Sess., Agenda Item 10, U.N. Doc. E/CN.4/2002/60/Add.1, available at www.right-to-education.org/content/unreports/unreport6prt1.html.
5. See Kenneth Roth, Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization, 26 Hum. Rts. Q. 63 (2004);
6. Leonard S. Rubinstein, How International Human Rights Organizations Can Advance Economic, Social, and Cultural Rights: A Response to Kenneth Roth, 26 Hum. Rts. Q. 845 (2004);
7. Kenneth Roth, Response to Leonard S. Rubinstein, 26 Hum. Rts. Q. 873 (2004);
8. Leonard S. Rubinstein, Response by Leonard S. Rubinstein, 26 Hum. Rts. Q. 879 (2004);
9. Mary Robinson, Advancing Economic, Social, and Cultural Rights: The Way Forward, 26 Hum. Rts. Q. 866 (2004).
10. Katarina Tomaševski, Education Denied: Counting the Costs 63 (2003).
11. Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Contribution from Katarina Tomaševski, Special Rapporteur on the Right to Education, U.N. Doc. E/CN.4/2004/WG23/CRP.4 (2004).
12. Roth, Defending Economic, Social, and Cultural Rights, supra note 5, at 67.
13. 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 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.
14. Annual Report of the Special Rapporteur on the Right to Education, Katarina Tomaševski, U.N. ESCOR, Comm'n Hum. Rts., 60th Sess., Agenda Item 10, 1, U.N. Doc. E/CN.4/2004/45 (2003).
15. The Commission has not yet advanced to accepting 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 "obstacles limiting access to education." Annual Report of the Special Rapporteur on the Right to Education, Katarina Tomaševski, submitted pursuant to Commission on Human Rights Resolution 2001/29, U.N. ESCOR, Comm'n Hum. Rts., 58th Sess., Agenda Item 10, 3 (b), U.N. Doc. E/CN.4/2002/60 (2001), available at www.right-to-education.org.
16. Strengthening the United Nations: An Agenda for Further Change, Report of the Secretary-General, U.N. GAOR, 57th Sess., Agenda Item 53, 46, U.N. Doc. A/57/387 (2002).
17. World Economic Forum, Global Governance Initiative: Executive Summary (Jan. 2004).
18. Roth, Defending Economic, Social, and Cultural Rights, supra note 5, at 65.
19. Report submitted by Katarina Tomaševski, Special Rapporteur on the Right to Education: Mission to the United States of America, 24 September-10 October 2001, U.N. ESCOR, Comm'n Hum. Rts., 58th Sess., Agenda Item 10, U.N. Doc. E/CN.4/2002/60/Add.1, available at www.right-to-education.org/content/unreports/unreport6prt1.html.
20. Robinson, supra note 5, at 866.
21. Remarks by US Delegate Richard Wall, U.N. ESCOR, U.N. Comm'n Hum. Rts., 59th Sess., Agenda Item 10 (2003) (on file with author).
22. Comments submitted by the United States of America, Report of the Open-Ended Working Group on the Right to Development, U.N. ESCOR, Comm'n Hum. Rts., 57th Sess., 8, U.N. Doc. E/CN.4/2001/26 (2001).
23. Roth, Response to Leonard S. Rubenstein, supra note 5, at 874.
24. Roth, Defending Economic, Social, and Cultural Rights, supra note 5, at 67.
25. Rubenstein, How International Human Rights Organizations Can Advance Economic, Social, and Cultural Rights, supra note 5, at 856 (emphasis added).
26. The policy of Human Rights Watch to advocate cutting off aid and other economic sanctions is discussed in Katarina Tomaševski, Responding to Human Rights Violations 1946-1999, at 217-19, 270, 364, 394 (2000).
27. See generally Katarina Tomaševski, Between Sanctions and Elections: Aid Donors and Their Human Rights Performance (1997);
28. Development Aid and Human Rights Revisited (1993);
29. Development Aid and Human Rights (1989).
30. Roth, Response to Leonard S. Rubenstein, supra note 5, at 876.
31. Cf. Mary B. Anderson, Do No Harm: How Aid Can Support Peace - or War (1999);
32. Peter Uvin, Aiding Violence: The Development Enterprise in Rwanda (1998).
33. Robinson, Advancing Economic, Social, and Cultural Rights, supra note 5, at 866.
34. Rubenstein, How International Human Rights Organizations Can Advance Economic, Social, and Cultural Rights, supra note 5, at 851.
35. 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." Cosmas Desmond, Persecution East And West: Human Rights, Political Prisoners and Amnesty 41 (1983).
36. Rubenstein, How International Human Rights Organizations Can Advance Economic, Social, and Cultural Rights, supra note 5, at 857-62.
37. The outcome was my 4-A scheme, which structured government human rights obligations into making education available, accessible, acceptable, and adaptable, and proved useful to, for example, national human rights institutions. Defensoría del Pueblo-El Derecho a la Educación en la Constitución, la Jurisprudencia y los Instrumentos Internacionales (2003), available at www.defensoria.org.co;
38. Human Rights Commission/New Zealand, The Right To Education: A Discussion Document, New Zealand Action Plan for Human Rights (2003), available at www.hrc.co.nz/index.php?p=34438.
39. My survey of written constitutions has shown that the right to education is guaranteed in 142 countries, while forty-four countries had no constitutional guarantee. Annual Report of the Special Rapporteur on the Right to Education, Katarina Tomaševski, submitted in accordance with Commission on Human Rights Resolution 2000/9, U.N. ESCOR, Comm'n Hum. Rts., 57th Sess., Agenda Item 10, 66-67, U.N. Doc. E /CN.4/2001/52 (2001).
40. Cf. Derechos económicos, sociales y culturales en el sistema Interamericano, CEJIL GACETA, No. 12 (2000), available at www.cejil.org.
41. 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 have threatened to annihilate a program assisting the poorest to grow their own food and produced immediate changes: The budget for that program 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.
42. The Constitutional Court, in the words of Manuel José Cepeda, who delivered the judgment, has emphasized the denial of constitutionally guaranteed rights of the displaced. As a consequence, an unknown but large number of the displaced were not registered nor informed of the rights they had. Only a minority was provided with humanitarian assistance or housing, while budgetary allocations were diminished rather than increased. Having defined this situation as unconstitutional, the Court has 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 Sentencia T-025 DE 2004, Expedientes T-653010 Y Acumulados (6 Feb. 2004), available at www.ramajudicial.gov.co/csj∝rtal.
43. La Defensa de los Derechos Economicos, Sociales y Culturales: Mecanismos Nacionales 25 (2004), available at www.derechos.org.ve/ publicaciones/tdnb/index.htm.
44. The National Commission on Human Rights Indonesia, Annual Report 69 (2001), available at www.komnas.go.id.
45. 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 Amendment Bill, no. 93 (2001) was passed by unanimous vote in the Lok Sahba on 27 November 2001 and by Rajya Sabha on 14 May 2002.
46. Tomaševski, Education Denied, supra note 6, at 90-91.
47. 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 legitimized "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. Gasus Dosier- und Fördertecknik GmbH v. Netherlands, Series A 306-B (1995).
48. Constitutional Court of the Czech Republic, Judgment US 25/94 of 13 June 1995;
49. Inter-American Commission on Human Rights, Dilcia Yean and Violeta Bosica v. Dominican Republic, Case No. 12.189, 22 Feb. 2001, available at www.cidh.org/annualrep/ 2000eng/ChapterIII /Admissible/ Dom.Rep12.189.htm.
50. Report submitted by Katarina Tomaševski, Special Rapporteur on the Right to Education: Mission to the United States of America, 24 September-10 October 2001, U.N. ESCOR, Comm'n Hum. Rts., 58th Sess., Agenda Item 10, 13, U.N. Doc. E/CN.4/2002/60/Add.1, available at www.right-to-education.org/content/unreports/unreport6prt1.html;
51. Report submitted by Katarina Tomaševski, Special Rapporteur, in accordance with Commission Resolution 2002/23, U.N. ESCOR, Comm'n Hum. Rts. 59th Sess., Agenda Item 10, 5-13, U.N. Doc. E/CN.4/2003/ 9(2003);
52. Annual Report of the Special Rapporteur on the Right to Education, Katarina Tomaševski, U.N. ESCOR, Comm'n Hum. Rts., 60th Sess., Agenda Item 10, 19-28, U.N. Doc. E/CN.4/2004/45 (2003).
53. Roth, Defending Economic, Social, and Cultural Rights, supra note 5, at 71.
54. Rubenstein, How International Human Rights Organizations Can Advance Economic, Social, and Cultural Rights, supra note 5, at 853.
55. My fourteen reports are available at www.right-to-education.org.
56. John Daniel, the UNESCO Assistant General for Education at the time, noted in 2004 in an editorial 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." UNESCO, The Price of School Fees, Education Today Newsletter, July-Sept. 2004, available at portal.unesco.org /education/en/ev.php-URL_ID=32496&URL_DO=DO_TOPIC& URL_SECTION=201.html.
57. The annual resolutions of the Commission on Human Rights asked me to cooperate with a range of international organizations and continue my dialogue with the World Bank. That paragraph was carried verbatim from one annual resolution to another, and it said: [The Commission on Human Rights] [e]ncourages 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 dialogues with the World Bank. See The Right to Education, C.H.R. Res. 2001/29, U.N. ESCOR, Comm'n Hum. Rts., 57th Sess., 5, U.N. Doc. E/CN.4/RES/2001/29 (2001);
58. The Right to Education, C.H.R. Res. 2002/23, U.N. ESCOR, Comm'n Hum. Rts., 58th Sess., 6, U.N. Doc. E/CN.4/RES/2002/23 (2002);
59. The Right to Education, C.H.R. Res. 2003/19, U.N. ESCOR, Comm'n Hum. Rts., 59th Sess., 8, U.N. Doc. E/CN.4/RES/2003/19 (2003).
60. Report submitted by Katarina Tomaševski, Special Rapporteur on the right to education: Addendum Mission to Uganda, 26 June-2 July 1999, U.N. ESCOR Comm'n Hum. Rts., 56th Sess, Agenda Item 10, U.N. Doc. E/CN.4/ 2000/6/Add.1, available at www.right-to-education.org.
61. Progress Report of the Special Rapporteur on the Right to Education, Katarina Tomaševski, submitted in accordance with Commission on Human Rights resolution 1999/25, U.N. ESCOR Comm'n Hum. Rts., 56th Sess., Agenda Item 10, 48, U.N. Doc. E/CN.4/2000/6 (2000).
62. That recommendation followed from my visit to t he World Bank in November 2000. Annual Report of the Special Rapporteur on the Right to Education, Katarina Tomaševski, U.N. ESCOR Comm'n Hum. Rts., 57th Sess., Agenda Item 10, 81, U.N. Doc. E/CN.4/2001/52 (2001). The in-house review was initiated in 2001.
63. Report submitted by Katarina Tomaševski, Special Rapporteur on the Rightl to Education: Mission to the United States of America, 24 September-10 October 2001, U.N. ESCOR, Comm'n Hum. Rts., 58th Sess., Agenda Item 10, 13, U.N. Doc. E/CN.4/2002/60 (2002).
64. I sent comments on the draft in June 2002 and discussed this further during my visit to the World Bank in November 2002. Report submitted by Katarina Tomaševski, Special Rapporteur, in accordance with Commission Resolution 2002/23, U.N. ESCOR, Comm'n Hum. Rts. 59th Sess., Agenda Item 10, 9, U.N. Doc. E/CN.4/2003/9 (2003).
65. The review was finalized in July 2004. Raja Bentaquet Kattan & Nicholas Burnett, User Fees in Primary Education (2004), available at www.worldbank.org.
66. Roth, Defending Economic, Social, and Cultural Rights, supra note 5, at 67.
67. Id. at 73.