Enhancing enforcement of economic, social, and cultural rights using indicators: A focus on the right to education in the ICESCR

Human Rights Quarterly

Volumn 32, Issue 2, 2010, Pages 253-310

  Kalantry, Sital ^a   Getgen, Jocelyn E ^b   Koh, Steven Arrigg ^c  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

^b Cornell University ^*  (United States)

^c UNIVERSITY OF CAMBRIDGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EDUCATION; HUMAN RIGHTS; LAW ENFORCEMENT;

EID: 77952947816     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.0.0144     Document Type: Article

References (329)

1. U.N., Message of the Secretary-General on Human Rights Day, available at http://www.un.org/events/humanrights/2008/statementssg.shtml.
2. Claire Mahon, Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 8 Hum. Rts. L. Rev. 617, 618 (2008).
3. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted 10 Dec. 2008, G.A. Res. 63/117, U.N. GAOR, 63d Sess., U.N. Doc.A/RES/63/117 (2009).
4. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966,G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 993 U.N.T.S.3 (entered into force 3 Jan. 1976).
5. Id.
6. Mahon, supra note 2, at 618 (quoting the United Nations High Commissioner for Human Rights).
7. See Henry J. Steiner & Philip Alston, Human Rights in Context 249 (2d ed. 2000) (noting certain governments' challenges to economic and social rights, as well as some countries'ambivalence towards them).
8. See Tara J. Melish, Rethinking the "Less as More" Thesis: Supranational Litigation of Economic, Social, and Cultural Rights in the Americas, 39 N.Y.U. J. Int'l L. & Pol. 171,173 (2006) ("The judicial enforceability of economic, social, and cultural rights has received increasing attention worldwide over the last decade.").
9. See Nsongurua J. Udombana, Social Rights Are Human Rights: Actualizing the Rights to Work and Social Security in Africa, 39 Cornell Int'l L.J. 181, 185-186 (2006).Civil and political rights have demonstrably been shown to demand positive state action and interference for their realization ⋯ . In practice, this positive obligation has primarily been limited to inhuman treatment and health conditions in prisons under articles 7 and 10 of the International Covenant on Civil and Political Rights (ICCPR). Among the positive obligations engendered by those two articles is the duty to train appropriate personnel: enforcement personnel, medical personnel, police officers, in short, any other persons involved in the custody or treatment of any individual subjected to any form of arrest, detention, or imprisonment. (Internal citations omitted.)
10. Id. at 286.
11. For example, the right to food, an ESCR, is seen as so essential to the right to participate in a free society that it has even been suggested that it rises to the level of customary international law.
12. See Smita Nrula, The Right to Food: Holding Global Actors Accountable Under International Law, 44 Colum. J. Tra nsnat'l L. 691, 780-791 (2006).
13. See, e.g., Randall P. Peerenboom, Human Rights and Rule of Law: What's the Relationship?, 36 Geo. J. Int'l L. 809, 816 (2005) ("There is no accepted understanding of what a right is; whether collective or group rights and nonjusticiable social, economic and cultural rights are really rights; of how rights relate to duties; or whether a discourse of rights is complementary or antithetical to, or better or worse than, a discourse of needs or capabilities.") (internal citations omitted). For a discussion of the need to confront the practical difficulties presented by economic and social rights.
14. see Michael J. Dennis & David P. Stewart, Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health? 98 Am. J. Int'l L. 462, 464 (2004). The issue that needs to be confronted, instead, is that these rights present genuinely different and, in many respects, far more difficult challenges than do civil and political rights⋯ . [I]t is a much more complex undertaking to ascertain what constitutes an adequate standard of living, or whether a state fully respects and implements its population's right to education or right to work. Vexing questions of content, criteria, and measurement lie at the heart of the debate over "justiciability,"yet are seldom raised or addressed with any degree of precision.
15. Article 2(1) declares: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. ICESCR, supra note 4 art. 2(1). Progressive realization is a recognition that, while states are under an obligation to move as expeditiously as possible to realize economic, social, and cultural rights, the full realization of these rights will take time and resources. The Nature of States Parties Obligations, General Comment 3, adopted 13-14 Dec. 1990, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 5th Sess., at 86, 9, U.N. Doc. E/1991/23, annex III (1990).
16. See discussion infra Part III.A.1. et seq.
17. Id.
18. The Nature of States Parties Obligations, supra note 13,¶ 9
19. The Right to Education, General Comment No. 13, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 21st Sess., ¶ 45, U.N. Doc. E/C.12/1999/10 (1999) [hereinafter General Comment No. 13].
20. See The Nature of States Parties Obligations, supra note 13, 1. For a complete look at states parties obligations under Article 2 of the ICESCR (including progressive realization obligations)
21. see Philip Alston, The International Covenant on Economic, Social and Cultural Rights, in Manual on Human Rights Reporting 65 (1997).
22. The UN High Commissioner for Human Rights (UNHCHR) has noted that indicators and benchmarks "have a significant role to play in bringing about positive change in the protection and promotion of economic, social and cultural rights," serving as tools for measuring state compliance with human rights norms. Report of the United Nations High Commissioner for Human Rights, U.N. ESCOR, 2006 Substantive Sess., Agenda Item 14(g), ¶ 2, U.N. Doc. E/2006/86 (2006).
23. The United Nations defines a human rights indicator as "specific information on the state of an event, activity or an outcome that can be related to human rights norms and standards; that address and reflect the human rights concerns and principles; and that are used to assess and monitor promotion and protection of human rights." Report on Indicators for Monitoring Compliance with International Human Rights Instruments, 7, U.N. Doc. HRI/MC/2006/7 (2006) [hereinafter 2006 Report on Indicators]. Others use different definitions of indicators.
24. See also Maria Green, What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement 23 Hum.Rts. Q. 1062, 1065 (2001) ("[A] Human Rights Indicator is a piece of information used in measuring the extent to which a legal right is being fulfilled or enjoyed in a given situation"). Additionally, Gauthier de Beco defines human rights indicators as "indicators that are linked to human rights treaty standards, and that measure the extent to which duty-bearers are fulfilling their obligations and rights-holders enjoying their rights." Gauthier de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, 77 Nordi c J. Int'l L. 23, 24 (2008). Rajeev Malhotra and Nicolas Fasel focus largely on a narrower concept of indicator: "the term 'quantitative indicator' is used to designate any kind of indicators that are or can be expressed in quantitative form, such as numbers, percentages or indices." Rajeev Malhotra & Nicolas Fasel, Quantitative Human Rights Indicators-A Survey of Major Initiatives 2 (3 Mar. 2005).
25. For example, see Maarseveen and Van der Tang who coded constitutions for 157 countries across a multitude of institutions and the rights for the period from 1788 to 1975. See generally Henc van Maar seveen & Ger van der Tang, Written Consti tuti ons: A Computerized Compara tive Study (1978). This study compares the degree to which national constitutions contain those rights mentioned in the UDHR by examining the frequency and distributions across different history epochs before and after 1948. Id. Patrick Ball and Jana Asher studied patterns of killings and refugee migration of Albanians in Kosovo to determine if the violence and migration were due to activities of the Kosovo Liberation Army, NATO attacks, or systematic campaign by Yugoslav forces. Patrick Ball & Jana Asher, Statistics and Slobodan, 15 Chance 17 (2002).
26. de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, supra note 19, at 25
27. Steiner & Alston, supra note 7, at 316 ("Various commentators ⋯ have emphasized the importance of developing comprehensive statistical indicators as a means by which to monitor compliance with the ICESCR.").
28. See de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, supra note 19, at 25, 46.
29. Andrew D. McNitt, Some Thoughts on the Systematic Measurement of the Abuse of Human Rights, in Human Rights: Theory and Measurement 89, 89 (David Louis Cingranellied., 1988).
30. Id. at 93.
31. Shareen Hertel & Lanse Minkler, Economic Rights: The Terrain, in Economic Rights: Conceptual , Measurement, and Policy Issues 1,1 (Shareen Hertel & Lanse Minkler eds., 2007).
32. See, e.g., McNitt, supra note 23, at 92.
33. Inter-Am. Comm'n on Human Rights, Guidelines for Preparation of Progress Indicators in the Area of Economi c, Social and Cultural Rights, OEA/Ser.L/V/II.132 (Doc. 14) (2008) [hereinafter Guidelines for Preparation of Progress Indicators], available at https://www.cidh.oas.org/pdf%20files/ Guidelines%20final.pdf
34. 2006 Report on Indicators, supra note 19.
35. 2006 Report on Indicators, supra note 19; Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt, U.N. ESCOR, Comm'n on Hum. Rts., 62d Sess., U.N. Doc. E/CN.4/2006/48 (2006) [hereinafter 2006 Hunt Report];
36. Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt, U.N. GAOR, Hum. Rts. Council, 7th Sess. ¶ 48, U.N. Doc. A/HRC/7/11
37. Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt, U.N. ESCOR, Comm'n on Hum. Rts., 62d Sess., U.N. Doc. E/CN.4/2006/48 (2006) [hereinafter 2006 Hunt Report]
38. Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt, U.N. GAOR, Hum. Rts. Council, 7th Sess., ¶ 48, U.N. Doc. A/HRC/7/11 (2008).
39. Audrey R. Chapman, A "Violations Approach" for Monitoring the International Covenant on Economic, Social and Cultural Rights, 18 Hum. Rts. Q. 23, 24 (1996).
40. See Gauthier de Beco, Measuring Human Rights: Underlying Approach, 2007 Eur. Hum. Rts. L. Rev. 266, 272-273
41. See Dep't of Ethics, Trade, Human Rights, & Health Law, World Health Org., Consultation on Indicators for the Right to Health 8-10 (2004) [hereinafter WHO Report], available at http://www.who.int/hhr/activities/en/ indicator%20reportFINALnopartlst.pdf.
42. For a few in-depth studies dealing with the right to education see Klaus Dieter Beiter, The Protection of the Right to Education by International Law (2006);
43. Julian Lonbay, Implementing the Right to Education in England, in Economic, Social and Cultural Rights: Progress and Achievement 163 (Ralph Beddard & Dilys M. Hill eds., 1992);
44. Fons Coomans, Clarifying the Core Elements of the Right to Education, in The Right To Complain About Economic, Social and Cultural Rights 11 (Fons Coomans & Fried van Hoof eds., 1995).
45. See, e.g., Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., art. 10, U.N. Doc. A/34/46 (1980), 1249 U.N.T.S. 13 (enteredinto force3 Sept. 1981) [hereinafter CEDAW]. CEDAW has a provision for the reduction of the "female student drop out rate." The ICESCR states in article 12(2)(a) that parties should take steps to reduce the still birth and infant mortality rates. ICESCR, supra note 4 art. 12(2)(a).
46. See Chapman, A "Violations Approach," supra note 28, at 23-24. Additionally, even though many treaty monitoring bodies have highlighted the importance of indicators in their general comments as well as concluding observations, the use of indicators in the reporting and follow-up procedure of treaty bodies has been limited.
47. See 2006 Report on Indicators, supra note 19.
48. See Manfred Nowak, The Right to Education, in Economic, Social and Cultural Rights: A Textbook 245 (Asbjørn Eide et al. eds., 2d rev. ed. 2001).
49. See Katarina Tomaševski, Human Rights Obligations in Education: The 4-A Scheme 7 (2006).
50. See Coomans, supra note 31, at 11;
51. Jack Donnelly & Rhoda E. Howard, Assessing National Human Rights Performance: A Theoretical Framework, 10 Hum. Rts. Q. 214, 215 (1988).
52. General Comment No. 13, supra note 16, ¶¶ 1, 31.
53. See Tomaševski, Human Rights Obligations in Education, supra note 35, at 47.
54. The Right to Education: Report Submitted by the Special Rapporteur, Katarina Tomasevski, U.N. ESCOR, Comm'n on Hum. Rts., 60th Sess., ¶11, U.N. Doc. E/CN.4/2004/45 (2004).
55. See, e.g., Roger Levesque, The Right to Education in the United States: Beyond the Limits of the Lore and Lure of the Law, 4 Ann. Surv. Int'l & Comp. L. 205, 217-18 (1997);
56. Suzanne M. Steinke, The Exception to the Rule: Wisconsin's Fundamental Right to Education and Public School Financing, 1995 Wisc. L. Rev. 1387, 1388 (1995);
57. Michael P. Mills & William Quinn II, The Right to a "Minimally Adequate Education" as Guaranteed by the Mississippi Constitution, 61 Alb. L. Rev. 1521, 1527 (1998).
58. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 493 (1954).
59. See id.
60. Nowak M.
61. International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, G.A. Res. 2106 (XX), U.N. GAOR, 20th Sess., art. 5(e)(v), 660 U.N.T.S. 195 (entered into force 4 Jan. 1969) [hereinafter ICERD]; Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., art. 29(1)(c)-(d), U.N. Doc. A/44/49 (1989), 1577 U.N.T.S. 3 (entered into force 2 Sept. 1 990) [hereinafter CRC]; CEDAW, supra note 32; American Declaration on the Rights and Duties of Man, signed 2 May 1 948, O.A.S. Res. XXX, 9th Int. Conf., arts. 2, 9, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1, at 17 (1992); American Convention on Human Rights, signed 22 Nov. 1969, O.A.S.T.S. No. 36, art. 26, 1144 U.N.T.S. 123 (entered into force 18 July 1978); Additional Protocol to the American Convention in the Area of Economic, Social and Cultural Rights, signed 1 7 Nov. 1 988, O.A.S.T.S. No. 69, arts. 3, ¶ 13, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1, at 67 (1992); Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, signed 9 June 1994, art. 6, 33 I.L.M. 1534; Draft Inter-American Convention Against Racism and All Forms of Discrimination and Intolerance, signed 18 Apr. 2006, art. 4, O.A.S, Doc. OEA/Ser. G, CP/CAJP-2357/06.
62. General Comment No. 13, supra note 16, ¶ 2; BEITER, supra note 31, at 86. ("Articles 13 and 14 [of the ICESCR] are comprehensive provisions. In fact, they feature among the most elaborate rights provisions of the ICESCR. Articles 13 and 14 may be viewed as constituting a codification of the right to education in international law.") See also Section II infra for a discussion of other international instruments that uphold the right to education.
63. See ICESCR, supra note 4, arts. 13, 14. In addition to these main provisions, other articles refer to education. For instance, Article 6(2) obligates states parties to create and implement "technical and vocational guidance and training programs" to fully realize the right to work. See id. art. 6(2). Article 10(1) calls on states parties to protect and assist the family during the time it is responsible for the education of children. See id. art. 10(1).
64. ICESCR, supra note 4, art. 13.
65. Beiter, supra note 31, at 21;
66. DOUGLAS HODGSON, THE HUMAN RIGHT TO EDUCATION 8 (1998);
67. Nowak, The Right to Education, supra note 34, at 247.
68. HODGSON, supra note 48, at 8.
69. JOHN L. RURY, EDUCATION AND SOCIAL CHANGE 48 (2002).
70. BEITER, supra note 31, at 22.
71. Id. at 23. Thus, socialism viewed education as a welfare entitlement of individuals which gave rise to claims of rights to educational services against the state. Id.
72. RURY, supra note 50, at 135-37.
73. See BEITER, supra note 31, at 24.
74. Nowak, The Right to Education, supra note 34, at 249; Universal Declaration of Human Rights, G.A. Res. 21 7A, art. 26, U.N. GAOR, 3d Sess., 1st plen. mtg., u.n. Doc. A/810 (10 Dec. 1948) [hereinafter UDHR]; ICESCR, supra note 4 art. 13.
75. HODGSON, supra note 48, at 7.
76. John P. Humphrey, The International Bill of Rights: Scope and Implementation, 17 WM. & MARY L. REV. 527, 527 (1976).
77. See Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 GA. J. INT'L & COMP. L. 287, 290 (1995/96).
78. UNESCO is a United Nations Specialized Agency whose mission is "to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations." See UNESCO, Constitution of the United Nations Educational, Scientific and Cultural Organization (16 Nov. 1945), available at http://portal.unesco.org/en/ev.php- URL-ID=15244&URL-DO=DO-TOPIC&URL-SECTION=201.html..
79. Mary Ann Glendon, Knowing the Universal Declaration of Human Rights, 73 NOTRE DAME L. REV. 1153, 1156 (1998). The committee was called the "Committee on the Theoretical Bases of Human Rights." Id.
80. Id. at 1157. the drafters borrowed freely from the draft of a transnational rights declara tion then being deliberated in Latin America by the predecessor to the Organization of American States and a "Statement of Essential Human Rights" produced by the American Law Institute. See Mary Ann Glendon, John P. Humphrey and the Drafting of the Universal Declaration of Human Rights, 2 J. HIST. INT'L L. 250, 253 (2000).
81. Glendon, Knowing the Universal Declaration of Human Rights, supra note 60, at 1159.
82. Id. at 11 60.
83. Id. at 11 66.
84. Id.
85. Id. at 1167.
86. See BEITER, supra note 31, at 90.
87. Kitty Arambulo, Drafting an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Can an Ideal Become Reality?, 2 U.C. DAVIS J. INT'LL. & POL'Y 111, 114-15 (1996);
88. Preparation of Two Draft International Covenants on Human Rights, adopted 5 Feb. 1952, G.A. Res. 543 (VI), U.N. GAOR. 6th Sess., at 36 (1952);
89. Philip Alston, Economic and Social Rights, in HUMAN RIGHTS: AN AGENDA FOR THE NEXT CENTURY 137, 152 (Louis Henkin & John Lawrence Hargrove eds., 1994);
90. see Asbjørn Eide, Economic, Social and Cultural Rights as Human Rights, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS, supra note 34, at 9, 9-10
91. see also Nowak 1991, supra note 43, at 419 ("the main differences between the two Covenants are to be found in States' obliga tions and in the measures of implementation, both on the domestic and international level.").
92. Eide, supra note 68, at 10.
93. Hope Lewis, "New" Human Rights?U.S. Ambivalence Towards the International Economic and Social Rights Framework, in BRINGING HUMAN RIGHTS HOME: A HISTORY OF HUMAN RIGHTS IN THE UNITED STATES 100, 116 (Cynthia Soohoo, Catherine Albisa & Martha Davis eds., abr. ed. 2009).
94. Id. supporters of one Covenant argued that there was no hierarchy of rights and that "[a]ll rights should be promoted and protected at the same time." Annotations on the Text of the Draft International Covenants on Human Rights, U.N. GAOR, 10th Sess., at 7, ¶ 8 u.n. Doc. A/2929 (1955).
95. Glendon, Knowing the Universal Declaration of Human Rights, supra note 60, at 1167
96. (citing ELEANOR ROOSEVELT, THE AUTOBIOGRAPHY OF ELEANOR ROOSEVELT 318 (1961)).
97. In 1951, the General Assembly decided that covenants should be prepared for each category of rights. Preparation of Two Draft International Covenants on Human Rights, supra note 68.
98. "[S]upporters of two separate instruments argued that" the implementation of civil and political rights would require an international quasi-judicial body, while the implementation of economic, social and cultural rights would be monitored "best by a system of periodic state" reporting. BEITER, supra note 31, at 52.
99. Eide, supra note 68, at 10-11.
100. UDHR, supra note 55; International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976) [hereinafter ICCPR]; ICESCR, supra note 4.
101. See BEITER, supra note 31, at 229;
102. Philip Alston, The United Nations' Specialized Agencies and Implementation of the International Covenant on Economic, Social and Cultural Rights, 18 COLUM. J.TRANSNAT'L L. 79 (1979/80).
103. State reporting serves as a review function of the CESCR to evaluate whether states parties are in compliance with their obligations under the ICESCR. See BEITER, supra note 31, at 350.
104. The Committee has stated that: the reporting function ensures a comprehensive review of national legislation, policies and practices; regularly monitors the on-the-ground situation with respect to each right; engages states in a dialogue toward full realization of rights; and encourages civil society participation to ensure progress. See Reporting by States Parties, General Comment 1, adopted 17 Feb. 1989, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 3d Sess., at 87-89, U.N. Doc. E/1 989/22 (1989).
105. For more information on state reporting, see Philip Alston, The Purposes of Reporting, in MANUAL ON HUMAN RIGHTS REPORTING, supra note 17, at 19.
106. BEITER, supra note 31, at 230;
107. ICESCR, supra note 4.
108. ICESCR, supra note 4, art. 18.
109. Although not legally binding, Concluding Observations are the stated interpretation of the experts who serve on the treaty monitoring body. The Committee has stated that General Comments serve "to make the experience gained so far through the examination of States' reports available ⋯ to assist and promote their further implementation of the Covenant." Report of the Thirtieth and Thirty-First Sessions, U.N.ESCOR, Comm. on Econ., Soc. & Cult. Rts., 30th & 31stSess., 52, U.N. Doc. E/2004/22 (2004).
110. BEITER, supra note 31, at 232-33.
111. Malhotra & Fasel, supra note 1 9, at 26. The 2006 Report on Indicators also notes that it is important to anchor indicators in a conceptual framework. 2006 Report on Indicators, supra note 19, ¶ 4.
112. This is similar to the first step suggested by Todd Landman, who suggests that the back ground concept to be measured should be defined at the outset. See generally TODD LANDMAN, STUDYING HUMAN RIGHTS (2006).
113. Committee on Economic, Social and Cultural Rights, Monitoring the Economic, Social and Cultural Rights, available at http://www2.ohchr.org/ english/bodies/cescr/index.htm.
114. BEITER, supra note 31, at 364-65 (quoting Report of the Thirtieth and Thirty-First Sessions, supra note 80, ¶ 52).
115. ICESCR, supra note 4, art. 2(1).
116. See also discussion supra note 13.
117. ICESCR, supra note 4, art. 2;
118. The Nature of States Parties Obligations, supra note 13, ¶ 9.
119. Resources can mean money, natural resources, human resources, technology and information. See BEITER, supra note 31, at 382.
120. The Nature of States Parties Obligations, supra note 13.
121. See id. ¶ 9.
122. See id. For further discussion on the concept of progressive realization, see STEINER & ALSTON, supra note 7, at 246-49
123. See BEITER, supra note 31, at 376-77.
124. The Nature of States Parties Obligations, supra note 13, ¶ 2.
125. Id. ¶ 2.
126. Id. ¶ 4.
127. Id.
128. The Nature of States Parties Obligations, supra note 13, ¶ ¶ 3-6. Other steps also identified include administrative, financial, educational, and social measures. Id. ¶ 7.
129. See BEITER, supra note 31, at 378.
130. ICESCR, supra note 4, art. 2(2), 3. Specifically, Article 2(2) declares that: "[t]he States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
131. Id. art. 3.
132. The Nature of States Parties Obligations, supra note 13, ¶ 1; General Comment No. 13, supra note 16, ¶ 31.
133. General Comment No. 13, supra note 16, ¶ 31 (citing ICESCR, supra note 4 art. 2(2) ("The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.")).
134. ICESCR, supra note 4, arts. 13, 14.
135. Id. art. 13(2)(a);
136. see also General Comment No. 13, supra note 16, ¶ 59.
137. ICESCR, supra note 4, art. 14;
138. BEITER, supra note 31, at 390.
139. Plans of Action for Primary Education, General Comment 11, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 20th Sess., ¶ 10, U.N. Doc. E/C.12/1 999/4 (1999). The plan of action must be aimed at securing the progressive implementation of the right to compulsory primary education, free of charge, under article 14. Unlike the provision in article 2.1, however, article 14 specifies that the target date must be "within a reasonable number of years" and moreover, that the time-frame must "be fixed in the plan." In other words, the plan must specifically set out a series of targeted implementation dates for each stage of the progressive implementation of the plan. This underscores both the importance and the relative inflexibility of the obligation in question.
140. General Comment No. 13, supra note 16, ¶ 51. Furthermore, the former Special Rapporteur on the Right to Education Katarina Tomaševski has explained that states are "obliged to ensure with immediate effect that primary education is compulsory and available free of charge to everyone, or to formulate a plan and seek international assistance to fulfill this obligation as speedily as possible." The Right to Education, Report Submitted by the Special Rapporteur, Katarina Tomaševski, Addendum, Mission to Colombia, ¶ 23, U.N. ESCOR, Comm'n on Hum. Rts., 60th Sess., U.N. Doc. E/CN.4/2004/45/Add.2 (2004) [hereinafter Tomaševski 2004 Report].
141. Plans of Action for Primary Education, supra note 104, ¶ 7.
142. The Covenant also recognizes technical and vocational education as secondary education. ICESCR, supra note 4, art. 13(2)(b).
143. Id. art. 13(2)(c).
144. Id. art. 13(2)(b) ("Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education").
145. General Comment No. 13, supra note 16, ¶ ¶ 21-22. Fundamental education includes the elements of availability, accessibility, acceptability and adaptability which are common to education in all its forms and at all levels. . . . [F]undamental education corresponds to basic education as set out in the World Declaration on Education for All. By virtue of [ICESCR] article 13(2)(d), individuals "who have not received or completed the whole period of their primary education" have a right to fundamental education, or basic education as defined in the World Declaration on Education For All.
146. Id. ¶ 52.
147. Id.
148. Id. ¶ 53.
149. Arambulo, supra note 68, at 119.
150. Philip Alston, Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights, 9 HUM. RTS. Q. 332, 352 (1987).
151. Id. at 352-53.
152. Id. at 353. Alston quotes Tom Campbell as outlining the task to define the core concept of rights: "the implementation of human rights, which requires the stimulation of governments to legislate and courts to develop appropriate methods of interpretation, is crucially dependent on the task of spelling out the force of human rights in terms of specific freedoms and, where relevant, clearly located duties, correlative to the rights in question. Procedures and formulae are in themselves inadequate for this objective and require supplementation by a living sense of the purposes of the rights in question and the nature of the harms which it is sought to eliminate." Id. (quotingTom Campbell, Introduction: Realizing Human Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 1, 7 (Tom Campbell et al. eds., 1986)).
153. Id. at 354-55.
154. In addition to Alston's core content concept, Fried van Hoof has argued that it is reasonable to find at least some elements of rights enumerated in the ICESCR as justiciable. See Fried van Hoof, Explanatory Note on the Utrecht Draft Optional Protocol and the Utrecht Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, in THE RIGHT TO COMPLAIN ABOUT ECONOMIC, SOCIAL AND CULTURAL RIGHTS, supra note 31, at 147, 153.
155. The Nature of States Parties Obligations, supra note 13;
156. General Comment No. 13, supra note 16, ¶ 57.
157. The Nature of States Parties Obligations, supra note 13, ¶ 10.
158. See, e.g. The Right to the Highest Obtainable Standard of Health, General Comment No. 14, adopted 11 May 2000, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 22d Sess., Agenda Item 3, U.N. Doc. E/C.12/2000/4 (2000)
159. See Karin Lehmann, In Defense of the Constitutional Court: Litigating Socio-Economic Rights and the Myth of the Minimum Core, 22 AM. U. INT'L L. REV. 163, 183 (2006-2007). General Comment 3 and 14 suggest that the minimum core is absolute. However, General Comment 3 explicitly looks toward resource constraints to excuse a failure to meet minimum core obligations. Id. n.96. General Comment 13, however, does suggest that failing to meet the minimum core obligations under the right to education is a violation of Article 13 of the Covenant. General Comment No. 13, supra note 16, ¶ 57. Another related issue centers around the idea that minimum core obligations are a way to prioritize urgent interests. The confusion lies in determining on what basis these interests are to be ranked. See Lehmann, supra, at 185-86.
160. See Lehmann, supra note 122, at 184-85.
161. See Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 YALE J. INT'L L. 113, 114(2008)
162. (citing Brigit Toebes, The Right to Health, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS, supra note 34, at 169, 176 ("States could be encouraged to put the elements not contained by the core into the 'indefinite.'")).
163. MATTHEW CRAVEN, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A PERSPECTIVE ON ITS DEVELOPMENT 143-44, 152 (1 995);
164. Young, supra note 124, at 114.
165. See Young, supra note 124, at 114;
166. Lehmann, supra note 122, at 196-97.
167. General Comment No. 13, supra note 16, ¶ 57;
168. Scholars assert that additional elements should be included in the minimum core obligations with respect to the right to education. According to Fons Coomans, for example, the minimum core obligation should also include: (1) the provision of special facilities for persons with educational deficits such as girls in rural areas or working children; (2) the quality of education; and (3) the right to receive an education in one's native language. Fons Coomans, In Search of the Core Content of the Right to Education, in CORE OBLIGATIONS: BUILDING A FRAMEWORK FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS 21 7, 229-30 (Audrey Chapman & Sage Russell eds., 2002) (although he admits that it may be more difficult to justify including the last addition in core content of the right to education).
169. de Beco, Human Rights Indicators for Assessing State Compliance with
170. Id. at 27.
171. Landman also suggests specifying the concept that is to be measured. LANDMAN, supra note 83, at 76.
172. de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, supra note 19, at 27.
173. Indeed, in their extensive survey of proposals for using indicators to measure human rights, Malhotra and Fasel conclude that "there is a near absence of conceptual f ramework[s]" "to develop such human rights indicators that could be sensitively and effectively used in guiding and monitoring public policy in the protection and promotion of human rights." Malhotra & Fasel, supra note 19, at 24.
174. How To Measure the Right to Education: Indicators and Their Potential Use by the Committee on Economic, Social and Cultural Rights, Background Paper Submitted by Isabell Kempf, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 19th Sess., Agenda Item 7, ¶ 6, u.n. Doc. E/C.12/1 998/22 (1998).
175. Id.
176. Id.
177. Id.
178. Coverage is the category most explicitly stated in the Covenant. Indicators for coverage should measure whether all groups in society really have access to different levels of education. ⋯ In order to measure coverage, ⋯ it is necessary to look at the outcome, i.e. measure whether different groups of society actually are in primary, secondary and higher education and where they are situated within the system. . . . The second category, quality of education, is important, given that in order for persons to participate effectively in society, minimum standards of education must be offered and verified. . . . Here indicators will be used to provide information on the quality of education, its relevance for the labour market and on inequality of standards between schools. The third category, exclusion/inequality, explicitly measures whether a State party recognises the right of every person to education or whether certain groups are excluded from specific levels of education. Here, not only will the opportunity to access education in its different forms be measured, but also other factors [such as] ⋯. [l]anguage barriers, family background and hidden curricula constitute examples of important barriers. Id. ¶ 16-18.
179. Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, U.N. Doc. HRI/MC/2008/3* (2008) [hereinafter 2008 Report on Indicators].
180. Id. ¶ 7.
181. Id. ¶ 6-7, p. 28.
182. General Comment No. 13, supra note 16, ¶ ¶ 6-7;
183. Preliminary Report of the Special Rapporteur on the Right to Education, Ms. Katarina Tomaševski, U.N. ESCOR, Comm'n on Hum. Rts., 55th Sess., ¶ ¶ 50-74, U.N. Doc. E/CN.4/1999/49 (1999).
184. TOMAŠEVSKI, HUMAN RIGHTS OBLIGATIONS IN EDUCATION, supra note 35.
185. The scope of other ESCRs have been outlined by the Committee as well. For instance, the CESCR uses a similar framework-availability, accessibility, acceptability and quality- to analyze the scope, or "essential elements" of the right to health. See The Right to the Highest Obtainable Standard of Health, supra note 121, ¶ 12. Thus, in applying this methodology to the right to health, the framework of analysis would be the AAAQ Framework.
186. See Preliminary Report of the Special Rapporteur on the Right to Education, Ms. Katarina Tomaševski, supra note 139, ¶ 51-55.
187. See id.
188. Id.
189. ICESCR, supra note 4, arts. 13(2)(a)-(b).
190. Id. art. 13(c).
191. See Recommendations of the Forum on Minority Issues, Report of the Independent Expert on Minority Issues, Gay McDougall, U.N. GAOR, Hum. Rts. Council, 10th Sess., Agenda Item 3, ¶ 28, U.N. Doc. A/HRC/10/11/Add.1 (2009).
192. ICESCR, supra note 4, art. 13(2)(e).
193. Beiter, supra note 31, at 531.
194. General Comment No. 13, supra note 16(a), 6.
195. Id. ¶ 6(a).
196. Id. ¶ 50.
197. Preliminary Report of the Special Rapporteur on the Right to Education, Ms. Katarina Tomaševski , supra note 139, ¶ 57.
198. General Comment No. 13, supra note 16, ¶ 6 ("[E]ducation must be accessible to all, especially the most vulnerable groups, in law and in fact, without discrimination on any of the prohibited grounds."). "In other words, states parties are obliged to take measures not only against 'active,' but also against 'static' discrimination." Beiter, supra note 31, at 487.
199. Article 2(2) states that "[t]he States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." ICESCR, supra note 4, art. 2(2). Article 3 specifies that "[t]he States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant." Id. art. 3. See also ICCPR, supra note 75, art. 2(1); ICERD, supra note 44, arts. 1, 5; CRC, supra note 44, arts. 2, 28; CEDAW, supra note 32, arts. 1, 10.
200. General Comment No. 13, supra note 16, ¶ 50.
201. Beiter, supra note 31, at 488-489.
202. ICESCR, supra note 4, art. 13(e) ("The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.").
203. General Comment No. 13, supra note 16, ¶ 26.
204. Id. ¶ 6(b) ("[E]ducation has to be affordable to all. This dimension of accessibility is subject to the differential wording of article 13 (2) in relation to primary, secondary and higher education: whereas primary education shall be available 'free to all', States parties are required to progressively introduce free secondary and higher education.").
205. Preliminary Report of the Special Rapporteur on the Right to Education, Ms. Katarina Tomaševski, supra note 139, ¶ 58 For example, Tomaševski writes of "ensuring access to available public schools, most importantly [means acting] in accordance with the existing prohibition of discrimination." Id. ¶ 57.
206. See Recommendations of the Forum on Minority Issues, supra note 147, ¶ 32.
207. General Comment No. 13, supra note 16(b), ¶ 6 ("[E]ducational institutions and programmes have to be accessible to everyone, without discrimination, within the jurisdiction of the State party.").
208. ICESCR, supra note 4, art. 13(2).
209. Id. art. 14.
210. Id. art. 13(2)(b).
211. General Comment No. 13, supra note 16, ¶ ¶ 13-14.
212. Id. ¶ ¶ 13-14, 20.
213. Plans of Action for Primary Education, supra note 104, ¶ 7.
214. Id.
215. Preliminary Report of the Special Rapporteur on the Right to Education, Ms. Katarina Tomaševski, supra note 139, ¶ ¶ 62-69.
216. Id.
217. Id.; General Comment No. 13, supra note 16, ¶ 6(c); see Recommendations of the Forum on Minority Issues, supra note 147, ¶ 54.
218. General Comment No. 13, supra note 16, ¶ 6(c).
219. ICESCR, supra note 4, art. 13(2).
220. General Comment No. 13, supra note 16, ¶ 6(c).
221. Id. ¶ 49.
222. Id ¶ 50; see Recommendations of the Forum on Minority Issues, supra note 147, ¶ 54.
223. Preliminary Report of the Special Rapporteur on the Right to Education, Ms. Katarina Tomaševski , supra note 139, ¶ ¶ 70-74; General Comment No. 13, supra note 16, ¶ 6(d).
224. See, e.g., Right to Education Project, Education and the 4 As: Adaptability, available at http://www.right-to-education.org/node/230.
225. ICESCR, supra note 4, art. 13.
226. General Comment No. 13, supra note 16, ¶ 6(d); see also Persons with Disabilities, General Comment 5, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 11th Sess., ¶ 35 U.N. Doc. E/1995/22 (1994) (dealing with the right to education of disabled persons); The Economic, Cultural, and Social Rights of Older Persons, General Comment 6, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 13th Sess., ¶ 36-39, U.N. Doc. E/1996/22 (1996) (dealing with the right to education of older persons).
227. General Comment No. 13, supra note 16, ¶ 57 (citing ICESCR, supra note 4, art. 13(3)- (4)).
228. See de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, supra note 19, at 28; Landman, supra note 83.
229. Beiter, supra note 31, at 625-29. Danilo Türk first suggested using human rights indicators to measure state compliance with treaty norms in the 1990s.
230. See The Realization of Economic, Social and Cultural Rights, Second Progress Report Prepared by Mr. Danilo Türk, Special Rapporteur U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prev. of Discrim. & Protect. Of Min., 43d Sess., 6-48, U.N. Doc. E/CN.4/Sub.2/1991/17 (1991).
231. Realization of Economic, Social and Cultural Rights, Progress Report Prepared by Special Rapporteur, Danilo Türk, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prev. of Discrim. & Protect. of Min., 42d Sess., 1-105, U.N. Doc. E/CN.4/Sub.2/1990/19 (1990).
232. See, e.g., Katrien Beeckman, Measuring the Implementation of the Right to Education: Educational Versus Human Rights Indicators, 12 Int'l J. Chi ld. Rts. 71-84 (2004) (offering a general framework of human rights indicators for monitoring compliance with the right to education). One important proposal on using indicators to measure the right to education was conceived at a workshop organized in 1999 by the World University Service-International. Workshop participants included members and staff of the CESCR, representatives of some of the specialized agencies and nongovernmental organizations, and a few academics knowledgeable about this subject matter. This workshop focused on statistical indicators of fulfillment.
233. See Audrey R. Chapman, Development of Indicators for Economic, Social and Cultural Rights: The Rights to Education, Participation in Cultural Life and Access to the Benefits of Science, in Human Ri ghts in Educa ti on, Science and Culture: Legal Developments and Chall enges 111, 124-26 (Yvonne Donders & Vladimir Volodin eds., 2007). During the workshop, participants proposed several key indicators that all treaty bodies and specialized UN agencies should agree to use to monitor the right to education, including: 1) literacy rates disaggregated by gender, urban/rural breakdown, ethnic group and age, and 2) net enrolment rates disaggregated by gender, urban/rural breakdown and ethnic group, with separate data for primary, secondary, and tertiary levels of education. Although these indicators are important, they are very limited and do not measure the broad concept of the right to education as described in this subsection, supra. Additionally, this particular proposal requires that the same set of indicators be utilized in all countries. For the reasons discussed in Subsection 1, infra, however, we believe indicators should be specifically tailored to the particular context and circumstances of the state party in question. Other proposals to use a specified set of indicators have not been aimed at measuring treaty compliance. For example, even though Katrien Beeckman's proposal adopts the conceptual 4-A Framework outlined by Tomaševski, Beeckman proposes a process that allows her to formulate one comparable score for education in each country. Beeckman suggests that "[a]vailability could be measured by 1. the absorption capacity of the (public and private) education system, 2. the competence and salaries of teachers and 3. the equitable distribution of the available infrastructure along relevant lines such as public/ private, urban/rural." Beeckman, supra, at 77. "Accessibility could be measured ⋯ by 1. availability of free public education and 2. the gender parity index with regard to enrolment and drop out." Id. Other than these indicators, however, she does not propose indicators to measure adaptability or acceptability. Id. Thus, Beeckman's proposal is geared toward allowing for cross-country comparisons rather than toward evaluating the extent to which a particular state is complying with or in violation of its treaty obligations under the ICESCR.
234. Chapman, Development of Indicators for Economic, Social and Cultural Rights, supra note 185, at 126, 128 tbl.3.1.
235. The Right of Everyone To Enjoy the Highest Attainable Standard of Physical and Mental Health, Note by the Secretary-General, U.N. GAOR, 58th Sess., ¶ 15, U.N. Doc. A/58/427 (2003); 2006 Hunt Report, supra note 27, ¶ 52.
236. 2006 Report on Indicators, supra note 19, ¶ 13, 17-19.
237. Malhotra & Fasel, supra note 19, at 28 (advancing this typology in their conceptual model).
238. 2008 Report on Indicators, supra note 136, 8.
239. 2006 Report on Indicators, supra note 19, ¶ 17.
240. Guidelines for Preparation of Progress Indicators, supra note 27.
241. Similarly, de Beco points out that structural indicators measure dejure compliance rather than de facto compliance with human rights treaties. de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, supra note 19, at 42. The 2008 Report on Indicators suggests that the number of human rights treaties that a state has signed that incorporates the right in question is a structural indicator. 2008 Report on Indicators, supra note 136, ¶ 18. However, at least for the purposes of evaluating compliance with one single treaty, such an indicator is not necessary.
242. 2006 Report on Indicators, supra note 19, ¶ 18.
243. Guidelines for Prepara tion of Progress Indicators, supra note 27, ¶ 31.
244. Id.
245. de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, supra note 19, at 43.
246. Id. at 44.
247. 2006 Report on Indicators, supra note 19, ¶ 19.
248. GUIDELINES FOR PREPARATION OF PROGRESS INDICATORS, supra note 27, ¶ ¶ 31-32.
249. Asbjørn Eide pioneered the use of the respect, protect, fulfill typology to conceptualize economic, social, and cultural rights, especially the right to food. ASBJØRN EIDE, RIGHT TO ADEQUATE FOOD AS A HUMAN RIGHT, HUMAN RIGHTS STUDY SERIES NO. 1, U.N. Sales No. E.89. XIV.2 (1989).
250. The Nature of States Parties Obligations, supra note 13, ¶ 1.
251. Id.
252. See Chapman, Development of Indicators for Economic, Social and Cultural Rights, supra note 185. Chapman divides the indicators she proposed to measure education into structure, process, and outcome. However, she does not tie these indicators to a conceptual framework defining education.
253. The concept of a "toolbox" of indicators has been advanced by the vice-chair of the CESCR. Id. at 11 6 (referring to Eibe Riedel, vice-chair of the ESC Committee).
254. See Katarina Tomaševski, Indicators, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS, supra note 34, at 531, 532.
255. See U. N. DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT 91 (2000), available at http://hdr.undp.org/en/reports/global/hdr2000/.
256. See U.N. Dev. Programme, Statistics of the Human Development Report, available at http://hdr.undp.org/en/statistics
257. Stephen C. Thomas, Measuring Social and Economic Rights Performance in the People's Republic of China: A Comparative Perspective Among Developing Asian Countries, in HUMAN RIGHTS: THEORY AND MEASUREMENT, supra note 23, at 104, 113.
258. See 2006 Report on Indicators, supra note 19, ¶ 28 (advocating for a hybrid approach that selects a core set of universal indicators and additional context-specific indicators).
259. See, e.g., Realization of Economic, Social and Cultural Rights, Progress Report Prepared by Special Rapporteur, Danilo Türk (1990), supra note 184, ¶ 4.
260. CLIFFORD W. COBB & CRAIG RIXFORD, REDEFINING PROGRESS, LESSONS LEARNED FROM THE HISTORY OF SOCIAL INDICATORS (1998), available at http://www.rprogress.org/publications/1998/SocIn-dHist.pdf.
261. For examples of definitions that are numerical and synonymous with statistical data, see Realization of Economic, Social and Cultural Rights, Progress Report Prepared by Special Rapporteur, Danilo Türk (1990), supra note 184, ¶ 4;
262. Report of the Workshop on Indicators to Monitor the Progressive Realisation of the Right to Education (World University Service-International, Geneva (Versiox), 9 May 1 999);
263. Douglas A. Samuelson & Herbert F. Spirer, Use of Incomplete and Distorted Data in Inference About Human Rights Violations, in HUMAN RIGHTS AND STATISTICS: GETTING THE RECORD STRAIGHT 62 (Thomas B. Jabine & Richard P. Claude eds., 1992).
264. Green, supra note 19, at 1078-80.
265. Beeckman, supra note 185, at 79-80.
266. Id. at 72.
267. Id. at 73.
268. Unless additional surveys are conducted with child laborers or in households, data collected by schools often used for purposes of quantitative indicators only reveal information about children within the educational system and do not uncover the situation for those left outside of it. Id. at 74.
269. de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, supra note 19, at 35.
270. Malhotra & Fasel, supra note 1 9, at 6.
271. LANDMAN, supra note 83, at 82.
272. de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, supra note 19, at 35.
273. Malhotra & Fasel, supra note 19, at 9.
274. Id.
275. Id. at 18.
276. de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, supra note 1 9, at 37.
277. Malhotra & Fasel, supra note 19, at 20.
278. Id. Data based on expert judgments are less relevant for measuring ESCRs than for measuring CPRs. Often, measuring treaty compliance with CPRs requires subjective judgments because it is not possible to obtain socioeconomic data for many CPRs. For example, it is difficult to measure the degree to which the press is free in a particular country with socioeconomic data; thus, experts are consulted to provide their opinions on the level of freedom of press in a particular country. In contrast, expert judgments on ESCRs are not needed because socioeconomic data can be used to measure many aspects of the fulfillment of ESCRs. For example, if the data on maternal mortality in a particular country are properly collected, then it is possible to calculate that country's maternal mortality ratio, an indicator used to measure compliance with the right to health. Since objective evidence is available in most cases, the subjective judgment of experts regarding the mortality ratio is not needed.
279. A United Nations definition of socioeconomic statistics is any "quantitative information compiled and disseminated by the State through its administrative records and statistical surveys, usually in collaboration with national statistical agencies and under the guid ance of international and specialized organizations." 2006 Report on Indicators, supra note 19, ¶ 24.
280. The 2006 Report on Indicators also supports the use of socioeconomic and administrative statistics for treaty monitoring purposes. 2006 Report on Indicators, supra note 19, ¶ 24.
281. ICESCR, supra note 4, art. 13(2)(b) says "Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education."
282. de Beco underscores this point by noting that the main problem is that is that it is impossible to collect enough information to know the human rights situation of the entire population. de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, supra note 19, at 36.
283. Id. at 37.
284. See How To Measure the Right to Education, supra note 132.
285. Chapman, Development of Indicators for Economic, Social and Cultural Rights, supra note 185, at 115.
286. Moreover, de Beco relates the importance of disaggregating indicators in order to evaluate the rights of vulnerable sub-populations, including the rights to non-discrimination and equality. supra note 19, at 29-30.
287. See, e.g., ICESCR, supra note 4, art. 13(2).
288. Id. art. 2(2).
289. Id. art. 3.
290. Russel Lawrence Barsh, Measuring Human Rights: Problems of Methodology and Purpose, 15 Hum. Rts. Q. 87, 91 (1993).
291. Id. at 90.
292. See Barsh, supra note 238.
293. Robert Justin Goldstein, The Limitations of Using Quantitative Data in Studying Human Rights Abuses, in Human Ri ghts and Statistics: Getting the Record Straight, supra note 212, at 35, 40.
294. Barsh, supra note 238, at 92.
295. Goldstein, supra note 241, at 41.
296. For example, when the authors conducted their research in Colombia, the National Administrative Department of Statistics (DANE) either did not keep disaggregated statistics or did not release relevant statistics related to education at the primary, secondary, and tertiary levels; neither did they have complete information on regional or ethnic distribution of education.
297. See Barsh, supra note 238, at 100 (stating that "[t]ruly repressive regimes are likely to suppress such information.").
298. Treaty-Monitoring Bodies are doing this more and more. See Concluding Comments: Burkina Faso, U.N. GAOR, Comm. on the Elim. of Discrim. Against Women, 33d Sess., ¶ 346, U.N. Doc. A/60/38 (2005); Concluding Comments: Georgia, U.N. GAOR, Comm. on the Elim. of Discrim. Against Women, 36th Sess., ¶ 10, U.N. Doc. CEDAW/C/GEO/CO/3 (2006); Concluding Comments of the Committee on the Elimination of Discrimination Against Women: Namibia, U.N. GAOR, Comm. on the Elim. of Discrim. Against Women, 37th Sess., ¶ 24, U.N. Doc. CEDAW/C/NAM/CO/3 (2007) (expressing concerns when country reports contain insufficient data regarding maternal mortality and the measures taken to reduce maternal mortality ratios).
299. Rosga & Satterthwaite articulate several concerns with indicators. AnnJanette Rosga & Margaret L. Satterthwaite, The Trust in Indicators: Measuring Human Rights, 27 Berk eley J. Int'l L. 253 (2009).They note the challenge of quantifying any information pertaining to a right, a process that itself involves policy decisions regarding what may be "counted" and is therefore not objective nor "apolitical." Id. at 267, 284. This problem, they claim, is related to the larger problem of indicators threatening to close the "fruitful gap" that exists between international law and domestic policy. Id. at 308. They believe that states may shy away from the most effective national programs and instead opt for those that most easily translate into measurable statistics. Id. However, these authors fail to ask whether human rights treaty monitoring can include both evidence-based evaluations and experts' judgments. We believe that monitoring bodies will not substitute judgment with indicators but will supplement judgment with evidence-based data. In basing decisions on evidence and judgment, experts will retain a sense of credibility without appearing arbitrary and overly political. In addition, these authors overlook the three tiers of the structure-process- outcome model, which rely not solely on measurable data but also on a holistic assessment of every country's legal structure and related programs. This approach can account for changes in policy or laws that are not necessarily quantifiable in the short term but are nonetheless effective to demonstrate state compliance with the ICESCR.
300. Green, supra note 19, at 1080.
301. Reporting by States Parties, General Comment No. 1, adopted 17 Feb. 1989, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 3d Sess., at 87-89, ¶ 6, U.N. Doc. E/1989/22 (1989) (recommending state parties "to set specific goals with respect to the reduction of infant mortality, the extent of vaccination of children, the intake of calories per person, the number of persons per health-care provider, etc.").
302. 2006 Report on Indicators, supra note 19, ¶ 12.
303. See WHO Report, supra note 30, at 14
304. see also Beiter, supra note 31, at 628-29 (setting national benchmarks for each selected indicator through a dialogue between state and Committee and monitoring setting of national benchmarks through reporting).
305. See WHO Report, supra note 30, at 14.
306. de Beco also agrees that the state must develop benchmarks under the supervision of treaty bodies. de Beco, Human Rights Indicators for Assessing State Compliance with International Human Rights, supra note 19, at 47.
307. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, adopted 8 Jan. 1987, U.N. ESCOR, Comm'n on Hum. Rts., 43d Sess., Agenda Item 8, Annex, ¶ 70, U.N. Doc. E/CN.4/1987/17 (1987), reprinted in The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 122 (1987) [hereinafter Limburg Principles] and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, adopted 22-26 Jan. 1997, ¶ 5, reprinted in The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 20 Hum. Rts. Q. 691 (1998) [hereinafter Maastricht Guidelines]
308. Maastricht Guidelines, supra note 254, ¶ 9.
309. The Nature of States Parties Obligations, supra note 13, ¶ 10.
310. Paragraph 70 of Limburg Principles and 5 of Maastricht Guidelines recognize that the failure of state party to comply with treaty obligations under international law is a violation of the treaty. Limburg Principles, supra note 254, ¶ 70;
311. Maastricht Guidelines, supra note 254, ¶ 5.
312. Both the Maastricht Guidelines and Limburg Principles emerged from conferences that the International Commission of Jurists convened, providing an "authoritative 'gloss' on the ICESCR for the benefit of the Committee." Michael J. Dennis & David P. Stewart, Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?, 98 Am. J. Int'l L. 462, 492-93 n.219 (2004). The Maastricht Guidelines called for an optional protocol for the ICESCR. Id.
313. Maastricht Guidelines, supra note 254, ¶ 14(d) (explaining that an example of a violation would be "[t]he adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations relating to these rights, unless it is done with the purpose and effect of increasing equality and improving the realization of economic, social and cultural rights for the most vulnerable groups").
314. Id. ¶ 15(b) (explaining that a violation can a occur through "[t]he failure to reform or repeal legislation which is manifestly inconsistent with an obligation of the Covenant"); see also Limburg Principles, supra note 254, ¶ 18 ("It should he noted, however, that article 2(1) would often require legislative action to be taken in cases where existing legislation is in violation of the obligations assumed under the Covenant.").
315. Limburg Principles, supra note 254, ¶ 72.
316. Maastricht Guidelines, supra note 254, ¶ 14(a).
317. See The Nature of States Parties Obligations, supra note 13, ¶ 10.
318. Id.; see Nowak, The Right to Education, supra note 34, at 256.
319. Maastrict Guidelines, supra note 254, ¶ 9 ("Violations of the Covenant occur when a State fails to satisfy what the Committee on Economic, Social and Cultural Rights has referred to as 'a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights [⋯]. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, violating the Covenant.'"); The Nature of States Parties Obligations, supra note 13, ¶ 10. Such minimum core obligations apply irrespective of the availability of resources of the country concerned or any other factors and difficulties.
320. See General Comment 13, supra note 16, ¶ 57.
321. Review of the Composition, Organization and Administrative Arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, adopted 28 May 1985, ECOSOC Res. 1985/17, 22d plenary mtg., at 15, U.N. Doc. E/1985/85 (1985).
322. General Comment No. 13, supra note 16, ¶ 45.
323. See Maastricht Guidelines, supra note 254, ¶ 14(f) (explaining that a violation occurs when there is "[t]he calculated obstruction of, or halt to, the progressive realization of a right protected by the Covenant, unless the State is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeure.");
324. Limburg Principles, supra note 254, ¶ 72 (delineating that a "State party will be in violation of the Covenant, inter alia, if ⋯ it deliberately retards or halts the progressive realization of a right, unless it ⋯ it does so due to lack of available resources or force majeure.").
325. There is a strong presumption of impermissibility of any retrogressive measures taken in relation to the right to education, as well as other rights enunciated in the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the State party's maximum available resources.
326. General Comment 13, supra note 16, ¶ 45.
327. The Nature of States Parties Obligations, supra note 13, ¶ 10.
328. Id.
329. see also Nowak, The Right to Education, supra note 34, at 256.