The Scope of the Right to Education

Introduction

In a landmark decision in October 2013, the Supreme Court of Administrative Justice of Iran (Court),[1] the highest administrative court in Iran, handed down its judgment concerning the scope of the right to education based on international human rights treaties. The dispute concerned a Directive on the Establishment of Schools for Foreign Nationals (the Directive),[2] which was issued by the Supreme Council of Education under the Ministry of Education on November 20, 2007. Article 2 of the Directive prohibited Iranian nationals from registering in such schools. As such, a parent of a student sought the nullification of the Directive before the Court. The plaintiff, by directly invoking human rights treaties, posited that Article 2 of the Directive violated his own human rights to choose the content, method, and type of education for his child. 

The Plaintiff's Arguments 

The plaintiff argued that free, unlimited, and unconstrained education is a fundamental human right that includes "freedom in establishment of educational institutions," "the right to choose the method of instruction and the type of institution," and "freedom in choosing the content of the educational materials." In the plaintiff's view, these aspects of the right to education also have been recognized in the general framework of freedom of thought and expression. 

The plaintiff argued that Article 26(2) and (3) of the Universal Declaration of Human Rights, Article 13(1), (3), and (4) of the International Convent on Economic, Social and Cultural Rights (ICESCR), and Articles 1, 2(b) and (c), and particularly Article 5(a) and (b) of the Convention against Discrimination in Education (collectively, the international human rights treaties) clearly vest the right and authority to choose a school in a student's parents. Iran is a party to each of these treaties. Therefore Article 2 of the Directive violated applicable international human rights law by prohibiting registration of Iranian nationals in certain schools.

The Defendant's Arguments

In response, the Ministry of Education challenged the plaintiff's unlimited and unconstrained view of the right to education. The defendant argued that freedom is an abstract concept, the meaning of which must be understood in light of a state's underlying constitution and statutes and its people's beliefs, values, and lifestyles, which vary across countries. The defendant posited that nobody may, under the pretext of exercising freedom, inflict any damage on the political, cultural, and economic integrity of a country. 

The defendant further argued that it is a constitutional mandate for the language of instruction to be in Farsi and therefore an Iranian student must be instructed in Farsi and beacquaintedwith Iranian-Islamic culture and lifestyle. Therefore, in the presence of diverse high-quality private domestic schools as well as public schools, registration in schools established for foreign nationals is illegal. Schools for foreign nationals are established and managed in accordance with the relevant foreign state's educational and linguistic system and are supposed to promote the foreign state's values and culture, making registration in such schools for Iranian nationals unconstitutional. 

The defendant also asserted that Article 13(3) of the ICESCR must not be read as encompassing an absolute right. The defendant construed the reference to "minimum educational standards" in Article 13(3) to include minimum ethical, cultural and religious requirements of the country at issue and concluded that none of these requirements are met in schools established for foreign nationals because these schools are supposed to advance another state's culture and values and are not required to comply with Iran's domestic laws. 

The Plaintiff's Counter-Arguments

The plaintiff counter argued that "freedom" is a universal and absolute concept that constitutes an individual's fundamental and natural right. This universal understanding of freedom is immune from cultural relativism and periodic and arbitrary changes. This concept has been recognized in all and for all societiesregardless of custom, color, race, nationality, and ethnicity. It can only be limited in very rare circumstances based on actual necessity and not based on preferences of a personal, group, or ethnic nature. 

Moreover, "the right to establish educational institutions" is different from "the existence of various educational institutions with different titles." The freedom to establish educational institutions has been defined and guaranteed in conjunction with and within the framework of the right to choose the form and content of education; the existing private schools do not realize this right. The alternative educational institutions, raised the defendant, are private schools or the like that are managed by the Ministry of Education under which parents, teachers, and managers have minimum ability to choose the type, content, and quality of education. The curricula of these schools are completely identical to those prescribed by the Ministry of Education, which sometimes do not conform to scientific methods of education. The only difference between private and public schools pertains to the payment of tuition for private schools. 

The plaintiff also noted that the concern regarding maintenance of Iranian-Islamic identity is addressed by Article 7 of the Directive, which requires foreign schools to allocate four hours weekly to instruction of the Farsi language and social and cultural studies based on requirements prescribed by the Ministry of Education. 

The plaintiff also argued that the reference to "such minimum educational standards as may be laid down or approved by the State" in Article 13 of the ICESCR does not pertain to values and national, ethical, and cultural standards of a relative nature, but, instead, was meant to refer to the minimum recognized scientific instruction standards. 

The Judgment of the Court

In spite of the parties' lengthy arguments, the Court's judgment was unsatisfyingly cursory. The Court ruled that a parent's right to choose the content and type of school under Article 13(3) of the ICESCR is conditioned upon the selected school's compliance with the minimum standards that have been prescribed, or may be prescribed, by the Ministry of Education. In the Court's view, strengthening and consolidating students' moral and religious foundations through education regarding Islam andShīʿah Madhab— as set out in Article 1 of Iran's Law on the Objectives and Responsibilities of the Ministry of Education 1988—was consistent with Article 13(3). 

Moreover, the Court noted that under Article 6(1) of the Law on the Establishment of the Supreme Council of Education (LESCE), the Council is charged with the responsibility for prescribing educational and training guidelines in congruence with the Constitution and statutes on behalf of the Ministry of Education. The Court concluded that the Directive was consistent with both domestic law in the form of Article 6(1) and international human rights law. Accordingly, the Court upheld the Directive. 

Analysis 

Unfortunately, the Court did not engage with the parties' arguments.It is therefore unclear whether the Court is concurring with all of the defendant's arguments or merely some of them.

While there is no available information regarding Iranian courts' engagement with human rights treaties before the revolution, since the establishment of the Islamic Republic of Iran in 1979, Iranian courts have only recently begun invoking international human rights treaties.[3] This silence in the post-revolution era is best explained by, among other things, a sense of many in Iran of an inherent inconsistency between Iran's Sharia-based domestic laws and international human rights treaties, lack of transparency and resources, and judges' conservatism.[4]

Other recent judgments do not touch upon the question of whether individuals may invoke international human rights treaties as an independent right of action. In fact, previous judgments, handed down by appeal courts, have approached international human rights treaties very cautiously and have generally used these treaties as interpretive guides alongside constitutional, statutory, and Sharia law to underscore or support a particular interpretation under domestic laws.[5] By contrast, the judgment of the Supreme Court of Administrative Justice appears to recognize the justiciability of rights embodied in human rights treaties and that an individual may bring an action based on human rights treaties even if there is no comparative substantive protection under domestic laws. 

As the judgment comes from the highest-ranking administrative court in the country, it might open the door for further citation to human rights treaties by lower courts. However, the Court's engagement with the parties' arguments and its relativistic approach in interpreting human rights treaties diminishes the value of the judgment from the perspective of the advancement and development of international human rights. A better approach would have been for the Court to look at treaty interpretation rules and how other domestic courts have interpreted and applied the same provision in the relevant human rights treaties. 

Moreover, although it appears that the Court engaged in a proportionality analysis in its judgment in that it implicitly weighed the interests of the state against those of the student's parent, it unsatisfactorily failed to explain how the application of proportionality analysis resulted in the recognition of the state's right to maintain and promote religious objectives and thus imposition of a limitation on the scope of the right to education. Accordingly, the judgment of the Court shows that in spite of recognition of justiciability of human rights obligations in Iran, in the event of confrontation between Iran's Sharia-based laws and values and those of human rights treaties, the Sharia-based laws and values will prevail. 

About the Author: Farshad Rahimi Dizgovin is the Hugo Grotius Fellow and an SJD student at the University of Michigan Law School.