being an effective way to enforce economic, social and cultural rights such as the right to education.156 The right to education has also been enforced in the negligence sphere. In the English case of Phelps v Hillingdon London Borough Council [2000] 4 All ER 504, the right to education was presupposed in the context of an action in negligence.157 In that case, the finding of a breach rested on whether there was a duty to exercise reasonable care and skill in providing education. Therefore, an action in negligence may be another avenue to strengthen the justiciability of the right to education. The most striking effect of Phelps was that the House of Lords held that education authorities owed a duty of care to assess and cater for individual students’ needs. However, it is questionable whether liability in negligence could properly constitute “enforcement” or “justiciability” of the right to education. Another innovative mechanism is the utilisation of provisions protecting against discrimination. These can be used as a basis for upholding economic, social and cultural rights, including the right to education.158 For instance in the case of Swann v CharlotteMecklenburg Board of Education 402 U.S. 1 (1971), the right to education in the context of segregation was based on an equal protection clause. Furthermore, where a state has ratified the First Optional Protocol to the ICCPR, an individual may have the opportunity to bring a case involving the right to education under the Court had no power to order the hospital to provide more dialysis equipment unless there was an unconstitutional violation of equality i.e. if the waiting list favoured those of a particular race. 156 UNESCO Effective Functioning of Human Rights Mechanisms: National Institutions and Regional Arrangements, Report of the Secretary-General Conclusions and Recommendations of the Expert Meeting on National Human Rights Education in the Asia-Pacific Region (Bangkok, 20 –22 October 2005) and the subregional workshop for judges and lawyers on the justiciability of economic, social and cultural rights in South-East Asia (Manila, 3 – 5 November 2004), E/CN.4/2006/100/Add.1, 13 December 2006 http://www.ohchr.org/english/bodies/chr/sessions/62/listdocs.htm (last accessed 27 March 2007) at 9 para 13. Draft Conclusions and Recommendations of the Colloquium and Workshop for Judges and Lawyers on the Justiciability of Economic Social and Cultural Rights in the Pacific Region, Suva, Fiji, 1 - 3 June 2006 http://www.interights.org/page.php?dir=News#Pacificcolloquium% 20headline (last accessed 26 March 2007) at para 9. 157 However, the New Zealand Court of Appeal declined to hold that Phelps supported a substantive right to education in Attorney-General v Daniels [2003] 2 NZLR 742 (CA). In the High Court, Baragwanath J found that there was a justiciable right to education to the extent that such education must be suitable, regular and systematic. However, the Court of Appeal characterised the right as only existing on statutory-based grounds. 158 Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v Belgium (Merits) Judgment 23 July 1968, Publications of the European Court of Human Rights, Series A, Vol 6, at 35 – non-discrimination is inseparable from the right to education (Article 14 must be read together with Article 2 of the Protocol). See also Timishev v Russia (App no 55762/00 and 55974/00) [2005] ECHR 858 (13 December 2005) where a child was denied the right to attend a school as the child’s father had no migrant card to confirm his status as a forced migrant from Chechnya. The Court held that Russian law did not allow a child’s right to education to be made conditional on the registration of their parents’ residence. See also Poudyal, Kedar Prasad, The protection of socio- 73