**8. Right to education in international law**

*"... Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms..."*

Article 26 [2] of the Universal Declaration of Human Rights.

2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

Article 26 [2] of the Universal Declaration of Human Rights.

The International Covenant on Economic, Social and Cultural Rights provides in Article 13:


a.Primary education shall be compulsory and available free to all;


## **9. A problem not overcome**

Public university education in Chile was free until 1990, when the Pinochet regime enacted the Organic Constitutional Law of Education No. 18.962 (LOCE), which was published in the official gazette of Chile on March 10, 1990, the same day of the end of the military regime, law that was enacted in the exercise of power of Augusto Pinochet Ugarte, on March 7 of the same year. It was repealed in 2009, by the General Education Law (LGE), during the government of President Michelle Bachelet.

The International Covenant on Economic, Social and Cultural Rights was promulgated on April 28, 1989 and published in Chile's official gazette on May 27, 1989. According to the provisions of Article 5 of the Political Constitution, the aforementioned Covenant was part of the Constitution, so that the right to free public education was guaranteed, since the progressive implementation of free education had been achieved prior to the Covenant, so that its subsequent elimination constitutes a disregard and infringement of the law and of the aforementioned international Covenant.

International law does not require a specific form for the reception of the treaty, it only requires the States that commit themselves to fully comply with the Treaty. The different procedures of incorporation put into practice in the different States, as De Visscher maintains, do not alter the fact that treaties constitute both a source of Internal Law and of International Law. And the only requirement of International Law is that the treaty be respected and complied with, for which each State may adopt the necessary and useful measures. Chilean legislation incorporates conventional international law through the procedure of promulgation and publication of the Treaty in the Official Gazette. Indeed, Article 54 of the current Political Constitution provides that "The Congress has exclusive powers: 1) to approve or reject the International Treaties submitted to it by the President of the Republic prior to their ratification. The approval of a treaty shall be subject to the procedures of a law".

The same constitutional regulation contemplates in its Article 75 that "The promulgation must always be made within 10 days, counted from the time it is appropriate. The publication shall be made within five working days following the date on which the promulgating Decree is fully processed". Article 5 of Decree Law 247 of 1974, establishes a mechanism for the incorporation of the treaty into the legal system, stating that "such treaty shall be promulgated by Supreme Decree of the Ministry of Foreign Affairs", which shall order its compliance and that it be carried into effect as a law of the country and that "such Supreme Decree as well as the text of the treaty be published in the Official Gazette".

The promulgation and publication of international conventions give them full force and effect, which translates into their full incorporation into the domestic legal system. The Courts may directly apply the provisions of such conventions, without prejudice to consider the rights recognized therein as principles of law and as jus cogens norms, as the case may be.

When the conflict between national and international norms cannot be resolved through interpretation, then the courts have invariably indicated that international law takes precedence.

In the specific case of International Covenants, the conciliation between International and National Law is inevitable and obligatory for the Courts, by virtue of the provisions of Article 5 paragraph 2 of the Political Constitution of 1980, which provides that the "exercise of sovereignty recognizes as a limitation the respect for the essential rights that emanate from human nature", rights that are - in turn - recognized in detail in the International Covenants mentioned above.

The Political Constitution of 1980 recognizes and guarantees the exercise of many of these human, civil, political, economic, social and cultural rights, in particular in articles 1, 4, 5, 10, 12, 13, 14, 15, 19, 20, 21, 45 and 76. These constitutional norms find their referent in those of the Covenants. Indeed, the duty of the State to recognize the freedom and equality of all, which is enshrined in Article 1 of the Constitution, is recognized in Article 2 of the Covenant on Civil and Political Rights and in Article 2 No. 2 of the Covenant on Economic, Social and Cultural Rights. This exercise can be done with each of the human rights recognized in the Constitution.

Eventually, national law, including constitutional law, could collide with the Covenants, but such conflict must necessarily be resolved in favor of human rights, not only because of the binding nature of International Law but also because the Constitution itself, in Articles 1 and 5 of the Constitution, first provides for the foundational nature of human rights and then, the limitation to the powers of the authorities instituted in the Constitution, in the respect for the essential rights that emanate from human nature. Notwithstanding the foregoing, the Chilean courts have made efforts to ensure that the international standard is applied in the country, making conciliatory interpretations to that effect.

Of course, the current Political Constitution contains some norms of public law that establish contradictions with those of international conventions, and the way to solve them is not by judicial means but by an effective process of constitutional and legal transformation based on the exercise of the right to self-determination of the people, enshrined, for example, in the International Covenants on Human Rights, in accordance with the obligations stipulated in the second articles of these legal instruments, nowadays in force as Chilean internal laws.
