Incorporating international standards into national education law in South Africa : the accountability of the state

• Pages: 1-18
• Published date: 01 January 2014
• Date: 01 January 2014
• DOI: 10.10520/EJC162999
• Author: Rika Joubert

BSc, BEd, MEd, PhD, THED, FDE. Associate Professor in Education, University of Pretoria and

*

Director of the Interuniversity Centre for Education Law and Policy (CELP).

Katarina Tomaševski was the United Nations (UN) Special Rapporteur on the Right to Education

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from 1998 to 2004. She developed the 4 A-scheme which the UN Committee on Social, Economic

and Cultural Rights (CESCR) adopted in their General Comment on the Right to Education issued

in 1999. Tomaševski subsequently developed the scheme in her publications: See Tomaševski

Human rights obligations: Making education available, accessible, acceptable and adaptable

(2001); Human rights obligations: The 4-A scheme (2006). Tomaševski ‘Human Rights obligations:

making education available, accessible, acceptable and adaptable’ Primer 3 available at

http://www.huridocs.org/resource/human-rights-obligations-making-education-available (accessed

2013-04-22).

Incorporating international standards

into national education law in South

Africa: The accountability of the state

Rika Joubert*

1 Introduction

The aim of this article is to assess the extent to which the international norms and

standards related to the right to education are incorporated into the national

education laws in South Africa.

The theoretical framework that I have chosen to assess the incorporation of

international human rights standards into education law in South Africa is the

Tomaševski framework which focuses on the minimum essentials of what states

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should do to deliver core obligations related to the right to education. According

to the Tomaševski framework, education must be available, accessible,

acceptable and adaptable. These four principles are not mutually exclusive. Each

of the four principles will be discussed with reference to applicable education law

and case law to assess whether the international norms and standards related to

the right t o education are incorpor ated into education law.

2 Background

Most sovereign states have enshrined the right to education in their constitutions.

They have also ratified the International Covenant on Economic, Social and

2(2014) 29 SAPL

De Groof, Lauwers and Kishore The right to education and rights in education (2006) 3. The right

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to education and educational freedom are specified quite explicitly in the constitutions of most

countries except in the United States. This book deals with the constitutional provisions from 28

sovereign countries that have included the right to education in their constitutions.

Glenn and De Groof Balancing freedom, autonomy and accountability in education (2012) 25.

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The UN ratification status chart 2012 reflects that it had not yet been ratified at the time of writing.

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The Community Law Centre (CLC), Socio-Economic Rights Institute of SA (SERI), Black Sash,

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People’s Health Movement South Africa, National Welfare Forum, Global Call to Action against

Poverty South Africa (GCAP-SA) and the Studies in Poverty and Inequality Institute (SPII) see this

as a great opportunity to ensure that South Africa’s jurisprudence on socio-economic rights

develops in harmony with the normative standards set by the leading international treaty on these

rights.

Beurgenthal, Shelton and Steward International human rights (2002) 34.

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South Africa has not yet ratified the ICESCR, although a decision was taken on 10 October 2012

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to ratify. See the list of countries that have signed and ratified the UN Treaties available at

http://tbinternet.ohchr.org (accessed 2014-01-20).

Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC),

both of which include the right to education. At domestic level, there are political

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and legal remedies for many educational violations. However, support for the

implementation of the right to education and freedom in education must be

converted into a political reality and into a programme for the transformation of

the education system that is understandable t o a significant par t of society.3

Almost eighteen years after the South African government signed the

ICESCR, Cabinet has finally approved that South Africa will ratify the ICESCR.

This important decision t o ratify, which means that the ICESCR will be legally

binding, was included in a statement issued in Pretoria on 10 October 2012. The

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Cabinet statement describes how the ICESCR is a ‘key international treaty which

seeks to enco urage State Parties to address challenges of inequality,

unemployment and poverty, which are critical to the strategic goals of

governments’. Civil society organisations have been calling for many years for the

South African government to ratify the ICESCR.5

The ICESCR, together with the International Covenant on Civil and Political

Rights (ICCPR), optional protocols to these covenants, the UN Charter and the

Universal Declaration on Human Rights constitute the International Bill of Rights.6

The ICESCR has been ratified by over 160 states since it was adopted in 1966,

forty-eight of which are African states and 11 of which are member states of the

Southern African Development Community (SADC). South Africa ratified the

ICCPR in 1998, and its current ratification of the ICESCR will unambiguously

signal its commitment to be legally bound by the full range of human rights

recognise d under international law.

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