Un-asked Questions about Economic, Social and Cultural Rights from the Experience of the Special Rapporteur on the Right to Education (1998-2004): A Response to Kenneth Roth, Leonard S. Rubenstein, and Mary Robinson

Having just finished two terms as the Special Rapporteur on the Right to Education, I have accumulated considerable experience in helping mainstream human rights in global monitoring,¹ translating international human rights law into manuals for education policy and practice,² and assessing the human rights performance of governments that claim to be committed to the right to education, such as China,³ and those that do not, such as the United States.⁴ To these six years, I am adding another year or two needed to help in rolling back payments imposed in public primary education, which should be—but is not—free. Supplanting previously free by for-fee education is, in my view, the biggest challenge to education as a human right. Progressive liberalization of trade in education or health is replacing progressive realization of economic, social, and cultural rights. Unless this is effectively countered, we may continue talking about economic, social, and cultural rights but purchasing power will have replaced entitlements.

I want to contribute to the recently initiated debate about economic, social, and cultural rights in Human Rights Quarterly⁵ by posing four questions that I have found crucially important. My starting point is that the right to education, and indeed all economic, social, and cultural rights, should be defended against distortions, not only denials and violations. The two extremes that exemplify distortions are the United Nations and the United States. The United Nations is over-promising. For any imaginable economic, social, and cultural issue, one can find a UN document that asserts an underlying human right. The US is under-promising by denying that there is any such thing as economic, social, and cultural rights. I have found it helpful in my own work to describe and critique both as distortions, adding that—gratifyingly—they do not guide the contemporary practice of states.

Distortions of economic, social, and cultural rights were prevalent during the cold war and many continue, with almost no opposition within the United Nations and too little challenge outside. The United Nations is, as it always has been, an intergovernmental organization. Its constituency is whichever governments may be in power at the moment. During the cold war, the Soviet model of what passed at the time for "the right to education" was praised, regardless of the fact that it denied freedom of education and in education, and was incompatible with international human rights law.⁶ The courage of human rights organizations on the other side of the iron curtain in exposing and opposing that distortion is well known. After the cold war, the governmental constituency for economic, social, and cultural rights in the United Nations is minuscule. This is evident in protracted inter-governmental negotiations regarding an optional protocol to the International Covenant on Economic, Social and Cultural Rights.⁷ As part of this system, the Office of the High Commissioner for Human Rights (OHCHR) exhibits the tension between supporting human rights and loyalty to its constituents, the originators of distortions and targets of "naming and shaming," as Kenneth Roth has put it.⁸ At the end of my mandate, I filed two complaints against the OHCHR⁹ and recommended to the Commission not to renew the mandate on the right to education.¹⁰ The reason was to alert all those willing to listen to the risk of doing more harm than good to the right to education through continued distortion, exemplified in the Commission's resolutions on the right to education.¹¹ I was not a lonely voice in critiquing the avoidance of tackling human rights by the body which has "human rights" in its...