•
States must ensure, by legislation where necessary, that there is no discrimination in
the admission of students to educational institutions.
•
States must not allow difference of treatment by public authorities between nationals,
except on the basis of merit or need, or historical disadvantage, in relation to school
fees, scholarships and other forms of assistance or educational opportunities.
•
States must provide foreign nationals resident within their territory the same access to
education as that given to their own nationals.
The obligation to protect
The obligation to protect requires States to take positive steps to prevent, prohibit and address
violations of the right to education by third parties.53 Coomans adds that it “requires the State
to guarantee the exercise of the right to education in horizontal relations (among private
groups or individuals).”54
The State has an obligation to ensure that harmful social and traditional practices do not
impede the accessibility of education for underrepresented groups such as girls or women and
students with mental or physical disabilities.55 In addition, the State has an obligation to
ensure that private educational institutions design and implement entrance exams on the basis
of non-discrimination. The steps that States can take to meet their obligation to protect could
include the:
•
adoption of adequate legislation;
•
development and implementation of coherent and coordinated policies;
•
development and implementation of effective complaints mechanisms;
•
creation of appropriate remedies; and
•
ongoing monitoring of the actions of relevant third parties.
53
See CESCR General Comment No. 13: The right to education E/C.12/1999/10 8 December 1999 at
para 47 and Maastricht Guidelines at para 6.
54
Coomans “In Search of the Core Content of the Right to Education” in Chapman and Russel (eds)
Core Obligations: Building a Framework for Economic, Social and Cultural Rights (2002) 217 at 243.
55
CESCR General Comment No. 13: The right to education E/C.12/1999/10 8 December 1999 at para
50, illustrates this point: “a State must…protect the accessibility of education by ensuring that third
parties, including parents and employers, do not stop girls from going to school.”
46