(iii)
the question of the justiciability of the right to education.
•
Increasingly, jurisprudence has supported the justiciability of the right to education.
•
The justiciability of the right to education is inseparable from the justiciability of other
rights as all rights are interdependent.
•
It is fundamental to the existence and continued strengthening of the right to education
that individuals have the opportunity to invoke the right to education before a judicial or
quasi-judicial body.
•
Where the justiciability of the right to education is guaranteed in State legislation,
accountability of the State for breaches of the right to education will be ensured.
•
States must give effect to their obligations in relation to the right to education by
providing recourse to appropriate judicial, quasi-judicial and administrative mechanisms
for the assertion and enforceability of the right.
•
The role of such mechanisms is to:
o
Clarify and give content to the right to education;
o
Interpret and apply the right in conformity with international human rights
instruments and standards;
o
Impose appropriate sanctions and/or remedies in the event of a breach of the
right; and
o
Explore, where necessary, innovative solutions to solidify the justiciability of the
right to education.
•
States should review their respective constitutional, national and local laws relating to
educational standards and policies to ensure that they are consistent with the right to
education, and implement and/or amend laws and policies to reflect the core features of
the right.
•
The consequences of making economic, social and cultural rights an enforceable part of a
constitution are that human rights norms aimed at seeking social or distributive justice
will find a degree of permanence, and access to justice will increase.
•
States should consider adopting the Optional Protocol to the ICESCR as this would allow
the CESCR to act as a safety-net and a forum for identifying areas where states have
failed to fulfil obligations.
•
It is necessary to educate the general public about the right to education and the remedies
available and to ensure that the legal profession and the judiciary have on - going
education on the developments in this field.
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