The Extraterritorial Obligations of States for the Realization and Protection of the Right to Education

Magisterarbeit, 2015
51 Seiten, Note: 73.0

Politik - Thema: Völkerrecht und Menschenrechte

Leseprobe

Table of Contents

I. Definition and Scope of the Right to Education ... 1

II. Exploring the Extraterritorial Obligations of States for the Right to Education ... 3

i. Obligations to respect the right to education extraterritorially ... 6

ii. Obligations to protect the right to education extraterritorially ... 8

iii. Obligations to fulfil the Right to Education Extraterritorially ... 10

III. ETOs and the concept of `jurisdiction' in IHRL ... 13

IV. Causality, division of responsibility and other challenges ... 18

V. ETOs for Education in Emergencies ... 19

i. International Disaster Response Law ... 23

ii. The Right to Education during Armed Conflict ... 24

Special protection of education in IHL ... 24

Education of interned children and young people ... 26

Targeting ... 28

iii. The Right to Education during Occupation ... 30

VI. More Questions than Answers: Some Concluding Observations ... 33

BIBLIOGRAPHY ... v

iii

ACRONYMS

4As

Adaptability, Acceptability, Accessibility, Availability

API

Protocol Additional to the Geneva Conventions of 12 August 1949, and

relating to the Protection of Victims of International Armed Conflicts

(Additional Protocol I)

APII

Protocol Additional to the Geneva Conventions of 12 August 1949, and

Relating to the Protection of Victims of Non-International Armed Conflicts

(Additional Protocol II)

CERD

Convention on the Elimination of Racial Discimination

CESCR

Committee on Economic, Social and Cultural Rights

CmRC

Committee on the Rights of the Child

CPR

Civil and Political Rights

CRC

Convention on the Rights of the Child

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

ESCR

Economic, social and cultural rights

ETOs

Extraterritorial

obligations

GCIV

Geneva Convention IV Relative to the Protection of Civilian Persons in Time of

War

HRC

Human

Rights

Council

HRCm

Human Rights Committee

IAC

International armed conflict

IACtHR Inter-American

Court of Human Rights

ICCPR

International Covenant on Civil and Political Rights

ICESCR

International Covenant on Economic, Social and Cultural Rights

ICJ

International Court of Justice

ICRC

International Committee of the Red Cross

ICRPD

International Convention on the Rights of Persons with Disabilities

IDRL

International disaster relief law

IFRC

International Federation of Red Cross and Red Crescent Societies

IHL

International

Humanitarian Law

IHRL

International Human Rights Law

INEE

Inter-Agency Network for Education in Emergencies

MDGs

Millennium Development Goals

MRT

Moldova Republic of Transdniestria Administration

NIAC

Non-international armed conflict

UDHR

Universal Declaration on Human Rights

UNGA

United Nations General Assembly

UNSC

United Nations Security Council

VCLT

Vienna Convention on the Law of Treaties

The concept of human rights conjures simultaneously visions of a utopian world free

from horrors, and images of the terrible suffering that can be endured by human beings. At

its core, it speaks of obligations that a State owes essentially to those on its territory.

However, increasingly we have seen violations occurring extraterritorially, as globalisation

transforms the relations of States and redistributes power and poverty. Recognizing that

States are thus mutually responsible for the realization of human rights seems like simply

the other side of that coin. The universal realization of the right to education in particular is

one of the most important rights, as it is through education that individuals escape poverty

and are able to fully participate in their communities.

According to the Maastricht Principles on Extraterritorial Obligations of States in the

Area of Economic, Social and Cultural Rights a non-binding attempt by experts in

international law and human rights law to formulate the legal parameters of such

obligations extraterritorial obligations (ETOs) can be defined as "(a) obligations relating

to the acts and omissions of a State, within or beyond its territory, that have effects on the

enjoyment of human rights outside of that State's territory; and, (b) obligations of a global

character that are set out in the Charter of the United Nations and human rights

instruments to take action, separately and jointly through international cooperation, to

realize human rights universally."

Fundamentally, these obligations are an expression of

what we already know: that all international actors should care about the universal

realization of human rights, including the right to education. Legally, however, such

obligations have a huge impact on the traditional framework of international human rights

law.

This dissertation attempts to delineate the framework within which the ETOs for the

realization of the right to education are actionable. It will first briefly explore the definition

and scope of the right to education, then attempt the same for the related ETOs. The

following section will explore the relationship between the concept of jurisdiction and

delimiting ETOs for human rights, education in particular. Following some brief comments

on challenges still unsolved in the field, the final section will explore how ETOs for the right

to education operate to ensure the right to education in emergencies, namely as relates to

the emerging field of International Disaster Relief Law (IDRL) and International

Humanitarian Law (IHL).

I. Definition and Scope of the Right to Education

The right to education is an empowerment right, which acts as a multiplier for the

enjoyment of other fundamental rights and freedoms and, consequently, forecloses this

The Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural

Rights (ETO Consortium, Heidelberg, January 2013), principle 8.

enjoyment when denied.

Likely in recognition of this character, the right to education is

included or referenced in numerous human rights instruments and is generally understood

as encompassing not only access, but further the elimination of discrimination in the

education system as well as setting minimum standards and improving quality.

While the

purpose of this dissertation is not to explore all of these provisions in detail, it is necessary

to briefly explore the content of education as human right before attempting to define ETOs

that may arise from it. This section will focus on the articulations of the right to education in

International Covenant on Economic, Social and Cultural Rights (ICESCR) and the

Convention on the Rights of the Child (CRC) as the right's two most detailed international

provisions.

Articles 13 and 14 of the ICESCR are considered the most exhaustive and inclusive

articles on the right to education and are often considered the elemental codification of the

right to education in international human rights law (IHRL). Under the ICESCR, a State

Party has the obligation to "take steps... to the maximum of its available resources" for

progressively achieving the full realization of the rights contained in the Covenant,

including the "right of everyone to education".

Incumbent in that right, the ICESCR

recognizes the right of everyone to free primary education - which shall be compulsory -

and the "progressive introduction of free education" for the secondary and higher levels.

The CRC also includes detailed provisions on education in articles 28 and 29, stating

among other obligations that primary education must be free and different forms of

secondary education must be available to every child.

The concept of the right to education

is further broadened and strengthened through the obligation of States Parties to consider

the Convention's four core principles: non-discrimination; the best interests of the child; the

right to life, survival and development of the child to the maximum extent possible; the

right to express their views in all matters affecting them and for their views to be given due

weight in accordance with their age and maturity.

The general State obligations which arise from the right to education are further

delineated in light of the tripartite framework to respect, protect and fulfil economic, social

and cultural rights (ESCR). In terms of the right to education, the obligation to respect can

be defined as requiring States Parties to "avoid measures that hinder or prevent the

enjoyment of the right to education; the obligation to protect requires States Parties to take

measures that prevent third parties from interfering with the enjoyment of the right to

education; the obligation to fulfil (facilitate) requires States take positive measures that

CESCR, `General Comment 13: The right to Education' (1999) para 1.

UNESCO and UNICEF, `A Human Rights-Based Approach to Education for All' (2007) 7.

ICESCR (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 art 2(1).

ibid art 13(1).

ibid art 13(2).

CRC (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 art 28.

CmRC, `General Comment 5: General measures of implementation of the Convention on the Rights of the Child'

(2003) para 12.

enable and assist individuals and communities to enjoy the right to education; and, States

Parties have an obligation to fulfil (provide) education."

Further, in its General Comment 3

on the nature of states parties' obligations which as a General Comment of a treaty-

monitoring body constitutes a non-binding (yet authoritative) interpretation and definition of

the substantive provisions of the Convention the Committee on Economic, Social and

Cultural Rights (CESCR) stated that States Parties have "a minimum core obligation to

ensure the satisfaction of, at the very least, minimum essential levels" of each of the rights

enunciated in the Covenant, including "the most basic forms of education".

Elements of

this core namely include the provision of free quality primary education for all on a non-

discriminatory basis in conformity with "minimum education standards".

Finally, with the purpose of clarifying the content of the right to education and the

corresponding State obligations, the CESCR and the former UN Special Rapporteur on the

Right to Education, Katarina Tomasevski, developed a framework (the `4As') wherein the

right to education includes four inter-related and essential features: availability (that there

is sufficient quantity of functioning educational institutions and programmes); accessibility

(that the system is non-discriminatory and accessible to all); acceptability (that the form

and substance of education is acceptable, relevant, culturally appropriate and of good

quality); and, adaptability (that education is flexible to the needs of changing societies and

communities and responds to the diverse social and cultural settings of students).

II. Exploring the Extraterritorial Obligations of States for the Right to

Education

While the framework above generally delimits State obligations for the right to

education in regards to its own territory, elements of the framework have been extended

extraterritorially to varying degrees. That being said, the area still lacks doctrinal clarity,

generally leaving the practical implications and the exact commitments of States open to

interpretation.

It should be noted, though, that none of these obligations should be

interpreted as allowing states to use the absence of international cooperation to justify the

failure to guarantee rights. Fulfilment rests primarily with the domestic state.

As it is relatively impossible to deny the globalized state of the world, it would be easy

enough to stage an ode to the moral responsibilities of States for the universal realization of

human rights. If we consider that States have recognized the "inherent dignity and [the]

See CESCR `General Comment 13' (no 2) para 47.

CESCR `General Comment No. 3: The nature of States Parties' obligations' (1990), para 10.

See CESCR `General Comment 13' (no 2) para 57; See ICESCR (no 4) art 13(3) and (4).

See CESCR `General Comment 13' (no 2) para 6; Katarina Tomasevski, Human Rights Obligations: Making

Education Available, Accessible, Acceptable and Adaptable (Novum Grafiska AB 2001) 13-15.

Malcolm Langford, Fons Coomans and Felipe Gómez Isa, `Extraterritorial Duties in International Law' in Malcolm

Langford and others (eds), Global justice, state duties: the extraterritorial scope of economic, social, and cultural

rights in international law (Cambridge University Press 2012), 57.

equal and inalienable rights of all members of the human family" and have pledged

themselves to achieve "the promotion of universal respect for and observance of human

rights and fundamental freedoms",

it is not unreasonable to conclude that State

obligations towards individuals should transcend borders.

Indeed universality and human

dignity are certainly the foundational principles of human rights law. Yet, if we take a realist

attitude towards the relations of the international community, it is difficult to envision how

such a grandiose approach to ETOs could effectively hold States to account.

Indeed,

developed States often perceive international cooperation and assistance as an important

moral obligation, but not as a legal entitlement.

Still, the duty of states to cooperate is considered a "fundamental principle in...

international law",

and the specific duty to cooperate for the promotion of and respect for

human rights and fundamental freedoms is also well-established in international law.

The

Charter of the United Nations states that "all Members pledge themselves to take joint and

separate action" to promote "universal respect for, and observance of, human rights and

fundamental freedoms for all without distinction".

These provisions, "on their face at

least", impose positive legal duties and Member States are thus bound to cooperate for

those ends.

On top of this, the Universal Declaration on Human Rights (UDHR) - after recognizing

that "everyone, as a member of society... is entitled to realization, through national effort

and international cooperation..." of their ESCR

- declares that "everyone is entitled to a

social and international order in which the rights and freedoms set forth in [the] Declaration

can be fully realized."

It has been argued that this statement constitutes a clear call for an

international order based on the shared responsibility and obligation of states for the

realization of such an order.

States have subsequently recognized that everyone is entitled

UDHR (adopted 10 December 1948) UNGA Res 217 A (III) Preamble.

Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford

University Press 2011) 56.

Open Ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and

Cultural Rights, Report of the Open-Ended Working Group to Consider Options Regarding the Elaboration of an

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on its Second Session, UN

Doc. E/CN.4/2005/52 (Third Session, 2005), para 76-77.

The Mox Plant Case (Ireland v. United Kingdom) (Request for Provisional Measures, Order of 3 December 2001)

ITLOS, para 82

Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in

accordance with the Charter of the United Nations (adopted 24 October 1970) A/Res/25/2625 art 1(3); Declaration

on the Right to Development (adopted 4 December 1986) A/Res/41/128 art 3.

Charter of the United Nations and Statute of the International Court of Justice (adopted 26 June 1945, entered

into force 24 October 1954) 1 UNTS XVI art 55, 56.

See Malcolm Langford, Fons Coomans and Felipe Gómez Isa (no 13) 54.

See UDHR (no 14) art 22.

See UDHR (no 14) art 28.

Fons Coomans, `Some Remarks on the Extraterritorial Application of the International Covenant on Economic,

Social and Cultural Rights' in Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human

Rights Treaties (Intersentia Uitgevers N V 2004) 191.

to a rights enabling order in other IHRL documents,

apparently constituting a concession

that developing countries are often advantaged in the grand scheme of international

development and economic globalization. Overall, while the Charter, the UDHR and the

general framework of IHRL recognize the essential role of cooperation for human rights -

particularly for ESCR - they do not give those provisions specific meaning, leaving the

practical implications and the exact commitments of States open to interpretation.

It is on this note that it has been argued that the "ICESCR offers a wide extraterritorial

scope which has been largely under-utilised."

The central argument supporting ETOs for

States Parties to the ICESCR is the absence of a jurisdictional clause. Rather, article 2(1)

calls for States to "take steps, individually and through international assistance and

cooperation, especially economic and technical... [for] the full realization of the rights

recognized in the present Covenant..."

It is unclear whether this provision is enough to negate the principle of treaty law

which states that "unless a different intention appears from the treaty or is otherwise

established, a treaty is binding upon each party in respect of its entire territory."

While the

obvious intention of this provision is to prevent States from limiting the scope of a treaty to

certain parts of its territory, the concern has been raised that this could restrict the

application of the ICESCR extraterritorially. Thus, it must be indicated that this applicability

is `otherwise established'. Here we could once again turn to the principle of universality;

while not necessarily a workable framework for ETOs, as a concept it could be considered as

a presumption for extraterritoriality. Otherwise, international law indicates that recourse to

the preparatory work may be had as a supplementary means of interpretation.

Scholars

disagree in their interpretations of the travaux préparatoires, with authors such as Alston

and Quinn refuting that any obligations exists outside those to respect and protect, and

Coomans and Kamminga providing examples supporting such an interpretation.

Still, this

could be considered evidence of the extraterritorial application of the ICESCR.

Unlike the ICESCR, the CRC contains a jurisdiction clause; article 2 states that "States

Parties shall respect and ensure the rights set forth in the present Convention to each child

within their jurisdiction..." That being said, the Convention later goes on to state in article 4

Vienna Declaration and Programme of Action (adopted 12 July 1993) A/Conf.157/23, Preamble; Declaration on

the Establishment of a New International Economic Order (adopted 1 May 1994) A/Res/3201(S-VI).

Philip Alston and Gerard Quinn, `The Nature and Scope of States Parties' Obligations under the International

Covenant on Economic, Social and Cultural Rights' (1987) 9 Human Rights Quarterly 156, 188

Rolf Künnemann, `Extraterritorial Application of the International Covenant on Economic, Social and Cultural

Rights' in Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human Rights

Treaties(Intersentia Uitgevers N V 2004) 226

See ICESCR (no 4)

See Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155

UNTS, art 29.

ibid art 31.

See Philip Alston and Gerard Quinn (no 25) 191; See Fons Coomans and Menno T. Kamminga, `Comparative

Introductory Comments on Extraterritorial Application of Human Rights Treaties' in Fons Coomans and Menno T

Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia Uitgevers N V 2004), 2.

that for those provisions on ESCR, "State Parties shall undertake such measures to the

maximum extent of their available resources and, where needed, within the framework of

international cooperation." Indeed, while the jurisdiction provision seems to limit the

extraterritorial scope, the Committee on the Rights of the Child (CmRC) has interpreted the

Convention to assert that "children's rights are a shared responsibility between the

developed and the developing countries. States Parties must respect and protect ESR of

children in all countries with no exceptions, and take all possible measures to fulfil these

rights - whenever they are in a position to do so through development cooperation"

(emphasis added).

Furthermore, the Covenant has been described as "the most comprehensive call in a

binding human rights instrument addressed to the States Parties to cooperate

internationally in education matters."

While the general obligation of ESCR cooperation

may be ambiguously established, article 28 develops the specific obligation to "promote and

encourage international cooperation in matters relating to education". Noting cooperation

particularly in the context of a specific provision and reference to the travaux préparatoires

of this article construe strong indications that States considered their specific undertakings

as regards the right to education in the CRC to be binding obligations.

It is important to note that while ETOs for the right to education are discussed here

in general terms, each treaty provides its own framework through which specific obligations

(and associated violations) should be examined.

i. Obligations to respect the right to education extraterritorially

The principle that one state has a duty not to cause harm in or on the territory of

another state has long been recognized in the field of environmental law,

and is

considered to have customary status.

There is good reason, therefore, to subscribe to the

conclusion that international obligations to respect in the field of ESCR are more readily

established that those to protect and fulfil, especially as a minimum the obligation not to

undertake activities that will result in substantial harm to the rights of other States and

their citizens.

CmRC, Day of General Discussion on `Resources for the Rights of the Child-Responsibility of States' (Forty-sixth

Session, 2007) para 51.

Verheyde M, Commentary on the United Nations Convention on the Rights of the Child, Article 28: The Right to

Education (Commentary on the United Nations Convention on the Rights Of) (Martinus Nijhoff Publishers 2006),

65.

Wouter Vandenhole, `Economic, Social and Cultural Rights in the CRC: Is There a Legal Obligation to Cooperate

Internationally for Development?' (2009) 17 The International Journal of Children's Rights 23, 34.

Trail Smelter Arbitration (United States v. Canada), III United Nations Reports of International Arbitral Awards

1911, 1938 (1941) 1965; Legality of the Threat or Use of Nuclear Weapons, 8 July 1996 (Advisory Opinion), ICJ

Reports 1996, para 29.

See Malcolm Langford, Fons Coomans and Felipe Gómez Isa (no 13) 68-69.

See Fons Coomans (no 23) 199.

According to the Maastricht Principles, the obligation to respect encompasses

refraining from direct and indirect interference of the enjoyment of ESCR extraterritorially,

violations encompassing "where a state aids, assists, directs, controls or coerces another

state or international organization in breaching its international obligations regarding

ESCR."

Generally, States have an obligation to avoid causing harm and must "desist from

acts and omissions that create a real risk of nullifying or impairing the enjoyment of ESCR

extraterritorially. The responsibility of States is engaged where such nullification or

impairment is a foreseeable result of their conduct" (emphases added).

Under this

interpretation, State responsibility could, for example, potentially be engaged if it decides to

withdraw aid without reasonable justification, when that decision will lead to a foreseeable

worsening in education.

As a further example, the CESCR has specifically addressed that "whatever the

circumstances, [sanctions] should always take full account of the provisions of the

ICESCR."

Thus, according to the CESCR, should the right to education be affected by the

imposition of sanctions as was the case when, for example, certain African States imposed

economic sanctions on Burundi in 1996 in alleged response to the military coup

States

Parties must take these rights fully into account. When taking such action, effective

monitoring should be undertaken throughout the period that sanctions are in force as the

external entity has an obligation to `take steps, individually and through international

assistance and cooperation' in order to respond to any disproportionate suffering

experienced by vulnerable groups within the sanctioned country.

This is not to comment

upon the legality of economic sanctions, but merely to indicate that where it is foreseeable

that these sanctions may have severe adverse impacts on the enjoyment of the right to

education, States have the obligation to carefully consider their adoption and to attempt to

mitigate their consequences.

A branch of this obligation could also relate to States' obligations to "take all

reasonable steps to ensure" that international organizations to which it transfers its

competencies or whose policy it influences acts consistently with its human rights

obligations.

The CESCR has stated that State Parties "should take steps" to ensure that

international agreements which it negotiates and ratifies do not adversely impact upon the

right to education, and further have "an obligation to ensure that their actions as members

Olivier De Schutter and others, `Commentary to the Maastricht Principles on Extraterritorial Obligations of States

in the Area of Economic, Social and Cultural Rights' (2012) 34 Human Rights Quarterly 1084, 1129.

See Maastricht Principles (no 1), principle 19.

See Fons Coomans (no 23) 187.

CESCR `General Comment 8: The relationship between economic sanctions and respect for economic, social and

cultural rights' (1997) E/C.12/1997/8 para 1.

Marc Bossuyt, `The Adverse Consequences of Economic Sanctions'' (Economic and Social Council, 2000)

E/CN.4/Sub.2/2000/33 para 75, 77.

See CESCR `General Comment 8' (no 40) para 11-14.

See Maastricht Principles (no 1), principle 15.

of international organizations" do not have similar consequences.

For instance, conditions

attached to loans and debt repayment in many economically suffering European countries

and corresponding austerity measures have resulted in wide-spread socioeconomic malaise,

including as regards the right to education; Spain cut its education budget by 21.4%

between 2011 and 2012, negatively affecting the quality, accessibility and affordability of

education.

Overall, it is increasingly accepted that States must always be guided by the

human rights obligations it has entered into.

ii. Obligations to protect the right to education extraterritorially

States can also be said to have positive obligations to regulate the actions and

protect against the risk of interference by third parties they are "able to influence".

This

obligation can be interpreted as one of "due diligence";

a State must do all that can

reasonably be expected to do to prevent the violation but also to respond to it as required.

This obligation would thus extend to acts by "authorised agents of a State", who

"remain under [State] jurisdiction when abroad".

Responding to such violations as

required includes a duty to investigate and where necessary to punish violations.

example of this could be a situation where the armed forces of a State, acting on the

territory of another State, cause damage to schools and/or the deaths of students and

academic staff. This will be explored further below.

In a 2006 study, Hausmann and Künnemann established that Germany was

complicity in violations of the right to education in India since Bayer - a German based

multinational chemical and pharmaceutical company contracted child labour practices in

India.

Germany's ETO would arise here as a result of its competence to act; it is not

unfeasible that Germany is `able to influence' Bayer "by legal or other means".

According

to the CmRC, State obligations arise when there is a "reasonable link" between a business'

extraterritorial activities and operations and the State, such as "when a business enterprise

has its centre of activity, is registered or domiciled or has its main place of business or

substantial business activities in the State concerned."

See CESCR `General Comment 13' (no 2) para 56.

Council of Europe, `Safeguarding human rights in times of economic crisis' (Council of Europe Commissioner for

Human Rights, 2013) 20.

Maarten Den-Heijer and Rick Lawson, `Extraterritorial Human Rights and the Concept of "Jurisdiction"' in Malcolm

Langford and others (eds), Global justice, state duties: the extraterritorial scope of economic, social, and cultural

rights in international law (Cambridge University Press 2012) 182, 187.

CESCR, `General Comment 14: The right to the highest attainable standard of health (2000) E/C.12/2000/4,

para 39; see Olivier De Schutter and others (no 47) 1133-1134.

Vélásquez Rodríguez v. Honduras, (IACtHR, 29 July 1988) Series C No. 4, 172.

Cyprus v. Turkey , App. No. 6780/74 & No. 6950/75 (ECHR, 26 May 1975), 136 para 8.

See Vélásquez Rodríguez (no 48), 166.

Ute Hausmann and Rolf Künnemann, `Germany's extraterritorial human rights obligations: Introduction and six

case studies' (Brot für die Welt, FIAN and Evangelischer Entwicklungsdienst e.V., 2006) 28

See CESCR `General Comment 14' (no 47).

CmRC, `General Comment 16: On State obligations regarding the impact of business on children's rights' (2013)

CRC/C/GC/16 para 43.

Indeed, the particular issue of child labour may be worth dwelling on a bit further. It

has been established that addressing child labour should include "special attention" to

adequate education facilities and ensuring attendance at school.

Further, the CRC article

calling for measures to protect children from `economic exploitation' notably calls for

"legislative, administrative social and educational measures".

Thus, to the degree that

States have committed themselves to the abolition of child labour,

and through obligations

of cooperation for the CRC, there is a clear obligation to at the very least take positive

measures to prevent third parties from engaging in that practice and, potentially, to assist

in using education as preventative tool.

Recently, the CmRC appeared to recognize the extraterritorial obligations of the Holy

See to protect and ensure the rights of children to quality education but the Pope and the

Holy See have long been held to account for the abuse of children in Catholic schools in the

court of public opinion. A report by Ireland's Commission to Inquire into Child Abuse found

that thousands of boys and girls were neglected and physically, emotionally and sexually

abused over decades in Irish Catholic schools

was met with calls for the Vatican to

investigate,

despite the abuses having occurred in Ireland.

In its observations, the Committee notes that "subordinates in Catholic religious

orders are bound by obedience to the Pope" and therefore, when it ratified the Convention

"it made a commitment to implement it not only within the territory of the Vatican City

State, but also as the supreme power of the Catholic Church, worldwide through individuals

and institutions under its authority".

The Committee further interpreted a number of

extraterritorial obligations for the Holy See, including as regard the teaching of the

Convention, eliminating gender stereotypes from textbooks and enacting guidelines and

rules against corporal punishment in schools.

Thus, the Committee established that the

Holy See has positive obligations to monitor respect for, protect and ensure the rights of

children to quality and safe education beyond the boundaries of Vatican City. That being

said, it could potentially be argued that the Committee sees this kind of extraterritorial

scope as exceptional, resulting from the "dual nature" of the Holy See's obligations, as both

the Government of Vatican City State and as a "sovereign subject of international law

having an original, non-derived legal personality independent of any territorial authority or

ILO Recommendation R146: Minimum Age Recommendation (Recommendation concerning Minimum Age for

Admission to Employment) (58

Conference Session Geneva 26 June 1973), art 2(d); Worst Forms of Child Labour

Convention (C182) (Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst

Forms of Child Labour) (87

Conference Session adopted 17 June 19999, entered into force 19 November 2000),

art 7.

See CRC (no 7), art 32(2).

See Worst forms of Child Labour Convention (no 54); ibid; see ICESCR (no 4), art 10(3); Minimum Age

Convention (C138) (Convention concerning Minimum Age for Admission to Employment (58

Conference Session

adopted 26 June 1973, entered into for 19 June 1976).

The Commission to Inquire into Child Abuse, `Final Report of the Commission: Executive Summary' (2009)

Henry McDonald,''Endemic' rape and abuse of Irish children in Catholic care, inquiry finds' The Guardian

(Ireland, 20 May 2009)

CmRC, `Concluding observations on the second periodic report of the Holy See (2014) CRC/C/VAT/CO/2 para 8.

ibid para 28, 39.

jurisdiction."

Further, it is unclear what impact this case could have on the substance of

the law, as it has been noted that the Committee neither employs the jurisdiction language

of article 2(1) of the CRC nor makes it clear the ETO framework it is employing in its

analysis.

Still, such an analysis by the Committee illustrates the way which a State can

extraterritorially influence the right to education extraterritorially.

iii. Obligations to fulfil the Right to Education Extraterritorially

Probably the most contested aspect of ETOs is the obligation of States to fulfil ESCR

beyond their borders. It has been argued that since in most treaties with ESCR provisions

cooperation obligations are expressed in a singular and unified form, each treaty frames

international cooperation as part of the duty to (progressively) realize the human rights

obligations to which a State has committed.

These obligations of cooperation are

particularly incumbent upon States which are "in a position to assist others in this regard"

- a statement obviously directed towards donor States, but which could also include

burgeoning `South-South' cooperation, regional and neighbouring States as well as those

with historical ties.

In recent years, cooperation has tended to be interpreted as synonymous with both

development assistance and the broader concept of working together.

Therefore,

obligations of cooperation could take many forms, from technical, financial or in some cases

even diplomatic pressure. That being said, the focus of the debate for ETOs to fulfil tends to

centre on the provision of development assistance. Many developed States deny (quite

unsurprisingly) that there exists a binding obligation at a bilateral level to provide such

forms of assistance.

Indeed, it would difficult to make a case that for example Japan

must provide development assistance to Niger for the fulfilment of education. This is

especially true given the fact that assistance is not always delivered through bilateral

channels nor is it always an effective channel of human rights realization. On the other

hand, it could be argued that States who are reasonably found to be in a position to do so

have a "subsidiary obligation"

for the universal fulfilment of the right to education.

It has been established that in the context of the ICESCR the obligation to realize

ESCR `to the maximum available resources' was intended to refer to both the resources

existing within a State and those available from the international community through

ibid para 8.

Marko Milanovic, `CRC Concluding Observations on the Holy See' (EJIL: Talk!, 5 February 2014)

<http://www.ejiltalk.org/crc-concluding-observations-on-the-holy-see/>.

See Malcolm Langford, Fons Coomans and Felipe Gómez Isa (no 13) 63.

See CESCR, `General Comment 3: The nature of States parties' obligations' (2003) E/1991/23, para 14.

See Rolf Künnemann (no 26) 212.

See Malcolm Langford, Fons Coomans and Felipe Gómez Isa (no 13) 73.

Wouter Vandenhole and Wolfgang Benedek, `Extraterritorial Human Rights Obligations and the North-South

Divide' in Malcolm Langford and others (eds), Global justice, state duties: the extraterritorial scope of economic,

social, and cultural rights in international law (Cambridge University Press 2012) 361

international cooperation and assistance".

In that vein, an oft repeated political

commitment of the international community is the pledge to devote 0.7% of GDP to

development assistance

a commitment few States have lived up to. The CESCR has

`urged' States to meet this target,

as well as has made reference to a State's performance

on development assistance levels in its concluding observations.

While this commitment

has never been made in the substance of a legally binding instrument, Vandenhole argues

that this political commitment is "gradually evolving into a legal obligation at least not to

reduce the level of spending on development cooperation, and to take all possible steps with

the maximum use of available resources to reach and maintain the 0.7% target as soon as

possible..."

The primary role and sovereignty of the developing State should however be

recalled, as development assistance should be subject to the ownership of the developing

country and aligned with national development plans.

Of course, the scope of these obligations lack precision so as to be potentially

limitless an especially unattractive prospect for many developed States. In response, it

has been argued that ETOs to fulfil may be triggered if a State is failing to meet it minimum

core obligations.

In the context of the right to education, the minimum core includes to

`work out and adopt' a detailed plan of action for primary education

an apparently

independent task. Yet, the CESCR has noted that where a State Party is clearly lacking the

financial resources and/or expertise required to realize this provision, the international

community has a clear obligation to assist.

Consider further that non-discrimination is a minimum core benchmark in the right

to education. Girls feature disproportionately in the children of primary school age who are

out of school,

and targeted interventions to reach the most marginalised those with

disabilities, ethnic, religious or linguistic minorities, etc. are essential to fulfilling education

obligations. This has been recognized by international instruments aiming to protect the

right to education of specific groups, a number of which contain specific provisions on

CESCR, `General Comment 3: The nature of States parties' obligations' (2003) E/1991/23 para 13.

UN, `Monterrey Consensus on Financing for Development' (International Conference on Financing for

Development, Monterrey, 2002) A/CONF.198/11 para 42.

See CmRC, `General Comment 5' (no 8) para 61.

CESCR, `Concluding Observations of the CESCR: Ireland' (2002) E/C.12/1/Add.77 para 37-38.

Wouter Vandenhole, `EU and Development: Extraterritorial Obligations under the ICESCR' in M. Salomon, A.

Tostensen and W. Vandenhole (eds.), Casting the Net Wider: Human Rights, Development and New Duty Bearers

(Antwerp-Oxford: Intersentia, 2007) 101 quoted in Malcolm Langford, Fons Coomans and Felipe Gómez Isa (no 13)

111.

`The Paris Declaration for Aid Effectiveness and the Accra Agenda for Action' (OECD, 2005/2008) <

http://www.oecd.org/dac/effectiveness/34428351.pdf> accessed 6 July 2015.

Fons Coomans, `Some Remarks on the Extraterritorial Application of the International Covenant on Economic,

Social and Cultural Rights' in Fons Coomans and Menno T Kamminga (eds), Extraterritorial Application of Human

Rights Treaties (Intersentia Uitgevers N V 2004) 198; See Wouter Vandenhole and Wolfgang Benedek (no 67) 361.

See ICESCR (no 4) art 14; See CESCR `General Comment 13' (no 2), para 57.

CESCR, `General Comment 11: Plans of Action for Primary Education' (1999) E/1992/23 para 9.

UNESCO, `A growing number of children and adolescents are out of school as aid fails to meet the mark' (Policy

Paper 22/Fact Sheet 31, 2015).

international cooperation and/or are absent a jurisdiction clause.

Indeed, it is worth

recalling that non-discrimination should be recalled throughout the human rights protection

frameworks, and the especial needs of disadvantaged groups should be emphasised.

The repeated commitment to the Millennium Development Goals (MDGs) seem to

reflect this approach,

potentially contributing a skeletal framework for the exercise of

ETOs to fulfil the right to education. Partially reinforcing this is the fact that the Education

for All goals and the Education First Initiative which go above what could be described as

the core of the right to education - have received much less attention. In contrast, Goal 2 of

the MDGs aims to "ensure that, by 2015, children everywhere, boys and girls alike, will be

able to complete a full course of primary schooling",

seeming to reflect the minimum core

of the ICESCR and CRC education provisions. Indeed, while the MDGs are not drafted in

`rights language', they nevertheless have a human rights dimension,

including - it has

been argued - as an iteration of the "global safety net" representing minimum core levels of

their responding rights.

It does not seem unreasonable to assume that States meant what they said when

they made their MDG commitments. It has even been argued although is in no way

established that through these repeated pledges States have undertaken of obligation

which should have some legal consequences.

It has been further suggested that Goal 8 to

develop a global partnership for development which includes indicators on development

assistance should be read within the framework of the obligations of international

assistance and cooperation assumed by States Parties to the ICESCR.

So while it would be

difficult to bind States to human rights obligations through the MDGs, they represent a

commitment to, and perhaps a framework for, the realization of ETOs. But with those goals

set to go expire, and the ambition of the proposed Sustainable Development Goal on

See for example: Convention Against Discrimination in Education (adopted 14 December 1960); International

Convention on the Protection of All Migrant Workers and Members of their Families (adopted 18 December 1990)

UNGA Res 45/158, art 30; Convention on the Elimination of All Forms of Discrimination against Women (adopted

18 December 1969) 1249 UNTS 13, art 10; Declaration on the Rights of Indigenous Peoples (adopted 2 October

2007) UNGA Res 61/295, art 14; Convention on the Rights of Persons with Disabilities (adopted 24 January 2007)

UNGA Res 61/106, arts 4(2), 24, 32.

See for example: UNGA, `United Nations Millennium Declaration' (adopted 18 September 2000) A/RES/55/2; UN,

`Report of the World Summit on Sustainable Development' (Johannesburg, 26 August - 4 September 2002)

A/CONF.199/20; UN, `Follow-up International Conference on Financing for Development to Review the

Implementation of the Monterrey Consensus' (Doha, 9 December 2008) A/CONF.212/L/Rev,1; UNGA, `High-level

Meeting of the General Assembly on the realization of the MDGs and other internationally agreed development

goals for persons with disabilities' (27 February 2012) A/Res/66/124.

UN, `Goal 2: Achieve Universal Primary Education' (Millennium Development Goals and Beyond 2015) <

http://www.un.org/millenniumgoals/education.shtml>

Sigrun Skogly, Beyond National Borders: States' Human Rights Obligations in International Cooperation

(Intersentia Uitgevers N V 2006) 143.

Jean-Michel Severino, `MDGs: looking beyond 2015' (Ideas for Development, 3 October 2007).

Philip Alston, `A Human Rights Perspective on the Millennium Development Goals' (UN Millennium Project 2004).

Magdalena Sepúlda Carmona, `The obligations of `international assistance and cooperation' under the ICESCR. A

possible entry point to a human rights based approach to MDG 8' (2009) 13(1) IJHR 86.

education aiming beyond the core of the right,

the relevance of such an interpretation is

called into question.

III. ETOs and the concept of `jurisdiction' in IHRL

It has become clear that in today's globalized world, States and other actors exert

considerable influence over the realization or the failure to realize ESCR in other States.

Courts have generally reduced extraterritorial obligations for human rights to questions of

jurisdiction. There is no single definition of jurisdiction of international law,

but in its

essence jurisdiction represents "the right of States to regulate conduct, international law

setting the limits to this right and domestic laws prescribing the extent to which States

make use of this right."

It can also be used more generally to refer to power, authority, or

control.

Any limit of human rights protections along jurisdictional lines should not presume

that States act only within defined legal bounds; unlawful exercises of `jurisdiction' are

certainly not uncommon. ETOs arise not as a result of legitimacy of exercise, but of the

relationship between the individual and the State in relation to the violation.

With some notable exceptions, drafters of human rights treaties have often delimited

human rights protections along `jurisdictional' lines. As we have seen, the scope of the CRC

is limited to "each child within [the] jurisdiction" of a State Party, excepting those

obligations of international cooperation in article 4.

In the realm of civil and political rights

(CPR), the International Covenant on Civil and Political Rights (ICCPR) is limited "to all

individuals within its territory and subject to its jurisdiction",

although this provision has

repeatedly been interpreted disjunctively.

The Courts and human rights treaty bodies suggest a two-fold approach to situations

of establishing foreign State `jurisdiction'. The first type where a State exercises control

over foreign territory as a result of occupation or otherwise leads to the establishment of

prima facie `jurisdiction' over all individuals within that territory.

Perhaps less widely

accepted, jurisdiction resulting from control over a person as a consequence of link between

the individual and the State has also been established. Generally, human rights bodies seem

to be quite willing to apply the doctrine of positive and negative obligations extraterritorially

provided the State has the `power' or capability to positively influence a person's human

See Goal 4: Ensure inclusive and quality education for all and promote lifelong learning at: UN, `Sustainable

Development Goals' (2015) <http://www.un.org/sustainabledevelopment/sustainable-development-goals/>.

See Milanovic (no 15), 39.

See Maarten Den-Heijer and Rick Lawson (no 46) 155.

See Milanovic (no 15), 39.

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)

[Advisory Opinion] (ICJ Reports, 1971), para 118.

See CRC (no 7) article 2(1).

ICCPR (adopted 16 December 1996, entered into force 23 March 1976) 999 UNTS 171, article 2(1).

HRCm, `General Comment 31: Nature of the General Legal Obligations on States Parties to the Covenant' (2004)

CCPR/C/21/Rev.1/Add.13, para 10.

Ilascu and others v. Moldova and Russia [GC], App. No. 48787/99 (ECtHR, 9 July 2004), para 311-319.

rights situation.

However, this has been curbed by stipulations of exceptionality and

practicality.

In situations where a State has established control over territory whether by

peaceful or aggressive means and whether in whole or in part it would seem logical to

extend human rights obligations therein, at the very least in terms of obligations to respect

and protect. This is for two main reasons: (i) that the controlling State could have a notable

impact on the rights of those residing there by nature of its control, and (ii) as otherwise

the persons on that territory may otherwise be in a rights vacuum, rendered void of any

effective protection. The clearest demonstration of this would be in cases of occupation -

explored further in the subsequent section.

The European Court of Human Rights (ECtHR) has extended the scope of the European

Convention of Human Rights (ECHR) which is limited to "everyone within [the State's]

jurisdiction"

to exercises of effective control of an area. This fact (as opposed to the

right to exercise that control) enlivens the obligation "to secure, in such an area, the rights

and freedoms set out in the Convention" regardless of whether such control is exercised

"directly, through its armed forces, or through a subordinate local administration".

In the

most general terms, to have `effective control' means that the State has "enough power in

the territory and its inhabitants to broadly do as it pleases".

In the much discussed Bankovi and others v. Belgium, the ECtHR forcefully rejected

an approach under which "anyone adversely affected by any act imputable to a Contracting

State" is under the jurisdiction of a State.

Instead, the Court adopted a strict spatial,

territorial model of jurisdiction, noting that such jurisdiction is "exceptional".

The Court

also appeared to raise the bar for establishing territorial jurisdiction to almost solely

situations of occupation, requiring that the controlling State "exercise all or some of the

public powers normally to be exercised by [the national] government".

100

Thus establishing

a relationship between the individual and the State to meet the Bankovi definition of

`jurisdictional link'

would appear to require that the exercise of State authority be of certain

duration or has overall repercussions for the person concerned.

101

The ECtHR would later

backtrack from this stringent interpretation of the territorial control requirement.

102

In Issa

v. Turkey the Court allowed for the possibility that jurisdiction could be exercised over a

See Olivier De Schutter and others (no 47), 106-1109.

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human

Rights, as amended) (entered into force 3 September 1953) art 1.

Loizidou v. Turkey, App. No. 15318/89 (ECtHR, 23 February 1995), para 62.

See Milanovic (no 15), 137.

Bankovic and Others v. Belgium and Others [GC] App. No. 52207/99 (ECtHR, 12 December 2001), para 75.

ibid, paras 61, 71.

100

ibid, para 71.

101

See Maarten Den-Heijer and Rick Lawson (n 46) 177

102

See Milanovic (no 15), 137; See Ilacu and others v. Moldova and Russia, (no 93).

limited area, for a short period of time, on condition of less permanence and without any

exercise of public power.

103

In Catan and Others v. Moldova and Russia, the ECtHR specifically addressed the ETOs

of States party to the ECHR in relation to education. The case concerned violations of the

right to education in the Transdniestrian region of the Republic of Moldova, which was under

the de facto control of Russian Federation-backed separatists - the Moldovan Republic of

Transdniestria (MRT) administration. The forced closure of schools and acts of harassment

and intimidation of ethnic Moldovans were conducted by the MRT authorities following the

introduction of a law whereby schools in the region could only operate in and teach the

Moldovan language as written in the Cyrillic alphabet, rather than the much more commonly

used Latin one. This effectively prescribed that Moldavian-speaking children received an

education that provided children with full functional literacy in no recognized language at all.

The ECtHR emphasised that the same relevant period was already considered in

Ilacu and Others v. Moldova and Russia, where the Court found that the MRT survived by

virtue of the military, economic and financial and political support of the Russian Federation

and thus that it "remains under the effective authority, or at the very least under the

decisive influence, of the Russian Federation".

104

Thus, while the Court clearly applied the

spacial model of jurisdiction, it apparently lowered the threshold of the needed control to

one of `decisive influence'.

105

Such a threshold could have an interesting interpretation for

the right to education more broadly, since it is not difficult to imagine a political relationship

between States which could be characterized as one of `decisive influence'. Consider, for

example, the policy impacts of conditionalities previously imposed on development

assistance.

It is unclear from the Court's judgement what exactly are the obligations of Russia in

relation to education. The actions of the MRT are obviously contrary to the negative

formulation of the right to education in the Protocol to the ECHR that "no person shall be

denied the right to education"

106

as it has clear and tangible effects on the `4As' of the

education of ethnic Moldovan schoolchildren.

107

Still, the Court has held that "it cannot be

concluded that the State has no positive obligation to ensure respect for such a right"

(emphasis added).

108

As in Ilacu, the Court did not clarify the concrete human rights

obligations of Russia in relation to the controlled territory of Transdniestria. Could the

Russian Federation have an obligation to finance education in the region if required, for

103

Issa and others v. Turkey, Ap. no. 31821/96 (ECtHR, 16 November 2004), para 69-71.

104

See Ilacu (no 93), para 392.

105

Marko Milanovic, `Grand Chamber Judgement in Catan and Others' (EJIL: Talk!, 21 October 2012).

106

Protocol to the ECHR for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocol

No 11)(entered into force 1 November 1998)

20.III.1952, art 2

107

Diana Elena Balanescu, `Safeguarding Education Beyond Borders' (2014) 8 (4) Vienna Journal on International

Constitutional Law 34.

108

Case "Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium" v. Belgium

(Merits)(Belgian linguistic case), Ap. No. 1474/62, 1677/62; 1691/62; 1769/63, 1994/63, 2126/64 (ECtHR, 23 July

1968).

example? It is unclear, although in this case it was noted that the Moldovan Government

provided financial resources in order for the schools to continue to function as part of its

positive obligation to fulfil education on its sovereign territory.

In this vein, the ECtHR has

only said that the "the controlling State has the responsibility ... to secure, within the area

under its control, the entire range of substantive rights".

109

Jurisdiction has also been conceived as embodying any exercise of State authority

which causes `incidental' effects in a foreign territory, including acts by authorized State

agents. On reflection, this test constitutes a very low threshold, rather encompassing an

approach where States must always act in conformity with their human rights obligations,

irrespective of territorial constraints.

110

This form of authority establishes jurisdiction in

based on an existing relationship between the individual and the State. What is decisive is

that there is a "causal nexus between the extraterritorial conduct of the State and the

alleged violation of the rights and freedoms of an individual".

111

This approach was earnestly

rejected by the ECtHR in Bankovi as it would render would render the words `within their

jurisdiction' "superfluous and devoid of any purpose".

112

It would appear from some recent

decisions, however, that the Court is slowly distancing itself from that interpretation in

favour of a more generous understanding of `jurisdiction'. Indeed, the Court has adopted

the formula that jurisdiction clauses "cannot be interpreted so as to allow a State party to

perpetrate violations of the Convention on the territory of another State, which it could not

perpetrate on its own territory".

113

Overall, the application of the effective control test by the ECtHR has been rather

dissonant. As the stakes in Bankovi were quite high as a legally binding and politically

charged decision the Court may have been concerned that States would find themselves

ill-equipped to live up to each and every human rights standard of the ECHR when they

engage in foreign countries.

114

It does not seem correct, however, to assume that because

a State is unable to guarantee everything, it is to guarantee nothing.

115

Rather, where a

State exercises control, the obligation should be to do all that it can to secure human rights.

So far, this analysis has dwelled quite extensively on cases pertaining to CPR. This is

generally because legal pronouncements on the extraterritorial application of ESC are far

more rare, but also because the obligations of the two sets of rights are not totally different.

While it has been argued that CPR obligations extraterritorially focus on general negative

109

Al Skeini and others v. United Kingdom [GC], Ap. no. 55721/07(ECtHR, 7 July 2011), para 138.

110

Celiberti de Caseriego v. Uruguay, comm. no. 52/1979 (HRCm, 1981) CCPR/C/13/D/56/1979, para 10; Lopez

Burgos v. Uruguay, comm. no. 52/1979 (HRCm, 1981) CCPR/C/13/D/52/1979, para 12.

111

Franklin Guillermo Aisalla Molina, Ecuador v. Colombia (Admissibility), report no. 112/10 (IACrtHR, 21 October

2010) OEA/Ser.L/V/II.140, para 99.

112

See Bankovi (no 98), para 75.

113

First established in Lopez Burgos v Uruguay (no 110),para 12(3);See Issa and others v. Turkey (no 103),para

71.

114

See Maarten den Heijer and Rick Lawson (no 46) 180.

115

R. (on the application of Al-Skeini and Others) v. Secretary of State for Defence) (2005) EWCA Civ 1609, ALL

ER (D) 337 (Dec) (Response from Judge Sedley), paras 194, 196 and 197.

obligations to refrain from actions which violate human rights,

116

they also include positive

measures such as investigatory, legislative or financial duties. Yet, unlike CPR treaties,

ESCR treaties often impose specific obligations upon States to engage in cooperation with

other States. Making these general obligations dependent on the existence of a

`jurisdictional link' would largely deprive them of any applicability. For example, it would be

challenging if not impossible to establish Germany's jurisdiction over the children

affected by the activities of Bayer using the test of effective control. That being said, this

does not mean that a jurisdiction framework is inapplicable to extending ETOs for ESCR.

A number of the Optional Protocols establishing complaints mechanisms for treaties

containing ESCR rights contain jurisdiction clauses,

117

presupposing a jurisdictional link at

least for matters of justiciability. Further, in connection to Israel's obligations regarding the

occupied Palestinian Territories, the ICJ and the CESCR delimited Israel's extraterritorial

duties by reference to "territorial" and "geographical, functional or personal jurisdiction"

respectively.

118

Thus, while jurisdiction might not be workable for all situations of

extraterritorial obligations, it is still generally used to delimit specific responsibilities.

In Application of the International Convention on the Elimination of All Forms of Racial

Discrimination (CERD), the ICJ did not find it necessary to first establish that the Russian

authorities asserted jurisdiction or some form of authority or control over persons there,

focusing exclusively on the `actions' of the States parties. As the CERD lacks a jurisdiction

clause, the ICJ seemed to operate on the presumption that human rights treaties apply

extraterritorially unless a treaty provisions contains a specific territorial limitation. In this

case, the ICJ held that Russia had the obligation "to do all in [its] power to ensure that

public authorities and public institutions under [its] control or influence do not engage in

acts of racial discrimination".

119

Firstly, this is notable as `under its control or influence' is a

much lower threshold than that of `effective control' as generally interpreted for jurisdiction

clauses. Secondly, in relation to Russia's obligations under the CERD, the ICJ did not seem

to balk in interpreting positive obligations in respect to persons not under the control of the

State. Here, obligations were derived from the capacity of Russia to act.

It seems clear from the object and purpose of human rights conventions generally

that States Parties should be bound to secure the rights of all persons under their actual

authority and responsibility, including through their authorised agents. Having signed onto

them, a State should be guided by its human rights obligations regardless of territorial

considerations. Still, this sounds strikingly close to a universality-based conception of ETOs,

116

See Fons Coomans (no 23) 186.

117

See for example the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

(adopted 5 March 2009) A/Res/63/117, art 2.

118

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, 9 July 2004 (Advisory

Opinion) ICJ Reports 2004 <http://www.icj-cij.org/docket/files/131/1671.pdf> accessed 30 June 2015, para 112;

CESCR, `Concluding observations on Israel' (1999) E/1999/22, para 232-234.

119

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.

Russia) 15 October 2008 (Order- Request for Provisional Measures) ICJ Reports 2008, para 109

which has already been framed herein as rather unworkable. Instead, obligations should be

framed as ones of due diligence, i.e. for the State to do what is within its power to

contribute to the fulfilment of the right to education extraterritorially.

120

According to the

Maastricht Principles, ETOs arise when a State "is in a position to exercise decisive influence

or to take measures to realize economic, social, and cultural rights extraterritorially, in

accordance with international law".

121

This is a much broader understanding of `jurisdiction'

than what has been employed namely by the ECtHR to delineate ETOs for CPRs.

IV. Causality, division of responsibility and other challenges

There is an absence of consensus among States and academics as to the precise scope

of extraterritorial human rights obligations. For example, at this point in delimiting the ETOs

for ESCR, it is not clear when and to what extent a State is deemed to be in a position to

assist, other than that it depends on availability of resources.

122

Who has obligations to

whom, and how these obligations are discharged (bilaterally or multilaterally, financially or

technically, etc.) is at present unclear. This section has attempted to outline the general

framework as regards the right to education, however it is worth noting that a number of

challenges similar to this have been sidelined, not for lack of relevancy but rather limited

space.

As human rights are in essence rights that people hold against a State, ETOs would

then consist of a "diagonal relationship of individuals expressing their grievances against

foreign States".

123

Further, it should be recalled that State responsibility and jurisdiction are

not synonymous. When trying to determine State responsibility for an extraterritorial

human rights violation, it is necessary to not only link the foreign State to the event, but

also establish that its acts or omissions were sufficiently close or significant to cause the

violation (`real risk'), or perhaps maybe have been a foreseeable consequence of that

action.

124

This can be extremely challenging in situations of ETOs, for ESCR especially. For

example, determining that violations on the right to education were the direct result of

sanctions on Burundi may be challenging in itself; to then attribute those consequences to

each State imposing those sanctions, or a single State in the bunch, may be even more

difficult. On a similar note, ensuring a remedy for ETOs would be a further challenge,

120

See Milanovic (no 15), 210; See Vélásquez Rodríguez (no 48), 172.

121

See Maastricht Principles (no 1), principle 9.

122

Ashfaq Khalfan , `Division of Responsibility amongst States' in Malcolm Langford and others (eds), Global

justice, state duties: the extraterritorial scope of economic, social, and cultural rights in international law

(Cambridge University Press 2012), 324.

123

Malcolm Langford and others, `Introduction: An Emerging Field' in Malcolm Langford and others (eds), Global

justice, state duties: the extraterritorial scope of economic, social, and cultural rights in international law

(Cambridge University Press 2012), 5.

124

ILC, `Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries' (Report

of the International Law Commission on the Work of its Fifty-third Session, 2001) A/56/10, arts 1 and 2; See

Olivier de Schutter et al. (no 47), 112-115; Sigrun I. Skogly, `Causality and Extraterritorial Human Rights

Obligations' in Malcom Langfor and others (eds), Global justice, state duties: the extraterritorial scope of economic,

social and cultural rights in international law (Cambridge University Press 2012), 233.

although it has been argued that "in meeting their obligations to ensure remedy, States

would not be starting from an entirely blank slate."

125

It is not difficult to imagine, though,

the extent that accountability would be contingent on political processes.

Suffice to say that at present the framework for the ETOs for the right to education

have perhaps not quite reached a level of lucidity so as to be effective. While the existence

of such obligations is clear, the doctrine lacks clarity and predictability, as can be seen by

the varied opinions of human rights bodies, the high standards generally set by Courts and

the potentially limitless scope of cooperation obligations.

V. ETOs for Education in Emergencies

Education in emergencies is about normalcy, continuing development, and can even

be about survival. For the purposes of this dissertation, "emergencies" are "any crisis

situations due to natural causes such as earthquake, tsunami, flood or hurricane, or to

armed conflict, which may be international (including military occupation) or internal, as

defined in international humanitarian law (IHL)".

126

While this section may not be able to

address each of the issues presented with the depth they warrant, it is nevertheless an

important area to explore given the consequences these situations have on the realization

of the right to education. Nearly half of the world's out-of-school children live in countries

where there is or has recently been an armed conflict, and recurrent and calamitous natural

disasters - particularly in impoverished regions - have devastating consequences for school

infrastructure, teaching and educational opportunities for affected children.

127

States are "under permanent and universal obligation" to respect and ensure the

IHRL obligations by which they are bound.

128

Thus, the right to education continues to apply

even when disaster strikes. That being said, emergency situations often necessitate special

measures which may limit the enjoyment of ESCR such as a constraint on the `maximum of

its available resources' or by recourse to article 4 of ICESCR which recognizes that rights

may be subject to certain limitations "for the purpose of promoting the general welfare in a

democratic society".

It would be unreasonable to expect that the enjoyment of the right to education

would be unaffected by an emergency situation. Nevertheless, the right to education

continues to apply, particularly with reference to a "minimum level of quality, access and

125

Ashfaq Khalfan , `Accountability Mechanisms' in Malcolm Langford and others (eds), Global justice, state duties:

the extraterritorial scope of economic, social, and cultural rights in international law (Cambridge University Press

2012), 415.

126

Vernor Muñoz, `Right to education in emergency situations: Report of the Special Rapporteur on the right to

education' (UNGA, 2008) A/HRC/10, para 5.

127

ibid para 6-7.

128

Educardo Valencia-Ospina, `Preliminary report on the protection of persons in the event of disasters' (UNILC,

2008) A/CN.4/598, para 25; Declaration on the Protection of Women and Children in Emergency and Armed

Conflict (adopted 14 December 1974) UNGA Res 3318(XXIX)), art 6.

accountability".

129

While the domestic State's primary responsibility in responding to

disasters - and concurrently securing education - is well recognized,

130

other States are also

stakeholders of education in emergencies. The CESCR has highlighted that "States Parties

have a joint and individual responsibility... to cooperate in providing disaster relief and

humanitarian assistance in times of emergency... Each State should contribute to this task

to the maximum of its capacities."

131

Humanitarian action assistance, protection and

advocacy actions undertaken on an impartial basis in response to an emergency -

132

thus

becomes an essential component of cooperation obligations in relation to the affected State,

not only in its existence, but also the manner in which it is actualized.

For instance, it has been suggested that while as yet untested a State could be

held accountable for misconduct or malpractice by an international NGO delivering

assistance on behalf of that State, or with the assistance of government structures.

133

could also be argued that state responsibility is engaged for the quality of the humanitarian

assistance donors support, as has been suggested in the right to food.

134

This argument is

further supported by frequent references to international standards and professional codes,

namely the INEE Minimum Standards for Education: Preparedness, Response, Recovery.

135

Obviously, the provision of humanitarian assistance plays a large role in responses to

emergencies. Humanitarian assistance can be defined as "aid that seeks to save lives and

alleviate suffering of a crisis-affected population".

136

Regardless of the perceived

righteousness of humanitarian assistance, it is also contentious. Affected States often raise

concerns about the way in which humanitarian action is undertaken, particularly with regard

to State sovereignty and territorial integrity as well as coordination and organization. In

situations of armed conflict, there may be a fear that the humanitarian assistance will be

intercepted and support the opposing side. As a result, governments tend to stress the need

to respect the humanitarian principles of `impartiality, neutrality and independence'

137

and

the need to ensure `safe and unhindered access'.

138

While this discussion sidelines critiques

129

INEE, `Minimum Standards for Education in Emergencies, Chronic Crises and Early Reconstruction' (2004), 6.

130

See for example UNGA Res 46/182 (19 December 1991) UN Doc A/RES/46/182.

131

See CESCR, `General Comment 14' (no 47) para 40.

132

`Glossary of Humanitarian Terms' (ReliefWeb, 2008), 31 <http://www.who.int/hac/about/reliefweb-

aug2008.pdf>.

133

Caroline Ford, `The accountability of states in humanitarian response (2003) 24 Humanitarian Exchange

Magazine.

134

Food and Agriculture Organization of the UN, `The Right to Food Guidelines: Information Papers and Case

Studies' (2007), 15.

135

See for example `Interim report of the Special Rapporteur on the right to education' (Sixty-sixth session, 5

August 2011) A/66/269, paras 62, 84.

136

See `Glossary of Humanitarian Terms' (no 132), 31.

137

OCHA, `What are Humanitarian Principles' (June 2012) <https://docs.unocha.org/sites/dms/Documents/OOM-

humanitarianprinciples_eng_June12.pdf>.

138

ICRC, Customary IHL Database (2015), rule 55 <https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule55>.

on the model of international relief efforts, humanitarian responses have been criticised for

undermining national capacities as well as poor coordination on the ground.

139

Thus, the centrality of sovereignty in international law must be recalled;

140

the

delivery of humanitarian assistance is dependent on the consent of the government of the

affected country.

141

There is an emerging debate - inflamed by the Syrian context - that

when a government continues to unreasonably withhold its consent arbitrarily, the

international community can undertake humanitarian action forcibly.

142

However, for ease of

analysis, this discussion assumes that State consent is hypothetically established, and a

non-issue.

A debate that is potentially at issue here is whether necessity to provide

humanitarian assistance has evolved to become a fundamental right. The traditional

understanding of humanitarian assistance as a solely charitable operation is slowly being

eroded by examinations of the issue through the legal realm. The Code of Conduct for the

International Red Cross and Red Crescent Movement and Non-Governmental Organisations

(NGOs) in Disaster Relief states that "the right to receive humanitarian assistance, and to

offer it, is a fundamental humanitarian principle which should be enjoyed by all citizens of

all countries" (emphasis added).

143

A comparable articulation is included in the similarly

soft-law Guiding Principles of Internal Displacement

144

as well as the Humanitarian Charter

and Minimum Standards in Humanitarian Response.

145

These instruments are relevant

insofar as they are evidence of practice, however do not necessarily prove that such a right

exists.

According to the classical sources of international law,

146

international law rules are

primarily found in treaties, international custom and general principles of law recognized by

civilized nations. As there is presently no multilateral treaty directly

147

setting out the right

139

Active Learning Network for Accountability and Performance in Humanitarian Action, `The role of national

governments in international humanitarian response to disasters: Meeting background paper' (26

ALNAP Meeting,

Kuala Lumpur, 16-17 November 2010) 4.

140

See Charter of the UN (no 19), art 2(1).

141

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 8 June 1977) 1125 UNTS 3, art

70(2); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims

of Non-International Armed Conflicts (Protocol (AP) II) (adopted 8 June 1977, entered into force 7 December 1978)

1125 UNTS 609, art 18(2).

142

See for example `Syria: open letter to the UN on humanitarian aid' (International Bar Association, 28 April 2014)

<http://www.ibanet.org/Article/Detail.aspx?ArticleUid=73b714fb-cb63-4ae7-bbaf-76947ab8cac6>; Naz

Modirzadeh, `Strong Words Weak Arguments: A response to the open letter to the UN on humanitarian assistance

in Syria' (Opinio Juris, 12 May 2014) <http://opiniojuris.org/2014/05/12/guest-post-strong-words-weak-

arguments-response-open-letter-un-humanitarian-access-syria-part-1/>.

143

IFRC and ICRC, `The Code of Conduct for the International Red Cross and Red Crescent Movement and Non-

Governmental Organisations (NGOs) in Disaster Relief' (1994), 3.

144

OCHA, `Guiding Principles on Internal Displacement' (1998)

E/CN.4/1998/53/Add.2, principle 3(2).

145

The Sphere Project, `Humanitarian Charter and Minimum Standards in Humanitarian Response' (Practical Action

Publishing, 2011)

146

Statute of the International Court of Justice (18 April 1946), art. 38.

147

The following provisions indirectly reference humanitarian assistance: African Charter on the Rights and Welfare

of the Child (adopted 11 July 1990, entered into force 29 November 1999) CAB/LEG/24.9/49, art 23; See ICRPD

(no 78), art 11; African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa

(`Kampala Convention') (adopted 22 October 2009, entered into force 6 December 2012), art 9(2)(b).

to receive humanitarian assistance, it is consequently most likely to derive from

international custom. For a norm to be considered customary international law, it must be

supported by extensive and virtually uniform state practice guided by the perception of its

legally binding character (opinio juris).

148

The multitude of agreements related to relief

operations and the scale of those operations support state practice, however the

"willingness of States to render assistance does not necessarily imply the existence of a

right under international law for victims of natural disasters to receive humanitarian aid."

149

As current positive international law does not explicitly recognize a right to

humanitarian assistance,

150

and an obligation cannot be formed through custom, it is

submitted that obligations surrounding its provision exist as a complementary entitlement

to other human rights rather than as a self-standing right. The responsibility of those in a

position to do so to provide humanitarian assistance is thus actionable through the

intermediation of the component rights.

151

If the emergence of humanitarian assistance as a

legal entitlement for the fulfilment of human rights in emergencies is accepted, wherein

does the right to education apply? Humanitarian relief has traditionally been understood as

the provision of food, shelter, water and sanitation and healthcare.

This approach has been criticised as "merely suppl[ying] calories for the stomach

and water for the throat reduc[ing] people to things".

152

Thus, it has been argued that the

inclusion of education within humanitarian response is now considered "critical".

153

Indeed

the UN General Assembly (UNGA) has identified "that protecting schools and providing

education in emergencies should remain a key priority of the international community and

Member States."

154

Still, funding and investment in education during emergencies remains

low; less than 2% of emergency assistance went to education and learning opportunities in

2013.

155

The impacts of emergencies vary in intensity and duration. It is well known that in

some situations, people displaced as a result of disaster or conflict can spend decades in

camps or in host countries (often developing countries themselves) with the `4As' of

education varying greatly. These host countries are often unable to independently cope with

the burden of such an influx of people. For example, the five main countries hosting Syrian

148

North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of

Germany/Netherlands) 20 February 1969 (Judgement), ICJ Reports 1969, para 74.

149

Rohan J. Hardcastle and Adrian T.L. Chua, `Humanitarian Assistance: Towards a Right of Access to Victims of

Natural Disasters' (1998) 38 International Review of the Red Cross 589.

150

Annalisa Creta, `A (Human) Right to Humanitarian Assistance in Disaster Situations? Surveying Public

International Law' in Andrea de Gutrry, Marco Gestri and Gabriella Venturini (eds), International Disaster Response

Law (TMC Asser Press 2012) 353.

151

David Fisher, `The Right to Humanitarian Assistance' in Walter Kälin and others (eds), Incorporating the Guiding

Principles on Internal Displacement into Domestic Law: Issues and Challenges (The American Society of

International Law 2010), 53.

152

See Vernor Muñoz, `Education in Emergencies' (no 126) para 31.

153

See INEE (no 129), 2.

154

UNGA Res 64/290 (27 July 2010) UN Doc A/RES/64/290.

155

UNICEF, `Education Under Fire: How conflict in the Middle East is depriving children of their schooling' (2015),

34.

refugees have generally allowed Syrian students access to public schools, but demands

have far outstretched their limited resources.

156

Humanitarian assistance is often an actionable channel for the realization of the right

to education in these situations, arising not from obligations of jurisdiction, but from an

enhanced vision of obligations of cooperation. The CESCR has highlighted this `joint and

individual responsibility', demonstrating that in times of emergency perhaps especially

international cooperation for those `in a position to do so' is envisaged as a duty rather than

a free choice.

157

Once again, the obligations are ones of due diligence, but should not be

limited to extenuating situations of emergency; education should recommence "as soon as

possible after any disruption caused by the emergency" (emphasis added).

158

Finally, it is

worth noting that promptly addressing education needs during and following an emergency

also limits the subsequent and sometimes lasting shocks to the affected country's overall

development.

i. International Disaster Response Law

Unlike armed conflicts, natural disasters have no legally binding framework to govern

the actions of actors involved in delivering assistance and recovery. That being said, an

emerging corpus of law - termed International Disaster Response Law (IDRL) - has been

framed by more than 300 hard-law and soft-law instruments for the protection of persons

when disasters strike,

159

and covers "the laws, rules and principles applicable to the access,

facilitation, coordination, quality and accountability of international disaster response".

160

Although IDRL is still in its infancy and gaps remain in its framework, its emphasis

on international humanitarian assistance seems to support the affirmed juridical character

of such relief in the current international legal order. The International Federation of Red

Cross and Red Crescent (IFRC) has played a major role in the development of this body of

law, including presenting the non-binding Guidelines for the domestic facilitation and

regulation of international disaster relief and initial recovery assistance which received wide

support from States. Echoing both IHL and HRL, the Guidelines affirm that the secondary

responsibility of the international community for the welfare of the population.

Included in those documents making framing the development of IDRL

161

is the

Manual to the Operation Guidelines on Human Rights and Natural Disasters, which affirms

that "as soon as conditions permit, children affected by disasters, whether displaced or not,

156

ibid, 33.

157

Gabriella Venturini, `International Disaster Response Law in Relation to Other Branches of International Law' in

Andrea de Guttry, Marco Gestri and Gabriella Venturini (eds), International Disaster Response Law (TMC Asser

Press 2012) 62.

158

See INEE (no 129), 42.

159

For a list see UNILC, `Second Addendum to the Memorandum of the Secretariat on the Protection of Persons in

the Event of Disasters' UN Doc A/CN.4/590/Add.2.

160

IFRC, `Introduction to the Guidelines for the domestic facilitation and regulation of international disaster relief

and initial recovery assistance' (2011), 13 at 1.

161

See UNILC (no 159), no 347.

have the right to receive education that shall be free and compulsory at the primary level"

and that this education "should respect their cultural identity, language and tradition".

162

While the role of education in this emerging body of law is perhaps not as yet sufficiently

developed for an in-depth analysis, this seems to suggest that (i) education is recognized as

being encompassed in the definition of humanitarian relief and, given the broader

framework of IDRL, (ii) there is a perceived extraterritorial role for States in its realization.

ii. The Right to Education during Armed Conflict

In times of international (IAC) or non-international armed conflict (NIAC),

international humanitarian law (IHL) regulates humanitarian assistance and access as well

as provides a set of rules which - in seeking to limits the effects of armed conflict - protect

education. Unlike IHRL, IHL does not set out particular right to education, but rather

protects people and education during armed conflict by prohibiting certain conduct. It is

important to note that IHL does not recognize a single concept of `armed conflict' but rather

differentiates between IACs and NIACs armed conflicts, as defined in the relevant provisions

of the Geneva Conventions and its Additional Protocols.

163

Where relevant, this distinction

will be made clear.

While IHL and IHRL are separate legal regimes, it has now been established that

they apply concurrently.

164

The extent to which they overlap is a matter of interpretation,

and determining the more specific and thus overriding rule (lex specialis) in various

situations has been the pursuit of much scholarly and judicial exertion. The ICJ, in its

Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory, notes three possibilities saying "some may be exclusively matters of

[IHL]; others may be exclusively matters of [IHRL]; yet others may be matters of both"

with IHL characterised as the lex specialis.

165

As regards education, the possible interplay

and overlap between these two bodies in certain situations will be explored forthwith.

a. Special protection of education in IHL

Under customary IHL, children who are affected by armed conflict are entitled to

special respect and protection, including as regards access to education.

166

The Geneva

Convention IV relative to the Protection of Civilian Persons in Time of War (GC IV),

applicable in IACs, protects the education of children under 15 who have been orphaned or

separated from their families.

167

The Protocol Additional to the Geneva Conventions relating

to the Protection of Victims of International Armed Conflicts (Additional Protocol (AP) I)

162

Brookings-Bern Project on Internal Displacement, `Human Rights and Natural Disasters: Operational Guidelines

and Field Manual on Human Rights Protection in Situations of Natural Disaster' (Pilot version, 2008), 40.

163

See GCIV, (no 167), common arts 2 and 3; APII (no 141), art 1.

164

See Nuclear Weapons Case (no 34), para 25.

165

See Wall Case (no 118), para 106.

166

ICRC, Customary IHL Database (2015), rule 135 <https://www.icrc.org/customary-

ihl/eng/docs/v1_cha_chapter39_rule135>.

167

Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention)

(adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287, art 24.

further contains special protections for all children in IAC, stipulating in article 77 that "the

Parties to the conflict shall provide them with the care and aid they require, whether

because of their age or for any other reason".

168

This rule forms part of customary

international law, applicable in both IACs and NIACs.

169

Although it does not specifically

mention education, this could be interpreted in the facilities required for the `care and aid'

children required, which should be provided "as far as possible in armed conflict".

170

It has

been argued that the purpose of this provision is broad enough to support the provision of

education, and indeed that a relatively broad interpretation of the right to education can be

interpreted into the `care and aid' required in armed conflict.

171

Further, the article requires

that children be given care and aid and thus education appropriate to their specific

needs, whether age "or any other reason". This phrase was deliberately included by the

drafters to encompass children with physical and mental disabilities.

172

As regards NIACs specifically, article 4(3)(a) on the fundamental guarantees of

Protocol Additional to the Geneva Conventions and Relating to the Protection of Victims of

NIACs (Additional Protocol (AP) II) states that children shall be provided "with the care and

aid they require", in particular that they shall "receive an education". As this provision is

phrased to address the individual needs of children (`the care and aid they require'), it has

been argued that this protection supports the interpretation that the education needs of

children, including those with disabilities and from disadvantaged groups, ought to be taken

into account.

173

The requirement that education is acceptable permeates the provisions

protecting education in IHL. For those articles specifically referencing education, it is clear

from the commentaries that `education' should be understood in a broad sense, including

moral and religious instruction.

174

Further, these provisions include references to culturally

appropriate education,

175

parental input and wishes,

176

and - as we have seen

inclusiveness.

Of course, these provisions are addressed to the parties to the conflict, so would

obviously apply extraterritorially when one of those parties is engaged on the territory of

another. Further, though, the Geneva Conventions are absent a jurisdiction clause,

requiring that all States Parties "respect and ensure respect...in all circumstances".

177

The

Commentary to this provision a non-binding authoritative interpretation of the provisions

168

See API, (no 141), art 77.

169

See ICRC, Customary IHL Database (2015), rule 135 <

https://www.icrc.org/customary-

ihl/eng/docs/v1_cha_chapter39_rule135>

170

ibid.

171

Horowitz JT, `The Right to Education in Occupied Territories: Making more room for human rights in occupation

law' (2004) 7 Yearbook of International Humanitarian Law 233, 273.

172

Kristin Hausler, Nicole Urban and Robert McCorquodale, `Protecting Education and Insecurity and Armed

Conflict: An International Law Handbook' (British Institute of International and Comparative Law and Education

Above All, 2012), 105.

173

Kristin Hausler, Nicole Urban and Robert McCorquodale (no *), 107.

174

Jean Pictet (ed.) Commentary on the Geneva Conventions of 12 August 1949 (ICRC, 1952-1960) Vol. 4, 187.

175

See GCIV (no 167), art 24.

176

See APII (no 141) art 4(3)(a).

177

See Geneva Convention IV, (no 167), Common Article 1.

of the Geneva Conventions and Additional Protocols makes it clear that "in the event of a

Power failing to fulfil its obligations, the other Contracting Parties (neutral, allied or enemy)

may, and should, endeavour to bring it back to an attitude of respect for the Convention",

178

including those provisions directed to education.

These obligations are of course curbed by practicality and the realities of military

necessity and State capacity. This is perhaps where the ambiguity surrounding the interplay

of IHRL and IHL lies. As it would seem that the right to education in IHRL is more specified

than the IHL articles protecting education, fundamentally an argument could be made that

IHRL should be the lex specialis. At the same time, though, IHRL was in essence developed

for times of peace. Thus, it is clear that "various, quite plausible prescriptions can be argued

for",

179

and any decision which body of law to apply is ultimately a policy one. If we revert

back to the interpretation of the ICJ in the Wall case that IHL is ultimately the lex specialis

it is possible to employ human rights principles to interpret the above obligations, for

example as regards the `4As'.

This could be done, for example, by reference to content. IHRL contains a wide scope

and distinct extraterritorial obligations for the rehabilitation and reintegration of children

who have been involved in armed conflict,

180

including education as a key component.

181

Both IHL and IHRL contain prohibitions on the direct participation of children in armed

conflict.

182

Many States have committed to "enhanced international cooperation and/or

assistance" for universal education as a tool for preventing such occurrences.

183

The

appropriateness of education for children who have been involved in conflict could thus be

informed through human rights frameworks of rehabilitation and social reintegration. ETOs

for the right to education could also potentially be read into the obligation of States to

`ensure respect' for the prohibition of the use of child soldiers and as part of their obligation

to "take all feasible measures in order that children who have not attained the age of fifteen

years do no take direct part in hostilities".

184

b. Education of interned children and young people

In 2008 it was reported that since 2002 the U.S. had detained hundreds of children

suspected of being `unlawful enemy combatants' and of engaging in `anti-coalition activity'

178

See Pictet (ed.) (no 174), 242.

179

Rosalyn Higgins, Problems and Process: International Law and How We Use It (OUP 1994), 267

180

These include the Optional Protocol to the Convention on the Rights of the Child on the involvement of children

in armed conflict (adopted 25 May 200, entered into force 12 February 2002) A/Res/54/263, art 7; See CRC (no

7), art 38.

181

Beth Verhey, `Child Soldiers: Preventing, Demobilizing and Reintegrating' (African Region Working Paper Series

No. 23, November 2001) <http://www.worldbank.org/afr/wps/wp23.pdf>.

182

See CRC (no 7), art. 38; See Optional Protocol on the involvement of children in armed conflict (no 180); See

Convention on the Worst forms of Child Labour (no 54); ICRC, Customary IHL Database (2015), rule 136 <

https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter39_rule136>.

183

See Convention on the Worst Forms of Child Labour (no 54), art 8.

184

See API (no 141), art 77.

in the armed conflict in Iraq in detention centres in Iraq and Guantanamo Bay.

185

During

international armed conflict, parties are entitled to detain civilians where security makes it

`absolutely necessary'.

186

IHL provides protections to children in detention, including that

the detaining power should ensure that children taken into custody be treated according to

their status as children.

187

In particular, access to prompt judicial mechanisms for children

in detention is provided for in IHRL,

188

and is essential so that children can return to their

regular education as soon as possible. Of course, it should also be kept in mind that children

may also be detained with their parent, and the education of these children should also be

guaranteed.

In the case of an IAC, GC IV states that "[a]ll possible facilities shall be granted to

internees to continue their studies or take up new subjects. The education of children and

young people shall be ensured; they shall be allowed to attend schools either within the

place of internment or outside."

189

As Detaining Power, the U.S. thus had clear

extraterritorial obligations to guarantee the education of detained children. While it appears

that the U.S. undertook efforts to fulfil this obligation, it has been reported that many

detainees under its control were excluded from those programs and did not receive any

other educational services.

190

Still, when undertaking such an analysis it is important to

note that such obligations may differ depending on the duration of the child's detention and

the "practical measures"

191

available to the Detaining Power.

Of course, much academic exertion has been dedicated to the classification of the

conflict in Iraq through its various stages.

192

Should the conflict be classified as a NIAC as

extraterritoriality could still apply in internal conflicts as a result of the potential

`internationalization' of recent NIACs

193

the right to education of these children would

nevertheless be protected through article 4(3)(a) of APII, as introduced above.

Thus, while IHL may not include a right to education, it nevertheless includes

protections of education, including in situations of detention. In situations of armed conflict,

the IHL rules addressing rules of detention would generally be the lex specialis, yet it is

submitted that the rules of IHRL relevant to the right to education which has been

recognized as continuing in situations of detention

194

may clarify the obligations which

185

`U.S. Detains about 500 `Enemy Combatant' Children in Iraq, 10 in Afghanistan' (Fox News, 19 May 2008);

Walter Pincus, `U.S. Has Detained 2,500 Juveniles as Enemy Combatants' (Washington Post, 15 May 2008).

186

See Geneva Convention IV (no 167), art 42.

187

See GCIV (no 167), art 94; API (no 141), art 77.

188

See CRC (no 7), art 40.

189

See Geneva Convention IV (no 167), art 94.

190

Human Rights Watch, `US: Respect Rights of Child Detainees in Iraq' (19 May 2008).

191

See Geneva Convention IV (no 167), art 94.

192

David Turns, `The International Humanitarian Law Classification of Armed Conflicts in Iraq since 2003' in Raul

`Pete' A Pedrozo (ed), The War in Iraq: a legal analysis, International Law Studies Volume 86 (Naval War College

Press 2010).

193

Hans-Peter Gasser, `International non-International Armed Conflicts: Case Studies of Afghanistan, Kampuchea,

and Lebanon (1983) 33 The American University Law Review 145, 145.

194

CmRC, `General Comment 10: Children's rights in juvenile justice (2007) CRC/C/GC/10, para 89; Juvenile

Reeducation Institute v. Paraguay, Series C No. 112 (IACtHR, 2 September 2004), para 174.

arise in such situations, such as issues of acceptability and applicability. For example, this

could include giving attention to traditionally marginalized groups i.e. acceptability

including women, minority and indigenous groups and persons with physical, learning and

psychosocial disabilities.

195

Jurisdiction over children in detention and thus an obligation of due diligence to

secure the right to education can most easily be established through a test of effective

control over territory. In the specific case of the situation above, it could suffice simply to

say that Iraq was Occupying Power during that period, as has indeed been argued.

196

This

model is explored in a following subsection. Conversely, it is possible that detention by a

state on a foreign territory does not take place in a situation where is has control over a

territory, but rather something more like a place - such as a base or a lone building. Here

we can perhaps turn to a personal conception of jurisdiction; for example, in Al-Jedda v. the

United Kingdom the ECtHR found that the applicant's internment by British forces in Iraq

was attributable to the UK and the UK was thus required to `secure' his EtCHR rights.

197

Indeed, physical custody seems one of the most entrenched and indeed logical forms of

personal jurisdiction.

c. Targeting

Unlike detention, `instantaneous extraterritorial acts' such as an actual attack have

been much less accepted as encompassing extraterritorial State jurisdiction, notably being

forcefully rejected in Bankovi, which dealt with deaths caused by the NATO bombing of a

radio and TV station in Belgrade by NATO aircraft. While the existing case law on the matter

has lacked clarity if not been outright contradictory the ECtHR and other human rights

bodies have prior to and following Bankovi  established that extraterritorial killings can

bring the victims within State jurisdiction,

198

some in circumstances strikingly similar to

those in Bankovic.

199

Of course, the condition of `exceptionality' dots many of the

decisions.

200

It is notable that it has been accepted - although somewhat erratically at the ECtHR

- that the use of force extraterritorially is sufficient to bring the victims within the

jurisdiction of the State Party. Under IHL, parties to the conflict must at all times distinguish

between civilians and combatants.

201

Attacks may only be directed against military

195

Vernor Muñoz, `The right to education of persons in detention' (Report of the Special Rapporteur on the right to

education, 2009) A/HRC/11/8, 26.

196

See David Turns (no 192).

197

Al-Jedda v. the United Kingdom [GC], Ap. no. 27021/08 (ECtHR, 7 July 2011), para 86.

198

Armando Alejandre Jr., Carlos Costa, Mario de la Peña an Pablo Morales v. Cuba (Brothers to the Rescue), case

no 11.590, report no 86/99 (IACHR, 29 September 1999) OEA/Ser.L/V/II.106, para 23; Pad and Others v. Turkey,

ap. no. 60167/00 (ECrtHR 28 June 2007), para 54-55; Solomou and Others v. Turkey, ap. no. 36832/97 (ECtHR,

24 June 2008, para 50-1.

199

For example, the case of Pad concerned fire discharged from Turkish helicopters over the border with Iran,

causing the killing of the applicant's relatives. In this case, the ECtHR found that the victims were within the

jurisdiction of Turkey. Ibid, para 54-55.

200

See for example Bankovi (no 98), para 67; Solomou (no 198), para 44; Al-Skeini (no 109), 131.

201

See ICRC, Customary IHL Database, rule 1 <

https://www.icrc.org/customary-

ihl/eng/docs/v1_cha_chapter1_rule1>

objectives and those taking active part in hostilities. Moreover, in the conduct of military

operations, States must take "all feasible precautions" to minimize or avoid incidental loss

of civilian life or damage to civilian objects.

202

Further, the parties to the conflict must take

all feasible precautions to also protect the civilian population and civilian objects from the

effects of attacks.

203

Finally, "launching an attack which may be expected to cause

incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination

thereof, which would be excessive in relation to the concrete and direct military advantage

anticipated, is prohibited".

204

While this is a rather general overview of IHL targeting rules,

it is clear that direct or incidental attacks or damage to schools, teachers or students are

contrary to IHL.

As we have seen, where IHL and the right to education appear to clash, IHL will

prevail. So, if a school becomes a military objective, it may be attacked, even if such an

attack could deprive the local students their education. Otherwise, attacks against a school

or using it for military purposes

205

constitute clear violations of IHL. Is it possible that

such an attack could constitute a violation of the right to education, depending on the

circumstances?

It does not seem unreasonable to conclude that attacks on schools (which are not

used as military objects) constitute violations from the standpoint of both bodies in law. For

example, it has been reported that Israeli attacks have caused vast destruction to the

education system in Gaza; half of all schools, kindergartens and university buildings were

damaged or destroyed, including the only school for children with disabilities.

206

Such

attacks on schools, students and their staff represent more than an issue of targeting, of

killings and generalised threat to safety. They have an unquantifiable impact on the

education system overall; a single attack on a school can keep hundreds of children out of

school for years and have lasting consequences for the development of a system of quality

education, particularly as regards the availability and accessibility of education.

207

Teachers

have also been victims of attacks, abandoned their posts, or been forced to undertake

overwhelming workloads as a result of staff shortages,

208

clearly resulting in a detrimental

impact to the education system. In 2013 alone, statistics from UNICEF suggest that 12,000

202

ICRC, Customary IHL Database, rule 15 < https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule15>; API

(no 141), art 57(1).

203

ICRC, Customary IHL Database, rule 22 < https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule22>; See

API (no 141), art 58(c); See APII (no 141), art 13(1).

204

See ICRC, Customary IHL Database, rule 14 < https://www.icrc.org/customary-

ihl/eng/docs/v1_cha_chapter4_rule14>; API (no 141), art 51(5)(b).

205

ICRC, Customary IHL Database, Rule 7 <

https://www.icrc.org/customary-

ihl/eng/docs/v1_cha_chapter2_rule7> ; See API (no 141), art 48; APII (no 141), art 13(1).

206

Fred Abrahams, `Dispatches: Dreading School in Gaza' (Human Rights Watch, 9 July 2015) <

https://www.hrw.org/it/node/279087>.

207

Save the Children, `Attacks on Education: The impact of conflict and grave violations on children's futures'

(2013), 7.

208

See UNICEF, `Education under Fire' (no 155), 8.

Palestinian children were affected by the disruption of classes and damage to schools from

Israeli offensives.

209

iii. The Right to Education during Occupation

During the occupation of Iraq, the U.S. signed over 90 contracts aimed removing

propaganda from school books and renovating schools, as well as facilitated training

programs for teachers and administrators.

210

Under the law of occupation, the Occupying

Power has positive obligations to ensure the well-being of the civilian population, including

as regards education. But, it would seem that in Iraq, the U.S. as Occupying Power sought

to change the country beyond the allowances of IHL and thus inflamed a discourse on

how/if the conservationist character of occupation could be reconciled with transformative

processes.

211

Military occupation is one of the least controversial circumstances of extraterritorial

exercises of jurisdiction,

212

although analogous to the rest of the body of law in this area

is not uncontroversial. Under IHL, "a territory is considered occupied when it actually placed

under the authority of the hostile army."

213

It thus extends beyond the mere presence of

military forces to include the substitution of the authority of the Occupying Power for that of

the local authorities.

214

This threshold is generally recognized as one of `effective control',

215

even reaching the Bankovi threshold.

216

Jurisdiction can further be established on the

premise that the Occupying Power is the acting administrator of the territory and thus must

abide by human rights obligations in its interactions with people in the territory under its

control.

217

At the same time, the rules of occupation law and the objectives of human rights

seem to clash. Article 43 of the Hague Regulations (IV) states that the Occupying Power

shall "resp[ect], unless absolutely prevented, the laws in force in the country". It is

submitted here that the continued application of the right to education in occupation is

unmistakable; indeed, the Occupying Power has to `respect' the human rights obligations of

the displaced administration under article 43 of the Hague Regulations. Nevertheless, the

rules of Occupation Law continue to be relevant as they reign in the discretion and latitude

209

Adri Nieuwhof, `School near Nablus repeatedly attacked by Israel' (The Eletronic Intifada; 20 February 2015).

210

Horowitz JT, `The Right to Education in Occupied Territories: Making more room for human rights in occupation

law' (2004) 7 Yearbook of International Humanitarian Law 233, 245-6.

211

Gerd Oberleitner, Human Rights in Armed Conflict: Law, Practice, Policy (Cambridge University Press, 2015),

228-229.

212

See Wall Case (no 118); See Cyprus v Turkey (no 49); See Maastricht Principles (no 1), principle 18; See

Olivier de Schutter et al. (no 47), 1124-1126.

213

Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations

Concerning the laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910),

art 42.

214

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda),

19 December 2005 (Judgement), ICJ Reports 2005, para 173.

215

See Milanovic (no 15), 142.

216

Horowitz JT, `The Right to Education in Occupied Territories: Making more room for human rights in occupation

law' (2004) 7 Yearbook of International Humanitarian Law 233, 245-6.

217

Noam Lubell, `Human rights obligations in military occupation' (2012) 94 (885) IRRC 317, 319.

provided under IHRL to determine how such obligations are met, powers which are

obviously meant for the sovereign authority. Otherwise, social and legal changes made by

the Occupying Power could masquerade as human rights initiatives but in fact be

superfluous or ineffective, or for the sole benefit of the occupant.

218

It could also be that the

changes are unsustainable transformations. For example, should an Occupying Power

generously establish legislation making secondary education mandatory and free, it is

possible that this move would constitute more a giant leap of realization, rather than one of

`progressive realization'. The sovereign power once re-established may find itself unable

to fulfil such legislation.

In theory, occupation is meant to be "essentially a temporary, de facto situation,

which deprives the occupied power of neither its statehood nor its sovereignty".

219

The

protections afforded by IHL reflect this. The existing law of occupation points simply to an

understanding that children should be education as they were prior to the occupation, which

can be somewhat challenging given the impact of armed conflict on education as a whole.

Article 50 of GCIV states that the Occupying Power should "[i] with the cooperation of the

national and local authorities, facilitate the proper working of all institutions devoted to the

care and education of children... [and [ii]] should local institutions be inadequate for the

purpose, the Occupying Power shall make arrangements for the maintenance and

education, if possible by persons of their own nationality, language and religion, of children

who are orphaned or separated from their parents... and who cannot be adequately cared

for by a near relative or friend." Further, the continued application of article 77 of API in

occupation, which as we have since includes the provision of education, could potentially

extend this obligation to all children. According to the Commentary, article 50 is meant to

ensure the continuity of education, with the Occupying Power only entering into the matter

when local authorities are unable to carry out their duties.

220

Thus, the IHL rules on

education in occupation are not very transformative, and do not envision situations where

the native education system was arguably in conflict with right to education norms.

While some Occupants have been criticised for their actions in relation to education

under IHL as well as IHRL, these criticisms have almost exclusively been directed at the

occupant's obstruction of the normal workings of educational institutions rather than not

doing enough to make sure they were working properly.

221

Indeed, in the context of the

Occupied Palestinian Territories ignoring debates as to whether this situation actually

constitutes one of occupation

222

the ICJ merely noted that Israel was under the obligation

"not to raise any obstacles to the exercise of such rights in those fields where competence

218

See Horowitz (no 171), 235.

219

See Pictet (no 174), 275.

220

See Pictet (no 174), 288.

221

See Horowitz (no 171), 246.

222

See for example Iyad v. State of Israel, CrimA 6659/06 (Supreme Court of Israel, 11 June 2008), para 11.

has been transferred to Palestinian authorities."

223

This obviously engenders obligations to

respect and protect, however whether occupation enlivens a duty of ensuring or fulfilling the

right to education throughout the occupied territory is unclear.

It is unclear what powers an occupant has to make changes to education if it

disagrees with the way the system functions, or if it considers the system contrary to

human rights norms. Having established the laws of occupation are still relevant, it is

submitted here that sweeping changes to the education system are contrary to the lex

specialis of Occupation Law, even if they may be targeted towards the fulfilment of human

rights obligations of the right to education. As a result, these changes are more exposed to

critiques. For example, the efforts of the US have been criticized for among other critiques

implementing an American curriculum which "brainwashes Iraqi children".

224

Further, it

would be disconnected from the realities of occupation to expect the Occupying Power to

fully apply IHRL rather than to `do all that it can'.

225

That does not mean that there is no

room for a rights-based approach to education in occupation.

Horowitz suggests that right to education standards can be read into relevant

occupation law provisions. Although "this can be a hindrance in some cases, this more

closely coincides with the non-interference principles of occupation law".

226

Moreover, he

suggests that support for this approach is found in the drafting history of the GCIV and API

as records indicate that some states were willing to accept that Occupying Powers should be

obligated to follow certain international standards.

227

Horowitz goes so far as to suggest that

introducing legislation for compulsory primary education could potentially be justified

through interpretations of obligations to `take all feasible measures' to ensure children

under 15 do not take direct part in hostilities.

228

While recourse to the principles of

Occupation Law should generally and reasonably create hesitancy to such an interpretation,

it should not necessarily be thrown out directly; each setting is unique, and there may be an

exceptional situation of occupation in the future where such measures may be necessary

and warranted. An example would be if a law is outright discriminatory,

229

for example

barring girls from education. Roberts suggests that where conservationist and

transformative principles of occupation clash, the Occupying Power could seek specific

authorization from international bodies.

230

For example, he notes, the U.N. Security Council

played such a role in Iraq.

231

That being said as he himself notes such an approach

223

See Wall Case (no 118), 112.

224

Ghali Hassan, `The Destruction of Iraq's Educational System under US Occupation' (Global Research, 11 May

2005) <http://www.globalresearch.ca/articles/HAS505B.html>.

225

See Lubell (no 217), 322.

226

See Horowitz (no 171), 256.

227

ibid.

228

ibid, 254.

229

See VCLT (no 28), art 27.

230

Adam Roberts, `Transformative Military Occupation: Applying the Laws of War and Human Rights' (2006) 100

AJIL 580, 621.

231

ibid.

"raises the question of the extent to which the Security Council has a free hand to vary the

application of even quite fundament rules of international law".

232

Generally, obligations of due diligence when effective control over territory is

established will be generally similar to those interpreted through the Geneva Conventions,

since we have established that legislation modifying the education system would generally

be contrary to Occupation Law and that a broad scope of the right to education can be

interpreted through IHL provisions. As occupation is essentially meant to be temporary, and

as occupation law generally bars any lasting changes, the specific right to education

obligations of an Occupying Power are essentially those of effective control over territory,

albeit with a potentially heightened due diligence threshold.

It is ultimately concluded that in academic and legal circles it remains to be

articulated clearly what are the exact positive obligations of an Occupying Power as regards

education. This author is certainly not brave enough to attempt such an articulation. While a

reflex approach would be to advocate for applying a transformative approach to occupation,

the reality is that such an approach is incompatible with existing occupation law. Despite

some critiques,

233

this body of law is still relevant, including due to "historically well-founded

doubts about the extent to which foreign armed forces, arriving suddenly in a society with

deep-seated problems, are really capable of bringing about fundamental change in that

society".

234

Indeed, returning once again to the example of Iraq, it has been argued that

"today Iraq is more illiterate than it was twenty-five years ago, because the Occupying

Power began its occupation by destroying every aspect of Iraq's education."

235

VI. More Questions than Answers: Some Concluding Observations

Declaring the existence of ETOs for the right to education should not be construed as

a claim that each State is responsible for ensuring the right to education of every person in

the world. Still, the decisions attempting to delimit ETOs lack consistency and clarity, and

the specific scope of these obligations have yet to be defined. The Maastricht Principles

constitute a promising development in the field, yet still lack practicality in their application.

Challenges such as the coordination and allocation of responsibility, accountability, and the

interplay of ETOs with other bodies of international law still remain. Indeed, readers may

find themselves with more questions than they had at the start of this analysis.

What should at this point be clear is that ETOs for the realization of the right to

education exist, and are subject to the capacity of States to act. Those responsibilities of

respecting and protecting education may be more entrenched and more easy to identify

232

ibid, 622.

233

For example, Harris argues that "the international law of occupation is meant to govern an outdate model of

occupation." Grant T. Harris, `The Era of Multilateral Occupation' (2006) 24(1) JIL, 1.

234

See Roberts, (no 230), 622.

235

Human Rights Council, `Joint written statement submitted by the International Youth and Student Movement for

the UN and others: The Iraqi education system 2003-2013' (2013) A/HRC/22/NGO/169.

but obligations of cooperation for the fulfilment of education and obligations to ensure

education in situations of control are nevertheless present. In an attempt to clarify these

obligations, it was suggested in line with the Maastricht Principles

236

that States should

prioritize the realization of the rights of disadvantaged, marginalized and vulnerable groups

as well as ensuring a minimum universal core for the right to education. In this vein,

ensuring education in emergencies is an essential feature to universal protection of the right

to education.

The law is perhaps underdeveloped, but the right to education is too important for

States to throw their hands in the air and declare themselves incapable of acting. It is

increasingly apparent that the obligations exist, and that States should be guided by their

human rights obligations in all their international relations. The obligations are ones of due

diligence, and of good faith.

237

But perhaps, more than that, it would be banal to objectives

of universal realization to assume that obligations for the right to education exist in isolation

delimited by borders. Were that the case, then where the right to education is being

seriously undermined let us once again bring to mind the on-going situation faced by

Syrians "the rest of the world [could] shake their heads saying "tut-tut" without feeling

any sense of duty to intervene".

238

As the brutal conflict in Syria rages on threatening an

entire generation of children and demolishing the system of education,

239

a pessimist may

indeed argue that this is the current reality. What we have seen in the framework explored

herein is that this is neither morally nor legally sound.

236

See Maastricht Principles (no 1), principle 32.

237

See VCLT (no 28), preamble, art 26.

238

Andrew Heard, `Human Rights: Chimeras in Sheep's Clothing? (1997) < http://www.sfu.ca/~aheard/intro.html>

239

See UNICEF, `Education Under Fire' (no 155), 4.

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Frequently asked questions

What is the scope of this document?

This document provides a comprehensive language preview, including the title, table of contents, objectives and key themes, chapter summaries, and keywords related to extraterritorial obligations of states regarding the right to education, particularly in emergency situations.

What topics are covered in the table of contents?

The table of contents includes sections on: the definition and scope of the right to education; exploring the extraterritorial obligations of states for the right to education (including obligations to respect, protect, and fulfill); ETOs and the concept of jurisdiction in IHRL; causality, division of responsibility, and other challenges; ETOs for education in emergencies (including International Disaster Response Law and the Right to Education during Armed Conflict); and concluding observations.

What does the document say about the definition and scope of the Right to Education?

The document states that the right to education is an empowerment right and acts as a multiplier for the enjoyment of other fundamental rights. It encompasses not only access but also the elimination of discrimination and setting minimum standards and improving quality. It focuses on articles in the ICESCR and CRC as the most detailed international provisions.

How are Extraterritorial Obligations (ETOs) defined in the document?

Extraterritorial Obligations (ETOs) are defined as obligations relating to the acts and omissions of a State, within or beyond its territory, that affect the enjoyment of human rights outside of that State's territory; and obligations of a global character to take action, separately and jointly through international cooperation, to realize human rights universally.

What challenges are mentioned regarding the framework for Extraterritorial Obligations?

The challenges mentioned include the lack of doctrinal clarity in defining ETOs, practical implications, exact commitments of States, difficulty in holding States accountable, determining causation and responsibility, allocating ETOs across multiple actors, and the complexities involved in implementation.

What aspects of education in emergencies are discussed?

The document discusses ETOs for education in emergencies relating to International Disaster Relief Law (IDRL) and International Humanitarian Law (IHL), with subsections on international disaster response law, the right to education during armed conflict (including special protections, education of interned children, and targeting concerns), and the right to education during occupation.

What acronyms are provided in the document?

Some of the acronyms provided include: 4As (Adaptability, Acceptability, Accessibility, Availability), API (Additional Protocol I), APII (Additional Protocol II), CERD (Convention on the Elimination of Racial Discrimination), CESCR (Committee on Economic, Social and Cultural Rights), CRC (Convention on the Rights of the Child), ETOs (Extraterritorial obligations), and IHL (International Humanitarian Law).

What general state obligations arise from the right to education?

The general state obligations which arise from the right to education are further delineated in light of the tripartite framework to respect, protect and fulfil economic, social and cultural rights (ESCR).

Ende der Leseprobe aus 51 Seiten - nach oben

Details

Titel: The Extraterritorial Obligations of States for the Realization and Protection of the Right to Education
Hochschule: University of Nottingham
Note: 73.0
Autor: Elysia Buchanan (Autor:in)
Erscheinungsjahr: 2015
Seiten: 51
Katalognummer: V352795
ISBN (eBook): 9783668391536
ISBN (Buch): 9783668391543
Dateigröße: 736 KB
Sprache: Englisch
Anmerkungen: Awarded Distinction
Schlagworte: Education Human Rights International Law
Produktsicherheit: GRIN Publishing GmbH
Preis (Ebook): US$ 0,99
Preis (Book): US$ 28,99

Arbeit zitieren: Elysia Buchanan (Autor:in), 2015, The Extraterritorial Obligations of States for the Realization and Protection of the Right to Education, München, Page::Imprint:: GRINVerlagOHG, https://www.diplomarbeiten24.de/document/352795

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