Justiciability of the Right to Education

Already in the nineteenth century, European countries began to lay down the provision of compulsory primary education in domestic law. After the Second World War, the right to education became part of international human rights law. It was included in the Universal Declaration of Human Rights, the First Optional Protocol to the European Convention on Human Rights and Fundamental Freedoms, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and in a number of other international instruments. Today, many countries have incorporated the right to education in their constitutions. The present article discusses the modalities of how a number of key dimensions of the right to education have been subject to judicial or quasi-judicial review. In other words, it discusses how the courts have dealt with the educational issues brought before them. Such cases do not always use right-to-education language, but generally speaking they deal with two aspects of the right to education, namely the right to receive an education and the right to choose an education. One of the major arguments against economic, social and cultural rights being on an equal footing with civil and political rights has always been that the former are not justiciable. The present article will reveal that the right to education is and has been fully justiciable in many jurisdictions