administrative remedies, which must be accessible, affordable, timely and effective.143 The
legitimate expectations of individuals must be protected in the administrative decisionmaking process by ensuring that the requirements of the right to education are taken into
account.144 The right of judicial review of administrative procedures is also desirable.145
However, there are some obligations, for instance, those concerning non-discrimination, that
require a judicial remedy. The general principle should be that where a right cannot be
sufficiently protected without judicial intervention, judicial remedies are necessary.146
International remedies
Currently there is no judicial or quasi-judicial procedure for invoking economic, social and
cultural rights at the international level unless the Optional Protocol to the ICESCR is
adopted.147 This Optional Protocol would allow the Committee to consider communications
regarding rights recognised under the ICESCR.148 Adoption would enable individuals as
right-holders to enforce rights recognised in the ICESCR, including the right to education,
before the CESCR.149 This would enhance State accountability, continue to clarify the nature
and content of State obligations under the Covenant, and act as a catalyst for improvements in
the effectiveness of domestic legal remedies.150 The UN report of the High Commissioner for
143
UNESCO CESCR General Comment no. 9 The domestic application of the Covenant, 19th session,
3 December 1998 E/C.12/1998/24 http://www.hri.ca/forthereCord1998/documentation/tbodies/e-c121998-24.htm (last accessed 27 March 2007) at para 9.
144
UNESCO CESCR General Comment no. 9 The domestic application of the Covenant, 19th session,
3 December 1998 E/C.12/1998/24 http://www.hri.ca/forthereCord1998/documentation/tbodies/e-c121998-24.htm (last accessed 27 March 2007) at para 9.
145
UNESCO CESCR General Comment no. 9 The domestic application of the Covenant, 19th session,
3 December 1998 E/C.12/1998/24 http://www.hri.ca/forthereCord1998/documentation/tbodies/e-c121998-24.htm (last accessed 27 March 2007) at para 9.
146
UNESCO CESCR General Comment no. 9 The domestic application of the Covenant, 19th session,
3 December 1998 E/C.12/1998/24 http://www.hri.ca/forthereCord1998/documentation/tbodies/e-c121998-24.htm (last accessed 27 March 2007) at para 9.
147
UNESCO(CR)/ECOSOC(CESCR) Joint Expert Group on the Monitoring of the Right to Education
Justiciability of the Right to Education 175 EX/28 12-13 May 2006, at para 2. It may be possible for
litigants to have their claims heard by regional bodies where these exist – see UN Special Rapporteur
on Education, E/CN.4/2005/50, 17 December 2004, http://daccessdds.un.org/doc/UNDOC/GEN/G04/1
71/40/PDF/G0417140.pdf?OpenElement (last accessed 27 March 2007) at para 56. For a ruling of
such a regional body see Autism Europe v France (Complaint Number 13/2002 European Committee
of Social Rights). However the rulings of these regional bodies are not binding, and are only persuasive
due to the political pressure they exert - UNESCO(CR)/ECOSOC(CESCR) Joint Expert Group on the
Monitoring of the Right to Education Justiciability of the Right to Education 175 EX/28 12-13 May
2006 at para 20.
148
UN Special Rapporteur on Education, E/CN.4/2005/50, 17 December 2004,http://daccessdds.un.org/
doc/UNDOC/GEN/G04/171/40/PDF/G0417140.pdf?OpenElement (last accessed 27 March 2007) at
para 53.
149
UNESCO(CR)/ECOSOC(CESCR) Joint Expert Group on the Monitoring of the Right to Education
Justitiability of the Right to Education 175 EX/28 12-13 May 2006, at para 9.
150
UNESCO Effective Functioning of Human Rights Mechanisms: National Institutions and Regional
Arrangements, Report of the Secretary-General Conclusions and Recommendations of the Expert
71