D.Financial obstacles impeding access to primary school      [ Go to Contents ]

32. The Commission defined the first substantive task of the Special Rapporteur as reporting on the status of the progressive realization of the right to education with a special emphasis on access to primary education. The Commission recognized the need to openly identify difficulties encountered in the realization of the right to education and the Special Rapporteur plans to review the existing state of knowledge about these obstacles. In her progress report, she will focus on school fees in primary school. These may be named differently as, inter alia, user charges, registration fees, or school maintenance levies, but whatever name they bear, their effect is to openly question the explicit intent of human rights law that primary education should be free.

33. The international human rights treaties posit that primary education should be free, with the exception of the European Convention on Human Rights ¹⁶. The requirement that primary education should be made free has not been repeated in recent international policies on education, however. The 1990 Jomtien Declaration significantly did not include such a requirement ¹⁷. The Jomtien Declaration used terms such as "access to education" or "meeting learning needs" instead of the right to education. Since the Jomtien Declaration was adopted less than one year after the Convention on the Rights of the Child, the two divergent approaches have impeded a uniform United Nations policy. Table 2 reproduces available data on the public expenditure on education with countries classified by its proportion to the GNP. The purpose is to illustrate the convergence and divergence in the current pattern of expenditure worldwide. The figures are, of course, an indication of magnitude rather than precise measurements because of the immense complexity of compiling all necessary data and making such data comparable. In her progress report, the Special Rapporteur intends to analyse allocations to education as well as within education, and the policies and practices of international financial agencies concerning these allocations.

More than 7 per cent of GNP     Barbados, Botswana, Canada, Denmark, Estonia, Finland, Jamaica, Kenya, Maldives, Namibia, Norway, Seychelles, St. Lucia, Swaziland, Sweden, Tajikistan, Ukraine, Uzbekistan, Yemen, Zimbabwe   Between 6 and 7 per cent     Belize, Bolivia, Czech Republic, Hungary, Ireland, Israel, Jordan, Kiribati, Kyrgyzstan, Latvia, Lithuania, Moldova, New Zealand, South Africa, Tunisia   Between 5 and 6 per cent     Australia, Austria, Belarus, Belgium, Congo, Croatia, Egypt, Fiji, France, former Yugoslav Republic of Macedonia, Gambia, Georgia, Iceland, Kuwait, Lesotho, Malawi, Malaysia, Malta, Mauritania, Mexico, Mongolia, Morocco, Netherlands, Panama, Portugal, Saudi Arabia, Slovakia, Slovenia, Spain, Switzerland, Togo, United Kingdom, United States of America, Venezuela   Between 4 and 5 per cent     Argentina, Bahrain, Bulgaria, Costa Rica, Cyprus, Ethiopia, Germany, Guyana, Iran, Italy, Kazakhstan, Mauritius, Oman, Poland, Russia, Thailand, Tonga, Trinidad and Tobago, Vanuatu   Between 3 and 4 per cent     Albania, Azerbaijan, Benin, Burkina Faso, Colombia, Comoros, Ecuador, Greece, Honduras, India, Japan, Korea, Peru, Qatar, Romania, Senegal, Singapore, Sri Lanka, St. Kitts and Nevis, Suriname, Turkey   Between 2 and 3 per cent     Bangladesh, Burundi, Chad, China, Chile, El Salvador, Laos, Lebanon, Mali, Nepal, Paraguay, Philippines, Uruguay, Viet Nam   Less than 2 per cent     Dominican Republic, Equatorial Guinea, Guatemala, Myanmar, United Arab Emirates, Zambia

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35. Primary education should be free for children because they cannot possibly pay for themselves. This does not imply that education is free because schools and teachers' salaries have to be financed, it implies that primary education has to be prioritized in resource allocation. Direct charges in primary education, under whatever name, impose upon parents the obligation to fully finance the education of their children. The duty to financially contribute to the cost of primary education for all is spread among the whole population where education is financed by the State out of general taxation. Taxation exempts the poorest; those who do not earn enough to be liable to taxation are not taxed. Where fees are charged in primary school, those who are too poor to afford the cost are often not exempt from charges. Where exemptions are nominally provided for, they may be too cumbersome to comply with or too expensive to administer. The Convention on the Rights of the Child specifies for health that children should not be denied access to health services because of the inability of their parents to pay; one cannot find any indication that the Convention envisaged a lower standard to apply to primary education. The Committee on the Rights of the Child included in the reporting guidelines an item on "the measures taken to ensure that children, particularly those belonging to the most disadvantaged groups, are protected against the adverse effects of economic policies, including the reduction of budgetary allocations in the social sector." ¹⁹

36. Reduced budgetary allocations led to a shift to cost-sharing, which has generated a great deal of opposition, especially for primary education. The Addis Ababa Consensus has emphasized the need to focus on government revenue, especially taxation, ²⁰ as the source of funding for basic education rather than cost-sharing or cost-recovery.

37. The absence of an enforceable claim upon a Government to allocate a specific amount to education highlights the need to focus on the procedure whereby allocations are decided upon. Human rights are seldom costed because human rights standards do not determine how much should be spent on specific items, but define substantive and procedural human rights standards, including for the process of decision-making. The exercise of political rights thus becomes the necessary instrument for attaining economic and social rights, imposing upon those who exercise them a duty towards others. University students are politically vocal, primary school age children are not, and the latter can easily be neglected in the allocation of resources. The proverbial preference for university students in budgetary allocations within education (in the extreme exceeding up to 1,000 times the allocation for primary education) vividly illustrates the necessity for introducing the human rights rationale into allocations. The Special Rapporteur feels that such a rationale could be introduced throughout the process of resource allocation, from the policies of international finance agencies, ²¹ to the domestic decision-making process, as well as inter- and intra-sectoral allocations.

38. Allocation of resources within education is often seen as a zero-sum game: increased allocation to primary education depletes higher levels of education of public funding with the corollary of increasing its cost for students and their families. Human rights education would face a considerable challenge if it ventured to reconcile, for example, an acquired right to free education for university students which may be depriving young children of access to any education whatsoever. How does one ensure that a culture of acquired rights is not reinforced through human rights education that only emphasizes one's own rights? Is there a way out of such proverbial zero-sum game that pits beneficiaries of public funding for education against each other? Can children enjoy their rights if adults do not accept their duties towards children? Such questions, in the opinion of the Special Rapporteur, merit an inquiry to find out how these dilemmas have been addressed, domestically and internationally.

39. The question of State funding for education necessitates inquiring into the societal acceptance - or the lack thereof - of the State's powers to raise revenue, including through taxation. A great deal of controversy has been generated with respect to the interpretation of the States' obligation to finance primary education. The requirement that primary schooling should be free of financial cost for the child has generated a great deal of consensus, but the requirement that primary school should also be free of financial cost for parents does not generate full consensus. One reason is the parental primary responsibility, financial as well as any other, for their children, affirmed in the Convention on the Rights of the Child. The Committee on the Rights of the Child asks reporting States to include their consideration of "the real cost for the family of the child's education. ²²"

40. Official statistics on the costs of education are confined to public expenditure and exclude parental financial contribution to the education of their children. These costs are considerable even where no fee is charged in primary school. Mark Bray estimates that at least 20 per cent and often as much as 90 per cent of the financial cost of primary education is borne by the parents and/or families ²³. Where no fee is charged in primary school, parents often have to pay the costs of school maintenance or make other financial contributions to the school or to the teachers. Even where these are absent, parents bear the costs associated with schooling such as books, meals, transportation or uniforms.

41. Any analysis of parental financial contributions towards primary education of their children ought to differentiate between their willingness and ability to contribute. Their inability to afford sending their children to school deprives children of access to primary education and highlights the essence of States' human rights obligations to be the provider of last resort. Parental choice may be exercised to the detriment of girls and requires States to act so as to alter the factors upon which parental choices are made. Efforts to increase primary school enrolment for girls have thus included subsidizing direct, indirect, and opportunity cost (namely, the loss of the value of the girls' work) for their parents and/or families.

II. GOVERNMENTAL OBLIGATIONS COROLLARY TO THE RIGHT TOEDUCATION: A TENTATIVE ANALYTICAL SCHEME      [ Go to Contents ]

42. The starting point for the Special Rapporteur's analysis is the thrust of international human rights law whereby governmental obligations relate to human rights as whole, and include obligations to act and to react, to pursue specific conduct or to achieve a particular result. The basic framework of governmental obligations is outlined by a series of explicit guarantees of the right to education. The essential role of the State is to set educational strategy, determine and enforce educational standards, monitor the implementation of the strategy and put in place corrective action. Neither educational strategy nor educational standards are necessarily informed by the right to education; "education" and "human rights" are often separated both in law and in practice while "gender" is often yet another separate category. The Special Rapporteur plans a comprehensive analysis in her subsequent reports. At this stage, she only wants to map out the complexity of the existing human rights framework.

43. The International Covenant on Economic, Social and Cultural Rights prompted more than a dozen parties to submit reservations to its provision on the right to education, which ranges from acknowledgments that financial constraints to access to primary education were beyond the capacity of the State, to assertions that education should be treated as monopoly of the State, or that parents should be allowed to educate their children themselves, in their own home ²⁴. The Convention on the Rights of the Child lays down the full scope of the right to education. The principle of non-discrimination is followed by general provisions on the access to education, its purpose and objectives, accompanied by specific requirements upon education to protect children from abuse and neglect or illicit use of narcotic drugs, and followed by safeguards against work that interferes with children's primary education. An illustration of the demanding nature and scope of States' obligations concerning education is the number and variety of reservations ²⁵. They highlight the necessity of a continued effort to conceptualize governmental obligations so as to forge a global consensus.

44. Table 3 illustrates the two pillars of States' human rights obligations relating to education. The first obligation concerns enabling all children to benefit from primary education, enforcing access to school and school attendance by making primary education compulsory, and ensuring that primary education is free of charge. The last point is not shared among all regional human rights treaties, as Table 3 illustrates by including the European Convention because of its departure from other human rights treaties. The second obligation is shared among all human rights treaties and requires respect of parental freedom of choice.

45. The State's obligation to make primary education free of charge is 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.

46. Some countries have only public schools, others only private, while 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.

Universal Declaration of Human Rights:     "Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory." "Parents have a prior right to choose the kind of education that shall be given to their children."   International Covenant on Economic,     Social and Cultural Rights:     "Primary education shall be compulsory and available free for all."   "The States Parties to the present Covenant undertake to have respect for the liberty of parents ... to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions."   "No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, ..."   Covenant on Civil and Political Rights:     "The States Parties to the present Covenant undertake to have respect for the liberty of parents ... to ensure the religious and moral education of their children in conformity with their own convictions."   Convention on the Rights of the Child:     "States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free for all."   "No part of [articles 28 and 29] shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions ..."   UNESCO Convention     against Discrimination in Education:     "The States Parties to this Convention agree that: (b) It is essential to respect the liberty of parents, ... firstly to choose for their children institutions other than those maintained by the public authorities but conforming to ... minimum educational standards, and secondly, to ensure ... the religious and moral education of the children in conformity with their own convictions."   "The States Parties to this Convention undertake to formulate, develop and apply a national policy which, ... will tend to promote equality of opportunity and of treatment ... and in particular: (a) to make primary education free and compulsory."   European Convention, Protocol 1:     "No person shall be denied the right to education."   "In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."

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48. Parental freedom to opt out of State-run schools has been subject to a great deal of litigation. The Human Rights Committee has held that the State does not discriminate when subsidies for private schools are lower than those for public schools ²⁶. The European Commission on Human Rights has held that States were not required to "subsidize private education of a particular type or level. ²⁷"

49. The Special Rapporteur plans to analyse the States' practice in more detail and include the findings in her final report. She intends to review the existing quantitative and qualitative data on the pattern of primary schools (State/non-State, public/private, for-profit/non-profit/religious/secular) in different regions and countries, as well as the existing domestic and international jurisprudence concerning the freedom to establish and operate non-State schools and States' practice with regard to funding of non-State primary schools.

50. All three different roles of the State in primary education -regulation, funding, and provision - should be informed by a range of human rights obligations upon which primary education should be based, such as the principle of non-discrimination. To portray the complexity of Governmental obligations corresponding to the right to education, the Special Rapporteur has structured them into a 4-A scheme, denoting the four essential features that primary schools should exhibit, namely availability, accessibility, acceptability and adaptability.

A. Availability      [ Go to Contents ]

51. The first State obligation relates to ensuring that primary schools are available for all children, which necessitates a considerable investment. 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. In Africa children of primary-school age constitute close to half of the population and the majority is living in rural areas. Making primary schools available to dispersed rural communities, some of who may be nomadic, illustrates the scope of the challenge.

52. If the intake capacity of primary schools is below the number of primary-school aged children, legal provisions on compulsory education will not be translated into practice and access to education will remain a need or a wish rather than being a right. Investment in educational infrastructure requires considerable initial capital but yields benefits after a long time. The recurrent costs and maintenance of schools as well as teachers' salaries add to the cost. The full scope of investment necessary to make schools really rather than nominally available is hidden because the most frequent internationally used indicator - enrolment - does not capture what a real-life school may look like. A UNESCO/UNICEF pilot survey of primary schools in the least developed countries has revealed that electricity or piped water is an exception rather than a rule, while many children finish primary school without ever having seen a single textbook in their mother tongue ²⁸. Changing this reality is necessary because nominally available schools are unlikely to attract children, as evidenced in parental assessments that their children would not benefit from schooling in such conditions or in children "voting with their feet" and opting out of school.

53. An interplay between non-availability of schools and parental choices often impedes the schooling of girls. There is a great deal of research targeting parental choices, but a paucity of information about the availability of schools for girls. Available schools may be open only to boys - by law, in fact - while the existing educational statistics do not make this difference visible. It is impossible to determine whether the available schools have a sufficient intake capacity to enrol and retain all primary age school girls or not.

54. Programmes to remedy unequal enrolment of girls in primary school have encompassed both inducements to their parents and/or families and increasing the availability of schools for girls. The former is dealt with in the next section, the latter has included requirements upon primary schools to enroll a specific percentage of girls, establishment of special schools for girls, or the recruitment and training of female teachers. Experiences have shown that such initiatives yield results although the mid-decade review of Education for All found that "the gender gap in age-specific net enrolment ratios actually grew worse in the 1990s, except in the Arab States. ²⁹"

55. Table 4 summarizes data compiled by UNICEF on the gender imbalance in net enrolment in primary school. This issue cuts across availability of school and access to the available schools by girls. In situations where schools are simply not available, most children will not have access to primary education. However, where too few schools are available they are obviously not equally available to girls. The gender gap diminishes with increased availability of schools and in quite a few countries girls' enrolment is higher than that of boys.

Girls' enrolment as surplus or deficit in relation to boys' enrolment (in per cent)   More than +10 percent       Lesotho (+ 11 per cent), Trinidad and Tobago (+ 11 per cent)   + 3 percent to + 9 percent     Mongolia (+ 3 per cent), Nicaragua (+ 3 percent), Bahamas (+ 4 percent), Dominican Republic (+ 4 percent), Botswana (+ 5 per cent), Namibia (+ 7 percent)   + 1 percent to + 2 percent     Albania, Bahrain, Costa Rica, Denmark, Ecuador, El Salvador, Estonia, Fiji, Georgia, Haiti, Honduras, Hungary, Korea, Luxembourg, Malaysia, Panama, South Africa, United States of America, Yugoslavia   1 per cent to 2 percent     Belize, Bulgaria, Canada, Chile, China, Croatia, Former Yugoslav Republic of Macedonia, Guyana, Libya, Madagascar, Malta, Oman, Peru, Philippines, Poland, Qatar, Samoa, Saudi Arabia, Slovenia, Tanzania, United Arab Emirates, Zambia   3 percent to 5 percent     Belarus, Eritrea, Indonesia, Kenya, Kyrgyzstan, Latvia, Somalia, Tunisia, Turkey, Vanuatu, Venezuela   6 per cent to 9 percent     Congo (- 6 per cent), Uganda (- 7 percent), Algeria (- 8 per cent), Bangladesh (- 8 per cent), Bolivia (- 8 per cent), Burundi (- 8 per cent), Syria (- 8 percent), Ethiopia (- 9 per cent), Djibouti (- 9 per cent), Iraq (- 9 per cent), Mauritania (- 9 per cent)   10 per cent to 20 percent     Cameroon (- 10 per cent), Comoros (- 10 per cent), Mozambique (- 10 per cent), Mali (- 11 per cent), Papua New Guinea (- 12 per cent), Senegal (- 12 per cent), Burkina Faso (- 13 per cent), Egypt (- 13 per cent), Iran (- 13 per cent), Laos (- 14 per cent), Niger (- 14 per cent), Gambia (- 18 per cent), Guinea (- 18 per cent), Morocco (- 19 percent)   More than 20 percent     Democratic Republic of Congo (- 21 percent), Central African Republic (- 22 per cent), Guinea-Bissau (- 26 per cent), Togo (- 26 per cent), Afghanistan (- 27 percent), Chad (- 29 per cent), Benin (- 31 per cent), Nepal (-39 per cent)

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56. Table 4 confirms that the global pattern of gender imbalance victimizes girls. But it also illustrates the other side of the coin, namely the surplus of girls in the primary school in some countries. UNICEF noted that some primary schools, especially in the Caribbean, have difficulties in attracting and retaining boys ³⁰, one reason being that teachers are dominantly female. The Special Rapporteur deems that a risk that one or two decades henceforth we might be designing strategies to increase the enrolment of boys highlights the necessity of articulating and implementing gender balance in the approach to the realization of the right to education. Leaving boys outside school may well become seen retrospectively as a criminogenic factor that we have inflicted upon ourselves through the lack of attention to gender balance in education. The well-known statistical profiling of criminality points to adolescent boys as the category most vulnerable to criminalization.

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