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B. Accessibility [ Go to Contents ] 57. The second State 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, as well as to 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. 58. In the field of education, there has been a great deal of concern regarding out-of-school children. Strategies and campaigns are often designed with the slogan "reaching the unreached". A crucial component which the human rights perspective introduces into this subject-matter relates to the difference between the unreached and the excluded. The lack of access to primary school may conform to the internationally prohibited grounds of discrimination when the excluded children share the same feature, be it sex, or language, or religion. Asylum-seeking and refugee children may be difficult to reach, but some may be excluded because the right to education is confined to citizens. Children with disabilities may be in practice excluded from school, whatever the law may say, because the buildings and classrooms make their access impossible. Children who are institutionalized may be excluded from schooling because the mandate and funding of the institution housing children excludes education. 59. The Special Rapporteur plans to collect and analyse the existing quantitative and qualitative information on the pattern of the lack of access to education in order to map out obstacles to the realization of the right to education. Within the United Nations, such information has thus far been systematically gathered only for girls and women. 60. With regard to girls, the right to education has been demonstrated to act as a corrective to the free market. Governments indeed have human rights obligations because primary education should not be treated as a commodity. There has been a growing acceptance of the necessity for States' intervention concerning access to primary education for girls. Many economists would refer to the reason for the State's intervention as a market failure. In its simplest version, it can be described as the unwillngness of parents to send their daughters to primary school because of the absence of an economic rationale to invest in their daughters' education. A demand for girls' education thus has to be created by providing economic incentives to parents. Such initiatives showed that conflicting expectations for girls deprive them of access to education. If they are required to perform household labour, the school schedule has to be adapted to the seasonal and daily rhythm of subsistence food production or family life. Since poor families depend on the work of each member of the family for their survival, combining school and work often proved necessary so as to make school really accessible for girls. Similarly, the ILO's experience in moving children from labour to school has demonstrated the advantage of shifting from the prohibitive and condemnatory approach to a human-rights-promoting investment 31. Enhancing children's access to school, as these examples illustrate, necessitates a considerable investment. 61. Such an investment goes beyond the financial resources needed to make primary education free. Early marriage and childbearing conflict with primary education and are often the main reasons for girls not completing primary education. The Charter on the Rights and Welfare of the African Child requires States to ensure that girls who become mothers before completing their primary education "have an opportunity to continue with their education on the basis of their individual ability 32". Translating this obligation into practice often requires overcoming the denials of access to school for pregnant girls and very young mothers (when pregnancy is a disciplinary offence, for example), while overcoming this obstacle requires a well designed strategy for changing social norms through the mobilization of teachers, parents, community leaders, and pupils themselves. |
C. Acceptability [ Go to Contents ] 62. Extreme views of the role of the State in education are embodied in treating the State as the sole funder and provider of education, with the other extreme deeming the State to be the regulator and facilitator rather than funder and provider. Much as in any other area, the extremes are rarely present in the States' practice and cloak the consensus around the regulatory role of the State, that is, its task to set and enforce educational standards. The right to education "by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals 33". 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. 63. Respect for parental freedom to have their children educated in conformity with their religious, moral or philosophical convictions has been affirmed in all general human rights treaties and is continuously subjected to litigation. The European Commission on Human Rights found that human rights law "requires the State actively to respect parental convictions within the public schools 34" in addition to the required respect of their liberty to establish and operate schools. The contents of educational curricula and textbooks raise endless controversies, but the existing jurisprudence demonstrates the increasing importance of human rights criteria in decision-making. 64. The language of instruction can preclude children from attending school. It has always created a great deal of controversy in education and this is not likely to diminish, on the contrary. Controversies span decision-making on the official language(s) of instruction for public schools, the teaching of as well as teaching in minority languages (as well as the recognition thereof), and the teaching of (as well as in) foreign languages. 65. The European Court of Human Rights has affirmed the right of the State to determine official languages of the country which are thus the languages of instruction in public schools but denied that there was a right to education in a language of one's choice 35. States have been required to respect the right of minorities to set up their own schools in minority languages since the time of the League of Nations. In 1919 the precedent was set by Poland in affirming, alongside education in minority languages in public schools, the right of citizens who were members of minorities to establish, manage and control schools at their own expense "with the right to use their own language and to exercise their religion freely therein" 36 and that right was reaffirmed by the Permanent Court of International Justice. 37 66. More than half a century later, dilemmas have increased rather than diminished. Demands that minority schools be made "free" (that is, State-financed) are often made but seldom granted. The right to be educated in one's mother tongue has been on the international human rights agenda since the 1950s and controversies intensified in the 1990s. The wisdom of unilingual education, even in one's mother tongue, has been challenged, adding a new item to this endless controversy. The financial implications of multilingualism in primary school have further exacerbated the existing controversies. The Special Rapporteur plans to analyse the existing experiences and summarize the findings in her final report. 67. From the rights of the child perspective, the obligation to make primary school acceptable goes far beyond parental freedom of choice or the language of instruction, and poses a great deal of challenge for all States. An ideal primary school should be child-friendly, based on the right of the child "to be curious, to ask questions and receive answers, to argue and disagree, to test and make mistakes, to know and not know, to create and be spontaneous, to be recognized and respected 38". The enormity of the task embodied in this vision clashes with the reality of schools that may be grappling with the lack of running water and sanitation, with the incompatibility of the school timetable with family and community life, or with violence against and among children. 68. Restrictions upon school discipline have considerably increased in recent decades to protect the child's dignity against humiliation or degradation. They were, and are likely to remain, subject to litigation. An attempt by parents (whose religious doctrine posited physical punishment of children as legitimate and necessary) to challenge Sweden's policy against corporal punishment of children forced the European Commission on Human Rights to revisit the issue that had already been the object of considerable litigation. The parents complained against the encroachment upon their "ability to express and implement their own convictions in the upbringing of their children" embodied in Sweden's 1979 law, which was "intended to encourage a reappraisal of the corporal punishment of children in order to discourage abuse 39". The Commission did not find that a general policy against corporal punishment amounted to a threat of indoctrination of children against their parents' conviction that corporal punishment was legitimate and necessary. The Committee on the Rights of the Child has consistently held that corporal punishment is incompatible with the Convention on the Rights of the Child, although the Committee's frequent reiteration of that view testifies to the fact that corporal punishment may be practised to discipline schoolchildren in many countries. 69. The importance of a vision of primary school in which all the rights of the child are fully implemented is to define the ultimate goal to be attained, without which a precise definition of the full realization of the right to education remains impossible. D. Adaptability [ Go to Contents ] 70. What children should learn at school and how the learning process should be organized is the source of never-ending challenge and change. The usual approach is to review the contents and process of learning 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 in the Convention to refer to the best interests of the individual child highlights the need for the educational system to become and remain adaptable. 71. The countervailing pressures of globalization and localization in the 1990s highlight the need for adaptability. International flows of capital, information and trade are countered by the process of decentralization and/or localization in education, which facilitates responsivness to the local needs and affirmations of specific ethnic or linguistic or religious identities. Making education responsive to the immediate reality facing children in their own community and to the rapidly changing global realities is the challenge of the 1990s. Different ideas are being experimented with to move away from "the classroom-centred model designed to service a pre-industrial European society 40" that has remained the model for designing primary education much too long. 72. The knowledge, skills and values that the generation of future adults will need in their lifetime is not only unknown but unknowable. A balance between the exposure of children to the local and global community is complemented by their need to familiarize themselves with their own as well as foreign cultures. A focus on human rights education provides an opportunity to balance the previously prohibitory approach in international human rights law by a constructive one. A great deal of effort has targeted the prohibition of incitement to discrimination through prejudicial portrayal of racial or ethnic minorities, or migrants, or women and girls. An endless stream of projects aim at the revision of the existing curricula and textbooks or the creation of new ones so as to convey positive images rather than merely prohibiting negative ones. The International Commission on Education for the Twenty-first Century singled out as the first pillar upon which education should be founded "learning to live together by developing an understanding of others and their history, traditions and spiritual values" 41. The ILO Convention No. 169 on indigenous rights posits the aim that "history textbooks and other educational materials provide a fair, accurate and informative portrayal" of indigenous peoples 42. One may anticipate that this process will encompass a review of the portrayal of indigenous women as well as men. The Committee on the Rights of the Child urged a changed image of women "in school textbooks by adopting suitable messages to combat inequalities, stereotypes and social apathy" 43. The Convention against Racial Discrimination requires States to combat prejudices through education, the Convention on the Elimination of All Forms of Discrimination against Women to eliminate stereotypes. A recognition of the fact that women can be victimized by discrimination because of their race as well as sex, or because they are indigenous as well as female has become a noticeable feature of the 1990s. The process of revising school curricula goes on in quite a few countries so as to identify and replace discriminatory and/or stereotyped portrayal of girls and women. 44 73. Promoting elimination
of gender discrimination in education has become an area
of rapid international, regional and domestic
policy-making. A great deal of quantitative and
qualitative data has been generated to document the
plight of out-of-school girls while reviews of school
curricula and textbooks promise to change the image of
girls and women and thus help the new generation avoid
the stereotypes that we have all been raised with.
Changes in the contents of education in the past few
decades have been profound: from educating girls to be
good housewives to freeing them from gender stereotypes
to enable them to freely develop. The role of teachers is
crucial and highlights gender imbalance in primary
education - the absence of female teachers in some
countries and their prevalence in others as illustrated
in Table 5. |
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XLI.COMPULSORY EDUCATION: RIGHT AND DUTY OF THE CHILD [ Go to Contents ] 75. The 1959 Declaration of the Rights of the Child laid down the entitlement of the child to receive education 46, articulating the vision of the child of the time as a passive recipient of education rather than the principal subject of the right to education. The changed vision of the child as a subject of rights embodied in the Convention on the Rights of the Child is slowly being translated into domestic laws and policies. Compulsory education has been included in the Convention on the Rights of the Child because of its undoubted value, but it is much older that the concept of the rights of the child and reflects the vision of the child as a recipient of education, which can be imposed upon the child. Indeed the corollary of the governmental obligation to make primary education compulsory is the duty of the child to attend school. The Convention on the Rights of the Child presents a challenge to make compulsory education fully consistent with the full range of the rights of the child. 76. Table 6 presents a bird's-eye view of compulsory education by categorizing countries in which primary education has been made compulsory according to its duration from 3 to 12 years. 77. The capacity of
Governments to implement compulsory school laws varies as
do enforcement measures. Many target parents in the form
of fines for their failure to secure enrolment or school
attendance by their children. Some target children,
however. Enforcement of compulsory education thus raises
important human rights issues. The Convention on the
Rights of the Child goes no further than obligating
States to encourage school attendance; enforcement is not
mentioned. Older human rights treaties, such as the
European Convention on Human Rights, provided for
detention of a minor by lawful order for the purpose of
educational supervision, which mandated compulsory
schooling in the narrowest sense of this term. The
specific offence of truancy was created to punish the
child for breaching the duty to attend school. |
| 78. The prevalence of compulsory primary education in the States' practice provides evidence of the States' commitment to ensuring that all children benefit from it. The existence of compulsory education is, however, indicative of the realization of only one component of the right to education; parental freedom of choice might not be recognized. Moreover, an extreme situation might exist if primary education is compulsory, provided against the payment of a fee in a uniform State-run school system from which parents do not have freedom to opt out. Education would thus not be "free" in many different meanings of this term. 79. Although the child is today treated as the principal subject of the right to education, the child is not party to decision-making on the realization of the right to education. International human rights law divides decision-making between the parents and the State. Each principal actor can -and routinely does - claim to represent the best interest of the child. The child's right to education is reflected in the duty of the parents, community and the State to educate the child as well as the duty of children to educate themselves. The inter-generational dimension is evidenced in adults designing education in the best interests of the child and, as often as not, disagreeing among themselves as to what the best interest of the child may be. XLII.CONCLUDING REMARKS [ Go to Contents ] 80. The 1990s have been a time of crisis-driven change in education. Many Governments - not only in developing countries - have been struggling with debt pressure, budget deficits, stagnant or falling revenue, and a great deal of effort was expanded to seek other-than-governmental funding for education. Blueprints for educational reform have been discussed at the global level within UNESCO or the World Bank or the Organization for Economic Co-operation and Development, as well as in many individual countries. The approaching turn of the century has made obsolete the many strategies which had "by the year 2000" in their title and shifted attention to designs for the twenty-first century. Education is a long-term process and the commitment should be equally long term and the Special Rapporteur intends to concentrate on a long-term vision of an educational strategy grounded in the right to education. 81. In this preliminary report, the Special Rapporteur has mapped out a range of issues that merit immediate attention, described the approach she intends to pursue and the initial framework for her analysis. She has also identified a number of issues that necessitate further study and noted that her focus will be to elucidate the full scope of the right to education by seeking an answer to the question: When is the right to education fully realized? A clear definition of the nature and scope of the right to education demands an in-depth study of the experience in putting into practice requirements of the international human rights law in different regions and countries, where the realm of the possible is delineated by the minimum acceptable standards which should be sought worldwide and the full realization of the right to education as the maximum standard. © Copyright 1996-2000 Notes 1. Sub-Commission on Prevention of Discrimination and Protection of Minorities, "The realization of the right to education, including education in human rights" (E/CN.4/Sub.2/1998/10 of 3 June 1998). Working Paper presented by Mr. Mustapha Mehedi. «-- back 2. Final Report of the World Conference on Education for All: Meeting Basic Learning Needs, Jomtien, Thailand, 5-9 March 1990, Inter-Agency Commission (UNDP, UNESCO, UNICEF, World Bank) for the World Conference on Education for All, New York, 1990. «-- back 3. United Nations Children's Fund, "UNICEF strategies in basic education" (E/ICEF/1995/16) para. 6 and Figure 1. «-- back 4. Commission on the Status of Women, "Agreed conclusions on the critical areas of concern", Draft resolution II forwarded to the Economic and Social Council, para. 3, Report on the forty-first session (10-21 March 1997) (E/1997/27 and E/CN.6/1997/9, p. 3). «-- back 5. United Nations, "Proposed system-wide medium-term plan for the advancement of women", Report of the Administrative Committee on Coordination (E/1996/16 of 16 April 1996, para. 184). «-- back 6. Commission on the Status of Women, "Mainstreaming gender perspective into all policies and programmes in the United Nations system", resolution 41/6, para. 14, Report on the forty-first session (10-21 March 1997) (E/1997/27 and E/CN.6/1997/9, p. 30). «-- back 7. "Integration of a gender perspective into United Nations technical cooperation in human rights", Working Paper by K. Tomaa.evski, Office of the High Commissioner for Human Rights, Technical Cooperation Programme, Project GLO/97/AHB/24, June 1998. «-- back 8. Education for All. Achieving the Goal, Mid-Decade Meeting of the International Consultative Forum on Education for All, 16-19 June 1996, Amman, Jordan, Final Report, p. 7. «-- back 9. Tomaa.evski, K., "The influence of the World Bank and the IMF on economic and social rights", Nordic Journal of International Law, vol. 64, 1995, pp. 385-395. «-- back 10. The World Bank Annual Report 1997, Washington, D.C., 1998, pp. 18 and 40. «-- back 11. Learning: The Treasure Within. Report to UNESCO of the International Commission on Education for the Twenty-first Century, UNESCO Publishing, Paris, 1996, p. 33. «-- back 12. The 1995 Social Summit endorsed the 20/20 Initiative which had originated from UNICEF, with the idea that developing countries should direct 20 per cent of their budgets to the priority needs of children and so should industrialized countries with their development aid budgets. Contribution from the United Nations Children's Fund to the Fourth Session of the Preparatory Committee for the World Conference on Human Rights (A/CONF.157/PC/61/Add.15, para. 25). «-- back 13. Implementing the 20/20 Initiative. Achieving Universal Access to Basic Social Services, A joint publication of UNDP, UNESCO, UNFPA, UNICEF, WHO and the World Bank, New York, September 1998, p. 6. «-- back 14. The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights was adopted in 1988 and by the end of 1997 was ratified by 9 States; 11 ratifications are needed for its entry into force. «-- back 15. United Nations, Report on the World Social Situation 1997 (Sales No. E.97.IV.1), New York, 1997, p. 49, para. 18. «-- back 16. Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Paris, 20 March 1952, European Treaty Series, No. 9. «-- back 17. Article 7 of the World Declaration on Education for All stated that providing basic education for all was "the unique obligation" of national, regional and local authorities, but immediately added that the authorities could not be expected to carry out that obligation alone and so partnerships would be necessary with families, religious groups, local communities, non-governmental organizations as well as the private sector. World Conference on Education for All, World Declaration on Education for All and Framework for Action to Meet Basic Learning Needs, Jomtien, 1990. «-- back 18. Pradhan, S., Evaluating Public Spending. A Framework for Public Expenditure Reviews, Discussion Paper No. 323, World Bank, Washington, D.C., March 1996, p. 10. «-- back 19. Committee on the Rights of the Child, "General guidelines regarding the forms and contents of periodic reports to be submitted by States parties under Article 44, paragraph 1 (b), of the Convention", (CRC/C/58, para. 20). «-- back 20. Consensus on principles of cost sharing in education and health in sub-Saharan Africa, International forum held on 18-20 June 1997, by the United Nations Economic Commission for Africa, PREviews. A UNICEF Newsletter on Evaluation, Policy and Planning, vol. 2, No. 2, November 1997, pp. 3-6. «-- back 21. Tomaa.evski, K., "Human rights impact assessment: Proposals for the next 50 years of Bretton Woods", in Griesgraber, J.M and Gunter, B.G. (eds.), Promoting Development: Effective Global Institutions for the Twenty-first Century, Pluto Press, London and Center of Concern, Washington, D.C., 1995, pp. 82-98. «-- back 22. Committee on the Rights of the Child, "General guidelines regarding the forms and contents of periodic reports to be submitted by States parties under Article 44, paragraph 1 (b), of the Convention", (CRC/C/58, para. 106). «-- back 23. Bray, M., "Counting the Full Cost: Parental and Community Financing of Education in East Asia", A collaborative report by the World Bank and UNICEF, Directions in Development, The World Bank, 1996. «-- back 24. Committee on Economic, Social and Cultural Rights, "Status of the International Covenant on Economic, Social and Cultural Rights and reservations, withdrawals, declarations and objections under the Covenant", Note by the Secretary-General (E/C.12/1993/3/Rev. 3). «-- back 25. Committee on the Rights of the Child - Reservations, declarations and objections relating to the Convention on the Rights of the Child. Note by the Secretary-General (CRC/C/2/Rev. 7). «-- back 26. Human Rights Committee, Carl Henrik Blom v. Sweden, Communication No. 191/1985, Views of 4 April 1988, para. 10.3, Selected Decisions of the Human Rights Committee under the Optional Protocol, vol. 2, (CCPR/C/OP/2, pp. 216-219). «-- back 27. European Commission on Human Rights, André Simpson v. United Kingdom, Application No. 14688/89, Decision on admissibility of 4 December 1989, Decisions and Reports, vol. 64, p. 194. «-- back 28. Schleicher, A., et al., "The conditions of primary schools: A pilot study in the least developed countries. A report to UNESCO and UNICEF", Paris, 1995, [mimeographed]. «-- back 29. Education for All: Achieving the Goal. Mid-Decade Meeting of the International Consultative Forum on Education for All, 16-19 June 1996, Amman, Jordan, Final Report, p. 36. «-- back 30. UNICEF, The State of the World's Children 1999, New York, 1998, p. 58-59. «-- back 31. The Memorandum of Understanding between the Bangladesh Garment Manufacturers and Export Association with UNICEF and the ILO of 4 July 1995, and the Partners' Agreement to Eliminate Child Labour in Soccer Ball Industry in Pakistan between the Sialkot Chamber of Commerce and Industry, the ILO and UNICEF of 14 February 1997. «-- back 32. Organization of African Unity, Charter on the Rights and Welfare of the African Child, Article 11 (6); the Charter was adopted in 1990 and is not yet in force. «-- back 33. European Court of Human Rights, Belgian Linguistic Case, Judgment of 23 July 1968, Series A, No. 6, para. 5. «-- back 34. European Commission on Human Rights, Kjeldsen, Busk Madsen and Pedersen v. Denmark, Report of the Commission of 21 March 1975, Judgment of the Court, vol. 21, series B, pp. 44 and 46. «-- back 35. European Court of Human Rights, The Belgian Linguistic Case, Judgment of 23 July 1968, Series A, vol. 6, p. 31. «-- back 36. Article 8 of the Polish Minorities Treaty of 1919, reproduced in Protection of Linguistic and Racial Minorities by the League of Nations, Geneva, 1927. «-- back 37. Permanent Court of International Justice, Minority Schools in Albania, Advisory Opinion of 6 April 1935, Series A/B, No. 64. «-- back 38. Hammarberg, T., A School for Children with Rights, Innocenti Lectures, UNICEF International Child Development Centre, Florence, 23 October 1997, p. 19. «-- back 39. European Commission on Human Rights, Seven individuals v. Sweden, Application No. 8811/79, decision of 13 May 1982 on the admissibility of the application, Decisions and Reports, vol. 29, pp. 111-112. «-- back 40. Dall, F., "Education and the United Nations Convention on the Rights of the Child: The challenge of implementation", Innocenti Occasional Papers, Child Rights Series No. 4, Florence, November 1993, p. 40. «-- back 41. UNESCO, Learning: The Treasure Within: Report to UNESCO of the International Commission on Education for the Twenty-first Century, UNESCO Publishing, Paris, 1996, p. 22. «-- back 42. Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, Article 31. «-- back 43. Committee on the Rights of the Child, Report on the eighth session (Geneva, 9-27 January 1995) (CRC/C/38), General debate on the girl child, 21 January 1995, Annex V, para. 3 (a), p. 72. «-- back 44. The Special Rapporteur on women's rights of the Inter-American Commission on Human Rights identified a range of countries in which reform of curricula and textbooks was undertaken to eliminate gender discrimination. Organization of American States, Annual Report of the Inter-American Commission on Human Rights, (OEA/Ser.L/V/II.98) Washington, D.C., 1998, pp. 1017-1018. «-- back 45. United Nations, Study of discrimination in education, by Charles Ammoun, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (E/CN.4/Sub.2/181/Rev. 1) ,(Sales No. 1957.XIV.3), New York, August 1957, p. 43. «-- back 46. General Assembly resolution 1386 (XIV) of 20 November 1959, Principle 7. «-- back [ «---Go to Previous Page ] [ Go to Page Top ] [ Go to Document Top ] |