Tertiary institutions and human rights obligations

Abstract

One question arising in the context of universities as corporate entities is the reason why being an ‘entity’ is important. One relevant consideration is whether it is necessary or sensible that a ‘community of scholars’ has the status of a ‘corporation of scholars’ because that ensures that the community abides by various obligations, including those based on considerations of equity and rights. This article examines universities as legal entities in light of the human rights framework, with a focus on the right to tertiary education to illustrate the more general question of rights. It does so by setting out, first, the use of legal personhood for corporations generally and universities particularly. Secondly, it notes that the modern international regime for the protection of human rights commenced with the idea that its obligations should rest on all elements of society, including corporations. Thirdly, it point out that the developed regime has a focus on the obligations of states to secure rights, including through ensuring remedies against corporate and other private actors. Finally, the main part of the article examines the substance of the right to education and suggests that its realisation is most likely if there are obligations on universities, which they can adopt themselves.

KEYWORDS:

• Universities
• human rights

Disclosure statement

No potential conflict of interest was reported by the author.

Treaties and international instruments and documents

Charter of the United Nations, 1 UNTS XVI, 26 June 1945, entered into force 24 October 1945.

Committee on Economic, Social and Cultural Rights, General Comment No. 13: The right to education (article 13 of the Covenant), 8 December 1999, UN Doc E/C.12/1999/10.

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Committee on the Rights of Persons with Disabilities, Concluding Observations to Chile, 13 April 2016, UN Doc CRPD/C/CHL/CO/1.

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Committee on the Rights of Persons with Disabilities, Concluding Observations to Ecuador, 27 October 2014, UN Doc CRPD/C/ECU/CO/1.

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Committee on the Rights of Persons with Disabilities, General Comment No 4 on the right to inclusive education, 25 November 2016, UN Doc CRPD/C/GC/4.

Convention on the Rights of Persons with Disabilities, 2515 UNTS 3, 13 December 2006, opened for signature 30 March 2007, entered into force 3 May 2008.

Convention on the Rights of the Child 1989, 1577 UNTS 3, 20 November 1989, entered into force 2 September 1990.

Council of Europe Convention on preventing and combating violence against women and domestic violence CETS No 210, Istanbul 11 May 2011.

European Convention on Human Rights, formally the Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221, opened for signature 4 November 1950, entered into force 3 September 1953.

International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, opened for signature 7 March 1966, entered into force 4 January 1969.

International Covenant on Civil and Political Rights 1966, 999 UNTS 171, 16 December 1966, entered into force 23 March 1976.

International Covenant on Economic, Social and Cultural Rights 1966, 16 December 1966, 993 UNTS 3, entered into force 3 January 1976.

UNESCO, Education 2030 – Incheon Declaration and Framework for Action for the implementation of Sustainable Development Goal 4 (available at http://en.unesco.org/education2030-sdg4).

UN General Assembly Transforming our world: the 2030 Agenda for Sustainable Development 25 September 2015, UN Doc A/Res/70/1.

Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business entities, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises - Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (UN Doc A/HRC/17/31, 11 March 2011).

Additional information

Notes on contributors

Kris Gledhill

Kris Gledhill is a Professor of Law and Associate Head of School at AUT Law School, Auckland. His teaching includes courses on various aspects of international human rights law, including one examining the interplay between business enterprises and human rights. Among his publications are Bedggood, M., Gledhill, K., & McIntosh, I. (Eds.) (2017). International Human Rights Law in Aotearoa New Zealand. Wellington: Thomson Reuters and Bedggood, M., & Gledhill, K. (Eds). (2011). Law into action: Economic, social and cultural rights in Aotearoa New Zealand. Wellington: Thomson Reuters/Law Foundation.