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Distr.GENERAL E/CN.4/2004/45 26 December 2003 Original: ENGLISH |
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The right to education Report submitted by the Special Rapporteur, Katarina Tomasevski 1 Executive Summary [ Go to Contents ] This is the sixth - and the last - annual report of the Special Rapporteur on the right to education. When her mandate was established in 1998, its key purposes were enhancing the visibility of the right to education and eliminating obstacles and difficulties in its realization. This has proved to be an impossible task because obstacles and difficulties in the carrying out of her mandate have considerably increased each year. Her formal complaint against the Office of the High Commissioner for Human Rights on 15 October 2003, not yet resolved, dealt with her efforts to enhance the visibility of the right to education. Her recommendation to the Commission is, therefore, not to renew the mandate on the right to education. The Special Rapporteur has prioritized the Commission's concern about financial obstacles in the realization of the right to education throughout her work. She has repeatedly brought to the Commission's attention the dual legal status of education, as entitlement and traded service. She has recently carried out a global review of the charging of school fees in primary education around the world to find out that not even primary education is free in 91 countries. This report includes a tabulated overview of her findings and further information will be provided during the Commission's sixtieth session. "This report has focused on gender, highlighting the need for cross-sectoral strategies for girls' education since many obstacles lie beyond the sector of education. The most widespread obstacles - marriage and pregnancy - as identified in government reports under human rights treaties are presented in a tabulated form. They highlight another crucial issue for the elimination of gender discrimination, namely access to sex education. This report ends with a summary of lessons learned during the past five years of the mandate. Its key message is the urgent need for a substantive human rights contribution by the United Nations actors which bear "human rights" in their name. Sadly, education statistics are too often repeated without an analytical underpinning grounded in human rights expertise although the existing openings for human rights mainstreaming in global, regional and domestic education strategies require human rights expertise. Human rights mainstreaming usefully complements the global focus on the means of education (children starting and completing primary school) by asking: education for what ?
Introduction [ Go to Contents ] 1. The introduction to this report requires reiterating the beginning of the Special Rapporteur's previous annual report (E/CN.4/2003/9, para. 1) because the conditions under which she is working have worsened even further the past year. As before, she has done all the work herself and the amount of her own funds necessary to carry out her mandate increased in the past year to over $18,000. On 15 October 2003 she submitted a formal complaint against the Office of the High Commissioner for Human Rights (OHCHR), followed by her objections (6-16 November 2003) to the processing of her mission report. Her formal complaint did not trigger any response by the time this report had to be finished, and the Special Rapporteur will inform the Commission about the follow-up in her oral report. Thus, the Special Rapporteur recommends that the Commission on Human Rights decide not to renew the mandate on the right to education. I. A BRIEF OVERVIEW OF MAJOR ACTIVITIES AND DEVELOPMENTS IN 2003-2004 [ Go to Contents ] 2. Human rights mainstreaming as a pillar of international cooperation across sectoral, disciplinary and professional divides has been accepted by many global, regional and domestic actors as well as individual Governments. The Special Rapporteur has, therefore, intensified her cooperation with the United Nations Economic Social and Cultural Organization (UNESCO), especially in the preparation of the Education for All (EFA) Global Monitoring Report 2003/4, which was launched on 6 November 2003. The integration of human rights in the analytical framework for the global monitoring of policies and actions for achieving education for all represents a welcome change. The analytical underpinnings of this monitoring framework illustrate the benefits of interdisciplinarity. Also, they highlight the advantages of the human rights approach in assessing progress and "reinforcing accountabilities." 2 3. Accountability has been the Special Rapporteur's key theme throughout her mandate, translating into practice the symmetry of human rights guarantees and the corresponding government obligations. The call for contributions and recommendations to the open-ended working group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights in resolution 2003/18 of the Commission on Human Rights has provided a welcome opportunity for the Special Rapporteur to summarize the state of domestic and international jurisprudence on the right to education, which will constitute her contribution. 4. The Special Rapporteur carried out two missions in 2003. The first one, to the People's Republic of China (E/CN.4/2004/45/Add.1), took place from 10 to 19 September 2003. Her second mission was to Colombia (E/CN.4/2004/45/Add.2), from 1 to 10 October 2003. Although the countries she visited are different by all criteria one might choose, problems with the realization of the right to education are similar and highlight some of the key obstacles to its realization:
5. Following the Commission's request to highlight obstacles to the carrying out of thematic mandates (resolution 2002/84, para. 6), the Special Rapporteur noted in her previous annual report the obstacles she had encountered regarding Ethiopia and Turkey (E/CN.4/2003/9, para. 30). These have not diminished in the meantime, adding support for the Special Rapporteur's recommendation that the mandate on the right to education not be renewed. 6. The Special Rapporteur has continued to try to overcome these obstacles and, regarding Ethiopia, wrote on 6 July 2003 to the United States of America as a lead donor for education in Ethiopia, as part of the follow-up to her mission to the United States (E/CN.4/2002/60/Add.1). That letter, and the previous one of 28 October 2002, sought information on the practical realization of the commitment to incorporate human rights in all United States Agency for International Development (USAID) programmes. No reply was received by the time this report was finalized and she will followup her letter and inform the Commission of the outcome in her oral report. 7. The Special Rapporteur sent six letters to the Government of Turkey subsequent to her mission in February 2002 (E/CN.4/2002/60/Add.2), all of which have remained unanswered. This has prevented the Special Rapporteur from carrying out her mandate by addressing serious obstacles to the realization of the right to education in Turkey that she identified during her mission, and additional ones brought to her attention subsequent to her mission. Following the priority attached by the Commission on Human Rights to the integration of human rights in international cooperation, the Special Rapporteur wrote on 8 September 2003 to the Italian Presidency of the European Union so as to explore possibilities for an increased emphasis on the right to education in the European Union's cooperation with Turkey. There has been no reply as yet and the Special Rapporteur will followup her letter and inform the Commission of the outcome in her oral report. II. ECONOMIC EXCLUSION FROM EDUCATION [ Go to Contents ] 8. An important part of the rationale for education as a human right was its exemption from the free market, where access to education is determined by purchasing power. Recent challenges to this rationale have been reflected in an altered vocabulary, where the right to education has been replaced by access to education, and government obligation to ensure that at least compulsory education is free has been challenged by placing free between inverted commas and referring to "free" education. The rationale for such linguistic choices has been to emphasize the fact that education has to be funded, but to implicitly deny that education should be funded by the Government so as to constitute an individual entitlement, particularly for each child. The rationale of the right to education is a system whereby education is free at the point of use, on the basis of entitlement rather than ability to pay. The human rights obligation of Government to adequately fund education exists so that children would not have to pay for their schooling or remain deprived of it when they cannot afford the cost. Children cannot wait to grow, hence their prioritized right to education in international human rights law. The damage of denied education while they are growing up cannot be retroactively remedied. 9. There is an increased global consensus behind the need to free education from direct costs through government funding, but only for primary education. The World Bank has changed it approach to acknowledge "that attainment of universal primary completion is a responsibility of national governments and that the children in any country that are currently out of school are those the least able to contribute to the cost of education 5 . 10. Controlled vocabulary is a weapon, not a label. "Access to education" blurs the difference between education that is free and education accessible only after the payment of a fee, which is crucial from the human rights perspective because free trade does not have safeguards for the rights of poor people. The vocabulary preferred by economists, consisting of "access to education", buttressed by unfree and/or "free" education, or the use of "equity" instead of equality, recalls the words of John Maynard Keynes about the powerful influence that economists have even when they are wrong, as well as those of Paul Samuelson about the irrelevance of constitutional guarantees when these conflict with the recipes in economics textbooks. There is no human rights education curriculum developed for economists that the Special Rapporteur has been able to find, despite a long search. There is a need for it; her experience has been that neither international human rights law nor the economic rationale behind it is taught in any school of economics, and that human rights training is generally not provided to economists designing education and/or general development strategies. The price of the lack of a vocabulary shared between economics and human rights is the lack of dialogue, which is impossible without a common language. The Special Rapporteur's first annual report (E/CN.4/1999/49, paras. 12-19) dealt with the need to create a shared, rights-based vocabulary for education. This remains a continuing challenge for the Commission on Human Rights, human rights treaty bodies and the Office of the High Commissioner for Human Rights. A. Entitlements versus purchasing power [ Go to Contents ] 11. On the global level, the guarantee of compulsory and free education was linked to the elimination of child labour in 1921, more than 80 years ago. The rationale was - and remains - that the right to education unlocks other rights when guaranteed, while its denial leads to compounded denials of other human rights and perpetuation of poverty. The economic rationale was - and remains - that investment in education should be made by the Government because it yields economic returns with much delay. Moreover, education is not only, not even mainly, about knowledge and skills. It is a public good because it represents the most widespread form of institutionalized socialization of children. The economic underpinning of the right to education remains important because denial of the right to education triggers exclusion from the labour market, accompanied by the exclusion from social security because of the prior exclusion from the labour market. Where poverty results from the denial of human rights, as it often does in the case of girls and women, the remedy is necessarily their affirmation and enforcement, starting from the right to education. 12. The identification of financial obstacles in education is the crucial first step towards their elimination. Parents cannot ensure education for their children if they cannot afford the cost, and the parents' inability to afford sending their children to school deprives children of education. If there are no parents, or if they are irresponsible, the Government has to act in loco parentis or children are doomed to be self-supporting from a tender age in defiance of the very notion of the rights of the child. Neither parents nor Governments can ensure education for all children if it is beyond their means. Thus, international human rights law mandates progressive realization of the right to education and prioritizes international cooperation in its realization. 13. However, as the Special Rapporteur has noted in her previous annual reports (E/CN.4/2003/9, paras. 18-19, E/CN.4/2002/60, paras. 19-21, E/CN.4/2001/52, paras. 55-59, E/CN.4/2000/6, paras. 70-71), education acquired a double, mutually contradictory, legal status in the 1990s when it became a traded service. Primary and/or compulsory education continues as a public service in the majority of countries, albeit not free in many, while post-compulsory education is not a right in most countries but sold and purchased against a price. The commitments under the GATS (General Agreement on Trade in Services) have affirmed the Government's entitlement to preserve compulsory education as a free public service and the corresponding individual entitlement. The list of commitments in education under GATS, by country and education subsector, is available at www.right-to-education.org. The increasing global consensus6 about the need for all children to complete primary education prioritizes education as a free public service, but refers only to the first phase of schooling, thereby implicitly negating the right to secondary and university education. 14. A particularly worrisome trend is silence about the length of schooling in global education strategies because "primary education" can be defined as merely three years of schooling. The International Labour Organization (ILO) set the school-leaving age at 14 in 1921, corresponding to the minimum age for employment, and raised that age to 16 in 1946. The Special Rapporteur previously noted (E/CN.4/2003/9, para. 12) that children as young as 10 or 12 finish primary school and are left right-less as there is no mention of their right to secondary education, while they are too young to work or to marry. The absence of an affirmation of secondary and university education as rights in global education strategy documents of the past decade, and in recent resolutions of the Commission on Human Rights, threatens these rights with oblivion, with their full and unchallenged transformation into traded services. 15. Human rights mainstreaming necessitates resolving conflicts between international human rights law and international trade law as well as the broadening of the rule of law to encompass macroeconomic, fiscal and education strategies. Domestically, solidarity is enforced through the duty to pay tax wherefrom education is generally financed. Internationally, the universality of the right to education is premised on international cooperation so as to equalize opportunities for the enjoyment of the right to education by supplementing insufficient resources of poor countries, communities and families. Aid for education is minuscule, estimated at an annual US$1,450,000,000 for primary education7, while aid for post-primary education is threatened with complete disappearance. 16. Governmental human rights obligations are based on the premise that education is a public good and institutionalized schooling a public service. A global commitment to education as a right demands acceptance of human rights obligations by all Governments, individually and collectively. Education as a universal human right entails governmental obligations on two levels: domestic and global. Individual States are responsible for ensuring that human rights are effectively safeguarded on their territory. Global education strategies, economic or fiscal policies, international trade law, or anti-terrorism campaigns can constrain - rather than enhance - both the ability and the willingness of individual Governments to guarantee the right to education. Hence the need for human rights mainstreaming. It is, however, proverbial that we are much better at applying hindsight than foresight, and much human rights work strives to remedy violations retroactively. 17. A rights-based analysis of poverty is crucial to
identify where poverty results from denials and violations of human
rights. In such cases, additional funding is a necessary but not
sufficient condition. It cannot, on its own, lead to sustainable
improvements. Legal reform and its effective enforcement are necessary to
affirm and safeguard equal rights for all. The commitment to review all
domestic laws and eliminate their discriminatory provisions and to
eliminate all legal gaps which leave women and girls without protection of
their rights by the year 20058 represents a potentially powerful strategy
for change, if effectively implemented and internationally supported. Of
course, legal guarantees have to be buttressed by the corresponding fiscal
allocations. The process of decentralization may deepen the unequal
enjoyment of the right to education by making the financing of education
the sole responsibility of poor local communities or families: "For many
countries, decentralization has meant that ministries can dump unwanted
responsibilities on decentralized organizations without providing them
with commensurate resources.9" Making families and communities responsible
for funding education broadens the gap between haves and have-nots. Much
as many other phenomena, this one has a visible gender profile. The
importance of free public education for girls has been summarized by
Lebanon thus:
"It is worth pointing out, however, that there is a
connection between the preponderance of females over males and free
education, as females outnumber males in State education in particular
(and most of them are from low-income families). By contrast, there is a
higher ratio of males to females in private fee-paying education (and
the proportion of those from middle- and high-income families is
appreciably higher than is the case in State education). This suggests
that males take preference over females when the family has to pay fees
to educate their children. The high cost of education and the
diminishing role of the State school may therefore result in the
practice of discrimination against females, as well as breaches of the
principle of equal educational opportunities for both sexes
(CRC/C/70/Add.8, para.209). 18. Breaking the vicious circle of impoverishment buttressed by exclusion from education requires Governments, individually and collectively, to prioritize and equalize funding for education, from the local to the global level. Since women bear the brunt of the absence or collapse of public services, decisions on education as a free public service or its transfer to the realm of freely traded service has implications for advancing or hampering gender equality. B.The charging of school fees in primary education [ Go to Contents ] 19. Education as a key to poverty reduction conflicts with school fees, which prevent poor children from access to education because they are too poor to pay fees, closing off their pathway out of poverty. Paradoxically, in many countries education should be both free and compulsory for children, while school fees negate the children's right to education, replacing it by access for those who can afford the cost. There is increasing global consensus that "elimination of school fees" 10 is a key strategy for girls as fees victimize them more than boys. This change has inspired the Special Rapporteur to seek ways of facilitating the elimination of school fees, and she will inform the Commission of the results of her ongoing activities during its sixtieth session. The first part of the necessary basis for this step were investigations of the incidence and prevalence of school fees and other financial obstacles in primary education and their detrimental human rights impact, which triggered renewed commitments to free primary education (E/CN.4/2003/9, paras. 7-9). Its second part has yet to be taken. This entails properly defining "school fees" so as to encompass them all, and determining the child's entitlement to a specified duration and quality of education with the requirement that all financial obstacles be eliminated. 20. The ongoing debates about school fees and the efforts to eliminate them have revealed the importance of precise definitions. For example, where tuition fees were nominally eliminated, they were often replaced by homework correction or desk-use fees. Or, where a central Government instructed schools not to charge fees without providing the funding needed for children's education, the fees were continued under the guise of "voluntary financial contributions". The Special Rapporteur's extensive and ongoing search for authoritative information on what is actually being charged aims to address this problem by specifying as precisely as possible the financial obstacles that preclude children from enjoying their right to education. 21. Education as the right of each child requires a definition of its guaranteed duration in accordance with all other rights of the child, especially regarding work or marriage or military service. The international legal requirement of free and compulsory education for all children conflicts with confining education to merely three or six years of primary schooling, which leave children out of school at the age of 9 or 12. That education is neither free nor compulsory for very many children in today's world is well known. That primary education may be much too short to merit being defined as the realization of the right to education is less well known. The Special Rapporteur previously noted the important differences between the duration of primary education and legally required compulsory education (E/CN.4/2000/6, paras. 46-48). These have considerably increased in importance because global education strategies do not refer to the requirement that education be made compulsory, while international support for the attainment of the Millennium Development Goals or the EFA goals remains confined to primary schooling. 22. Since the beginning of this millennium, there has been an emerging global consensus on the need to make primary education free. Thus far, the meaning of "free" has focused, on the global level, on identifying and eliminating direct charges (often called "user fees") that impede poor children's access to school and, in Latin America, on financial incentives for poor families to send their children to school and keep them at school, thus addressing the opportunity costs of schooling11. These two types of financial obstacles point to the necessity of a correspondingly broad definition of what free education should mean in practice. 23. The much quoted pledge at the World Education Forum in Dakar in 2000 that "no countries seriously committed to education for all will be thwarted in their achievement of that goal by a lack of resources12" has highlighted the obstacle of insufficient resources at the country level. Indeed, these are often emphasized in government reports under human rights treaties that guarantee the right to education. Because in most countries it is local - rather than central - government that bears the principal financial responsibility for financing primary education, the locus of attention should encompass local communities and extend to families, as well as to children without parental support, be they street children or AIDS orphans. Often, it is the central Government that has identified financial obstacles that should be eliminated so as to universalize primary education through reports under human rights treaties or poverty reduction strategy papers (PRSPs). The information available under human rights reporting procedures, PRSPs and government reports within the EFA reporting system formed the major source of information for the Special Rapporteur's global review of the charging of fees in primary education. The full commissioned study is entitled "School fees as hindrance to universalizing primary education", is available on the web site of the EFA Monitoring Team www.unesco.org/education/efa_report and the Special Rapporteur's findings are summarized below in table 1. The Special Rapporteur will be grateful for all additions and corrections to the information she has been able to collate and verify because it is crucially important to identify financial obstacles to universalizing primary education as precisely as possible.
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