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Limitations on article 13
42.
The Committee wishes to emphasize that the Covenant's limitations clause, article 4, is
primarily intended to be protective of the rights of individuals rather than permissive of the
imposition of limitations by the State. Consequently, a State party which closes a university or
other educational institution on grounds such as national security or the preservation of public
order has the burden of justifying such a serious measure in relation to each of the elements
identified in article 4.
II. STATES PARTIES' OBLIGATIONS AND VIOLATIONS
General legal obligations
43.
While the Covenant provides for progressive realization and acknowledges the
constraints due to the limits of available resources, it also imposes on States parties various
obligations which are of immediate effect.19 States parties have immediate obligations in
relation to the right to education, such as the “guarantee” that the right “will be exercised without
discrimination of any kind” (art.2 (2)) and the obligation “to take steps” (art. 2 (1)) towards the
full realization of article 13.20 Such steps must be “deliberate, concrete and targeted” towards
the full realization of the right to education.
44.
The realization of the right to education over time, that is “progressively”, should not be
interpreted as depriving States parties’ obligations of all meaningful content. Progressive
realization means that States parties have a specific and continuing obligation “to move as
expeditiously and effectively as possible” towards the full realization of article 13. 21
45.
There is a strong presumption of impermissibility of any retrogressive measures taken in
relation to the right to education, as well as other rights enunciated in the Covenant. If any
deliberately retrogressive measures are taken, the State party has the burden of proving that they
have been introduced after the most careful consideration of all alternatives and that they are
fully justified by reference to the totality of the rights provided for in the Covenant and in the
context of the full use of the State party’s maximum available resources.22
46.
The right to education, like all human rights, imposes three types or levels of obligations
on States parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil
incorporates both an obligation to facilitate and an obligation to provide.
47.
The obligation to respect requires States parties to avoid measures that hinder or prevent
the enjoyment of the right to education. The obligation to protect requires States parties to take
measures that prevent third parties from interfering with the enjoyment of the right to education.
The obligation to fulfil (facilitate) requires States to take positive measures that enable and assist
individuals and communities to enjoy the right to education. Finally, States parties have an
obligation to fulfil (provide) the right to education. As a general rule, States parties are obliged
to fulfil (provide) a specific right in the Covenant when an individual or group is unable, for
reasons beyond their control, to realize the right themselves by the means at their disposal.
However, the extent of this obligation is always subject to the text of the Covenant.