Abstract
The minimalist critique of human rights advanced by legal historian Samuel Moyn argues that human rights are ineffective in addressing material inequality because, rather than striving for equality, they focus on ensuring sufficient protection levels. This article analyses the right to education model which international human rights bodies have expanded to demonstrate the overstretched nature of the minimalist critique. By examining how the right to education provisions of international human rights treaties are interpreted by various United Nations human rights mechanisms, the article argues that the international human rights system has advanced a model of right to education that reaches beyond the notion of sufficiency. The works of these bodies are analysed in light of the privatisation of education. In defining the connection between the equality and liberty dimensions of the right to education, international human rights bodies have prioratised ensuring equal opportunities over the liberty to private education. The aim of the right to education is not merely to provide basic literacy to the poor but also to assure equal educational opportunities to all.
INTRODUCTION
The extent to which human rights can address socio-economic inequalities has led to an engaging discussion in the human rights scholarship of recent years. Societies being stratified into different classes raises important questions about how resources in modern life should be distributed among persons from different backgrounds. This problem of distributive justice has become compelling in the contemporary neoliberal age due to the massive expansion of inequalities. Some human rights scholars believe that by making socio-economic rights a central concern the human rights movement can advocate for an equitable distribution of goods and services in a manner that minimises inequality. Yet, others are sceptical of such a potentiality. The ‘minimalist critique’ – a premise advanced prominently by legal historian Samuel Moyn – contends that human rights, inclusive of socio-economic rights, are structurally incompetent in addressing material inequality because of their sufficientarian orientation. 1 Socio-economic rights are characterised as sufficientarian as they focus only on ensuring minimum protection floors for the most vulnerable, instead of minimalising inequalities among the haves and the have-nots.
Those who believe in the possibility of employing the human rights discourse to advance a distributive justice agenda have responded to the minimalist critique in many ways. One limitation of the minimalist narration is the overlooking of intellectual resources of an egalitarian orientation within the human rights tradition. Starting from this perspective, this article aims to discuss the nature of the right to education in international human rights law in light of the minimalist thesis. In the last few decades, United Nations human rights bodies have done much work elaborating the content of the right to education, resulting in the emergence of a distinct set of norms. In this context, the article intends to address the following question: does the right to education model which UN human rights bodies have developed represent a minimalist model? Or, alternatively, does it reflect something different from minimalism?
In order to answer this question, the article specifically examines how UN human rights bodies have dealt with the privatisation of education: a factor that has led to enormous inequalities in the education field. By way of analysing the work of UN human rights bodies on the privatisation of education, the paper argues that the interpretation which international human rights law has advanced on the right to education is incompatible with the minimalist thesis. 2 The right to education provisions in international human rights treaties have two dimensions: a social equality dimension and a liberty dimension. Privatisation requires the expansion of the liberty dimension including the liberty to establish private educational entities. Unrestricted liberty can lead to a sufficientarian situation where private provisioning supplants public provisioning. In such a scenario, education would potentially become yet another commodity while inequalities in access to education would be tolerated, and the State – through public provisioning – would focus only on providing for those who cannot afford it. The article argues that the approach of UN human rights bodies has been entirely different. They have interpreted the liberty dimension in a restrictive manner, highlighting the prominent role of public education and constantly prioritising the overriding nature of equality of opportunities. This emphasis on equality makes the right to education distinct from most other socio-economic rights and questions the overstretched nature of the minimalist claim.
This article is structured as follows. Section two, which follows this introductory remark, outlines the minimalist critique as advanced by Samuel Moyn, situating it within the broader debate concerning human rights and distributive justice. It is followed by the third section which presents a survey of how international human rights bodies have interpreted the interconnection between the two dimensions of the right to education in the light of privatisation. It elaborates on the non-minimalist approach the human rights system has adopted in practice. The arguments developed in the article are brought to a close in the concluding section.
THE MINIMALIST THESIS ABOUT HUMAN RIGHTS
The escalation of economic and social inequalities both in the Global North and South in contemporary times has provoked a rigorous discussion on the inequality problem. 3 Economic and social inequality is a multidimensional phenomenon. Economic inequality refers to disparities in income and wealth. Social inequality – which is closely linked to the former – refers to associated inequalities in social outcomes like health, education, housing, and political power. 4 In the field of international human rights, the discussion on inequality has been centred on two main problematics: first, the relationship between international human rights and the rise of inequalities (and neoliberalism, which is the basis of high inequality levels) 5 and second, the potential of human rights to formulate an effective response to the inequality problem. 6
There is a relative consensus on the fact that international human rights law has so far failed to link human rights with an agenda for economic and social equality. 7 The human rights movement has traditionally been accustomed to condemn horizontal inequalities (or status inequality): disparities between culturally-defined or socially-constructed groups such as those based on gender, race, caste, religion, and sexuality. 8 Vertical inequalities are ‘[...] yet to be addressed in international human rights law’. 9 At the UN level, despite reports by various special rapporteurs on the impact of inequality on human rights, ‘little has been done to follow up on [these] studies and recommendations’. 10
However, scholarship is sharply divided on the issue of whether human rights have the potential to address material inequalities or to align human rights with a broader distributive justice project. The debate involves differing perspectives. 11 One approach that is strong among scholars with a Marxian orientation views a close connection between human rights and the dominance of neo-liberalism. For these scholars, the rise of neoliberalism and human rights shows historical interlinkages. 12 The latter facilitates the former by obscuring systematic causes of social injustice by advancing an individualist legalist paradigm. 13 Furthermore, human rights tend to displace other emancipatory discourses by promoting a form of ‘anti-politics’. 14 A second strand represented by legal Historian Samuel Moyn disagrees on the complicity between human rights and neoliberalism and argues against the potential of the former on the ground that human rights, when faced with inequality, are rendered minimalist and ineffective. 15 Third, those who are critical of the practice of contemporary human rights while believing in the potential of ‘redeeming’ the human rights discourse in varying degrees represent another line of thought. 16 This approach demonstrates a ‘critical optimism’: ‘critical’, as it acknowledges the shortcomings of contemporary human rights; ‘optimism’, as it does not rule out the role human rights can play in advancing a larger distributive justice agenda. 17
The main challenge in defending the human rights discourse from a distributive equality perspective is the absence of a stand-alone right to material equality in the International Bill of Rights. 18 This is acknowledged by most of those who believe in redeeming human rights. However, since human rights realisation and distributive equality are interlinked, they argue that human rights and social justice should be complementary. 19 This argument is not something new. The debate on the link between material equality and human rights and the need for a ‘structural approach’ predates the current exchanges. 20 At one level, contemporary approaches defining inequality as a human rights concern revive those older interventions. For instance, calling extreme inequality the ‘anti-thesis’ of human rights, Philip Alston argues that ‘far from having little to say about economic inequality, human rights demand that states reject extreme inequality and formally commit themselves to policies explicitly designed to reduce if not eliminate it’. 21 Extreme inequality impedes the realisation of human rights by denying individuals the equality of opportunity, thereby allowing the elite to capture political processes and reinforce status inequalities. 22 As another account argues, the full realisation of rights such as health, education, housing, and so forth requires a different type of an economy, one that would ‘[...] challenge existing social stratifications, inequalities and power relationships’. 23 Due to this interconnection, the human rights obligations of States involve an implied obligation to address material inequality. 24
Drawing from the above premise, numerous interpretations have been advanced to make distributive equality a part of the human rights framework. Alston relies on the following provisions of the Universal Declaration of Human Rights (UDHR) to argue that human rights already implicitly encompass the norm of material equality 25 : recognition of equal rights of men and women (preamble); equality in dignity and rights of all human beings (Article 1) and equality before the law and equal protection of the law (Article 7). On a slightly different note, MacNaughton argues that we should defend equality not only because of its instrumental use for human rights but also due to its intrinsic value. 26 She suggests that equality and non-discrimination provisions in the International Bill of Rights could be interpreted in a manner that indicates a right to ‘multidimensional equality’ under international law.
Furthermore, most of those who aim to redeem human rights outline conceptual tensions between human rights and neo-liberalism. For instance, Paul O’Connell argues that human rights and neo-liberal globalisation, on a fundamental level, are irreconcilable. 27 The two paradigms see the role of individuals, communities, and the question of human needs in different ways. In another account, the two approaches are explained as different in terms of ideology, the envisioned role of the State, and the policy making framework. 28 For Wills and Warwick, principles associated with socio-economic rights like the progressive realisation of rights, non-retrogression, maximum available resource mobilisation and so forth constitute potential tools that could be utilised to challenge neo-liberal austerity. 29 Believing in critical redemption, none of these authors are blind to the fact that the current hegemonic form of human rights is far from realising the true potential they see in human rights. Most of them recognise how contemporary human rights largely align with the neo-liberal project. Neo-liberalism has promoted a narrowly-defined ‘trade related market friendly’ set of rights 30 , and a skewed version instead of the holistic notion envisioned in the UDHR. 31 In certain instances, neo-liberalism has co-opted socio-economic rights to legitimise the hegemonic order. 32 However, this acknowledgement is not a condemnation of the idea of human rights. The potential to employ human rights for counter-hegemonic articulations 33 , to define human rights in a way transcending neo-liberal constraints 34 , and rethink our understanding of human rights to address inequality is not ruled out. 35
The minimalist thesis advanced by Samuel Moyn should be understood partly as a critique challenging this optimism. For him, human rights are the ‘last utopia’ that emerged triumphally following the demise of other ‘utopias’ in the 20th century like socialism and anti-colonialism. 36 The human rights project does not seek fairness beyond ensuring sufficiency levels. 37 The distinction Moyn draws between ‘sufficiency’ and ‘equality’ is central to his argument. These are two distinct ideals that could be used in determining how ‘good things’ in life should be distributed among members of the community. The notion of sufficiency concerns how far an individual is from having nothing and how well he is in relation to the minimum of provision of the ‘good things’ in life. The focus of sufficiency is to ensure a minimum protection floor that prevents anybody from falling into absolute destitution. As far as this protection is provided, ‘hierarchy is not immoral’. 38 On the other hand, equality concerns how far individuals are from one another in the portion of the good things they receive. 39 The egalitarian demands at least a modicum of equality in distributing good things in life: that a mere floor of protection against insufficiency is ‘not enough’, that such a distribution should be coupled with a ceiling on inequality. Equality does not necessarily mean absolute equality of material outcomes, but it envisions a notion of fairness that extends beyond mere sufficient levels.
Unlike initiatives such as the New International Economic Order (NIEO) that preceded the age of international human rights, the human rights project does not commit to full-blown equality. On the contrary, the attention is on achieving a moral minimum. 40 At the normative level, human rights are minimalist because ‘[…] in their legalized form human rights do not purport to provide an egalitarian agenda’. 41 Even much-celebrated socio-economic rights only strive ‘[…] for a minimum floor of protection in domains like housing, health, and food rather than a fuller bodied egalitarianism’. 42 From the beginning of the UDHR, what human rights defended was the notion of minimum protection. Due to its association with the age of national welfare, socio-economic rights were initially presented as a part of a ‘larger egalitarian’ package. But at the time, the focus of ‘rights’ was thoroughly ‘national’. Nowadays, human rights have ‘expanded in coverage’, but their spirit has shifted ‘from nationally-framed egalitarian citizenship to a globally scaled subsistence minimum'. 43
Due to this minimalist normative structure, inequality – even ‘radical inequality’ – is compatible with human rights. 44 As Moyn asserts: ‘[…] it is perfectly possible to imagine an alternate reality in which one man personally owns everything, but with all the provisions of the Universal Declaration of Human Rights nonetheless honored’. 45 Therefore, attributing more importance to socio-economic rights is unlikely to introduce distributive equality to human rights. Moyn explains human rights as a ‘powerless companion of neo liberalism’, because ‘[…] they [human rights] simply have nothing to say about material inequality’. 46 In the face of the success of the free market, human rights have been unambitious in theory and ineffective in practice. In practice, Moyn is critical of human rights because of its model of activism – ‘informational politics’ with an individualist, anti-Statist bias aiming to name and shame governments is seen as ineffective in compelling governments to adhere to a distributive justice programme. Historically, when equality was being promoted it was supported by a strong State that was committed to the ideal. 47 And, whenever social justice became prominent, it was due to the presence of the ‘fear factor’ threatening the existing order. Naming and shaming is unlikely to create the sort of ‘pressure’ capable of generating redistribution from the rich to the poor.
Moyn’s characterisation of socio-economic rights as minimalist and his distinction between equality and sufficiency is no doubt an insightful intervention, compelling us to think carefully about the limitations of contemporary human rights. However, his intervention has been questioned on several accounts. First, it has been criticised for being United States-centric, for neglecting examples outside the US where human rights have been articulated along with distributive justice concerns. 48 Another criticism concerns Moyn disregarding the interlinkage between the analytical categories he employs. 49 Furthermore, Moyn’s argument that full realisation of human rights is compatible even with radical inequality has been contended for missing the empirical connection between high levels of inequality and human rights deprivation. 50 Empirical studies show that the higher the level of inequality is in a country, the weaker its performance is in terms of social outcomes like healthcare indicators. This interconnection ‘[…] makes it not only possible, but also necessary to build bridges between equality and human rights’. 51
In addition to the above, it appears that Moyn tends to overlook the ‘intellectual resources’ within the human rights discourse that could be developed to align human rights with an agenda for equality. 52 This omission flows from the nature of his analysis. His focus is to present a historical overview of the trajectory of socio-economic rights. Therefore, he does not engage in detail with human rights norms and associated principles in their legalised form. This is where the approach of many other scholars who agree with the limitations of contemporary human rights while believing in their potential differs from Moyn’s position. For instance, though critical of the ‘thin theory’ that has given human rights a minimalist flavour, Salomon argues that provisions such as the right to development could be used to expand the horizon of human rights in the context of global inequality. 53 Another intervention is the ‘Universal Declaration on Human Rights and Inequalities of Income and Wealth’ proposed by Richard Falk, which draws from the UDHR articles on the right to an adequate standard of living and the right to a social and international order conducive for rights realisation. 54 These examples indicate that the broad generalisation the minimalist thesis offers might very well miss the nuances and potentialities that the human rights discourse entails.
MINIMALISM AND THE RIGHT TO EDUCATION
The two Dimensions in the Right to Education
The right to education is a well-established socio-economic right in international human rights law, and is recognised in several international declarations and treaties. 55 Before applying the categories of equality and sufficiency to the right to education, let us examine some other examples where these categories can be effectively employed without much difficulty. The minimalist thesis can be used to explain the nature of many socio-economic rights recognised in the International Bill of Rights. For instance, the International Covenant on Economic, Social and Cultural Rights (ICESCR or Covenant) defines the right to an adequate standard of living in the following terms: ‘…The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions’. 56
This refers to the adequacy of essentials such as food, clothing, and housing – but not equality. Thus, for example, the right to housing does not mean guaranteeing that all forms of housing have equal conditions but ensuring that there is no homelessness and that all shelters possess the basic minimum qualities such as the legal security of tenure, access to infrastructure, affordability and accessibility. 57 Another example can be seen in the right to adequate food which focuses on eliminating hunger, malnutrition, and undernutrition rather than ensuring food of the same quality for all. 58 The rich dining in expensive restaurants that the poor cannot access is perfectly compatible with this paradigm given that the less fortunate are not suffering from hunger and malnutrition.
Does the right to education under international human rights law fall into the same sufficientarian category? Hypothetically, a sufficientarian approach to education would only focus on ensuring education of some basic quality for the poor. A sufficientarian model would not be concerned with ensuring equal opportunities for all. Having educational inequalities would be tolerated as long as the poor would have some sort of minimal opportunity. Nevertheless, an egalitarian approach would emphasise the importance of equal opportunities and guaranteeing equal access to education regardless of a person’s background. Such a paradigm would strive to reduce inequalities and – as the market tends to create inequalities – the State would assume a prominent role in delivering education.
The provisions in international human rights law on the right to education are an articulation between two distinct principles: on the one hand, ensuring equal access to education and, on the other, guaranteeing parental choice to educate children according to their moral convictions and the liberty to establish educational institutions. 59
The social equality dimension of the right to education lies in how human rights treaties envision realising the right. The UDHR states that ‘…everyone has the right to education’ and details how the right should be ensured in the following terms: education should be free – at least in the elementary and fundamental stages; technical and professional education should be ‘generally available’; and higher education shall be equally accessible to all on the basis of merit’. 60
Further, Article 13(2) of the ICESCR states the following:
Primary education shall be compulsory and available free to all; Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education. Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; […]
The nuance of the ICESCR compared to the UDHR lies in the emphasis on the progressive introduction of free education at all levels. The Convention was adopted in the era where the Keynesian welfare State was the order of the day, and education was largely viewed as a public service that should be provided by the State.
61
Free education means decommodifying education to ensure equal and universal access.
62
The Convention does not state that education should necessarily be provided by public institutions. However, it categorically underlines the importance of education to be free of cost. Making primary education free for all has been recognised by the Committee on Economic, Social and Cultural Rights (CESCR or Committee) as constituting the minimum core of the right to education.
63
This means that lack of resources cannot be invoked as a justification for failing to ensure universal free primary education.
The CESCR General Comment No. 13 on the Right to Education, in explaining the nature of obligations arising from the right, introduces four elements to define the normative content of the right: availability, accessibility, acceptability, and adaptability. Accessibility entails inter alia non-discrimination and economic accessibility. 64 The equality dimension of the right to education becomes further evident when reading the right to education provisions along with the norm of non-discrimination. ICESCR Article 2(2), which prohibits discrimination in realising rights enunciated in the Convention, recognises inter alia ‘social origin’ and ‘property’ as prohibitive grounds of discrimination. 65 Arguably, these grounds indicate the prohibition of discrimination on the ground of economic status or class. 66
Further, the CESCR, interpreting the term ‘other status’ appearing in the non-discrimination clause, has identified ‘economic and social situation’ as a possible ground of discrimination. Therefore, ‘a person’s social and economic situation when living in poverty or being homeless may result in pervasive discrimination […] which can lead to the refusal of or unequal access to the same quality of education and healthcare as others’. 67
Meanwhile, the element of economic accessibility obliges States to make education affordable to all. These provisions indicate that the right to education requires equal access for all without any exclusion based on economic or social status.
The liberty dimension of the right to education entails the freedom of parents to enroll their children in non-public schools and the right to establish educational institutions. Whereas the UDHR generally states that ‘parents have a prior right to choose the kind of education that shall be given to their children’ 68 , the ICESCR recognises the ‘liberty of parents […] to choose for their children schools, other than those established by the public authorities’ 69 , and the ‘liberty of individuals and bodies to establish and direct educational institutions’ 70 . This liberty is subjected to the provision that non-State institutions should conform to minimum standards established by the State. 71 The parental choice is recognised by law to ensure that the religious and moral education of children is provided in a manner in conformity with the beliefs of the parents. 72
The dimensions of equality and liberty represent different logics: the logic of egalitarianism and individual freedom. On the one hand, States should ensure equal access to education and have an obligation to introduce free education. On the other, States should also respect the liberty of individuals to establish private educational institutions that would include fee-levying schools and universities. These two forms of reasoning are likely to be in tension with each other 73 as there is ample empirical evidence testifying for such conflict. 74
The widespread involvement of private actors in education that has occurred in recent times has brought the tension between equality and liberty into the limelight. Since privatisation tends to create educational inequalities, a question on the extent of liberty for private education arises. If education is dominated by the private sector, the market becomes the main mechanism that distributes educational opportunities. The public education system becomes a supplement to the market. Such a scenario (one of liberty over equality) reflects a sufficiency situation where the State tolerates unequal access to education but guarantees a minimum safety net through public provisioning for those who cannot afford it. Under this paradigm, opportunities might not be equal. There might be elite schools where education of superior quality is offered, but opportunities of at least a sufficient minimum level are ensured to all.
In contrast, an egalitarian scheme would uphold equality over the liberty norm. Under such a scheme, the liberty of private actors would be tolerated only to the extent that it does not affect ensuring equal opportunities in education. The State would have a prominent role in delivering education, whereas the function of private actors would be seen as supplementary. Therefore, how the balance is drawn between equality and liberty is a matter of crucial importance. If liberty prevails over equality – or if liberty is unrestricted – that might lead to a sufficientarian scenario where private provisioning becomes prominent and the direct involvement of the State turns out to be supplementary. In contrast, an equality over liberty approach will attribute a limited role to private actors, and the notion of equal opportunities will be held as paramount.
The provisions of treaties like the ICESCR do not explicitly mention which notion should prevail in the event of a conflict. In academic literature, some scholars have argued in favour of subordinating the liberty aspect to the equality aspect. For instance, Aubry and Dorsi argue for differentiating the ‘liberty’ of individuals to establish institutions from the ‘right’ to education. There is no ‘right’ to establish private educational institutes under international human rights law; what treaties refer to is the ‘liberty’ to do so. As they argue, the concept of liberty should be identified as something less than a ‘right’. The liberty for private education should be recognised only to the extent that it does not lead to discrimination, segregation or inequality’. 75
Balancing Equality and Liberty: Approach of United Nations Human Rights Bodies
The United Nations system for human rights protection mainly comprises two types of mechanisms: treaty-based and charter-based mechanisms. The former consist of committees that monitor State compliance with international human rights conventions such as the CESCR attached to the ICESCR. These treaty-bodies are involved in human rights protection by engaging in standard settings and overseeing the reporting process. Charter-based mechanisms functioning through the United Nations Human Rights Council (UNHRC) monitor the human rights record of all the United Nations Member States. The following survey focuses on investigating how UN human rights bodies have interpreted the relationship between equality and liberty dimensions, and concerns interventions by both Treaty and Charter-based mechanisms. 76
CESCR general comments
The CESCR has done much work to elaborate on the content and meaning of the right to education through their General Comments. Though General Comments are not binding law, as authoritative interpretations they are important in the norm-developing process in international human rights law.
77
General Comment No.11 on Plans of Action for Primary Education and No. 13 on the Right to Education were adopted in 1999 interpreting the ICESCR right to education provisions. As discussed before, the Right to Education General Comment introduced the availability, accessibility, acceptability, and adaptability scheme to elaborate the nature of State obligations under the provision in question. Further, on the connection between different levels of obligations (respect, protect, fulfil) the Committee states as follows: ‘…In this respect […] it is clear that article 13 regards States as having principal responsibility for the direct provision of education in most circumstances; States parties recognize, for example, that the development of a system of schools at all levels shall be actively pursued (art. 13(2) (e))’.
78
As the text suggests, in defining the balance between the three levels of obligations, the Committee has attributed significant weight to the obligation of fulfilling (providing). The importance given to the provide element attributes the right to education a distinct character compared to most other socio-economic rights. For instance, the right to food does not require the State to bear the principal responsibility of directly provisioning food for the population. The State has the obligation to ‘respect’ the right by not interfering with individuals realising their food requirements and ‘protect’ it by not allowing third parties to impede its realisation. The element ‘fulfil’ (facilitate), moreover, requires proactive engagement in activities strengthening access to resources and means that ensure the livelihood of people. 79 This direct provisioning requirement comes as the last resort ‘whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal’. 80 In contrast, in the case of education, the Committee assumes the State as the main provider. This implies the primacy of public education and the supplementary nature of non-State educational entities.
Second, remarking upon the relationship between the liberty of individuals to establish and attend private educational entities, and the overreaching principles of human rights, the Committee states that: ‘…given the principles of non-discrimination, equal opportunity and effective participation in society for all, the state has an obligation to ensure that the liberty set out in article 13(4) does not lead to extreme disparities of educational opportunity for some groups in society’.
81
Therefore, the liberty to have private educational entities is subordinated to the principles of equality of opportunity and non-discrimination. Here, the Committee’s reference to ‘extreme’ disparities raises certain ambiguities. For instance, there is no established mechanism to measure what constitutes a disparity in its extremity. Nor does it clarify whether disparities can be accommodated and permitted to a certain extent in education. Though such uncertainties remain, a preference towards the equality principle is not difficult to observe.
Next, the CESCR General Comment No. 24 on Economic Social and Cultural Rights in the Context of Business Activities warrants our attention. This commentary lays down the general approach of the Committee towards the relationship between socio-economic rights and the conduct of businesses. It also outlines the Committee’s stance on privatisation of public services. The Business Activities General Comment uses the ‘respect, protect, fulfil’ scheme to examine States’ human rights obligations in the context of business activities and privatisation. Accordingly, prioritising business interests over Covenant rights without adequate justification is identified as a violation of the obligation to respect. 82 Furthermore, not taking effective measures to prevent infringement of socio-economic rights occurring due to business activities is a violation of the obligation to protect. 83
In elaborating upon the protect dimension, the General Comment particularly refers to the right to education as an example. The Committee identifies that ‘the increased role and impact of private actors in traditionally public sectors, such as the health or education sector, has posed new challenges. 84 The Committee takes the stance that privatisation is not prohibited by the Covenant in itself. Privatisation could be allowed even in areas like ‘[…] education or health care where the role of the public sector has traditionally been strong’. 85 In this respect, it appears that the Business Activities General Comment somewhat deviates from the stance exemplified in the Right to Education General Comment, which emphasises the principal responsibility of the State in providing education. By recognising privatisation as not necessarily against human rights, the former implies that the State could delegate the function of ‘fulfil’ to the private sector.
This permission is, however, subjected to two limitations. First, privatised services should adhere to ‘public service obligations’. The State should impose regulations in terms of elements like universality of coverage, pricing policies and so forth, to ensure that the services are offered as public goods. Second, privatisation should not result in a situation where the enjoyment of social rights becomes conditional on the ability to pay and lead towards the creation of new forms of socio-economic segregation. 86 Thus, the Committee acknowledges the dangers of the privatisation of education, its possibility in creating educational privileges as well as depriving low-income sections the right to a quality education. Accordingly, States are under the obligation ‘…to regulate private actors to ensure that the services they provide are accessible to all’. 87
This stance might appear debatable from a strict anti-privatisation point of view. The ICESCR as well as the Right to Education General Comment refers to the obligation of introducing free education progressively. In a context where the State is required to expand free education, privatising existing free provisions likely constitutes a regressive move. The question then arises whether or not such regressive moves amount to retrogression. Retrogressive measures are generally prohibited under the ICESCR; the Covenant requires States to justify such measures. 88 If the Committee had attributed due weight to the obligation of progressive introduction of free education, it could have firmly denounced privatisation of existing free education schemes as a retrogressive measure requiring justification. 89 Instead, it appears that the Committee has accepted privatisation as a reality – ‘a fact of life’ and has focused on mitigating the harms of privatisation. However, at the conceptual level, the approach towards balancing equality and liberty remains unchanged; private involvement is allowed only to the extent that it does not impede equal access.
CESCR concluding observations
As with other human rights treaties, States that are parties to the ICESCR are supposed to submit periodical reports to the CESCR explaining their compliance with the Covenant. In reviewing these reports, the Committee has, in recent years, made some important comments on privatisation guided by the approach outlined in the aforementioned General Comments. From 2014 to 2017, the CESCR and other human rights treaty bodies have referred to privatisation of education at least 29 times in their concluding observations. 90 These increasing references indicate that UN treaty bodies have taken the matter of privatisation as a serious concern.
Some selected examples from most recent years are the following. In a 2020 report concerning Guinea, the CESCR observes a lack of funding for public education and inequality in access to education as matters of concern. 91 The Committee recommends the State to ‘[...] provide adequate oversight of private educational institutions and ensure that the development of private education does not lead to a two-tier education system, to the detriment of disadvantaged children or those living in rural areas’. 92 With reference to Ecuador, the Committee notes disparities between urban and rural areas as an issue, recommending increased public spending on education ‘[…] to ensure universal and equal access to quality early, primary and secondary education’. 93 Similarly, the importance of expanding public education in the context of urban-rural disparities has been highlighted with reference to Argentina 94 and Colombia. 95
Further, the Committee has highlighted the relationship between the lack of adequate public facilities and the expansion of private entities. For instance, regarding Senegal, the Committee notes how poor conditions of public education have facilitated the expansion of private education. Those who cannot afford private schools are compelled to send their children to Franco-Arabic and Qur’anic schools ‘[…] which are generally free but whose current curricula do not ensure the same level of education as in public institutions’. 96 The Committee recommends the State to implement ‘stronger’ measures to extend free education to the secondary education level. 97 Regarding Mauritius, the Committee recommends addressing the growing inequality in educational outcomes by improving the quality of public education. 98 In another report, the need to increase the number of public kindergartens and regulate ‘[…] the quality and educational environment of private kindergartens’ is recommended. 99
Another theme the Committee addresses is the State obligation to introduce free education. For example, regarding Cameroon, it highlights the disproportionate effect that indirect and unofficial primary education school fees have on students from low-income households. It asks the State to ensure that primary education is actually cost-free, and that the functions of private entities are well-monitored and regulated. 100 Concerning Mali, educational inequalities caused by hidden costs in public education and high tuition fees charged by private schools are recognised as issues. 101 The interconnection between charging fees and inequalities in access to education has been further emphasised with reference to developed countries. In the context of Canada, the CESCR notes that increasing the fees in higher education and reducing resources in public education disproportionately affects students from low-income families and indigenous communities. 102 In relation to the United Kingdom, increasing tuition fees in universities is viewed as undermining equal access to education. 103 The Committee not only recommends that the UK reduces its tuition fees but reminds it of its obligation to progressively introduce free education. 104
In a report concerning Pakistan, the CESCR extensively discusses how privatisation leads to segregation in education. High-income families send their children to high-quality private schools while the poor are compelled to resort to low-cost private schools with poor conditions or underfunded public schools. 105 The expansion of low-cost private schools facilitated by public-private partnerships has had a negative impact on low-income groups. The Committee condemns the ‘reinforcement of social segregation in education caused by the privatisation of education’. 106 The report emphasises that the conduct of private actors has to be strictly regulated, and that the State should ‘progressively eliminate social segregation in the education system by ensuring an education of equal quality to all children in all public and private schools’. 107
These examples indicate that the Committee understands the effect privatisation has on equality mainly in two ways: 1) expensive private schools leading to segregation in education and 2) the lack of State investment in public education resulting in the proliferation of low-quality low-fees private schools attended by poor students. The Committee adopts a restrictive approach towards private education by emphasising the prominent role of public education, the obligation to introduce free education, and the requirement of regulating private actors thoroughly.
Reports by special procedures
The office of the Special Rapporteur on the Right to Education coming under the UNHRC is the main charter-based UN mandate overseeing matters related to education. 108 The mandate, established in 1998, has focused on matters affecting equal access to education from its early days. For instance, the annual report that Katarina Tomasevski – the first Special Rapporteur for the right to education – submitted to the UN Human Rights Commission in 2000 demonstrates that the mandate has been cautious about the impact that privatisation has had on the equality of educational opportunities even in the heyday of global neo-liberalism. 109 In her submission, the Special Rapporteur draws a line between the World Bank’s approach towards education and the ‘human rights-based approach’. She criticises the Bank’s failure to recognise the obligation international human rights impose on States to provide primary education free of charge. 110 The Bank’s approach in introducing school fees for ‘non-poor’ beneficiaries of primary education is identified as contrary to the obligation of providing free primary education.
Second, Tomasevski defends the primacy of public education. Both the State monopoly on education and the State’s complete disassociation from it have been identified as extremes, and as not being compatible with international human rights law. The balance between public and private education has to be struck in between these two extremes while attributing prominence to the public. She concedes that: ‘…[the] affirmation of the priority of public over private schools goes beyond funding: the role of education in the socialization of children prioritizes inclusiveness over segregation. In the well-known words of the Supreme Court of the United States, separate educational facilities are inherently unequal’.
111
Criticising measures such as school vouchers that commercialise education, the Special Rapporteur approvingly cites a Colombian Supreme Court case which states that: ‘…education – even if private – has to be provided in the conditions which guarantee equality of opportunity in access to education, and all forms of discrimination and are thus repugnant to its nature of public service with profound social contents; these, by virtue of excessive economic demands, automatically deny access to intellectually able persons solely because [of] their levels of income’.
112
Third, the report also condemns the ‘human capital approach’ to education – treating education as something that creates ‘human capital’ since this notion is linked with the prospect of considering education as a commodity. In contrast, the need for defending education as a public good is emphasised. 113
In another report, Tomasevski extends her attention to post-primary education.
114
An important part of the rationale for education as a human right is its ‘… exemption from the free market, where access to education is determined by purchasing power’.
115
Although there is global consensus on the need for primary education to be free, secondary and higher education are increasingly treated as tradable services. She raises concerns over not treating the access to post-primary education as a human right. Thus, ‘…the increasing global consensus about the need for all children to complete primary education prioritizes education as a free public service, but refers only to the first phase of schooling, thereby implicitly negating the right to secondary and university education’.
116
This approach has been largely followed and enhanced by Tomasevski’s successors in office. In the recent past, the right to education Special Rapporteurs have submitted several reports exclusively dealing with the matter of commercialisation and privatisation. In one such report, the former Special Rapporteur Kishore Singh explains the phenomenon of private education expansion – particularly in developing countries – as the outcome of commercial actors ‘[…] taking advantage of the limitations of Government capacities to cope with rising demands on public education’. 117 He observes how education has become a ‘lucrative market’ for business enterprises and the manner in which it has been transformed into a massive profit generating ‘industry’. 118 This on-going privatisation ‘[…] favours access to education by the privileged’ and ‘[…] throws overboard the fundamental principle of equality of opportunity in education’. 119
Furthermore, he warns that privatisation is supplanting public education instead of supplementing it. This situation adversely affects the principles of non-discrimination and equality of opportunity. He notes that ‘[…] inequalities in opportunities for education will be exacerbated by the growth of unregulated private providers of education, with economic condition, wealth or property becoming the most important criterion for gaining access to education’. 120 The other concern is how private involvement distorts the nature of education as a public good. Privatisations ‘recast education not as a public or societal good grounded in democratic principles [...] but as an individual, atomized and personalized private good’. 121
This report is significant as the increase of for-profit activities in education is depicted in a negative light. This approach appears to be fairly different to the CESCR approach in the Business Activities General Comment. As mentioned earlier, the latter refers to the involvement of private entities in education in a somewhat ‘neutral’ tone by stating that it is not against the law to privatise services like education that have traditionally been under public provisioning. 122 But when stating that ‘[…] the State cannot abandon its primary responsibility [...] in respect of free basic education of quality, to the advantage of private providers’ 123 ; and that ‘privatization by definition is detrimental to education as a public good’ 124 , it appears that the Special Rapporteur is taking a more restrictive stance towards privatisation of existing free schemes. The report however falls short of calling privatisation of existing free provisions a retrogressive measure. It states that whenever privatisation is permitted the State should regulate private actors to ensure that principles underpinning the right to education are not affected. 125
Next, the Special Rapporteur reports have highlighted the need of differentiating for-profit from not-for-profit private education. For instance, in a report addressing protecting the right to education from commercialisation, Kishore Singh approvingly cites examples from various jurisdictions that have prohibited for-profit education. 126 He views regulating school fees as an essential measure to prevent schools from becoming profit-making ventures. 127 The rationale for this distinction is broadly explored by the present Special Rapporteur Koumbou Boly-Barry in one of her recent reports from 2019. 128 As Boly-Barry points out, the intention of the liberty clause in the right to education provisions is to prevent education from becoming an instrument of indoctrination in the hands of the State in order to protect cultural diversity and cultural rights. In other words, having schools to preserve cultural, linguistic, and religious identities is categorically different from establishing schools with the sole purpose of profiteering. The intention of liberty is not to ‘[…] protect commercial interests in the area of education or to offer States a way to escape from their responsibilities through the implementation of austerity measures and neo-liberal policies’. 129
Accordingly, she refers to the 2019 Abidjan Principles– a set of principles drawn up through an international multi-stakeholder initiative in order to explain the nature of regulatory measures that States should adopt to monitor private actors. 130 The principles determine that public education should be the main mode of delivery. Private institutes should be a choice: no one should be compelled to choose private education due to lack of public education. 131 Further, States have the obligation to regulate private actors by establishing minimum standards. Minimum standards encompass measures to impose public service obligations on private actors 132 and regulate fees in order to ensure accessibility. 133 The report refers to similar measures regarding Public-Private Partnerships and the role of donors in funding education. 134
Similar themes appear in country-specific reports that the mandate has presented. For instance, the report submitted by the Special Rapporteur after a visit to Chile in 2017 is a classic account detailing how privatisation, in the long run, can lead to enormous inequalities. 135 As the report explains, the country’s educational system encompasses three types of schools: public schools that provide free education and cater to around 40 percent of student population; State-subsidised private schools owned by private owners having 53 percent of the student population; and independent private schools. 136 Ninety four percent of private school enrolments were reported to be from the ‘[…] wealthiest quintile, while two thirds of those in public schools are from the poorest half of the population’. 137 The Special Rapporteur commends recent reforms of the Chilean government to reverse segregation, including reforms to eliminate for-profit education from schools subsidised by the State. Furthermore, commenting on the subject of higher education, the Special Rapporteur observes that high university fees do not only affect affordability but also cause ethical issues, as universities compromise their ‘[…] social function to engage in profit-making in the name of academic independence.’ 138
Meanwhile, the UNHRC, through a series of resolutions, has endorsed some of the themes highlighted by special procedures. For instance, in 2019, the Council adopted a Resolution urging all States to develop adequate standards and regulations for the involvement of private actors in education and to consider and assess ‘[…] the short and long-term systemic impact of private educational institutions with a view to evaluate the need for adjustments in regulations that respond to such systemic impact’. 139 The preamble of the Resolution identifies the Abidjan principles as a set of guidelines that the States could refer to in determining their human rights obligations. 140 The recognition of the Abidjan principles in the UNHRC level is a step forward in terms of norm-building. Treaty bodies like the CESCR can draw from these principles in reviewing country reports and making recommendations.
Nevertheless, the contradiction between the recognition of the illegitimate nature of for-profit education and the failure to call for the abolition of such ventures remains a major limitation in the Special Rapporteur’s intervention. If the liberty dimension is not meant for commercial purposes – but for cultural and linguistic ones – why can the Rapporteur not directly advocate the prohibition of commercial interests in education? In this respect, Special Rapporteur Boly-Barry’s report appears to be lagging behind the former Special Rapporteur Kishore Singh’s submission, which is explicit of the need to abolish for-profit education. It appears that similarly to the CESCR in the Business Activities General Comment, the current Special Rapporteur has chosen a ‘pragmatic approach’ compromising on the matter of the existence of for-profit entities.
Education: A Right Beyond Minimalism
Themes appearing in the work of UN human rights bodies explored in the preceding section allow us to outline some main principles the bodies adhere to. CESCR’s General Comments, its concluding observations and Special Rapporteur reports all share the following propositions:
recognising public education as the main delivery mode of education; the obligation of the State to maintain a fully functioning public education system; the supplementary nature of the role of private actors; and the obligation of the State to regulate private actors ensuring that their presence does not lead towards undermining equality of opportunities.
This approach resolves the tension between equality and liberty dimensions in the right to education in favour of the equality dimension. How does this relate to the sufficiency/equality distinction – the main criterion of the minimalist thesis? As explained before, a sufficientarian approach of which the right to housing or adequate food are examples would only focus on public provisioning as the last resort to make sure that the most vulnerable do not fall below a bottom minimum level. It would appear absurd to suggest that all should live in similar houses or consume the same type of food. Instead, the focus lies on ensuring minimum protection: making sure that no one is homeless or dies from hunger. Since equality is not the main concern in these areas, the direct role of the State is supplementary. Individuals are granted the freedom to fulfil their food or housing requirements through their own effort, using their own means. In doing so, inequalities might arise. But that is not considered a problem. The State would intervene with direct provisioning only concerning those who are unable to achieve these requirements on their own.
141
If the distribution of educational opportunities is organised along a similar sufficientarian rationale, individuals would be expected to fulfil their educational requirements mainly by means of their own. Education would be primarily treated as a commodity similar to food or housing. The State would step in only concerning the most vulnerable who cannot afford it. Since private provisioning is the main way of distribution, the ‘liberty’ to establish schools and universities, and the freedom to attend those prevail over the need of ensuring equal access and opportunities. In this sense, a liberty over equality scenario closely resembles a sufficientarian situation.
However, the present discussion clearly indicates that the approach of international human rights bodies towards the right to education is categorically different. This difference stems from the fact that historically education has been treated as something different from a mere commodity. 142 Education is a ‘core good’ that provides individuals the knowledge and skills for their self-realisation and also instils values and perspectives necessary to sustain a democratic society. 143 As a positional good, it loses value in unequal settings. 144 To guarantee that all individuals have an equal chance of success in the economy, ensuring equal access to all forms of educational opportunity is important. 145 Therefore, guaranteeing equal opportunities is integral to the meaningful realisation of this right. Free public education is seen as the ideal means of achieving this objective and States are encouraged to reach this goal based on maximum available resources. Under this scheme, private provisioning is conceived of as a supplement; that is also not to encourage inequality but to accommodate cultural and linguistic diversity.
This nature of the right to education stands at odds with the minimalist explanation. As explained at the beginning of this article, overlooking intellectual resources within the human rights discourse is a main shortcoming of the analysis that leads to the minimalist thesis. The distinctiveness of most scholars in the critical-redemption strand – from Philip Alston to Manfred Nowak – lies in their engagement with the internal structure of human rights law to explore its potential. Though Samuel Moyn presents an interesting account about the evolution of ideas surrounding socio-economic rights, he does not necessarily deal with this aspect of the human rights framework. Scholars who do this otherwise identify discursive resources that could be used to align human rights with an agenda for distributive justice. 146
The non-minimalist meaning that the right to education has assumed in international human rights law constitutes an important resource that could nurture an egalitarian agenda. As Manfred Nowak points out, historically, the International Bill of Rights was modelled on the mid-20th century advanced social welfare State 147 , which is the same ‘age of national welfare’ that Moyn refers to as the ‘the most materially egalitarian political economy modernity has seen’. 148 Due to these historical roots, human rights treaties reflect a certain affinity towards the notion of the social welfare State. In many countries, privatisation of education has been a part of the neo-liberal offensive against the welfare State. The restrictive interpretation international human rights bodies have attributed to privatisation can be considered a defence of the social welfare logic against the neo-liberal pressure.
Before concluding, a possible objection one could raise concerning the argument of this article requires brief attention. The main focus in the international human rights system has been on primary education. Could one interpret this as a minimalist approach as the focus has been on providing the most basic form of education? In the present discussion, the terms ‘sufficiency’ and ‘minimalism’ have been used in a particular sense where they have been defined in relation to educational opportunities. Therefore, the article argues that UN human rights bodies have advocated equality in educational opportunities. A scheme providing minimum but adequate opportunities to the poor and more advanced opportunities for the privileged is incompatible with this approach.
Even if the term ‘minimalism’ is used differently as the above objection suggests (defining minimalism with reference to the levels of education), it is still debatable that the human rights approach is minimalist. The ICESCR right to education provisions encompass all stages of education, and not a mere right to primary education. It is true that in explaining how the right should be realised, the Right to education General Comment has prioritised primary education. But that does not mean ruling out or abandoning human rights obligations in the realm of post-primary education. 149 The special focus on primary education – which stems from the notion of minimum core obligations – should not be confused as a desertion of the equality principle in other levels. Providing primary education for all is an immediate duty, but the right should be progressively realised in other levels too while ensuring equal access through progressive introduction of free education. Nonetheless, it is preferable that treaty bodies could focus more on post-primary education because – in societies that have attained a certain level of social development – secondary and higher education have become important parts of social life.
CONCLUSION
The prevalent issue of inequality has drawn the attention of progressive human rights scholars towards the need of aligning the human rights project with the ideal of distributive justice. The minimalist thesis characterising human rights as sufficientarian constitutes an intellectual challenge to the above initiative due to the pessimistic theorisation it advances on the prospects of human rights. A main limitation of the minimalist narration is its failure to account diverse resources that entails an egalitarian potentiality within the human rights discourse. The right to education is one such resource that reflects a non-minimalist character.
The work of the CESCR and the right to education special rapporteur demonstrate that equality of educational opportunity has been a central concern for these bodies in expounding the meaning of the right to education. The way that they have responded to the privatisation of education is indicative of this approach. In resolving the tension between liberty and equality dimensions aggravated by privatisation, UN human rights bodies have emphasised the primacy of the equality norm by highlighting that the liberty to establish educational entities cannot override the fundamental principles of equal opportunity and non-discrimination. The importance accorded to public provisions as the means of ensuring equal access makes the right to education distinct from sufficientarian schemes followed in the fields of most other socio-economic rights.
This non-minimalist nature of the right to education indicates that the minimalist critique of human rights is not an all-encompassing theory. The notion might explain the nature of certain socio-economic rights. But a sweeping generalisation misses the complex nature of the discourse. The manner in which international human rights bodies have defended equality in the education field, and the way that it contrasts with the neo-liberal approach suggests that overly pessimistic accounts on the potential of human rights might require reconsideration.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.
