United Nations Human Rights Mechanisms and the Right to Education in Insecurity and Armed ...

133 Pages·2013·1.21 MB·English

UNITED NATIONS HUMAN RIGHTS MECHANISMS
and the Right to Education in Insecurity and Armed Conflict
Geneva Academy of International Humanitarian Geneva
Law and Human Rights
Académie de droit international humanitaire Academ
et de droits humains à Genève
The Academy, a joint centre of
UNITED NATIONS HUMAN RIGHTS MECHANISMS AND
THE RIGHT TO EDUCATION IN INSECURITY
AND ARMED CONFLICT

UNITED NATIONS HUMAN RIGHTS MECHANISMS AND
THE RIGHT TO EDUCATION IN INSECURITY
AND ARMED CONFLICT
Takhmina Karimova
Gilles Giacca
Stuart Casey-Maslen
© Geneva Academy of International Humanitarian Law and Human Rights/Protect Education in Insecurity and
Conflict
ISBN: 978-2-9700786-5-4
Disclaimer
This report and the views expressed in it are the work of the authors. The designation of armed non-state actors,
states, or territories does not imply any judgement by the Geneva Academy of International Humanitarian
Law and Human Rights (Geneva Academy), Protect Education in Insecurity and Conflict (PEIC), or any other
organization, body, or individual regarding the legal status of such actors, states, or territories, or their authorities
and institutions, or the delimitation of their boundaries, or the status of any states or territories that border them.
acknowleDgements
This study report was researched and written by Takhmina Karimova, Gilles Giacca, and Stuart Casey-Maslen.
Comments on the draft publication were kindly provided by Benyam Dawit Mezmur, Chairperson of the African
Committee of Experts on the Rights and Welfare of the Child, and Vice-Chairperson of the UN Committee on
the Rights of the Child; Elobaid Ahmed Elobaid, former Senior Research Fellow at the Faculty of Law, McGill
University, Montreal, Canada, and currently the Head of the UN Human Rights Training and Documentation
Centre for South West Asia and the Arab Region, based in Doha, Qatar; Kristin Hausler, Research Fellow in
Public International Law, British Institute of International and Comparative Law; Andrew Clapham, Director, and
Christophe Golay, Research Fellow, Geneva Academy; and members of PEIC. The provision of comments does not
constitute agreement with any of the views expressed in the report. Editing by Jack Glattbach. Design, layout, and
printing by Qatar Foundation Publishing Center.
contents summary
Executive Summary xviii
Introduction xxiv
Chapter 1: Protection of Education in Situations of Insecurity and Armed Conflict:
Framing the Issue 1
Chapter 2: Protection of Education as a Human Rights Issue 13
Chapter 3: The Functions and Roles of UN Human Rights Mechanisms 27
Chapter 4: The Right to Education in Insecurity and Armed Conflict:
Practice of UN Human Rights Bodies 35
Chapter 5: Topics of Special Concern 67
Chapter 6: Human Rights and Humanitarian Law and the Right to Education 83
Chapter 7: Obligations of Armed Non-State Actors to Respect and Protect Education 93
Study Principal Conclusions and Recommendations 104
v

contents
Preface xiii
A Note from PEIC xiv
Professor Eibe Riedel xv
Foreword by Professor Eibe Riedel xv
Abbreviations xvi
ExECUTIvE SUMMARy xviii
Study context and aims xviii
Principal conclusions and findings xviii
Principal recommendations xxiii
INTROdUCTION xxiv
The scope of the study xxiv
Study methodology xxv
The layout of the report xxvi
CHAPTER 1: PROTECTION OF EdUCATION IN SITUATIONS OF
INSECURITy ANd ARMEd CONFLICT: FRAMINg THE ISSUE 1
Evolution of protection of education in insecurity and armed conflict 1
Possible problems and challenges in current approaches 3
The definition of an ‘attack on education’ 3
The interplay of different branches of law and ‘attacks on education’ 5
United Nations Human Rights Mechanisms and the Right to Education in Insecurity and Armed Conflict
Defining key terms 6
The normative value of outputs of UN human rights monitoring mechanisms 7
Individual complaints 7
The legal significance of treaty bodies’ General Comments and
Concluding Observations 8
Contribution of Human Rights Council Special Procedures to
legal interpretation of human rights 9
Findings of Fact-Finding Missions and Commissions of Inquiry 10
Other actors 10
Armed conflicts and situations of insecurity 11
CHAPTER 2: PROTECTION OF EdUCATION AS A HUMAN RIgHTS ISSUE 13
Education as a human right: substantive treaty obligations 13
The concept of education under human rights treaties 13
General aspects of obligations under the ICESCR 16
Minimum core obligations related to the right to education 18
Structural requirements of the right to education 19
Maximum available resources 19
Factors in and impediments to compliance by states with their obligations 20
Specific obligations of states regarding the right to education 22
Obligation to respect the right to education 23
Obligation to protect the right to education 24
Obligation to fulfil the right to education 24
Concluding remarks 25
CHAPTER 3: THE FUNCTIONS ANd ROLES OF
UN HUMAN RIgHTS MECHANISMS 27
Human rights treaty bodies 27
State party reporting procedure 28
Universal periodic review under the Human Rights Council 30
viii
contents
Special Procedures of the UN Human Rights Council 30
Methods of work 31
Country visits 31
Communications 32
UN Security Council-led mechanism on protection of
children in armed conflict 32
Fact-Finding Missions and Commissions of Inquiry 33
CHAPTER 4: THE RIgHT TO EdUCATION IN INSECURITy ANd
ARMEd CONFLICT: PRACTICE OF UN HUMAN RIgHTS BOdIES 35
Treaty bodies 35
General overview of the scope of state reports 35
Human Rights Committee 37
Committee on Economic, Social and Cultural Rights 38
Committee on the Elimination of All Forms of Racial Discrimination 40
Committee on the Rights of the Child 42
State Reporting 42
CRC Committee’s General Discussion Day 45
Committee on the Elimination of Discrimination against Women 47
Assessment of the practice of treaty bodies 48
Thematic and country Special Procedures 50
Special Rapporteur on the right to education 50
General 50
The Special Rapporteur’s contribution to the content
of the right to education in emergencies 52
Other thematic procedures 53
Country mandates 54
Assessment of the work of the Human Rights Council’s Special Procedures 57
The UN Security Council and the MRM 58
UN Security Council resolutions 58
ix