is contained within the legal framework. In many countries, the right to education is protected by statute, constitution or has been created by the courts.122 Even in those countries where the right to education does form part of the domestic law or constitution, however, there remains uncertainty as to when the courts may intervene. For instance in South Africa, although the right to education is contained in the Constitution, the words “reasonable access” do not mean that an individual has an automatic entitlement to this right.123 This makes it difficult to ascertain when a breach has occurred.124 In order for rights to be enforceable in practice and justiciable in the fullest sense of the word, these ambiguities need to be addressed. International instruments could play an integral part in clarifying these ambiguities in favour of protecting the right to education.125 The right to education as expressed in international instruments often goes further in scope than the right to education expressed in domestic legislation.126 Therefore these international rights can help to craft a stronger basis for the right to education either by incorporation into municipal law or as an aid to interpretation.127 However the justiciability of international instruments containing the right to education varies in different jurisdictions depending on whether they are dualist or monist jurisdictions. c.nsf/(symbol)/CESCR+General+comment+3.En?OpenDocument (last accessed 27 March 2007) at para 2. 122 In Australia, see Education Act 2004 (ACT); Education Act (NT) Education Act 1990 (NSW); Education (General Provisions) Act 1989 (Qld); Education Act (South Australia) 1972; Education Act (Victoria) 1958; Education Act 1994 (Tasmania); School Education Act (Western Australia) 1999. In Fiji, see section 39 of the Constitution of the Republic of the Fiji Islands 1997. In India, see article 21A of the Constitution of India 1950. In Malaysia see section 8 Constitution of Malaysia 1957. In the Philippines, see article II s 17 Constitution of the Philippines 1987. Israel’s basic laws do not enshrine a right to education or equality. However, Israel’s Supreme Court has acknowledged a right to education – Coursen-Neff “Discrimination Against Palestinian Arab Children in the Israeli Education System” N. Y. U. J. Int’l L & Pol 36(4) 2004, 749 at 751. See also Knight, “Proposition 187 and International Human Rights Law: Illegal Discrimination in the Right to Education” 19 Hastings Int’l & Comp. L. Rev (1995) 183, at 192. 123 Goldstone, “A South African Perspective on Social and Economic Rights” http://www.wcl.american .edu/hrbrief/13/2goldstone.pdf?rd=1 (last accessed 7 March 2007) former justice of the South African Supreme Court at 4. 124 Goldstone, “A South African Perspective on Social and Economic Rights” http://www.wcl.american .edu/hrbrief/13/2goldstone.pdf?rd=1 (last accessed 7 March 2007) former justice of the South African Supreme Court at 4. 125 In Israel, attempts have been made to create a right to education out of the rights of equality and human dignity. Although the Supreme Court failed to utilise these rights to protect Palestinian children from discrimination, the Supreme Court has ruled that the right to education exists, albeit not a constitutional one, drawing on both domestic and international law. Coursen-Neff, “Discrimination Against Palestinian Arab Children in the Israeli Education System” 36(4) N. Y. U. J. Int’l L & Pol 749 at 803 to 804. 126 For instance see New Zealand Education Act 1989 s 3 and compare with ICESCR article 13. 127 Poudyal, Kedar Prasad, The protection of socio-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. 67