C. Continuing dialogue with the World Bank       [ Go to Contents ]

31. The Special Rapporteur has continued her dialogue with the World Bank, as the Commission on Human Rights has requested, and a great deal of correspondence has been generated on many issues where the Bank's lending policies intersect with the right to education and affect human rights in education. She visited Washington D.C. from 27 to 29 November 2000 in order to discuss the key issues with Bank officials. The Special Rapporteur would like to put on record her gratitude to Eduardo Doryan, Vice President in charge of the Human Development Network, for efficiently organizing her visit and for his kindness; to Mats Karlsson, Vice President for External Affairs, for the many practical ideas on how co-operation between the Bank and other United Nations actors could be increased; and to Ko-Yung Tung, Vice President and General Counsel, for his candid explication of the legal dimensions of the Bank's lending operations.

32. A great deal of patience has been necessary to initiate and pursue a dialogue on linking the right to education and lending for education, and the Special Rapporteur is fully aware of the long and uphill path which lies ahead. The Bank's increased resort to human rights language has facilitated her task by creating an opening for the right to education as a corrective for the Bank's lending activities, but the insertion of key human rights standards requires changes in the Bank's operative rules¹³. The enormity of this task, which will remain a challenge for the human rights community for a long time to come, has necessitated a clear and narrow focus for the Special Rapporteur in order to advance her dialogue with the World Bank, and she has chosen school fees in primary education as the first step.

(a) Perils of a diffused remit       [ Go to Contents ]

33. The World Bank's terms of reference span such diverse issues as judicial reform and rural transport, female genital mutilation and disaster risk management, ethnic conflict and child labour. While all of these can, in one way or another, be subsumed under the notion of development in a broad sense of this term, the expertise and experience for every and any of the many diverse issues demand such a broad range of professional standards and inputs that even the estimated Bank's 12,000 employees ¹⁴ cannot possibly do justice to them all, especially because the Bank's core professional expertise lies in economics. Moreover, there are numerous existing international organizations which have been working on particular issues for a very long time and have developed considerable expertise and experience. Many are assisting developing countries through grants, which facilitate their capacity to comply with international legal obligations. The World Bank's total lending diminished in fiscal year 2000 ¹⁵, pointing perhaps to one explanation for the Bank's broadening of the areas for which it is providing loans.

34. The World Bank's new mission statement posits combating poverty with passion and professionalism. The related goal of achieving a world free of poverty requires evidence that this can be accomplished through the Bank's strategy, but, more importantly, it raises the question of accountability if it transpires that poverty is actually increasing. The World Bank's dedication to poverty reduction thirty years ago makes the posing of this question pertinent.

35. The extent to which a single institution can combine different, and sometimes mutually conflicting roles (to be a leader in capital markets and to dream about a world free of poverty), is a topic of much discussion, within and around the Bank. The Special Rapporteur has encountered this dilemma within the World Bank itself, with one part advocating the abolition of school fees in primary education in order to combat poverty and another tolerating, if not encouraging them, so as to decrease governmental budgetary allocations, and thus fiscal deficits, through cost-sharing. One example is Zambia, where Areducing cost barriers for the ultra-poor through bursaries has been emphasized as a method for coping with school fees in primary education. Alongside the absence of a commitment to making primary education free ¹⁶, and uncertainties as to which children will be classified as poor (or ultra-poor) to merit bursaries, this model also raises concerns about the administrative costs of collecting school fees (necessarily minuscule in poor rural Zambia) and administrating the bursaries (also minuscule). It provides, in the Special Rapporteur's view, excellent evidence as to why primary education was designed to be free.

36. Just before the Special Rapporteur's visit to the World Bank, President Clinton signed into law the 2001 Foreign Operations Appropriations Act, following the initiative of US Congress to abolish fees in primary education in World Bank's and International Monetary Fund's lending operations ¹⁷. The Special Rapporteur will closely monitor this initiative and report to the Commission. She is also planning a mission to the United States of America, which has been provisionally scheduled from 17 to 28 September 2001.

(b) The need for the rule-of-law approach       [ Go to Contents ]

37. During her visit to the World Bank in November 2000, the Special Rapporteur met with Jim MacNeill (the Chairman of the Inspection Panel), Edward Ayensu (Member of the Panel), Antonia Macedo (Assistant Executive Secretary), and Alberto Ninio (Assistant Executive Secretary). She would like to put on record her gratitude to them all for helping her to conceptualize how best to overcome the gap between the World Bank's policies and the international human rights obligations of borrowers regarding the right to education, especially the requirement that primary education be made free of charge.

38. The Inspection Panel was set up in 1993 and has been hailed for the explicit acknowledgment that the Bank can violate individual rights which its establishment epitomized ¹⁸. The Inspection Panel is a non-judicial body and limited to determining whether the Bank has followed its own operational policies and procedures. Its work has demonstrated how difficult it is to reconcile the requirement of accountability with the heritage of its absence. The Panel has noted that the Bank's Management has used every possible defense to avoid an investigation and Ahas consistently denied violation of policies ¹⁹. It has mainly dealt with environmental protection and forced displacement because the Bank's binding rules have been created for these issues. Since it is the Bank's own body intended to ensure its own accountability, the Special Rapporteur requested a meeting in order to determine how practices which are obviously in conflict both with international human rights law and with the Bank's anti-poverty aims - such as school fees in primary education - could best be rectified.

39. The Panel's remit was revised twice, in 1996 and 1999. The second change has introduced a very demanding yardstick for assessing whether material adverse effects have been experienced by complainants, in terms of a deterioration compared to a without-project situation ²⁰. In education, this would require proof that a Bank lending operation has actually diminished access to education. This was the case in Malawi in 1982, when the then-Government increased school fees, reportedly following the World Bank's advice ²¹. The current slant of lending for education seems to be favouring the elimination of fees in primary education, but the heritage of the 1980s may be persisting. At that time, the Bank was endorsing judicious use of modest fees with an explanation that school fees would increase accountability ²². In 1990, while noting that cost-sharing was more appropriate in post-primary education, the Bank nevertheless hailed the significant sums raised by school fees in primary education ²³. The 1992 Bank's commitment to sustaining and enhancing social expenditure, especially for primary education (OD 8.60), ²⁴ marked a changed approach which has been, as the Special Rapporteur noted in her progress report (E/CN.4/2000/6, para. 48), accompanied by subsequent silence about school fees. The many on-going lending operations may include the charging of fees. Adjustment lending operations should be compatible with, at least, OD 8.60, while it is uncertain what binding rules exist, if any, for investment lending in education. All lending should probably be consistent with the overarching objective of poverty reduction. The Special Rapporteur cannot see the rationale of advocating education as a key to poverty reduction while school fees prevent poor children from access to education, thus closing off their path out of poverty. There is, as yet, no in-house mechanism to ensure that fees have been eliminated from all Bank lending and the Special Rapporteur recommends that this be made a priority.

40. The Special Rapporteur's meeting with the Inspection Panel, as well as her meeting with the Bank's General Counsel, Ko-Yung Tung, included an examination of the sources of operative rules which inform the Bank lending operations. The former General Counsel, Ibrahim Shihata, has interpreted the remit of the Inspection Panel to as limited to "the Bank's failure to meet its standards, which are only required by itself and not by any binding rule of law" ²⁵. This interpretation has affirmed the full exemption of the World Bank from any judicial scrutiny because it enjoys legal immunity before domestic courts and no international litigation has ever been attempted. A unique situation thus persists whereby the World Bank is apparently bound only by those rules which it has created for itself, thus constituting a considerable challenge for all advocates of the rule of law.

41. The Panel's retrospective overview of problems which are directly relevant for the right to education has singled out the imbalance disfavouring social dimensions in the Bank's policies ²⁶. An effort to elevate the status of social dimensions has thus been implicitly diagnosed as necessary. In education, this requires amending operational policies so as to prioritize primary education for all, free of charge. Making this binding for all staff and consultants working in education, accompanied by wide publicity for the elimination of school fees in primary education for all affected populations, would constitute an excellent first step in the World Bank's commitment to human rights in the area of education.

III. INTEGRATING HUMAN RIGHTS IN INTERNATIONAL STRATEGIES       [ Go to Contents ]

42. The turn of the millennium has been marked by global conferences which reviewed the decade of the 1990s and set the agenda for the future. The most important one in education, the Fourth Global Meeting of the International Consultative Forum on Education for All, took place in Dakar from 26 to 28 April 2000 and adopted the Framework for Action entitled Education for All: Meeting Our Commitments. This meeting was referred to as Jomtien+10 in popular parlance and it was based on the acknowledgment that commitments made at the World Conference on Education for All at Jomtien, Thailand, in 1990 had not been met. The Dakar Framework for Action has posited a human right to benefit from an education that will benefit one's learning needs ²⁷. This key formulation has not repeated the language of international human rights instruments, some of which have actually been mentioned in the adopted text. The World Bank's statement at the World Education Forum further increased confusion by referring to free primary education as a long-term plan, to be affirmed in the year 2015 ²⁸.

43. Human rights input is therefore very much needed in translating the Dakar Framework for Action into practice, starting from the very language. The Special Rapporteur has been addressing this issue because it constitutes an indispensable prerequisite for scaling up references to human rights and transforming them into the mainstreaming of human rights. One example suffices to illustrate the necessity of reviewing statistics: the continued utilization of education statistics whose meaning may be exactly the opposite of what they purportedly show. Gross educational enrolments often reveal the failure of schooling rather than its success because the data include all over-age children, even where many are repeating the year.

44. Human rights contribution can be particularly valuable in elevating the status of education in financial allocations, internationally and domestically, relying on governmental human rights obligations, individual and collective, to accord priority to human rights. The forthcoming Special Session of the General Assembly on Children, to which the Special Rapporteur will contribute through her collaboration with UNICEF, as well as the planned global conference on financing for development, provide excellent opportunities for providing such input.

45. On 13 September 2000 the Special Rapporteur participated in the Seminar on Facilitating the Integration of Human Rights into Work on Extreme Poverty and Racism, organized by the International Service for Human Rights. Contributions from the human rights community are needed to create needed - but lacking - educational statistics so as to demonstrate how various grounds of discrimination combine to trap the new generation into a vicious downward cycle of denied rights, where the lack of access to education leads to the exclusion from the labour market, which then results in perpetuating and increasing impoverishment. To the Special Rapporteur's deep regret, many proposals, including her own, to include all internationally prohibited grounds of discrimination in the creation of education statistics were not included in the final document adopted at Dakar; this remains a challenge for the future. The Special Rapporteur will make a contribution to the forthcoming Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance focusing on multiple discrimination in education. She will particularly look into the impact of overlapping grounds of discrimination, such as gender, race, ethnicity, religion, or language, and suggest possible human rights remedies.

A. War as a gender issue       [ Go to Contents ]

46. A particularly worrisome facet of inter-governmental gender policies has been the tendency to terminologically shift to gender while continuing to talk only about girls and women. War is thus not seen as a gender issue although boys are disproportionately affected by their socialization into the role of combatants. Throughout history, schooling contributed to the militarization of boys. Participation in warfare was a part of traditional initiation rituals, through which boys become men, for millions of boys. Glorification of war continues through those school textbooks which are dotted with wars and war heroes, through the promotion of violent sports, and the almost limitless commercialization of computerized war games. Education for war has, unfortunately, a much longer tradition and is more commercially attractive than education for peace, and the human rights response ought to be forged.

47. Nevertheless, education is commonly discussed in quantitative terms. In countries which have just undergone warfare, pleas for education in the name of returning to normal life often means reverting to pre-war education. The extent to which education actually contributed to warfare is questioned only if extreme examples of advocating genocide are identified. The former Special Rapporteur on Rwanda noted how successive governments conditioned the population to accept ethnic discrimination and molded education to fit this aim by propagating a culture of mutual fear and pre-emptive self-defence ²⁹. Otherwise, education is assumed to have been benign, which is often not the case. Sierra Leone has provided a blatant, albeit typical, example of the contribution which education made to spawning warfare. The initial enthusiasm for mass education at independence soon gave way to the institutionalization of inequality. Mass enrollment at the beginning of primary school did not lead to mass persistence through primary and secondary education up to the university, except for the narrow elite whose children actually made it all the way up the education pyramid. Frustrated expectations of early school leavers - especially boys - have been shown to lead to criminality, violence and warfare ³⁰. Their abandonment to their own fate, accompanied by the paucity of lawful methods of survival, often made the choices of adolescents a foregone conclusion. The neglect of adolescents has been an unintended consequence of the priority for primary education in global education strategies. Peace-building requires particular attention to the education of adolescents, both girls and boys. The Special Rapporteur is planning to devote considerable attention to this issue in co-operation with the Special Representative on the impact of armed conflicts on children.

B. Humanitarian and human-rights approaches       [ Go to Contents ]

48. The Special Rapporteur had her first meeting with the UNHCR (Office of the High Commissioner for Refugees) on 28 June 2000 and the second on 13 September 2000, which led to co-operation in many areas of shared interest. She took part in the UNHCR/UNICEF/UNESCO consultation on education in emergencies on 8 November 2000. She has been heartened by the establishment of the Refugee Education Trust to mark the 50th anniversary of the UNHCR and its dedication to post-primary education. The meeting on education in emergencies revealed that juveniles and/or teenagers often represent a forgotten category, and UNHCR's initiative is thus a welcome reminder that the right to education does not stop with the end of childhood.

49. An important obstacle to universalizing the right to education is a view that education is not indispensable for human survival nor required for subsistence. The absence of education for victims of armed conflicts and disasters dooms them to remain recipients of assistance while preventing them from becoming self-sustaining. Water, sanitation, medical services, shelter, clothing and food constitute the survival package which is offered through humanitarian relief. Including education in this package is a development of the 1990s, but overcoming the previous ideology of survivalism has yet to become institutionalized.

50. One particular problem has been brought to the attention of the Special Rapporteur by many individuals affected by it, namely denials of access to education based on domestic laws which are implementing Security Council's sanctions against individual countries. United Nations human rights bodies have generally addressed this issue, with the Committee on Economic, Social and Cultural Rights noting that humanitarian exemptions do not encompass access to primary education ³¹, and the Commission on Human Rights reaffirming that food and medicine should not be used as tools for political coercion ³² but not mentioning education. Deprivation of education can be encompassed by sanctions which would then, according to Marc Bossuyt's study for the Sub-Commission on the Promotion and Protection of Human Rights, constitute a violation of the right to education ³³. The Special Rapporteur is planning to continue examining the international and domestic law governing this issue so as to provide a background for the Commission's further examination of the underlying problems.

C. Debt relief       [ Go to Contents ]

51. The linkage between alleviation of unsustainable debt burdens and increased funding for education has become stronger within HIPC-II (the Enhanced Heavily Indebted Poor Countries Debt Relief Initiative) and, while the speed of decision-making might not have kept up with the initial expectations, the commitment seems to have been sustained. The new requirement has been the preparation of poverty reduction strategy papers (PRSPs). Because of the alphabetical soup which the proliferation of such abbreviations has created, two translations of this new abbreviation have emerged: the originally intended Poverty Reduction Strategy Papers (PRSPs), and another - Public Relations Strategy Papers (PRSPs). At the time of writing, too little was publicly available for the Special Rapporteur to be able to comprehensively analyze the fate of the right to education in these strategies, and she will provide further information to the Commission as soon as sufficient documentation becomes available for drawing preliminary conclusions.

52. The importance of diverting funds from debt servicing to education has been broadly accepted, but the Special Rapporteur remains concerned about the required demonstrable results in poverty reduction ³⁴, which may create difficulties where funds are allocated to primary education. Such demonstrable results are delayed since children have become adults, and evolve only where education is not the sole asset for them. Productive use of education requires land ownership, access to credit, or facilitation of self-employment where access to the labour market is limited or non-existent. On its own, education is unlikely to generate income for its beneficiaries or tax revenue for governments. The Special Rapporteur will continue promoting inter-relatedness of human rights in debt relief, advocating the integration of all pertinent human rights - the right to education, human rights in education, and human rights through education.

53. Guided by the emphasis placed by the Commission on following up country missions, during a private visit to Uganda in October 2000 the Special Rapporteur continued her close collaboration with UNICEF. As noted in the report on her mission to Uganda (E/CN.4/2000/6/Add. 1, paras. 30-34), divergent policies of creditors and donors were at that time promoting education by allocating funds released through debt relief to increasing enrollments in primary education, while aggravating the pupil-teacher ratio by inhibiting recruitment of teachers so as not to increase the civil service. Although the figures varied, the pupil-teacher ratio in some schools was 130-1. In September 1999, it was announced that Uganda would benefit from additional debt relief which would enable the pupil-teacher ratio to be halved ³⁵. At the time, a new Poverty Reduction Growth Facility (PRGF) was announced, replacing the ESAF (Enhanced Structural Adjustment Facility), and promising that social and sectoral programmes aimed at poverty reduction would be taken fully into account ³⁶. In May 2000 Uganda became the first country to receive debt relief under HIPC-II. ³⁷

54. In her report on the mission to Uganda, the Special Rapporteur emphasized discrepancies in the official statistics, with enrolment in primary schools sometimes as high as 6.7 million and the number of teachers as low as 87,000. She was extremely concerned to learn in October 2000 that discrepancies in education statistics were addressed through police raids on schools, aimed at determining contradictions between the numbers recorded in school registers and the numbers of children in school. These may lead to diminished numbers of nominally registered children but will not solve all the discrepancies in the officially reported figures. Allocations for education within public expenditure were reported as being 10.7% and 13.05% for the same period by the same agency, namely the International Monetary Fund ³⁸, while concerns about defence expenditure do not seem to have been alleviated. ³⁹

D. International trade in education services and webucation       [ Go to Contents ]

55. There is a long history of advances in the technology of education, with each new technological method or gadget raising hopes that a way has been found to cut short the long process of teaching and learning, that a magic bullet for education has been found. High hopes accompanying each invention have always turned into frustration and then disappointment.

56. The current obsession with information and communication technology speaks to the 5% of humanity who have access to the gadgets needed to partake in webucation, IT-based on-line learning. The focus is on post-school learning, founded upon the assumption that people both want and need lifelong learning and that self-motivation suffices as human contact has been virtually eliminated in webucation. Previous attempts to make education technology-intensive rather than keeping it labour-intensive have vastly expanded and commercialisation has been the driving force. The global webucation market is estimated at $50 billion ⁴⁰, which corresponds to the entire annual flow of development aid from all donors for all purposes. Profits can be increased a great deal if instead of reaching hundreds of students at university, thousands if not millions can be reached through on-line courses.

57. Frustration is much less publicized than the potential of these novelties. The latter is embodied in two-page advertisements in leading international newspapers. The former gets an occasional two-line mention, such as the results of surveys which show that people find webucation boring and drop out at a rate of 80% ⁴¹. The web is likely to prove useful as a research tool but its benefits as a medium of education remain unproven. First and foremost, education of young children is local, and it is difficult to imagine families and communities replaced by webucation. Secondly, getting older children used to surfing and skimming in cyber-space does not bode well for their social skills, for which education is essential.

58. Overcoming the digital divide has become a hotly debated global issue and much has been promised to enhance access to up-to-date technology for schools and schoolchildren in poor regions, countries and communities. Such promises may well founder owing to the lack of electricity in many poor schools, closures of village schools in winter because of the lack of heating, gaps in teaching because the teachers' salaries have not been paid for months, or the absence of children from school because they have to walk far to school and are too hungry to make the trip.

59. It is useful in facing such questions to pause to think about what the core values are that we must protect in considering the choices to be made, as well as contemplating their consequences, both intended and unintended.

IV. RIGHTS-BASED POLICIES IN DEVELOPMENT CO-OPERATION       [ Go to Contents ]

60. The commitment of an increasing number of donors to rights-based education has created an excellent opportunity - and also the need - for human rights education and training. On 24 May 2000, the Special Rapporteur had a seminar at the Department for International Development (DFID) for the educational and human rights personnel, organized to facilitate DFID's further work on rights-based education. This was one component of the follow-up to her mission to the United Kingdom in October 1999 (E/CN.4/2000/6/Add. 2), and she has been immensely encouraged by the professionalism of the DFID staff and their commitment to adapting their work so as to advance human rights.

61. On 7 March 2000, the Special Rapporteur had a similar seminar for the professional staff working on human rights and education at Sida ( the Swedish International Development Agency), which enabled her to field-test the presentation of human rights law to professionals working in education. The development of Sida's rights-based policy on education represents not only an increase in the number of donors committed to rights-based education but also qualitative innovations in the conceptual framework. Sida's approach to defining the right to education, specifying human rights in education, and adding rights through education constitutes a step forward and the Special Rapporteur is extremely appreciative of Sida's contribution.

62. On 4 September 2000, the Special Rapporteur gave a seminar on the right to education and human rights in education at NORAD (the Norwegian Agency for Development Cooperation). She has been greatly encouraged by the enthusiasm for the clarification of human rights input in the design of education strategies and by the ease with which development professionals and educationists are coping with human rights law, which tends to be perceived as a deterrent by non-lawyers.

63. On 23 October 2000, the Special Rapporteur took part in the hearings on economic, social and cultural rights organized by the Committee on Human Rights of the German Parliament (Bundestag). The comprehensive agenda of the Committee, spanning the domestic, regional and global dimensions of economic, social and cultural rights, bodes well for the future, as does the immense interest shown for bridging the gap between the rhetoric on economic, social and cultural rights and the operative priorities at all levels. The involvement of trade unions and development organizations, combined with the input from human rights treaty bodies and thematic mechanisms, constitutes a promising model for elaborating strategies for change.

V. STREAMLINING THE HUMAN RIGHTS FRAMEWORK FOR EDUCATION       [ Go to Contents ]

64. In her preliminary and progress reports (E/CN.4/1999/49, paras. 42-74 and E/CN.4/2000/6, paras. 30-65), the Special Rapporteur depicted the conceptual framework of governmental human rights obligations in education, which are easily structured into the 4-A scheme - to make education available, accessible, acceptable and adaptable. Her subsequent work of collecting, analyzing and summarizing the jurisprudence worldwide has enriched this conceptual framework by demonstrating that the right to education is being litigated worldwide and governmental human rights obligations are being judicially affirmed and further clarified.

65. Two features of the existing jurisprudence merit emphasis. Firstly, there is an inverse proportion between the availability of education and access to remedy for its denial or violation, namely litigation tends to be confined to those parts of the world where education is both available and accessible. Securing at least primary education for all children thus remains an enduring priority, and international action is urgently needed to make the right to education truly universal. Secondly, little existing jurisprudence has been generated by human rights activists or organizations. Furthermore, this rich jurisprudence is fairly unknown within the human rights community and the lingering view whereby the right to education is deemed not to be justiciable persists. It is founded upon a classification of the right to education amongst economic, social and cultural rights, ignoring the fact that the right to education has civil and political components and these are vigorously litigated all over the world, domestically and internationally. Moreover, economic, social and cultural components are being litigated as well. The Special Rapporteur's contribution to human rights education will include making results of her work available through a public access database, (www.right-to-education.org, planned to be launched on 15 March 2001), in line with the Commission's suggested model for furthering human rights education.

A. Prioritizing free and compulsory education for all children       [ Go to Contents ]

66. In her previous reports the Special Rapporteur summarized key features of the international legal framework of the right to education, guided by the need to keep her mandate firmly grounded in international human rights law. In her preliminary report (E/CN.4/1999/49), she outlined the two pillars of human rights obligations: securing free and compulsory education for all children, and respecting freedom of and in education. In her progress report (E/CN.4/2000/6), she presented the first results of her research into the international and domestic legal framework, structured into the 4-A scheme. She has then moved on to examine domestic guarantees for the right to education to find that constitutional guarantees of free and compulsory education for all children have been adopted in the majority of countries. As Table 1 ⁴² illustrates, there are 44 countries where there is no explicit constitutional guarantee of the right to education, while there is such a guarantee in 142 countries. The practice of States thus overwhelmingly reflects the thrust of international human rights law.

67. As Table 1 illustrates, there is a range of countries in which the right to education is being progressively realized and international co-operation is facilitating progress in quite a few of them. The requirement of the Convention on the Rights of Child that all children have guaranteed access to education regardless of their legal status, or that of their parents, is gradually being translated into the practice of States. However, in 37 countries the right to education is formally restricted to citizens and residents. As part of her collaboration with the Committee on the Rights of the Child and UNHCR, the Special Rapporteur has started examining access to education for those children who are likely to be facing legal obstacles, such as asylum-seekers and refugees, as well as children who are stateless.

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