umbrella of discrimination.159 An individual could possibly rely on article 26 of the ICCPR to approach a judicial or other tribunal to adjudicate on whether his or her economic, social or cultural rights have been infringed (including his or her right to education).160 According to the Human Rights Committee, which supervises the ICCPR, article 26 protects against discrimination in general, not only in respect of rights contained in the ICCPR.161 Customary international law may provide another avenue for protection of the right to education. Once customary law is established, it is binding on all States so far as it does not directly conflict with domestic law.162 It has been argued that a customary international right to equal education exists.163 If that is the case, this will also increase the justiciability of the right to education.164 Barriers to justiciability A barrier to the justiciability of the right to education in the past has been the fact that the courts have been reluctant to enforce the right to education where they might be encroaching on the government’s power to make policy and allocate resources.165 A distinction is often made between positive and negative rights. Negative rights are seen as rights which protect individuals from interference. They are therefore more readily seen as enforceable by the courts. On the other hand, positive rights such as the right to education, are seen as more economic rights with special reference to the right to food, right to education and right to health www.interights.org/doc/WS2_Poudyal_final.doc (last accessed 26 March 2007) at 14. 159 Office of the United Nations Commissioner for Human Rights http://ohchr.org/english/bodies/petiti ons/1503.htm#_ftnref10 (last accessed 9 March 2007). 160 Beiter, The Protection of the Right to Education by International Law, at 407. 161 F. H. Zwann-de Vries v The Netherlands, HRC Communication No 182/1984, 09/04/1987, UN Doc. CCPR/C/29/D/182/1984 SWM, Broeks v The Netherland, HRC Communication No 172/1984, 09/04/1984 UN Doc. CCPR/C/29/D/172/1984. 162 This usually applies even in monist States – see for example Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA) at 57 – 62. However, in England, customary international law must be incorporated first – see R v Secretary of State for the Home Department ex parte Thakrar [1974] QB 684 at 701F (CA). In Australia, customary international law is binding as long as it does not conflict with domestic law– see Polites v The Commonwealth (1945) 70 CLR 60, 68 – 69 (HCA), and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, at 287 (HCA). 163 Connie de la Vega, The Right to Equal Education: Merely a Guiding Principle or Customary International Legal Right? 11 Harv Blackletter LJ 37 (1994); Knight, Proposition 187 and International Human Right Law: Illegal Discrimination in the Right to Education, 19 Hastings Int’l & Comp. L. Rev. 183, at 187. 164 Filartiga v Pena Irala 630 F 2d 876 (2nd Cir 1980). 165 The following cases show the reluctance of the courts in this sphere. In the Numerus Clausus Case German Constitutional Court (1972) 33 BVErfGE 303, the Court explicitly refused to rule on the issue of whether the State was under a constitutional mandate to provide sufficient educational capacities for all courses of study, which could form a basis of an enforceable claim for an individual. In Missouri v Jenkins 515 US 70 (1995) the judge stopped educational programmes for under-achieving children as the Court held that the measures involving significant expenditure were an encroachment on the powers of the Federal and State governments. 74