Peoples’ Right to Development

African Regional and International Legal Perspectives

In a context where corporate investment is commonly justified in the name of “development,” the question of what exactly “development” is, is central to the design of a binding instrument on transnational corporations and other business enterprises with respect to human rights (Treaty).

On Wednesday 26 October 2016, 30 members of civil society, state representatives and academia met at the Palais du Nationes in Geneva to discuss and debate the evolution of the “right to development.” In particular, this was considered in the context of African regional perspectives on the peoples’ right to development, including an extension of the right to free, prior and informed consent (FPIC) beyond a narrow conception of indigenous peoples.

Moderated by Dominic Renfrey of ESCR-Net, the roundtable discussion benefited from interventions from Akhona Mehlo of the Legal Resources Centre (LRC), Susan Mathews of the Office of the United Nations High Commissioner for Human Rights, Caroline Ntaopane from Womin (African Women United Against Destructive Resource Extraction), Nomonde Nyembe of the Centre for Applied Legal Studies of the University of Witwatersrand, and Roberto Bissio of Social Watch. Through a series of questions, these interventionists guided a stimulating and through-provoking discussion.

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What is development?

Caroline Ntaopane opened the discussion by affirming that everyone has a right to development, including the right to say what type of development they want; especially women. Caroline, who has nine years of experience working with women in rural communities in remote South Africa, explained some of the problems that women in rural areas face, including illiteracy, oppression by men, violence and sexual violence, and significant household burdens. Women face discrimination in land tenure and customary laws, which are typically patriarchal. It is common for women to only be able to exercise control over their land through their husbands or brothers, and they lack decision-making power, which is often taken advantage of by businesses and government in cahoots with chiefs or other male authority figures.

Nomonde Nyembe addressed the fallacy of “economic development” and pursued the idea of the nature of true development. Nomonde explained that it is a misconception that gross domestic product (GDP) growth leads to real development. Even the World Bank acknowledges that it is widely recognised now that development is more than this, and other indicators like UNDP’s Human Development Index include life expectancy and literacy. World Bank statistics indicate that 46.8% of sub-Saharan Africans live in a state of poverty. Nomonde argued that the current favoured model of development perpetuates cycles of poverty through supplying survival, rather than living, wages, denying people access to their land, and denying people agency and self-determination.

Poverty is an amalgamation of human rights violations, including water, education and food. As such, when talking about development, Nomonde explained that we need to reframe the discourse to include social and cultural factors; development that facilitates self-determination and serves the most impoverished. Development can have economic outcomes but not be prioritised over other relevant components such as social and environmental concerns, for example, housing and water infrastructure. Development should seek to achieve these goals and be sustainable in the long-term – not harming the environment or people’s livelihoods. In order for this to occur, we need genuine engagement with communities and planning that incorporates all parties. The right to development is a peoples’ rights; one that is held by both individuals and held by peoples as a collective. Development should give effect to this.

Akhona Mehlo of the Legal Resources Centre discussed the procedural and substantive elements of the right to development under the African Charter. Within this framework, Akhona emphasised the need to recognise the customary rights to land and natural resources of affected communities as property rights, whether documented or not. Rural communities across Africa have, for generations, utilised land, forests, marine and other resources in terms of their customary laws, making them owners or rights’ holders of the land and resources. The community’s relationship to the land and resources commonly developed as an integral part of their identity and cultural existence. Customary law refers to the system of rules and principles that the communities use to govern themselves and their access to shared resources. The term “customary communities” refers to communities who regulate their lives and tenure rights in terms of such customary law.

Akhona argued that pursuant to the peoples’ right to development, the free, prior and informed consent (FPIC) of all communities with customary rights to the affected land and resources is required for development projects to go ahead. FPIC is in itself a procedural and substantive right that includes the protection of peoples’ right to full and timely disclosure of all relevant information prior to the approval of the project, the recognition of and respect for the customary decision-making processes of the affected communities and, ultimately, the right to say “no” to a project. The need for investors to recognise this is demonstrated by the ability for communities to halt or delay projects through activism.

To what degree is law and policy helping? Where can we bridge divides in progress we see with law?

Roberto Bissio acknowledged the realities of and the struggles faced by women in Africa. He emphasised that the notion of rebalancing power is key. Robert argued that transnational corporations have been granted rights under international investment agreements that ordinary citizens do not have; for example, the right to sue the host government in an international arbitration panel.

Further, courts in the US and the UK recognise corporations as “people” and are granting them “human rights”, such as the right to privacy in the UK (therefore keeping their tax declarations secret) or the right to contribute to political campaigns in the US, where issuing a cheque in support of a candidate has been constructed as protected under freedom of speech. The result of the increasingly unequal bargaining power between transnational corporations and people is concentration of power and increasing inequalities. He emphasised the adage that people have rights and corporations have privilege. Whereas rights are inalienable, privilege is conditional and revocable – a social value that can be taken away.

Roberto then provided an international perspective on the right to development and highlighted certain key provisions in the United Nations Declaration on the Right to Development. For example, article 8 provides that people should have equality of opportunities (such as health and education) and a right to a fair distribution of income. He emphasised that the right to development explicitly includes the right of women to have an active role in development and the duty of governments to encourage popular participation. In this respect, Roberto referenced that other human rights instruments, such as the International Convention on Economic Social and Cultural Rights require international cooperation through inter-state obligations. The right to development, he added, also imposes obligations on governments towards their own citizens, that is, intra-state rights.

Susan Mathews showed how “development” was historically conceived of as an ordering of the world in postcolonial times, by quoting the 1951 United Nations, Department of Social and Economic Affairs, Measures for the Economic Development of Underdeveloped Countries:

There is a sense in which rapid economic progress is impossible without painful adjustments. Ancient philosophies have to be scrapped, old social institutions have to disintegrate, bonds of caste, creed and race have to burst, and large numbers of persons who cannot keep up with progress have to have their expectations of a comfortable life frustrated. Very few communities are willing to pay the full price of economic progress.

Susan referred to Arturo Escobar’s 1995 book “Encountering development: The making and unmaking of the Third World,” explaining Escobar’s view about development as a dream and imaginary; a siren call to societies emerging from their postcolonial histories. Susan pointed out the continued relevance of Escobar’s critique, including that “[p]erhaps no other idea has been so insidious, no other idea gone so unchallenged.” Her perspective on development is that it is captivating, but also holds us captive as an end or goal. In Africa, as in Asia, development representations continue to dominate our thinking, our governance and the paths we take in the name of development. Instead, the idea of right to development should be turned on its head and taken out of its political trappings to reimagine it as peoples’ agency and resistance to dominant development models. Such rethinking is a necessity given the contemporary environmental challenges we face. Transitioning out of carbon-dependent paths is no longer a luxury, it is crucial. In spite of this, Africa’s mega regional Continental Free Trade Area (CFTA) agreement is presently being designed to focus on industrialization’s past, not its future.

She referenced Susan Sontag who wrote that our privileges fall on the same map as our suffering, arguing that with the idea or dream of development, this could not be truer. “Development” gives and it takes away. In order for us to break or challenge that vicious cycle, peoples’ agency and resistance must come to the fore.

How can the peoples’ right to development be made operational for overcoming power differentials on the ground? How does a distinctly African understanding of the peoples’ right to development and FPIC make it into a UN Treaty discussion where the elements might be understood more strictly?

Caroline explained that there is a distinct gap between what is talked about in international forums such as this second session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, and what actually occurs on the ground. For example, at the United Nations, a country might present good people who talk about positive things such as the need to for a legally binding instrument to make sure corporate investment-related abuse stops, but this good will and intent is not seen in-country and  on the ground. Caroline emphasised that the peoples’ right to development can only be realised if the right to environment is protected, including healthy soil for food production, clean water and clean air. In terms of practicalities, transparency is key and, given the cost of lawyers for communities to prove they have been affected by an investment, a reversal of the burden of proof would go some way to rebalancing power dynamics.

Nomonde talked about the gap between instruments and actions in the context of the Amadiba community in Xolobeni, Eastern Cape. The people there do not want extractives as their form of development and are opposing it by all means possible. Earlier in the year, one of their leaders, Sikhosiphi “Bazooka” Rhadebe, was murdered as a result of state and investor resistance to this community opposition. Nomonde discussed the importance of the informed element of FPIC, and highlighted the differences in community members’ conception of development, such as ecotourism and local business initiatives, as compared to the state and mining companies.

The LRC has been representing this community in a number of cases. CALS has intervened in one of the cases wherein it contends that self-determination (which is even wider than FPIC) aligns with FPIC and that, accordingly, people can decide for themselves how they live their lives and make their own decisions. Importantly, these rights are not limited to indigenous peoples, as communities such as those in Xolobeni might not satisfy requirements of indigeneity, but to communities that govern themselves by their own systems of customary laws and are considered customary communities.

At this point in the discussion, a number of fascinating statements and questions were posed by audience members:

  • It is implied in the word “consent” that such consent can be withheld at any stage in the process. Is this understanding shared by those with great power, that is, states and TNCs?
  • Communities are pluralist with inequalities and different views – how is this dealt with in practice?
  • The manner in which development is talked about is a major constraint for Africa. Too many members of civil society buy into the extractives paradigm as the only route for development in Africa and so seek to help negotiations, but will that work? Is that the way out of poverty for Africans? So far it has not proven to be. Robust debate about development in Africa is needed. Instead of top-down economic development, people want protection of rural small scale farmers, prevention of land acquisition for commodity exports instead of staple foods, and protection of the environment.
  • It must be recognised that there is always going to be some degree of hostility within communities, but so too must it be recognised that there is a legacy of colonialism that companies take advantage of. How can this dynamic be reflected in law? Can it?
  • How does the consent principle really operate in practice within a community? For example, how do gender dynamics play out, and how can a person external to the community determine if consent is real? How can corporations ensure the consent is genuine, and how can the law hold them to this?
  • Corporations have different motives when considering what “development” is, in particular, profit motives. How can we ensure that corporations contribute to real development while still harnessing their goals?
  • How can the term “communities” be defined and how can conflict inter- and intra- community conflict be adjudicated? Under the consent element of FPIC, should the right be an absolute veto or some kind of mechanism for balancing? How can compensation be determined if people have to leave their land?

Roberto picked up on the environmental points raised and explained that the heart of the dilemma that developing countries face at the international level is that they need to conserve the environment and biodiversity on the one hand, but also secure funds to deliver antipoverty measures such as health services and education. He referred to the example of Ecuador and the oil reserves of Yasuní in the Amazon. If the Yasuní resource is exploited, indigenous peoples and biodiversity – that is, all of humanity – suffer. On the other hand, Ecuador is a poor country and needs the income. Ecuador proposed that in order to leave the oil in the ground, the international community should compensate for global benefits, suggesting that half of what Ecuador would have earned for exploiting that oil (USD6bn) be paid by the international community. USD200m was pledged, of which only USD13m was delivered. Ecuador announced that oil exploration might eventually be resumed. The Yasuní example, Roberto concluded, warns against voluntary guidelines and pledges in the international setting. He contended that these non-binding statements are nice but cannot be brought to the bank to solve real problems.

Akhona took on some of the questions relating to the nuance of the term “community.” She explained that extending the peoples’ right to development and FPIC beyond indigenous communities to customary communities is necessary in Africa. In terms of the broader term of affected communities, that is more of a political issue and should be considered on a case-by-case basis. Akhona recognised the inequalities and intersectionalities within communities and referenced some of the issues faced where chiefs (sometimes legitimate in title, sometimes illegitimate) claim community compensation that is not necessarily then fairly distributed. Concerns that customary law can exclude women are legitimate, but it is important to understand that the South African Constitution provides that customary law needs to be infused with the values and rights enshrined therein, such as equality and dignity. Akhona emphasised the importance of site-specific determination of community structures and values, in order to apply the broader rights and principles.

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At this point, Dom highlighted that there are similarities between customary communities in Africa and Mexican “Ejido” – lands held communally in the traditional system of land tenure – flagging the potential cross over for inter-regional discussion. Dom further emphasised that FPIC is not a tick box exercise that can be checked off at the start of a project; it refers to both conduct and result. Critique of the UNGPs helps us outline conduct, but we need to go a step further and recognise that the peoples’ right to development is not fulfilled unless shown in the results. Dom also suggested that not only are we dealing with collective rights, but we must also think about collective obligations. These concepts must be extended to questions of corporate liability.

Caroline pointed out that air pollution knows no boundaries. She also emphasised the importance of development processes being proactive and not just reactive, as remedy is sometimes inadequate. The example given was of an Eskom power station that local peoples did not want to be built, as the selected site was a sacred location where graves of ancestors lay. In spite of this, the graves were relocated. Sometimes compensation can never be adequate, as their ancestry was literally dug up and removed.

Susan posed Cooke and Kothari’s notion of participation as tyranny, where people participate in “development” and yet became disempowered when they cannot change the status quo. In this sense, participation also brings into play questions of representation, who speaks and on whose behalf, as benefits are distributed in quite complex ways. Consent has a legal definition but it is not a neutral concept. It is mediated through knowledge and power. Asymmetries in terms of information and temporal components of FPIC must be addressed in order for the basis of any consent to remain viable.

Nomonde argued that there is an obligation on corporations to do no harm, that is, to respect human rights. On the topic of positive obligations (taking action that enables realisation of human rights) and negative obligations (refraining from action that harms), she believes that corporations have both positive and negative obligations. For example, if a mining company uses migrant labour and new communities are established near the mine for those workers but are without services, the company should provide those services.

What now?

There remain many questions to be answered. What this event and the ensuing discussion showed is that “development” and the peoples’ right to development are central concepts when talking about corporate and state investment and projects. Only if those who are directly affected by a proposed project are able to genuinely engage in the process, and only if customary and indigenous communities can choose what path they – as a community – take, can “development” be truly said to occur.

As Dom forewarned, it is incumbent upon civil society working on these issues to find answers to these difficult questions. If gaps are left, then such gaps could be filled by others with different intent.

*featured picture shows Xolobeni in the Eastern Cape

Article by: Anna Bulman, Research Fellow at the Legal Resources Centre

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

Zama zamas: Trying to make ends meet in the face of the apocalypse

Reports of deaths and injuries to informal miners (known as zama zamas) have a way of dividing people, with organisations like the South African National Civic Organisation (Sanco) calling for an intensified crackdown on unlawful mining operations and the arrest of “illegal miners”, while others like the Legal Resources Centre are calling for the better regulation of informal mining to protect miners from environmental and social dangers.

While the debate rages in the media space, informal miners continue to die. The Mines Rescue Services (MRS), a non-profit organisation assisting to recover and rescue mine workers, reported that 22 bodies of informal miners were recovered in 2015 while, so far this year, they have recovered 24 bodies.

The Legal Resources Centre has been working with mining-affected communities and activists in Ermelo, Mpumalanga, where abandoned coal mines cover a large portion of some areas. Activists are rightly concerned about the working conditions in the mines and the environmental damage the coal seam is causing in the area.

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The coal seams can clearly be seen in this picture – Ermelo April 2016

I was part of a team of LRC staff meeting four activists who wanted to show us the conditions that prevail in that area and the ends that miners will go to in order to make a living. Zama zama loosely means “trying to make ends meet”.

Upon arrival on a windy April day, we were shocked by what we saw. There was strong heat and smoke coming from the coal seams that had been on fire for months, the activists told us. These blistering fires are blazing through cavities of abandoned coalfields on the outskirts of Goldview Colliery. The earth we walked on was filled with sinkholes caused by the burning layers of coal beneath the surface.

As we came closer, the ecological damage the fires are causing became obvious. Trees and other plants were damaged; the land is rendered redundant, desert-like. Nothing can grow here.

There was no avoiding inhaling the smoke. Coughing, we imagined the long-term effects for people living here, exposed to it daily. The activists tell of rivers and boreholes that are polluted by acids coming from the mines – poisonous for people, fish and wildlife. It’s perilous terrain for anyone or any animal, who risk falling into open pits and shafts.

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Damage to the landscape is hazardous to animals and people – Ermelo April 2016

With coal seams blazing on one side, scores of zama zamas mine the abandoned shaft on the other. They are community members from Ermelo and surroundings.

We ventured down the mine, squeezing past the main entrance designed for a wheel-barrow. It was very dark. Miners had torches; we used our phones for light. Though we could not get an exact sense of how many people were inside, we speculated there were around 50 people down the shaft.

There are many pathways but some had collapsed. Despite the obvious dangers, the miners chatted and joked with us and we learned about certain rules they abide by as they work; one of the most important being the “no smoking” rule. Smoking can spark underground fires because of the remaining flammable chemicals the previous formal mining company had used. They abandoned the mine, taking little responsibility for the degradation they caused, nor rehabilitating the area.

We went deeper into the mine. We could feel the heat coming from the blazing coal seams on the other side. This situation is dangerous and miners are exposed to it every day of their lives.

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The coal seam is on fire and smoke can be seen coming out from underground shafts – Ermelo April 2016

One activist amongst the four is a former zama-zama and he told us that many people in Ermelo do not have much of a choice than to risk their lives underground. Reports also points out that several miners have lost their lives in the past few years in the same mine. On 3 July 2015, in the Highvelder newspaper, it was reported that several illegal miners have perished in the mine over the past few years and authorities seem at loss to prevent these activities.

Many people in the area live in terrible circumstances. Unemployment rates are high. The miners confirmed that the little money they earn by selling coal to local communities is their only source of income. “There are no jobs; that is why you see us here”, says one zama-zama.

A couple of hours later, we leave the mine shaft. We were all experiencing back pains. We were then led to an informal settlement in the Gert Sibande District Municipality, not very far from the abandoned mines. We spoke to two community members.

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The conditions in abandoned mines pose a threat to the lives of the informal miners – Ermelo April 2016

A mother of an 11-year-old, Busisiwe Mkhwananzi, told us that she had to move from where she used to live because of the fire that used to spark up inside her house.

The sparks are caused by the chemicals under the ground. That, with the electric cables which run beneath, sparks fire more especially during rainy weather conditions.

“The problems of mines in our area had been reported to authorities, including the ward councillor, but nothing has been done about it so far”, she said. Busisiwe was told to leave the area by representatives of her ward councillor because it was no longer safe for her and her daughter to continue staying there.

“They never gave me any alternative housing or perhaps show me a site where I could build and start a new life”, she said.

There is widespread concern of methane gas and other toxic gases being released through surface cracks as informal mining continues. There have been reports that houses have caught alight due to these flammable gases been released into homes that are built on top of old coal seams.

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Coal extracted informally is the life-blood of the informal settlements in Ermelo, but the abandoned mines pose a threat to human health and the environment – April 2016

We also spoke to Sphiwe Mjuza. She is frustrated by the conditions they live under, which are dangerous and could lead to loss of life. “We are always on guard; constantly monitoring our children when they are playing because any danger can happen unexpectedly. We also fear that elderly people living in this area will not be able to escape in the face of imminent danger”, Mjuza said.

The abandoned coal mines and the continuation of informal mining not only affect miners when they are exposed to collapses and the inhalation of smoke, but also pose significant health and environmental hazards to the Ermelo community at large. This is a community stuck between a rock and hard place and the situation calls for action so that no more lives are lost.

By: Lucky Mabasa

Lucky Mabasa is a communications intern at the Legal Resource Centre.

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

Update: European Court to consider right to education

During the course of today, 20 October 2016, the European Court of Human Rights will receive submissions drafted by the Legal Resources Centre, acting as an intervening third party in the case of KOSA v Hungary.

In this case, Amanda Kosa, the applicant who is part of a minority group, is arguing that the Hungarian government has breached her right under the European Convention on Human Rights, to an education free from discrimination. The bus service to her previous school was cancelled and children from her community are now attending a school closer to their settlement, forcing the children to be separated from their fellow Hungarian learners.

The European Court will be asking three questions:

  • Have Hungarian domestic remedies been exhausted?
  • Has there been a breach of the applicant’s right to an education free from discrimination?
  • Has the applicant been denied the right to education through the cancellation of the bus service connecting her neighbourhood with a school providing integrated education for children from various social backgrounds?

In our submissions, we argue that –

  • Our High Court has, drawing on international law (including article 13 of the International Covenant on Economic, Social and Cultural Rights, and General Comment 13 of the Committee on Economic, Social and Cultural Rights) held that in appropriate cases, upholding the right to basic education in section 29 of the Constitution requires the provision State-funded transportation for learners.
  • The evidence of the importance of this finding is stark in the Eastern Cape, where much of our work takes place. The need for learners to walk very long distances to school often leads to students missing days of school, dropping out of school, as well as being victims of criminal acts during their daily commute on foot.
  • It is our submission that the provision of State-funded scholar transportation, in appropriate cases, is a necessary aspect of the fulfilment of any right to education.
  • This is especially true when those requiring the fulfilment of their right to education have faced historical unfair discrimination, such as minority groups, and a denial of access to education would perpetuate this discrimination.

The submissions are attached: kosa-v-hungary-lrc-written-submissions-final-draft

European Court of Human Rights to consider Right to Education

 

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Photo: LRC attorney Mandira Subramony  with the Eastern Cape learners in their long walk to access education facilities in the province

The LRC have been granted leave to intervene at the European Court of Human Rights, in a matter against the government of Hungary. The case of Amanda Kosa v Hungary challenges a possible infringement of the right to education in the European Convention on Human Rights.

What’s the case about?

Huszar telep is a settlement in the Nyiregyhaza region of Hungary. It is made of up mostly Romani people. The Roma or Romani people are a nomadic ethic minority group, living in a number of countries in Europe – including Bulgaria, Slovakia, Romania, Serbia and Hungary. They are one of the largest ethnic minorities on the continent.

In 2011, the Greek Catholic Church in Nyiregyhaza opened a segregated school, near Huszar telep, serving only Roma children from the settlement. Prior to this, the Roma children had been attending an integrated school, 2.3 kilometres away from the settlement. The mayor and town council of Nyiregyhaza had been providing a bus to take the children to the integrated school. At the same time as the establishment of the Greek Catholic school, the children’s bus was stopped by the town council.

Amanda Kosa, the applicant before the ECtHR, is one of the pupils attending the segregated school.

The Chance for Children Foundation (a foundation representing rights of children from disadvantaged backgrounds in Hungary) took the case to court in 2011, suing the Greek Catholic Church for illegal segregation.

The case made its way through the Hungarian legal system, ending at the Kuria – the highest court in Hungary. The Kuria ruled in favour of the Greek Catholic Church, on the basis that the free choice of religion at school supersedes the prohibition of segregation. However, those in favour of integrated schooling do not believe that the school was being chosen because it was being run by Greek Catholics, but rather because it was close to the settlement and parents could not afford the necessary city bus transport after the subsidised bus had been cancelled.

The European Court of Human Rights will be asking three questions:

  1. Have Hungarian domestic remedies been exhausted?
  2. Has there been a breach of the applicant’s right to an education free from discrimination?
  3. Has the applicant been denied the right to education through the cancellation of the bus service connecting her neighbourhood with a school providing integrated education for children from various social backgrounds?

So why are we getting involved?

Question (3) is where the LRC’s input will be important.

In 2015, the LRC won an important case in the Grahamstown High Court. See Tripartite Steering Committee and another v Minister of Basic Education and others Case no 1830/2015 (26 June 2015). In it, Plasket J, finding in our favour, stated unequivocally that, “where scholars’ access to schools is hindered by distance and an inability to afford the costs of transport, the State is obliged to provide transport to them in order to meet its obligations in terms of s 7(2) of the Constitution, to promote and fulfil the right to basic education” (paragraph 19).

In light of our work on scholar transport in the Eastern Cape, we can play an important part in demonstrating to the ECtHR how and why the provision of transport to scholars impacts on the fulfilment of the right to education.

The ECtHR is not able to overturn the decision of the Kuria. It will decide only whether there has been a violation of the Convention or the Protocols, and may award “just satisfaction” (i.e reparations) if the internal law of Hungary has allowed only partial reparation to be made.[1]

Our written submissions are due on 20 October 2016.

 

[1] See Article 41