Segregated School under International Law

Petar Anti ć, Dep. Minister Ministry of Human and Minority Rights

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The Relevant Binding Treaties are:

1.Convention Against Discrimination in Education; 2. The International Convenant on Civil and Political Rigjhts; 3. The International Convenant of Economic, Social, and Cultural Rights; 4. The International Convention on the Elimination of All Forms of Racial Discrimination; 5. Konvention on the Rights of the Child; 6. The European Convention for the Protection of Human Rgihts and Fundamental Freedoms; 7. The Framework Convention for the Protection of National Minorities.

Four Categories:

 1) Explicit prohibition of segregation in education;  2) Guaranties related to education per se;  3) General guaranties related to non discrimination,  4) Discrimination that rises to level of “inhuman treatment.”

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1. Explicit prohibition of segregation in education

1. The Convention Against Discrimination in Education

CDE prohibits discrimination in education, which is defined to include “establishing or maintaining separate educational system or institutions for persons or groups of persons” (Article 1 (c)) The CDE also prohibits “limiting any person or group of persons to education of an inferior standard” ; admissions policies that effectively bar Roma from attending majority schools that receive more resources that school in Romani areas would be prohibited (Article 1 (b)) The Framework Convention for the Protection of National Minorities requires that parties “undertake to promote equal opportunities for access to education at all levels for persons belonging to national minorities” (Article 12). At minimum, this suggests that the state must take some kind of affirmative steps to ensure an end to segregation of schools.

2. Guaranties related to education per se

 Article 2 of Protocol Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) states: „No person shall be denied the rights to education.”  The International Convenant on Economnic, Social and Cultural Rights (Article 13) and Convention on the Rights of the Child (Article 28) infuse the rights on education with greater conent, provide compulsory and free primary education..

3. General guaranties related to non-discrimination

  The International Convention for the Elimination of All Forms of Racial Discrimination require responsibility of parties to prohibit and eliminate discrimination and to guarantee equality before the law in the enjoyment of the right to education (Article 5) The Committee on the Elimination of Racial Discrimination suggests a broad interpretation of the CERD which include prohibition of facially neutral acts that have “an unjustifiable disparate impact upon a group distinguished by race, color, descent, or national or ethnic origin.” (General Recommendation XIV: Definition of Discrimination (Article 1, paragraph 1) (Document No. A/48/18 Forty-second Session, 1993)).

4. Inhuman and degrading treatment

 European Convention on Human Rights and Fundamental Freedoms (Article 3), and ICCPR (Article 7) contain prohibitions on “inhuman and degrading treatment”. The European Court of Human Rights has stated that “discrimination on the basis of race might, in certain circumstances, constitute a special affront on human dignity” and rise to the level of inhuman and degrading treatment.

Constitutional Provisions

 Constitutional Provisions of many states expressly incorporate international law into domestic law, and most provide that such obligations supersede any contradictory domestic law; Constitution of Bulgaria (Article 5(4)), Constitution of Czech, Article 10; Rumania, Article 20, Slovakia, Article 11.