Klaus Dieter Beiter

The Protection of the Right to Education by International Law : Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social and Cultural Rights

[In view of the trend of demoting education from ”human right” to “human need” and the accompanying commercialisation of education, and the complex nature of the right to education under international law, entailing a freedom and a social aspect, this book seeks to affirm education as a “human right” and to describe the various state duties flowing from the right to education, by referring to the provisions on the right to education found in instruments of international law and by systematically analyzing article 13 of the International Covenant on Economic, Social and Cultural Rights., In view of the trend of demoting education from ”human right” to “human need” and the accompanying commercialisation of education, and the complex nature of the right to education under international law, entailing a freedom and a social aspect, this book seeks to affirm education as a “human right” and to describe the various state duties flowing from the right to education, by referring to the provisions on the right to education found in instruments of international law and by systematically analyzing article 13 of the International Covenant on Economic, Social and Cultural Rights.]

Establishing Conformity Between TRIPS and Human Rights: Hierarchy in International Law, Human Rights Obligations of the WTO and Extraterritorial State Obligations Under the International Covenant on Economic, Social and Cultural Rights

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in its design and implementation procedures, does not reflect a human rights approach. There is an ever-growing community of critical voices, however, requiring that human rights should serve as a corrective to intellectual property rights and their implementation in the context of TRIPS. The crucial question is, of course, how this goal may be accomplished. Under TRIPS, human rights constitute non-essential exceptions to intellectual property rights. However, obligations under international human rights law (IHRL) can only be a relevant consideration if either the World Trade Organisation (WTO) itself or its members, when acting as such—or both—are bound by IHRL. If this should be the case, the question as to the exact relationship between the norms under TRIPS and those of IHRL will arise. Is IHRL hierarchically superior to WTO law? This chapter will show that both the WTO and its members, as such, are the bearers of obligations under IHRL and that, in many instances, norms of IHRL will have to be held to rank above “international trade law”. This should have consequences in particular for the way the WTO enforces TRIPS within its dispute settlement system. The rules of treaty interpretation under customary international law (as codified in Article 31 of the Vienna Convention on the Law of Treaties of 1969) offer substantial scope for human rights considerations to play a role in WTO dispute settlement. Attempts at establishing conformity between TRIPS and IHRL should, moreover, take account of extraterritorial obligations flowing from the various UN human rights treaties, specifically also the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, and their implications for state conduct. States parties to the ICESCR are not only obliged to observe Covenant provisions where the effects of any of their actions are confined to the domestic level, but also if their conduct, for example within the WTO, affects the economic, social and cultural rights (ESCR) of populations in other countries. The Committee on Economic, Social and Cultural Rights (CESCR), the body of independent experts supervising implementation of the ICESCR—which so far has proven highly capable of advancing the cause of ESCR globally—should adopt a more proactive approach in defining extraterritorial obligations under the ICESCR, also in relation to WTO law, and should further be bold enough to adopt a clear stance in cases of conflict between TRIPS and IHRL.

The Supervisory System of the International Covenant on Economic, Social and Cultural Rights

Unlike the ICCPR, the ICESCR knows no interstate and individual petition procedures. This chapter introduces the relevant provisions of Part IV ICESCR, which provides for the system of state report. This is followed by some remarks on the Committee on Economic, Social and Cultural Rights, the body to which supervision of the Covenant has been entrusted. Regarding the various activities performed by the Committee, it is useful to distinguish between what may be termed the Committees review and its normative function. The chapter separately addresses the Committees review and its normative function. It then focuses on the objectives of the reporting procedure, the issue of what state reports must contain, the Committee guidelines regarding the form and content of state reports, in particular in as far as they pertain to articles 13 and 14 ICESCR, and the Committees modus operandi, notably its habit of adopting Concluding Observations on state reports.Keywords: cultural rights; economic rights; ICESCR; international covenant; modus operandi; normative function; social rights; supervisory system

The Right to Education and the Disputed Category of Economic, Social and Cultural Rights

In this chapter, questions are asked relating to the character of economic, social and cultural rights, their relationship with civil and political rights, whether economic, social and cultural rights are judicially enforceable and what the obligations of states are in terms of international agreements which protect economic, social and cultural rights. The chapter focuses on the drafting of the International Covenants on Civil and Political and Economic, Social and Cultural Rights. This is followed by an examination of the arguments traditionally raised against economic, social and cultural rights. Two important arguments in support of economic, social and cultural rights are then analysed: firstly, the notion that all human rights are interdependent and indivisible, and secondly, the concept that all human rights impose on the state duties to 1) respect, 2) protect and 3) fulfill. Finally, the extent to which economic, social and cultural rights are justiciable is studied.Keywords: Bossuyt; Cranston; cultural rights; economic rights; right to education; social rights; Vierdag