Statement by Special Rapporteur on the right to education

Commission on Human Rights, Geneva, 22 March - 30 April 1999
Item 10: Economic, social and cultural rights
8 April 1999

My hope was to be able to speak today in the comfortable knowledge that my preliminary report had been available since January and all who wished to do so would have had the opportunity to read it. The United Nations’ Secretariat, however, surpassed itself by having taken no less then four months to make the report available, two months after the date which the report actually carries. This might not constitute a record which calls for a celebration but is a record worth mentioning.

The Commission’s initiative to create the Special Rapporteur on the right to education could not have been better timed. Actors ranging from the Committee on Economic, Social and Cultural Rights to the World Bank are currently elaborating their vision of what education should look like in the near future and what their respective roles should be. Convergence between human rights and development is increasingly affirmed in rights-based development, evidenced in UNICEF’s commitment to the right to education or the inclusion of the rights of the child in the work of CEPAL (Comisión Económica para América Latina y el Caribe). A diminishing gender gap in education - particularly in the Middle East - has been one of the notable successes of the past years. Elimination of gender discrimination cuts across education and human rights as the goal as well as the yardstick, showing that the human rights approach can inform international educational strategies and be successfully translated into practice. It is for gender that the term mainstreaming had first been developed to open the way for the mainstreaming of human rights. It may well be that women’s rights shall lead the way for the mainstreaming of human rights in development and education may represent the catalyst.

The past two decades have shown the necessity of discussing governmental human rights obligations on two levels: on the level of individual States as is customary but also on the level of inter-governmental agencies within which Governments act collectively. While individual Governments were traditionally deemed capable of complying with their human rights obligations if they exhibited the proverbial political will, the tumultuous 1980s showed that the political will of many Governments of developing countries was simply not enough to convert the right to education from a dream into a right. Diminishing educational enrollments in the 1980s led to crisis-driven reforms in the early 1990s,but also provided an opportunity for introducing human rights into the policies of international development finance agencies. I shall, of course, not replicate what is being done by the independent experts on foreign debt, structural adjustment or absolute poverty but confine myself to the human rights dimensions of education. Aid for education as a method of enhancing the capacity of Governments to fulfil their obligations corollary to the right to education represents one topic which I have chosen for in-depth study in 1999. The 1990 Jomtien Conference, that symbol of the crisis-driven reform that started one decade ago, had inspired more than one hundred Governments to elaborate Education for All strategies and half of them secured international financial support for their implementation. International and foreign aid has remained, however, at no more than 3% of national education budgets. When this aid represents loans rather than grants, the capacity of Governments to guarantee primary education free of charge may not be enhanced at all. I am therefore planning to assess the human rights impact of international aid for education in my progress report.

The prevailing linguistic variety in the sector of education reflects different visions of what education should be. Neither the terminology nor the underlying concepts are necessarily rights-based. Education can be treated a means for increasing the individual’s earning capacity or for lowering women’s fertility rates. From an indigenous or minority perspective, education can be identified with oppression. Human rights law specifies the purpose and objective of education and requires the mainstreaming of human rights throughout the process of education. From the human rights viewpoint, education is an end in itself rather than merely a means for achieving other ends. When economists define education as efficient production of human capital and classify all its human rights dimensions as externalities, the resulting image of people as human capital obviously clashes against people as subjects of rights. The Commission’s choice to focus on the right to education has provided the welcome incentive for including the human rights perspectives in the sector of education and facilitating rights-based development.

The objective of getting all school-aged children to school and keeping them there till they attain the minimum defined in compulsory education is routinely used in the sector of education, but this objective does not necessarily conform to human rights requirements. In a country where all school-aged children are in school, free of charge, for the full duration of compulsory education, the right to education may be denied or violated. The core human rights standards for education include respect of freedom. The respect of parents’ freedom to educate their children according to their vision of what education should be has been part of international human rights standards since their very emergence.

The principle that human rights should be the yardstick for assessing the contents of educational curricula and textbooks is gaining ground slowly, enhanced through the growing commitment to human rights education. I have made it a priority in my work to gather and analyse the varied and rich jurisprudence concerning all dimensions of the right to education. It demonstrates how outdated speculating whether the right to education is legally enforceable has become; not only that it only can be litigated, it is. More importantly, this varied and rich jurisprudence demonstrates that international human rights law has effectively become the guiding force for the interpretation of the nature and scope of the right to education.

The heritage of compulsory education provides evidence of the States’ commitment to education predating the right to education by at least one century. The existence of compulsory education is, however, indicative of the realization of only one component of the right to education because the parental freedom of choice might not be recognized, schooling might equal brainwashing rather than educating. If primary education is compulsory, provided against the payment of a fee, in a uniform State-run school system, without freedom of opting out, education is not ‘free’ in any possible meaning of this term, the right to education is denied rather than realized.

The introduction of human rights into the sector of education is a process that has barely started in the 1990s. Co-operation with international agencies working in education, such as UNESCO or UNICEF, can yield a great deal of benefit both to education and to human rights. A great deal of effort is necessary to facilitate the conceptual move from education to the right to education and I want to record the pioneering role of UNICEF in this area. I need to add that much more has been done within the sector of education to grasp and accommodate its human rights dimensions than in the field of human rights to clarify how the existing standards should apply within education. Last year the Commission triggered off the process of reducing this imbalance and my hope is that the human rights outreach into the sector of education will increase, both internationally and domestically.

The existing educational statistics demonstrate the orientation and priorities of the sector of education. What is monitored is illiteracy, public investment in education, or enrollment ratios. What is not monitored is educational accomplishment beyond mere literacy, the private cost of education, or the fate of children who are not encompassed by educational statistics. We simply do not know how many children are not registered at birth and do not exist legally or statistically. Enrolment statistics tell us the number of children who are in school (or at least registered at the beginning of school year) but not how many should be in school but are not. The iron rule of inverse correlation deprives us of the basic data where these are most desperately needed. The high, but unknown, numbers of children who are not registered at birth nor counted in the official censuses is cloaked behind the admirable capacity of international agencies to estimate their numbers. Such estimates may provide approximate numbers and thus indicate the size of the problem but tell us nothing about its causes. The essential human-right question is whether these children are merely unreached or are they actually excluded.

The principle of non-discrimination has gained entry into the sector of education through gender, demonstrating how much change is necessary to adjust education that exhibits multiple gender gaps to education that would be characterized by gender balance. Although the challenge is immense, the speed and scope of the commitment to ‘gender adjustment’ in education has been impressive.

As is well known, international statistics do not follow the definition of the child as any person up to the age of eighteen. The starting age for education can be as low as two or as high as seven. The duration of compulsory education ranges from three to twelve years. The statistical coverage of basic education refers to children between six and eleven years. Between the ages of eleven and fifteen they fall outside educational statistics; they have to wait till they are fifteen even to be counted as illiterate. The rights of the child approach cannot sustain the abandonment of eleven-year-olds by the sector of education, with labour force statistics picking them up from the age of fifteen. Their working on the street or in the field, making ends meet whichever way they can, makes the difference between ‘legal’ and ‘illegal’ rhetorical and the human rights discourse hypocritical.

A comprehensive strategy for the full realization of the right to education is necessary and long overdue. A unique task of Governments is to elaborate educational strategy, to regulate education by setting and enforcing minimum standards, to carry out permanent monitoring and undertake corrective action wherever and whenever necessary. This task is carried out by Governments collectively and individually and enjoys universal recognition. To portray the complexity of Governmental obligations corresponding to the right to education, I examined primary education in my preliminary report through a 4-A analytical scheme - education has to be available, accessible, acceptable and adaptable.

The first State’s obligation relates to ensuring that primary schools are available for all children. While the State is not the only investor, international human rights law obliges it to be the investor of last resort so as to ensure that primary schools are available for all school-age children. The scope of this task for a continent with young population and young states, such as Africa, is well known as is the inadequate international aid thus far.

The State’s obligation to make primary education free of charge is in practice frequently, albeit erroneously, associated with the State’s provision of primary education. The State’s obligation to make primary education free is in quite a few countries implemented through subsidies to a diverse range of primary schools. Very few countries have only public or only private schools, most have a mixture. The meaning of ‘private’ varies a great deal. In its broadest sense, it encompasses all non-State-run schools, some of which may actually be partially or even fully funded by the State. The assumption behind the term ‘private’ is that all such schools are profit-making while many are not. The term is applied to formal and non-formal education, religious and secular schools, minority and indigenous schools, as well as schools for children with special needs. My initial findings confirm that this public/private dichotomy does not capture the reality of many countries. Fortunately for the future of education, human ingenuity placed the practice far ahead of the theory.

Conflicts between different visions of education are particularly frequent with regard to the role of the State, and range between assertions that the State should finance and operate the entire system of education and those that would deny the State any role in providing education. These conflicts are, fortunately again, far more prominent in theory than in practice. In practice, the role of the State in education is increasingly addressed by domestic constitutional or supreme courts in their interpretation of the right to education. International agencies, such as the World Bank, could envisage the provision of school vouchers by the State so as to enable parents to send children to a school of their choice. Domestic constitutional courts could be faulting this option as inconsistent with the obligation of the State to provide education as a public service. We are thus gaining an understanding of the right to education even in those areas that were until recently deemed not to be justiciable.

The second State’s obligation relates to ensuring access to available public schools, most importantly in accordance with the existing prohibition of discrimination. Non-discrimination is the overriding principle of international human rights law and thus applies to civil and political, economic, social and cultural rights, as well as to the rights of the child which cut across these two categories. Non-discrimination is not subject to progressive realization but has to be secured immediately and fully. A rich and varied practice of States demonstrates that exclusion from school has become synonymous with the denial of the right to education and court cases take place daily, worldwide, whether the learners’ pregnancy or sexual orientation is at issue.

The State is obliged to ensure that all schools conform to the minimum criteria which it has developed as well as ascertaining that education is acceptable both to parents and to children. Education can represent a denial of the right to be different if it does not recognize and respect indigenous and minority rights. Respect for parental freedom to have their children educated in conformity with their religious, moral or philosophical convictions has been affirmed in all human rights treaties and is being continuously reinforced through litigation. Restrictions upon school discipline have considerably increased in the past decades to protect the child’s dignity against humiliation or degradation. They were, and are likely to continue generating controversies. The realization of the right to education is a process, greatly facilitated by the rationale behind the human rights norms: the way we treat children forms the kind of people they become.

Much as with school discipline, the human rights norms concerning the language of instruction are in their infancy. We have no idea what percentage of humanity starts and finishes education in a language that is foreign to them. We have some idea about the correlation between children’s dropping out of school and the alien language of instruction. What we are referring to as drop-outs could be more appropriately called ‘push-outs’ children are forced out of school through an incomprehensible curriculum presented in an alien language.

The contents and process of learning is routinely examined from the viewpoint of the child as future adult, while the Convention on the Rights of the Child requires that the best interests of the child be given prominence. The choice of the best interests of the individual child highlights the need for the educational system to become and remain adaptable. The countervailing pressures of globalization and localization reinforce the need for adaptability so as to make education responsive to the immediate reality facing learners in their own community and to the rapidly changing global realities.

This A-4 scheme has served me as an analytical grid to initiate an inquiry into rights-based education. I have followed the priority that the Commission attached to primary education and my preliminary report dealt only with primary education. I am planning to extend my progress report to secondary and tertiary education and, if the Commission so wishes, also to include pre-primary education. I have started preparing my first country missions, knowing that a generalized portrayal of the right to education on the global level gains a great deal from specific examinations of the problems and remedies at the domestic level. My focus has been and shall remain on remedies, on the promotion of the right to education.

Since this is the last meeting of the Commission before the turn of both the century and the millennium, the magic year 2000 is just around the corner and all strategies for what should have been accomplished by the year 2000 will soon become history as will, I hope, the abyss between the sector of education and the right to education. There is a great deal of challenge in building a bridge across this abyss, evidenced in those areas where an international policy has yet to be created. Suffice it to mention two issues that have been brought to my attention during the past five months and illustrate the range of topics that organizations and individuals from different corners of the world want the United Nations to address within the right to education. The first one is that education is not a humanitarian good; it is excluded from the standard humanitarian ‘first-aid package’ which is confined to survival items (food, water and medicine). The second one is exemplified in the truism that peace-making is impossible without education, if for no other reason, then because education is a key to an alternative livelihood for the present and future soldiers, most of who are men and boys. When thinking about gender, we tend to accept the abstract premise that gender refers to socially constructed roles for men and women but then we tend to forget to apply it to men as well as to women. Again, education may well prove to be a catalyst