Every Tuesday, The duty offers a space to the creators of a periodical. This week, we offer you a text published in the magazine Rights and freedoms, flight. 42, no 2 (fall 2023/winter 2024).
The right to education is a family right of economic, social and cultural rights (ESCR), protected by articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights (Covenant) ratified by Quebec and the Canada in 1976.
Like all human rights, the right to education imposes obligations on the State to respect, protect and implement. Concretely, this means that the government of Quebec must: refrain from acting in such a way as to undermine the right to education; regulate the action of the private sector so that it complies with the obligations imposed by this same law; and deliberately adopt laws, public policies, programs and finance them, “to the maximum of its available resources”, in order to give effect to the said right.
Its uniqueness lies in the fact that it is a right of self-capacitation, that is to say a right intended to give power to people and “one of the keys to other rights inherent to the human person” according to the Covenant. This right aims to enable everyone to participate in “a free society”, by playing a “useful role”. A double temporality is at the heart of the right to education, which aims to focus on the present, while formulating a project for the future where the diverse groups of society understand each other. By inviting us to dream of the future, the right to education brings hope.
To achieve these valuable objectives, four essential and interdependent characteristics must structure State intervention: endowment, accessibility, acceptability and adaptability, all of which must be overdetermined by the best interests of the learner. […]. The State has room to maneuver to gradually realize the right to education, while having the obligation to mobilize all available resources to achieve this. This aspect of its obligations is too often used to make the immediate obligations imposed on it invisible and to unduly justify violations of the law.
These obligations aim in particular to ensure the enjoyment of the minimum essential core of the right. This implies free and universal access to primary education, educational programs which aim at the humanist objectives set out in the Covenant, the adoption and implementation of a national education program aimed at secondary education, university and basic education, accompanied by indicators intended to evaluate it, free choice of education without State interference, as well as the prohibition of discrimination in access to establishments, programs and services.
The assessment of so-called “progressive realization” obligations depends on the level of wealth of the State and the resources it must mobilize, in particular via taxation. The richer the State, the less it can exempt itself from violations of the law that result from its inaction. […] The State is required to provide remedies in the event of infringement of the protected right, failing which it must demonstrate that these are not appropriate measures to give effect to the right. These remedies must provide reparations for harm attributable to the action and omission of the State and, at the same time, force its accountability.
As such, let us recall that Canada accepted, during the 2018 universal periodic review, the recommendation of the United Nations Human Rights Council requiring it to stop ordering its prosecutors to plead injusticiability DESC.
The right to education, as it exists in international law, imposes a variety of obligations on the State. At a time of the three-tier education system, the exclusion of disabled students or students with learning or adjustment difficulties and the insufficiency of services, it makes it possible to qualify the system’s flaws as violations of human rights and to include the behavior of the State in a legal relationship requiring good faith and accountability.
The evaluation process of Canada (and therefore of Quebec) before the United Nations ESCR Committee constitutes the specialized arena where civil society organizations can demand accountability from the State on the basis of the Pact. The L’école ensemble movement took up this issue in 2020 by highlighting the attacks on the right to education attributable to the Quebec system. As of today, the 7e Canada’s report, due June 30, 2021, has still not been submitted to the Committee.