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Distr.GENERAL E/CN.4/1999/4913 January 1999 Original: ENGLISH |
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Preliminary report of the Special Rapporteur on the right to education, Ms. Katarina Tomaševski, submitted in accordance with Commission on Human Rights resolution 1998/33
Introduction [ Go to Contents ] 1. The mandate of the Special Rapporteur on the right to education was defined by the Commission on Human Rights in its resolution 1998/33 of 17 April 1998 as follows: "(i) To report on the status, throughout the world, of the progressive realization of the right to education, including access to primary education, and the difficulties encountered in the implementation of this right, taking into account information and comments received from Governments, organizations and bodies of the United Nations system, other relevant international organizations and non-governmental organizations; "(ii) To promote, as appropriate, assistance to Governments in working out and adopting urgent plans of action, wherever they do not exist, to secure the progressive implementation, within a reasonable number of years, of the principle of compulsory primary education free of charge for all, bearing in mind, inter alia, levels of development, the magnitude of challenge and efforts by Governments; "(iii) To take into account gender considerations, in particular the situation and needs of the girl child, and to promote the elimination of all forms of discrimination in education; "(iv) To make his or her reports available to the Commission on the Status of Women whenever they concern the situation of women in the field of the right to education; "(v) To develop a regular dialogue and discuss possible areas of collaboration with relevant United Nations bodies, specialized agencies and international organizations in the field of education, inter alia, United Nations Educational, Scientific and Cultural Organization, United Nations Children's Fund, United Nations Conference on Trade and Development, and United Nations Development Programme and with international financial institutions, such as the World Bank; "(vi) To identify possible types and sources of financing for advisory services and technical cooperation in the field of access to primary education; "(vii) To ensure, to the extent possible, coordination and complementarity with the work carried out in the framework of Sub-Commission resolution 1997/7, in particular the working paper on the right to education by Mr. Mustapha Mehedi." 2. This preliminary report covers the first four months of the Special Rapporteur's work, (August to December 1998). Due to this limited time, the Special Rapporteur did not deem it useful to solicit information from Governments through some type of general request for information or a questionnaire. She thought that a great deal of time and effort would be saved if she surveyed the information already available within the United Nations system, included the findings in her progress report, and then sought feedback in the form of additional information, comments and suggestions from Governments and other actors identified by the Commission. 3. The Special Rapporteur has started analysing the nature and scope of the right to education in this preliminary report by focusing on the corresponding governmental obligations. Her approach is to discuss these obligations on two levels: on the level of individual States as is customary, and also on the level of intergovernmental structures within which Governments act collectively. The latter raises important and, as yet, unanswered questions about the status of human rights within policies and practices of international development finance agencies and, in a broad sense, within international economic and fiscal policies. Her preliminary analysis of educational strategies focuses on the identification and elimination of obstacles - especially financial - to the realization of the right to education. She plans to deepen and broaden this analytical approach in her progress report. Her objective is to mainstream human rights by integrating the right to education into educational strategies and monitoring mechanisms. 4. The Commission emphasized the need to collaborate with the organizations and bodies of the United Nations system involved in the field of education and regional organizations as well as non-governmental organizations. The Special Rapporteur has therefore started contacting all relevant actors with a view to establishing collaboration. 5. The Special Rapporteur had planned to attend the Symposium on Human Development and Human Rights in Oslo on 2-3 October 1998 but was unfortunately prevented from participating and could only submit a written contribution. She attended a part of the 1998 Innocenti Global Seminar on Education: Basic Education: A Vision for the 21st Century held at the UNICEF International Child Development Centre, Florence, on 27-30 October 1998, and took part in the general discussion on the right to education by the Committee on Economic, Social and Cultural Rights on 30 November 1998. That was followed by her consultations with the Office of the United Nations High Commissioner for Human Rights on 2-3 December 1998. She will report on her subsequent activities at the Commission's fifty-fifth session. 6. The Commission attached priority to primary education, with the explicit objective to contribute to the attainment of compulsory primary education free of charge for all as required by international human rights law. This preliminary report deals only with primary education. The Special Rapporteur plans to include in her subsequent reports also secondary and tertiary education and, if the Commission so wishes, also pre-primary education, maintaining the focus on primary education. 7. Human rights education has been explicitly addressed by the Sub-Commission on Prevention of Discrimination and Protection of Minorities in the context of the Decade for Human Rights Education, including in the working paper by Mr. Mustapha Mehedi 1. In order to prevent duplication of anything that is already being done, the Special Rapporteur is not addressing issues dealt with therein and plans to take part in the follow-up to this Sub-Commission's initiative so as to ensure coordination of efforts. 8. This preliminary report begins with a brief overview of the work carried out within the United Nations system to enhance access to primary education. An emphasis is on the differences in terminology and underlying concepts and approaches, and the consequent need for the articulation and mainstreaming of the human rights approach to education. The overview ends by highlighting the increasing recognition of the financial obstacles to access to primary education, which serves as a link to the second part of the report, which presents a scheme for the analysis of governmental human rights obligations. One important dimension of education is singled out in the third part: the requirement to make primary education compulsory has been translated into domestic law by many more States than the right to education. Compulsory education, even if all-encompassing, does not necessarily translate into the realization of the right to education, however. A simple but crucial question - what does full realization of the right to education entail? - will thus orientate the work of the Special Rapporteur. 9. Gender considerations have been singled out by the Commission to merit particular attention and the Special Rapporteur has followed the Commission's emphasis by incorporating gender considerations into the body of the report rather than adding them as a separate section at the end. I.WORK ON EDUCATION WITHIN THE UNITED NATIONS SYSTEM [ Go to Contents ] 10. As one person, the Special Rapporteur cannot possibly replicate even a small part of the work done by large international actors like UNESCO or UNICEF or the World Bank. She has interpreted her mandate to be intended to summarize for the Commission results of their work from the human rights perspective and to contribute to their work by furthering the clarification of the right to education so as to encourage their involvement in its further promotion. 11. The Special Rapporteur has established contacts with relevant bodies within the United Nations to familiarize herself with their on-going work as a basis for planning future collaboration. She is planning meetings with UNESCO in January 1999 and with UNICEF, UNDP and the World Bank in February 1999 so as to be able to supplement this report orally at the Commission's fifty-fifth session. A. Creating a common language [ Go to Contents ] 12. The substantive mandate of the Special Rapporteur requires a regular dialogue with relevant United Nations bodies. Its implementation constitutes a considerable challenge because dialogue is impossible without a common language, while such a common language needs to be created. Linguistic variety prevails in the field of education and seems to be increasing. Working towards standardization of educational terminology and statistics on the basis of the right to education will constitute an important part of the Special Rapporteur's work, with the aim to develop strategies and indicators for the realization of the right to education. 13. The prevailing linguistic variety reflects different visions of what education should be. Education can be treated as a means for increasing the individual's earning capacity or for lowering women's fertility rates. Human rights law specifies the purpose and objective of education, increasingly calling for the mainstreaming of human rights throughout the contents and process of education. From the human rights viewpoint, education is thus an end in itself rather than merely a means for achieving other ends. Some economists may, however, define education as efficient production of human capital and classify all its human rights dimensions as externalities. A definition of people as human capital obviously differs from defining people as subjects of rights. The contrast between the human rights and human-capital approaches is best illustrated by taking children with physical and learning disabilities as an example. The former may be excluded from school because providing wheelchair access, for example, might be deemed too expensive; the latter may be excluded from schooling because meeting their learning needs is deemed not to yield a sufficient marginal return on investment. This type of reasoning obviously challenges the very assumption of human rights, namely the equal worth of all human beings. The Special Rapporteur therefore attaches a great deal of importance to emphasizing differences between education and the right to education so as to create a background for advocating changes within education aimed at conformity with the human rights requirements. 14. Among economists, some might classify governmental funding for education as expenditure, others as investment. Both economists and lawyers may, explicitly or implicitly, define education as a commodity which is traded against a price rather than a right. These divergencies in terms and underlying concepts demonstrate the need for a consistent and comprehensive advocacy for the human rights approach to education so as to integrate human rights into the existing domestic educational policies and laws as well as into international strategies and monitoring mechanisms. 15. The variety of categorizations of levels and types of education further illustrate the need to promote the human rights approach to education. Terms used in worldwide educational strategies have changed with time. In the 1960s, the mobilizing slogan was UPE (Universal Primary Education) and in the 1990s it is EFA (Education for All); universal primary education was planned to be achieved by 1980 and basic education for all by the year 2000. The language of international educational strategies shifted from primary to basic education, different from the continued use of primary education in human rights. The term basic education was introduced by the 1990 Jomtien Conference 2 and influenced the subsequent international and domestic strategies and statistical categories. UNICEF has affirmed that primary education is the core of basic education, but basic education goes beyond the confines of formal schooling to encompass non-formal education as well as early childhood education, including also "second chance" primary education for youth, adults and parents' education 3. Definitions of primary and basic education thus overlap but are not synonymous. 16. The varied terminology of educational strategies is reflected in the associated statistics. As is well known, international statistics do not follow the definition of the child as any person up to the age of 18. In the statistics on literacy, adulthood begins with the age of 15 while domestic laws on education have established a variety of age categorizations. The starting age for compulsory education seems fairly uniform worldwide and is set at 6 or 7, but the duration of primary school varies a great deal. The duration of compulsory education (dealt with in more detail in Part III) ranges from 3 to 12 years but the age for basic education is 6 to 11 years. There is an obvious mismatch between the 6-11 age categorization for basic education and the original understanding of primary education in the human rights instruments with the 6-15 age range. The logic behind human rights requirements is that the minimum duration of education should extend further than 11 years of age, at least to the minimum age for employment. Another feature of age categorizations is that children above the school-leaving age may be classified as young people rather than children. Moreover, the minimum age for marriage, especially for girls, may also be set low, at 12 for example. The minimum age of criminal responsibility may be set at a low age of 7 or 8. Primary school-age children may thus be found at work, in marriage or in prison rather than at school, while these phenomena are not captured by the existing educational statistics. When not reflected in statistics, such phenomena tend not to be monitored and there is a great deal of risk that their existence will not inform international educational strategies. 17. Yet another area where a common language needs to be created is the equal right to education for girls. The existing quantitative data have identified three facets of the gender gap. The difference in male/female illiteracy rate is a reflection of the heritage of unequal access to education, the difference in male/female enrolment points to continuing unequal access, while the male/female difference in the completion of the full cycle of primary education indicates that getting girls into school does not necessarily lead to their staying at school. Manifestations of gender inequality evidenced by such data highlight the magnitude of the challenge but say nothing about the causes of the problem and gender analysis is thus necessary to identify the causes. The subsequent challenge is to specify the ends to be attained and thereupon the appropriate means, as well as monitoring mechanisms to ascertain whether the means employed are leading to the specified ends and corrective action is employed if this turns out not to be the case. 18. The foundations for responding to this challenge have been established and are embodied in the commitment of the United Nations to "double mainstreaming", namely the incorporation of both gender perspectives and equal human rights of women throughout the United Nations. The Commission on the Status of Women has called for the advocacy for gender equality and the enjoyment by women of their human rights 4. The United Nations has committed itself to highlighting "gender-based differences in women's enjoyment of their human rights" and to a rights-based approach to education 5. The Commission on the Status of Women invited the UNHCHR "to ensure that the equal status of all human rights of all women and the girl child are integrated into United Nations system-wide activities"6. This process involves a considerable conceptual, strategic and operational challenge.7 19. International strategies concerning education for girls have thus far alternated between different justifications: meeting girls' needs because these remain unmet to a larger extent than those of boys; enhancing the productivity or lowering the fertility of the future generations of women; and promoting equity or justice. The third justification has sometimes shared the human rights rationale of the equal worth and dignity of all human beings but not necessarily the human rights requirement of the elimination of all forms of gender discrimination. The interdependence of human rights necessitates looking beyond the sector of education. The institutional responsibility for the elimination of gender discrimination within the United Nations or in individual States is a cross-sectoral issue. The development of a common language guided by elimination of gender discrimination as the goal and yardstick is the necessary first step towards a comprehensive strategy. B. Strategies to achieve universal primary education [ Go to Contents ] 20. No assessment of the global experience in realizing compulsory primary education free of charge can be optimistic. Challenges for the future are formidable. Suffice it to recall that the 1990 Jomtien Conference was convened against the diminishing coverage of primary education in the 1980s, especially in Africa, and the Governments' reduced capacity to halt further retrogression. The Jomtien Conference was a historic event intended to enhance priority for basic education through global mobilization around time-bound targets. The Jomtien+5 meeting noted that "the downward trend of falling enrolments that we witnessed during the 1980s has been reversed" 8. Reversing the retrogression of the 1980s necessitated domestic and international changes. While individual Governments were traditionally deemed capable of complying with their human rights obligations if they exhibited the necessary political will, the tumultuous 1980s showed that the political will of many Governments of developing countries was no longer sufficient. A great deal of global mobilization, within and outside the United Nations, was necessary to "adjust adjustment", to challenge and change the previous status of social investment, including primary education. The model of the 1980s had often treated the right to education as an unaffordable luxury, openly contradicting human rights obligations. Changes started in early 1990s, with the World Bank elevating the status of social expenditure in 1992 and establishing the Inspection Panel in 1993 9. While these changes give ground for cautious optimism, the recorded decline of lending for education in general and to Africa in particular point in the opposite direction 10. The Special Rapporteur plans to analyse the current policy and practice of the World Bank in the field of education, as well as their gender dimensions, in her progress report. 21. Following the Commission's emphasis on assistance to Governments in developing and putting into practice strategies aimed at making primary education universal and free, the Special Rapporteur plans to carry out a comprehensive analysis of the evolving policy and pattern of aid for education as a method of enhancing the capacity of Governments to fulfil their obligation corresponding to the right to education. The Jomtien Conference had inspired more than 100 Governments to elaborate Education for All strategies, and half of them secured international financial support for their implementation. International and foreign funding has remained, however, at no more than 3 per cent of national education budgets. 22. An increased proportion of aid has been allocated to education in the 1990s; bilateral aid for education grew from 9 to 11 per cent but remains much lower than the 25 per cent recommended by the UNESCO Commission 11. Moreover, with the steady decline of the overall volume of aid in the second half of the 1990s, aid for education did not increase in absolute terms. 23. Bilateral allocations
to education range from a low 3 per cent to a high 34 per
cent and are presented in Table 1. Details on the
allocations within education are not yet available for
all donors but, where available, show that basic
education attracts merely one tenth, with only Germany,
Sweden, Australia and the United States of America above
that average. In her progress report, the Special
Rapporteur shall analyse the policy and practice of
bilateral and multilateral aid for education, including
the status of basic education within it. Links between
aid for education and gender policies will constitute a
particular focus of her analysis. |
24. The potential of the 20/20 Initiative 12 as a model of partnership based on the mutual commitment to prioritizing investment in social development, including basic education, merits particular attention. Such a mutual commitment reinforces the original idea of international cooperation as a method for the realization of human rights from the Charter of the United Nations. Moreover, its emphasis on basic education aims to remedy the proverbial imbalance in the allocation of resources in favour of non-basic, especially university education. If the claim of the 20/20 Initiative that "adequate resources for basic social services can be accommodated even under conditions of fiscal constraint" 13 proves well founded, it will relieve from anxiety all those, including the Special Rapporteur, who fear that additional funding is necessary to achieve basic education for all. The Special Rapporteur plans to carry out an in-depth study in 1999 and present her findings in the progress report. C.Quantitative and qualitative data necessary for monitoring the right to education [ Go to Contents ] 25. A comprehensive policy for the full realization of the right to education is necessary for a design of an integrated monitoring mechanism. Such a policy is long overdue and the Special Rapporteur shall strive to contribute to its development. A unique task of Governments is to elaborate educational strategy, regulate education by setting and enforcing minimum standards, and carry out permanent monitoring and corrective action. This task, carried out by Governments collectively and individually, forms the background against which monitoring mechanisms are established. The challenge for the human rights advocates is to integrate the human rights dimensions of education, including the principle of non-discrimination, into educational strategies and monitoring mechanisms because the existing ones are not derived from international human rights law. 26. A merger between quantitative and qualitative data is necessary to assess the state of realization of the right to education worldwide, as the Commission requested. 27. The Special Rapporteur has therefore started reviewing the work of human rights treaty bodies relating to the right to education in order to analyse their interpretations of this right. She is collecting and analysing international and domestic jurisprudence relating to the right to education with the aim of supplementing the existing quantitative data with qualitative data on the nature and scope of the right to education in the practice of States. Moreover, even a casual overview of the work of other Special Rapporteurs demonstrates the wealth of information that is already available. Their coverage ranges from denials of freedom to establish schools, to obstacles for education in minority languages, to the role of education in preventing child exploitation and trafficking in children, or to the policies of individual States concerning the financing of primary education. Many facets of the right to education are thus being addressed by various human rights organs and mechanisms and form the basis for analysing its nature and scope. 28. The emphasis of the United Nations bodies working in education on the universal coverage of primary school ("getting all children to school") ought to be complemented by the parallel emphasis on the parental freedom of choice under international human rights law. Alongside human rights treaty bodies with the global reach, jurisprudence has thus far been generated within the Council of Europe and possibilities have been created under the African Charter on Human and Peoples' Rights. The Protocol of San Salvador 14 is likely to generate jurisprudence within the Inter-American human rights system. The Special Rapporteur plans to review the experience of all regional systems in the interpretation and application of the right to education and include the findings in her final report. Her objective is to design a comprehensive monitoring scheme for the right to education. 29. Differences between monitoring education and monitoring the right to education can be illustrated by taking school enrolment statistics as an example. They are available for a large number of countries and are widely used as a yardstick to assess progress and retrogression in access to education. Figures reflect registration of pupils at the beginning of a school year and not school attendance. Data on enrolments are disaggregated by sex but drop-out and repetition rates are not. Drop-out rates may amount to more than half of the originally registered pupils, repetition rates may exceed one third. These are not yet disaggregated by sex and progress - or retrogression - in equalizing the completion of primary school by girls and cannot be monitored as yet globally, although UNICEF is steadily moving towards making such monitoring possible. 30. Moreover, enrolment data disaggregated by other internationally prohibited grounds of discrimination are not yet being compiled. Evidence that this is necessary is available. The 1997 Report on the World Social Situation does not use human rights language but acknowledges that "in almost all multi-ethnic countries the drop-out rates among some ethnic minorities are higher than that of dominant groups". 15 31. Yet another human rights dimension of the right to education is not captured in the existing education statistics. Enrolment statistics tell us the number of children who are at school (or at least who registered at the beginning of school year) but not how many should be at school. This is a consequence of a high, but unknown, number of children who are not registered at birth, which is cloaked underneath the admirable capacity of international agencies to estimate their numbers. |