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UN Rapporteur on right to education
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Quintessence
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Mar 20, 2000 20:06 PST
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Hi everyone, I hereby copy a message that was posted earlier at other
lists, I just reformatted things a bit.
From: spin-@dove.net.au <spin-@dove.net.au> Add to Address Book
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Subject: [homeedlegal] statement by special rapporteur on right to
education (long)
Date: April 25, 2036 1:48:23 AM EDT
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From: "spin-@dove.net.au" <spin-@dove.net.au>
Hi,
Below is the text from a statement by the special rapporteur for
education from the United Nations (apologies for the formatting):
xxx
Statement by Special Rapporteur on the right to
education
xxxxxxxxxx
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
(Vanessa): This is interesting reading!
mail from spin-@dove.net.au
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