Beyond the Minimalist Critique: An Assessment of the Right to Education in International Human Rights Law

Published date01 December 2021
Date01 December 2021
DOI10.1177/09240519211057240
Subject MatterArticles
Beyond the Minimalist
Critique: An Assessment of
the Right to Education in
International Human Rights Law
Ramindu Perera
Department of Legal Studies, The Open University of Sri Lanka, Nugegoda, Sri Lanka
Abstract
The minimalist critique of human rights advanced by legal historian Samuel Moyn argues that
human rights are ineffective in addressing material inequality because, rather than striving for
equality, they focus on ensuring suff‌icient protection levels. This article analyses the right to edu-
cation model which international human rights bodies have expanded to demonstrate the over-
stretched nature of the minimalist critique. By examining how the right to education provisions
of international human rights treaties are interpreted by various United Nations human rights
mechanisms, the article argues that the international human rights system has advanced a
model of right to education that reaches beyond the notion of suff‌iciency. The works of these bod-
ies are analysed in light of the privatisation of education. In def‌ining the connection between the
equality and liberty dimensions of the right to education, international human rights bodies have
prioratised ensuring equal opportunities over the liberty to private education. The aim of the right
to education is not merely to provide basic literacy to the poor but also to assure equal educa-
tional opportunities to all.
Keywords
Right to education, minimalism, equality, international human rights law, CESCR
1. INTRODUCTION
The extent to which human rights can address socio-economic inequalities has led to an engaging
discussion in the human rights scholarship of recent years. Societies being stratif‌ied into different
Corresponding author:
Ramindu Perera, Department of Legal Studies, The Open University of Sri Lanka, P.O Box 21, Nugegoda, Sri Lanka.
Email: rlper@ou.ac.lk
Article
Netherlands Quarterly of Human Rights
2021, Vol. 39(4) 268290
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519211057240
journals.sagepub.com/home/nqh
classes raises important questions about how resources in modern life should be distributed among
persons from different backgrounds. This problem of distributive justice has become compelling in
the contemporary neoliberal age due to the massive expansion of inequalities. Some human rights
scholars believe that by making socio-economic rights a central concern the human rights move-
ment can advocate for an equitable distribution of goods and services in a manner that minimises
inequality. Yet, others are sceptical of such a potentiality. The minimalist critique’–a premise
advanced prominently by legal historian Samuel Moyn contends that human rights, inclusive
of socio-economic rights, are structurally incompetent in addressing material inequality because
of their suff‌icientarian orientation.
1
Socio-economic rights are characterised as suff‌icientarian as
they focus only on ensuring minimum protection f‌loors for the most vulnerable, instead of minima-
lising inequalities among the haves and the have-nots.
Those who believe in the possibility of employing the human rights discourse to advance a dis-
tributive justice agenda have responded to the minimalist critique in many ways. One limitation of
the minimalist narration is the overlooking of intellectual resources of an egalitarian orientation
within the human rights tradition. Starting from this perspective, this article aims to discuss the
nature of the right to education in international human rights law in light of the minimalist
thesis. In the last few decades, United Nations human rights bodies have done much work elabor-
ating the content of the right to education, resulting in the emergence of a distinct set of norms. In
this context, the article intends to address the following question: does the right to education model
which UN human rights bodies have developed represent a minimalist model? Or, alternatively,
does it ref‌lect something different from minimalism?
In order to answer this question, the article specif‌ically examines how UN human rights bodies
have dealt with the privatisation of education: a factor that has led to enormous inequalities in the
education f‌ield. By way of analysing the work of UN human rights bodies on the privatisation of
education, the paper argues that the interpretation which international human rights law has
advanced on the right to education is incompatible with the minimalist thesis.
2
The right to educa-
tion provisions in international human rights treaties have two dimensions: a social equality dimen-
sion and a liberty dimension. Privatisation requires the expansion of the liberty dimension including
the liberty to establish private educational entities. Unrestricted liberty can lead to a suff‌icientarian
situation where private provisioning supplants public provisioning. In such a scenario, education
would potentially become yet another commodity while inequalities in access to education
would be tolerated, and the State through public provisioning would focus only on providing
for those who cannot afford it. The article argues that the approach of UN human rights bodies has
been entirely different. They have interpreted the liberty dimension in a restrictive manner, high-
lighting the prominent role of public education and constantly prioritising the overriding nature
of equality of opportunities. This emphasis on equality makes the right to education distinct
from most other socio-economic rights and questions the overstretched nature of the minimalist
claim.
This article is structured as follows. Section two, which follows this introductory remark, out-
lines the minimalist critique as advanced by Samuel Moyn, situating it within the broader debate
1. Samuel Moyn, Not Enough? Human Rights in an Unequal World (Harvard University Press 2018).
2. The article analyses the following materials: UN Committee of Economic, Social and Cultural Rights (CESCR) General
Comments, Concluding Observations; Right to Education Special Rapporteur annual, thematic, and country specif‌ic
reports.
Ramindu Perera 269

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