A. Availability        [ Go to Contents ]

32. As the Special Rapporteur has emphasized in all her previous reports, the obligation of the State to make schooling available constitutes one pillar of the individual right to education, and the failure of the State to sustain available schooling constitutes an apparent violation of the right to education. The African Commission on Human and Peoples. Rights found that a two-year-long closure of universities and secondary schools in Zaire (as it was at the time) constituted a violation of article 17 of the African Charter on Human and Peoples. Rights, which guarantees the right to education ²⁶.

33. States. practice with regard to ensuring that schools are available for all school-age children reveals a variety of models: the State can fund diverse schools but not operate any, or operate a network of State schools without funding any non-State schools. The extremes of a State. s monopoly over education or its complete dissociation from education, neither of which would be consistent with international human rights law, are rare. Between these two extremes, the existing jurisprudence has laid down general principles for the interpretation and application of international human rights law.

1. Public funds and private schools

34. Much international jurisprudence has originated from demands upon States to finance education developed as an alternative to uniform public schooling. A variety of models developed in Western Europe, in part due to the "principle of subsidiarity according to which the State filled the gaps left by private sector provision (private and church schools ²⁷)". The emergence of the State as the funder and/or provider of education is fairly recent in the history of education. The inherited mosaic of pre-State provision of education has greatly influenced this variety of models. Free education is generally conceptualized in terms of access to public schools, with States. practice varying with regard to subsidies for non-public schools. The distinction between free (State school) or fee-paying (private) schooling has been widely recognized worldwide ²⁸.

35. The jurisprudence focusing on public funding to facilitate the exercise of freedom to establish and operate schools guaranteed under international human rights law has overcome a boundary between civil and political rights, which are often perceived as being costless, and economic, social and cultural rights, viewed as costly. In the Special Rapporteur. s view, it has thereby reaffirmed the indivisibility of human rights in general, as well as within education.

36. The Human Rights Committee found that a State "cannot be deemed to act in a discriminatory fashion if it does not provide the same level of subsidy for the two [public and private] types of establishment, when the private system is not subject to State supervision". In a similar case, which dealt with the provision of free textbooks and school meals to children in public but not in private schools, the Committee affirmed its previous view, adding that "the preferential treatment given to public sector schooling is reasonable and based on objective criteria ²⁹" This affirmation of the priority of public over private schools goes beyond funding: the role of education in the socialization of children prioritizes inclusiveness over segregation. In the well-known words of the Supreme Court of the United States, "separate educational facilities are inherently unequal ³⁰".

37. The European Commission on Human Rights has during its previous existence affirmed that the State has no obligation to subsidize private schools while it has a right to subject such schools to regulation and supervision because it is responsible for ensuring that all education complies with prescribed standards ³¹. Domestic courts have been dealing with this subject-matter in different countries and have followed the thrust of international human rights law. The Supreme Court of Canada, having examined a complaint against a denial of public funding to private religious schools, has affirmed that the purpose of public schools is provision of education for all members of the community. The exercise of parents. freedom to educate their children in accordance with their religious beliefs in separate schools (or at home) prevents their children from taking advantage of public schools and creates costs for the parents; such exercise of parental freedom does not entail an entitlement to public funding, however ³².

38. Moreover, the existing jurisprudence probes into issues which lie at the boundary between political and legal processes. Resource allocation is generally seen as a political decision and unelected courts cannot usurp the prerogatives of elected parliamentarians. Court cases which have halted the allocation of State funds to private schools or required Governments to strengthen public schools have imposed human rights correctives upon resource allocation, however. Such court cases have often been a response to the recent trends of privatization and commoditization of education, and especially to international endorsements of school vouchers.

39. Through the voucher schemes, Governments enable individual learners to make payments to the school of their choice, or make payment directly to the chosen school. The amount of payments usually corresponds to the admission and/or tuition costs. The rationale for school vouchers is enhancement of consumer (in this case parental) choice and an assumed enlargement of this choice through competition amongst schools. An additional, albeit implicit reason, has been a wish to subject public schools to competition, their being seen as having monopolized schooling. The distinction between public and private, State and non-State, fee-charging and free schools - and the diversity which they embody - is likely to be eroded if proposals for introduction of vouchers gain ground; only schools able to attract learners and/or funding will be left. The rationale behind vouchers perceives States as merely providing some funding to learners or schools to the detriment of the full range of the States. human rights obligations, namely to ensure that schooling is available, accessible, acceptable and adaptable.

40. The ongoing debate about school vouchers started within the realm of economics, focusing on consumer choice and competitiveness while excluding the notion of education as a public good ³³. Court cases have brought the issue into the realm of the rule of law. The voucher scheme introduced in 1993 in Puerto Rico was declared unconstitutional in the part which accorded to selected pupils a financial grant of $1,500 for transfer from public to private school. The constitutional prohibition on diverting public funds to private schools reached back to the separation between church and State and was upheld, although the voucher scheme did not revolve around secular or religious schools. Rather, it was aimed at financially stimulating transfer from public to private schools ³⁴(thus also transferring tax revenue to private schools) with the aim of increasing choice, contrary to the constitutional requirement that public funds be used solely for public schools.

41. Controversies relating to vouchers routinely revolve around economic arguments, thus departing from the meaning and purpose of the right to education. Amongst the existing jurisprudence, the Supreme Court of Colombia has ably clarified why education should not be governed by economic arguments alone:

"¼ although the Constitution protects economic activities, private initiative and competition as well as recognizing the right of private entities to establish schools, these liberties cannot negate nor can they diminish the nature of education as public service and its social function; education is also and above all else a fundamental right.

"... education - even if private - has to be provided in the conditions which guarantee equality of opportunity in access to education, and all forms of discrimination and . elitism. are thus repugnant to its nature of public service with profound social contents; these, by virtue of excessive economic demands, automatically deny access to intellectually able persons solely because [of] their levels of income ³⁵."

2. The status of teachers

42. Although it is possible to imagine schooling taking place without schools but not without teachers, the attention to schools and textbooks in international education strategies is immense while they are relatively silent about teachers. Teaching is a labour-intensive profession and the Special Rapporteur is not convinced that recent ideas about replacing humans by technological devices will ever materialize, nor that they would be beneficial if they do materialize. For schooling that takes place without a school, water, sanitation, desks and chairs, books, blackboards, pens and paper, a teacher makes all the difference and the absence of a teacher prevents schooling from taking place. For teenagers in OECD countries who have replaced socialization by surfing the web, the Special Rapporteur has not seen a single piece of evidence claiming benefits for their social skills, tolerance or even basic literacy.

43. The advantage of teaching being labour-intensive is that employment of large numbers of people is possible - even necessary - to educate the millions of children and young people in the world. Since teachers are locally trained, hired and paid, there is the additional advantage that there is no need for foreign exchange, unlike for schools or schoolbooks that may be provided through loans which have to be repaid, or which may have to be imported. It seems, however, that instead of being seen as actors indispensable for schooling, teachers are often perceived as enemies of their own vocation. One reason for this view of teachers as a burden rather than an asset is the sheer size of the teaching profession and the proportion of education budgets allocated to teachers. salaries. In a country where school-age children represent one third of the population, a ratio of one teacher to every 50 children makes teachers 0.6 per cent of the population. As there is little besides teachers in the schooling process in many poor countries, teachers. salaries necessarily form the bulk of the education budget ³⁶. The consecutive crises through which education has passed in recent decades has triggered a constant search for ways of cutting education budgets. Because teachers. salaries constitute the bulk of education budgets, they were the obvious first target for budgetary cuts.

44. The protection of the human rights of teachers sometimes slips into oblivion if teachers are considered as "a production factor" rather than as people. The applicable international human rights standards are many because the problems teachers encounter are complex and multi-layered. They range from discrimination on the internationally prohibited grounds to teachers. recruitment and deployment, to the protection of professional and academic freedom, or to the role of teachers in human rights education. Problems in their enforcement have included teachers. status as civil and/or public servants leading to the denial of their trade union freedoms, or the definition of teaching as an essential service leading to the denial of their right to strike ³⁷.

B. Accessibility: school fees        [ Go to Contents ]

45. Where schools and teachers are available, access to schooling can be impeded by a variety of obstacles. As announced in her preliminary report, the Special Rapporteur is focusing in the present report on school fees. Much concern followed their introduction in the 1980s for previously free primary education, resulting in decreased enrolments and reduced access to primary schooling. International mobilization for "adjustment with a human face", as UNICEF

aptly put it, led to a general acceptance of the need to protect primary education from budgetary cuts, but the Special Rapporteur feels that insufficient attention has been paid to ensuring that school fees are indeed abolished as international human rights law requires.

46. The explicit wording of international human rights treaties requires primary education to be compulsory and free of charge. The assumption that compulsory schooling equals primary education in length is, however, no longer valid. It bears repeating that the Special Rapporteur. s mandate is oriented towards progressive implementation of compulsory education free of charge ³⁸. Table 3 highlights correspondence between the length of primary and compulsory schooling, as well as differences between the two. In the majority of countries for which data are available (96), compulsory schooling has been lengthened far beyond primary schooling. The trend of lengthening compulsory schooling follows a double rationale: on the one hand, the raising of the school-leaving age prevents children from venturing into adulthood too early (be it in employment or marriage), on the other hand, it provides all children with a common core education, in the inclusive ideal in the same school and classroom also. Countries in which the two remain equal in length (60) have become a minority; in more than 40 countries education is compulsory for six years or less, while just under 40 countries have lengthened compulsory education to 10 years or more. The Special Rapporteur deems that these data merit emphasizing because the emerging international consensus on securing basic education for all, free of charge, could have two effects: it could confine guaranteed schooling to the 6-11 age group if the prevalent statistical definition is applied, or it could prolong it beyond primary to lower secondary education if the desirable definition of basic education (up to 15 years of age) prevails, keeping children in school till they reach the minimum age for employment.

47. Table 3 reflects to a large extent the economic capacity of individual countries to provide their young generation with schooling. Countries in which compulsory schooling is the shortest (such as Bangladesh, the Lao People. s Democratic Republic, Nepal or Viet Nam) share financial obstacles to lengthening education, while the tendency in Western Europe to extend compulsory education beyond 10 years (in Belgium, Germany and the Netherlands, for example) reflects the necessary merger of willingness and ability to do so. This issue has obtained increasing importance at the turn of the millennium with the switch towards knowledge-based economy, society or development in general, and is revisited in section IV below.

48. Considerations of affordability pervade any analysis of free-of-charge education and many questions have been raised in the past few decades about compatibility between fiscal and educational policy, that is, between fiscal targets defined in terms of reducing public expenditure and the funding necessary to ensure universal primary education free of charge. The global consensus on the need to make and keep primary education free of charge was ruptured in the early 1980s. Most analysts attribute the advocacy for school fees to the World Bank. s research and policy-making for Africa ³⁹ and a great deal of critique followed the linkage between school fees and structural adjustment programmes. This is well known and can be omitted. Rather, the Special Rapporteur would like to note that the critique of school fees has had the unanticipated effect of subsequently diminishing the availability of information about them ⁴⁰.

Countries withequal length of compulsory and primary schooling     Albania (8), Bangladesh (5), Benin (6), Bolivia (8), Brazil (8), Burundi(6), Cameroon (6), Cape Verde (6), Central African Republic(6), Chad (6), Chile (8), Colombia (5), Cóte d. Ivoire (6), Djibouti (6), El Salvador (9), Equatorial Guinea (5), Ethiopia (6), FYR of Macedonia (8), Guatemala (6), Guinea (6), Guinea-Bissau (6), Haiti(6), Honduras (6), Iran (5), Iraq (6), Jamaica (6), Kenya (8), Lao PDR (5), Lesotho (7), Libya (9), Malawi (8), Mauritania (6), Mexico (6), Morocco (6), Myanmar (5), Nepal (5), Nicaragua (6), Nigeria (6), Panama (6), Paraguay (6), Philippines (6), Peru (6), Poland (8), Samoa (8), Sao Tome and Principe (4), Senegal (6), Sudan (8), Suriname (6), Swaziland (7), Syria (6), Tanzania (7), Thailand (6), Togo (6), Trinidad and Tobago (7), United Arab Emirates (6), Uruguay (6), Vanuatu (6), Viet Nam (5), Yemen (9), Zambia (7)   Countries where compulsory schooling is longer than primary schooling       Antigua and Barbuda (10-7), Algeria (9-6), Argentina (10-7), Armenia (11-4), Australia (10-7), Austria (9-4), Azerbaijan (11-4), Bahamas (9-6), Bahrain (9-6), Barbados (11-7), Belarus (9-4), Belgium (12-6), Belize (10-8), Brunei Darussalam (12-6), Bulgaria (8-4), Burkina Faso (7-6), Canada (10-6), China (9-5), Comoros (9-6), Congo (10-6), Costa Rica (10-6), Croatia (8-4), Cuba (9-6), Cyprus (9-6), Czech Republic (9-4), Denmark (9-6), Dominica (11-7), Dominican Republic (10-8), Ecuador (10-6), Egypt (8-5), Eritrea (7-5), Estonia (9-6), Fiji (8-6), Finland (9-6), France (10-5), Gabon (10-6), Germany (12-4), Georgia (9-4), Ghana (8-6), Greece (9-6), Grenada (11-7), Guyana (8-6), Hungary (10-4), Iceland (10-7), India (8-5), Indonesia (9-6), Ireland (9-6), Israel (11-6), Italy (8-5), Japan (9-6), Kazakhstan (11-4), Kiribati (9-7), Kuwait (8-4), Kyrgyzstan (10-4), Lebanon (9-5), Liberia (10-6), Lithuania (9-4), Luxembourg (9-6), Madagascar (6-5), Mali (9-6), Malta (11-2), Mauritius (7-6), Moldova (11-4), Monaco (10-5), Mongolia (8-4), Mozambique (7-5), Namibia (10-7), Netherlands (13-6), New Zealand (10-6), Niger (8-6), Norway (9-6), Portugal (9-6), Republic of Korea (9-6), Romania (8-4), Russia (9-3), Seychelles (10-6), Slovakia (9-4), Slovenia (8-4), South Africa (9-7), Spain (8-6), Sri Lanka (9-5), St Kitts and Nevis (12-7), St. Lucia (10-7), St. Vincent and the Grenadines (10-7), Sweden (9-6), Switzerland (9-6), Tajikistan (9-4), Tonga (8-6), Tunisia (9-6), Turkey (8-5), Ukraine (9-4), United Kingdom (11-6), United States (10-6), Venezuela (10-9), Zimbabwe (8-7), Yugoslavia (8-4)

[Go To List of Tables]

49. While international law requires primary education to be free of charge, education cannot be free of cost in theory or in practice. For Governments, it is one of the major items in their budgets and public investment in education represents between 80 and 90 per cent of the total. Parents finance their children. s education through general taxation, sometimes also paying additional charges but always funding the cost of education beyond the Government. s contribution. What is recorded as governmental investment (often called expenditure) is supplemented by parents, who bear the cost of books, transportation and school meals, uniforms, pens and pencils, or sports equipment.

50. As the Special Rapporteur noted in her preliminary report, the requirement upon Governments to make primary education free implies that Governments should eliminate financial obstacles in order to enable all children - no matter how poor - to complete primary schooling. The link between primary education being free and compulsory is emphasized in all three pertinent human rights instruments ⁴¹. Imposing a requirement upon children to attend school whose cost their parents cannot afford would make compulsory education illusory.

51. The reservations to the two global human rights treaties with regard to making primary education free and compulsory indicate the general acceptance of this postulate ⁴². As noted above, the mosaic of diverse pre-State schools such as existed in Western Europe at the time when the provision on the right to education was drafted (1950-52) influenced the approach to the role of the State under the European Convention on Human Rights ⁴³, and reservations thereto have affirmed States. reluctance to finance diverse schools that tend to emerge from the exercise of parental freedom of choice ⁴⁴. The fact that most States have committed themselves to ensuring free primary education affirms the explicit wording of global human rights treaties, and one can thus look further into what the meaning of "free" is in the practice of States.

52. In the Special Rapporteur. s view, school fees represent a form of regressive taxation. Their justification routinely points to the inability (or unwillingness) of a Government to generate sufficient revenue through general taxation. Payment for primary schooling ruptures the key principle of taxation whereby people who cannot contribute to public services that are meant for all are not required to do so. School fees are most often charged for enrolment, tuition and examinations. Where tuition is free, charges can be levied for the use of educational facilities and materials (such as laboratories, computers or sports equipment), or for extracurricular activities (such as excursions or sports events), or generally for educational development or school maintenance. Such fees can sometimes seem minuscule (for example, $4 per year) from the viewpoint of people whose annual income is expressed in six or more digits, but they represent a considerable burden for parents whose annual income is written in three digits or less, particularly because these charges are added to all the other costs of their children. s education which they have to bear. There is little information available about the financial costs of the administration and collection of such school fees in small and remote primary schools. Whether the imposition of such fees has proved too costly in every sense of this term remains an open question.

53. School fees at the primary school level are charged in a number of countries and this practice is reflected in the documentation generated by the reporting procedures under human rights treaties ⁴⁵. The Special Rapporteur has opted for this source of information because it is authoritative, although not comprehensive in coverage. Only those countries which included information about school fees in their reports or in responses to queries from treaty bodies have been included, if their reports were available at the time of writing. The information in cited documents applied at the time the reports were submitted or discussed and the situation may have changed in the meantime. The coverage is illustrative rather than comprehensive and the Special Rapporteur will be grateful for all corrections and additions.

54. For some countries, an explicit reference to the charging of some form of school fees could be found in the documentation ⁴⁶, for others it is unclear what type of fees, levies or contributions are being charged and whether financial contributions by parents that are described as voluntary can be made or withheld without having any effect on their children. s schooling ⁴⁷. Besides school fees, levies or contributions in their different guises, direct costs of education include textbooks (which are provided free of charge in some countries, while they are subsidized in many ⁴⁸), supplies and equipment (notebooks, sketchbooks, pens and pencils), transportation (provided free of charge in few countries), meals (also provided free of charge in some countries, sometimes as an inducement to parents to send their children to school) and school uniforms where these are required for school attendance. These costs can be prohibitively high, as has been noted quite a few times in the context of the reporting procedures of the human rights treaty bodies ⁴⁹ and they have broadened the question of the meaning of free education beyond school fees; financial barriers to access to primary education result in the lack of access to school for poor children and thus retrogression rather than progressive realization of the right to education.

55. States. practice also includes examples of the elimination of financial barriers to access to education, in the form of subsidies to poor families to enable them to send their children to school ⁵⁰ . Such subsidies are intended to eliminate all direct and indirect costs of primary education, compensating families for the opportunity cost of schooling children. The general idea that costs of education should be borne in proportion to financial ability thus found expression in subsidies to the poorest so as to redress their inability to dispense with the children. s contribution to the survival of the family. This issue is revisited below in section III.D on working children.

 
C. Acceptability: pregnancy as a disciplinary offence        [ Go to Contents ]

56. The Special Rapporteur has noted in all her previous reports the constantly increasing attention to girls. access to school and their persistence in schooling and will review recent developments in her next report. She deems it necessary to move beyond availability and accessibility, and has chosen pregnancy as a disciplinary offence because it points to questioning the acceptability of school discipline, as well as the general orientation of education.

57. The Commission on Human Rights has emphasized the role of education in enhancing the ability of women to make informed choices ⁵¹ . The practice of defining pregnancy as a disciplinary offence routinely leads to the expulsion of the pregnant girl from school, sometimes precluding her from continuing education. The lack of access to information that would have enabled the girl to make any choice, least of all an informed one, is usually the background to this practice. The frequent clash between societal norms which pressurize girls into early pregnancy and legal norms which aim to keep them in school makes this phenomenon difficult to tackle. Moreover, the practice of expelling pregnant teachers from school forms part of not too distant history and points to the heritage of precluding the exposure of schoolchildren to pregnancy. If the expulsion of pregnant schoolteachers seems to have become history, this is not so if teachers are not married ⁵².

58. Information about the definition of pregnancy as a disciplinary offence leading to expulsion from school is regretfully fragmentary. As far as the Special Rapporteur could ascertain for Africa (although the available information is scarce and outdated), pregnant girls are expelled from primary and secondary schools in Liberia, Mali, Nigeria, Swaziland, Tanzania, Togo, Uganda and Zambia, while change has been introduced in Bolivia, Botswana, Chile, Côte d. Ivoire, Guinea, Kenya and Malawi ⁵³ . Such information is usually collected as the first step towards affirming the girls. right to education. The coming into force in November 1999 of the Charter on the Rights and Welfare of the African Child, which includes an explicit requirement that States ensure that pregnant girls have an opportunity to continue with their education, is likely to increase the momentum for change.

59. Change does not come easily. The views of parents, teachers and community leaders tend to support the expulsion of pregnant girls from school, rationalizing this punitive choice by the need to uphold a moral norm which prohibits teenage sex - pregnancy being considered as irrefutable proof that this norm was breached and as entailing punishment. Punitiveness sometimes also encompasses schoolboys who father children, but never adult men who seem responsible for most teenage pregnancies, more than 70 per cent in Botswana ⁵⁴ . Societal norms are not automatically changed through the adoption of international or domestic guarantees of the equal right to education for girls nor are they usually altered through democratic decision-making, in which girls routinely do not have a voice. Law thus provides a good starting point for the process of change.

60. The Supreme Court of Colombia has established an important precedent by demanding that school regulations, which envisaged penalization of pregnancy by suspending pregnant girls from schooling and rerouting them into tutorials, should be altered and the pregnant girls to whom they were applied returned to normal schooling. The opinion of the Court is worth quoting because of its importance for the interpretation of the nature and scope of the pregnant girls. right to education:

"... although a suspension from school attendance does not imply a definitive loss of the right to education, it does imply the provision of instruction to the pregnant schoolgirl in conditions which are stigmatizing and discriminatory in comparison with other pupils in her ability to benefit from [the right to education]. Surely, the stigmatization and discrimination implied in the suspension from school attendance have converted this method of instruction into a disproportionate burden which the pupil has to bear solely because she is pregnant, which, in the opinion of the Court, amounts to punishment.

The conversion of pregnancy - through school regulations - into a ground for punishment violates fundamental rights to equality, privacy, free development of personality, and to education ⁵⁵ ."

D. Adaptability: education for working children        [ Go to Contents ]

61. The Special Rapporteur has closely observed recent developments with regard to the elimination of child labour, especially linkages which are being forged between schooling and working. These span a negative dimension (enforcement of the prohibition of exploitative child labour), as well as a positive one (provision of schooling to working children). The adoption of ILO Convention No. 182 ⁵⁶reinforced the definition of a child as a person up to the age of 18 with respect to safeguards against intolerable forms of child labour, re-emphasized States. obligations to ensure access to free basic education for all children, and mandated vocational training for children removed from labouring.

62. The International Labour Organization has reinforced its early link between the age for completion of compulsory education and the minimum age for employment, and the Special Rapporteur has exerted a great deal of effort to attain acceptance of this link in international education strategies. As she has pointed out many times, the shift to "basic" from primary and/or compulsory education has had the detrimental side effect of lowering the school-leaving age and thus leaving children in limbo until they reach the minimum age of employment ⁵⁷ .

63. ILO-IPEC aims to set in motion "a process geared to reform and change in social attitudes and in public and corporate policies that will lead to sustainable prevention and abolition of child labour from within a country ⁵⁸ ". Both prevention and abolition of child labour have posed additional challenges to education. Prevention of child labour necessitates a conceptual shift in the orientation of education towards the acknowledgement of one simple fact: "the unavoidable labour reality is very much local ⁵⁹ ", and any global or foreign models require adaptation to that local reality. The dominant trend in human rights towards conceiving work as access to employment in the formal sector rather than self-employment in the informal sector (whether subsistence or entrepreneurship) does not provide a promising background for responding to this challenge nor does the heritage of designing primary education so as to lead pupils to secondary and higher education. Adaptability is often hampered by school curricula "developed centrally by groups of . experts. who design them to prepare children for the next level of education, to which many children will be unable to proceed ⁶⁰ ".

64. Opportunities for working children to "learn and earn" ⁶¹ have been grounded in the necessity for poor people - including children - to work so as to be able to survive. Full-time education then appears to be a luxury rather than a basic right of the child, and changing that cruel reality requires a great deal of political and financial commitment. The Supreme Court of India has accepted this "learn and earn" approach for non-hazardous employment of children below 14 years of age, mandating a reduction of daily working hours to six, coupled with at least two hours of education at the expense of the employer. For hazardous work, the Court has recalled that child labour could not be eliminated without tackling underlying poverty and suggested ensuring work for an adult member of the family in lieu of the child or, if this is impossible within the limits of the economic capacity of the State, the provision of a minimum income to the family in order to enable them to send the child to school payable as long as the child is attending school ⁶².

65. Adaptation of education to local circumstances requires protection against the institutionalization of disadvantage which can result in "educational ghettos" ⁶³. A shift away from denigrating vocational education as inferior to academic education is necessary, as is the acceptance of resource requirements for in-school vocational education and training. The increasing shortage of public sector jobs worldwide is likely to facilitate altering the inherited hierarchy within education, which prioritized general at the expense of vocational education.

IV. THE CHANGING LEGAL STATUS OF EDUCATION AND THE NEED TO
MAINSTREAM HUMAN RIGHTS      [ Go to Contents ]

66. The definition of education as a human right does not guide many international or domestic education strategies; the recent emergence of a focus on education as a means for creating human capital and the prospect of education being purchased and sold as service create a great challenge for reaffirming education as a human right and as a public good. Contemporary changes can be illustrated by the usage of the term "rights" to denote shareholders. or creditors. rights ⁶⁴, rather than in the sense attributed to this term in international human rights law. The Special Rapporteur welcomes the initiative of the Sub-Commission on the Promotion and Protection of Human Rights in placing globalization and trade liberalization on the human rights agenda with a view to "fully integrating human rights in the processes of economic policy formulation" as well as ensuring that "human rights principles and obligations are fully integrated in future negotiations in the World Trade Organization ⁶⁵".

A. Implications of the human capital approach        [ Go to Contents ]

67. The Special Rapporteur has consistently held that the notion of human capital questions the inherent worth of each human being which underpins human rights, as well as undermining the role of education in the promotion and protection of human rights. She feels that an appropriate human rights response to the notion of human capital ⁶⁶ought to be forged, lest the underlying idea of the market value of human capital risks turning upside-down the idea that the economy should serve people rather than the other way around. The human-capital approach moulds education solely towards economically relevant knowledge, skills and competence, to the detriment of human rights values. Education should prepare learners for parenthood or political participation, enhance social cohesion and tolerance. A productivist view of education depletes it of much of its purpose and substance.

68. The literature on human capital has evolved in the past decades from the relationship between education and income, focusing on the economic value of schooling and/or the rate of return on schooling, especially private, to then affirm generally "the productive utility of human knowledge ⁶⁷". This is, in the Special Rapporteur's view, only one out of many purposes of education. Such reductionism precludes defining education in terms of the full development of the human personality, frustrating the creation of foundations for human rights education by teaching learners to share knowledge rather than trade it, and to cooperate rather than to compete.

69. The human-capital approach has revealed the importance of public investment in education, as well as disparate prospects for attaining knowledge-based economies in the world. The priority in current international education strategies for basic education fares ill against findings that the foundation necessary to enable individuals "to build up their human capital" is upper-secondary education. Public investment in education ⁶⁸ has led to the completion of upper-secondary education ⁶⁹ by more than half of the working-age population in the OECD countries. As table 4 shows, OECD countries have moved to almost all-encompassing enrolment at the secondary level, while for most developing countries, not even data on these enrolments are available.

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