International Human Rights and Home schooling.

This is a response to this worldnetdaily.com article which refers to this article by Michael Farris from Home Schooling Legal Defense Association.

While International Human Rights law can and will effect national laws, the warnings expressed in these articles are, in my opinion, exagerated. Neither does the European Court of Human Rights (ECtHR) decision in Konrad v. Germany(1) create any presidence in International Human Rights law for restricting home schooling, for the following reasons:

First, its a decision not a judgment. The ECtHR simply dismissed the case as "manifestly ill-founded." The ECtHR held that the European Convention of Human Rights does not contain a provision giving parents exclusive rights over the education of children.

Secondly, the basis for ECtHR decision was the "margin of appreciation" that the ECtHR gives to contracting states. The ECtHR is very hesitant to overrule national courts and laws enacted by democratically elected legislatures. European nations can therefore, with reason, regulate the educational requirements of children.

This decision poses no threat to home schooling rights in other European Countries, particularly not to countries such as Denmark, Finland and Ireland which have provisions for home education in their constitution.

Konrad v. Germany also makes it clear that Germany's "Basic Law" guarantees "the right to establish private schools." The state does therefore not have a monopoly on education, only the right to regulate it.

Finally, even if the US Congress were to ratify the UN Charter on the Rights of the Child, it could only be enforced by US courts. Although US courts could refer to Konrad v. Germany in its decisions, the case contains no authority for any proposition of law other than national law has priority over international law. US court are, anyway, extremely unwilling to find inspiration from international jurisprudence.(2) As Supreme Court Justice Scalia said in the 2002 case of Atkins v Virginia (3) said: "Equally irrelevant [to decisions of the US Supreme Court] are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people."

(1) Konrad and others v. Germany, 11 Sept. 2005, application no. 35504/03, see www.echr.coe.int/echr.
(2) for more see Ignatieff, Michael. American Exceptionalism and Human Rights (Princeton NJ, Princeton University Press, 2006).
(3) Atkins v Virginia, 536 U.S. 304, 348 (2002)