68. The second pillar of the right to education, respect of freedom of and in education, cannot be easily subsumed under similar clear-cut categorizations because governmental obligations of conduct are usually accompanied by access to remedy for those who feel that their freedom has been denied or unduly constrained, and the Special Rapporteur has therefore started examining this subject-matter by focusing on remedies available to the affected individuals, families and communities.

69. The absolute international priority for enhancing access to education for the millions of children who have none has necessarily led to a lesser attention to translating human rights in education into operative guidance for international and domestic actors working in education. Koïchiro Matsuura, Director-General of UNESCO, has emphasized his dedication to tackling the methods and content of education ⁴³. Analysis of educational curricula and textbooks promises to provide a background for conceptualizing what is commonly called >values education' amongst educationists. The Special Rapporteur met with the new director of UNESCO/IBE (the International Bureau of Education), Cecilia Braslavsky, on 14 September 2000 to discuss the continuation of co-operation according to the Protocol of Co-operation of 1 October 1999. The orientation and contents of education can only be studied in close collaboration between educationists and human rights lawyers, and the Special Rapporteur is very much looking forward to this collaborative effort.

B. The emerging jurisprudence database       [ Go to Contents ]

70. The forthcoming public access human rights resource and training service on the right to education has been founded upon the recommendation of the Commission on Human Rights for advancing human rights education ⁴⁴. The vast amount of background information which is needed to depict the international legal framework for the right to education, such as ratifications, reservations, reporting procedures, or access to international remedies, is best made available through a database. Domestic constitutional guarantees relating to the right to education, as well as provisions on direct applicability of international human rights treaties, constitute the complementary part of such background information. Domestic education laws, strategies and policies are too numerous to be collected into an easy-to-use database. Moreover, the human rights approach requires a focus on the substantive guarantees and procedural mechanisms for securing remedies when these guarantees are breached, hence the priority for jurisprudence in the Special Rapporteur's work.

71. International human rights law is not directly applicable in most countries and most human rights treaties (with the exception of those generated within the ILO) have been adopted without procedural mechanisms for international litigation of economic and social rights or the rights of the child. These two features are closely linked: domestic legal enforcement of a right is an essential prerequisite for its international enforcement. Making the existing domestic jurisprudence available promises to further the knowledge about legal enforcement of the right to education and thus strengthen its legal underpinning.

72. Large numbers of cases have been litigated, domestically and internationally, clarifying the nature and scope of the right to education and the corresponding governmental obligations. These encompass the governmental obligation to secure school attendance for all children as well as controversial school voucher schemes, which the Special Rapporteur summarized in her progress report (E/CN.4/2000/6, paras. 39-41). Although resource allocation is perceived as an inherently political decision, intrusions into decisions on resource allocation have been necessitated by the general entitlement of all children to free and compulsory education. The first obligation relates to ensuring that education is available. English courts have held that this obligation requires the authorities to do whatever they reasonably can to comply. In one case, the duty of the local education authority to secure sufficient places at school for all children within the compulsory school age was not fully implemented and 300 children were deprived of primary education because of a shortage of teachers. The court held that the authority had done whatever was in its powers to rectify the situation and was thus not in breach of its statutory duty ⁴⁵. A group of senators in the Philippines challenged in 1991 the constitutionality of the budgetary allocation of P86 billion for debt servicing, while P27 billion was allocated for education. The Constitution of the Philippines obligates the Government to assign the highest budgetary priority to education. The issue to be decided was whether debt servicing, exceeding three times the budgetary allocation for education, was unconstitutional. The Court found that education had been the highest budgetary priority, while debt servicing was necessary to safeguard the creditworthiness of the country and thus the survival of its economy ⁴⁶. The meaning of free education was examined by the Constitutional Court of the Czech Republic upon a demand upon the State to provide textbooks and teaching materials free of charge. The Court has clarified that "free" means that in primary education the State bears the costs of establishing schools, their operation and maintenance, and should not demand tuition, adding: "The State bears the essential part of these costs, however, it is not obliged to bear all of them. ⁴⁷ " These few examples demonstrate that the fiscal implications of the obligation to make primary education free, compulsory and all-encompassing have been affirmed by domestic courts in different corners of the world.

C. Human rights in education as prerequisite for human rights education       [ Go to Contents ]

73. A great deal of jurisprudence has been generated through challenges of unacceptability of education - the orientation and contents of curricula and textbooks, the rights and duties of teachers, methods of instruction, protection against violence, the language of instruction, enforcement of school discipline, the presence of religious symbols in education committed to secularism and many other issues. The Commission has emphasized that the knowledge of human rights should become a priority in education policies ⁴⁸, and the Special Rapporteur has therefore concentrated on the recognition of human rights in education as the necessary prerequisite for the teaching of human rights. Because it is well known that children learn through observation rather than exhortation, the recognition of their rights in education will greatly facilitate human rights education.

74. Human rights safeguards have been directed particularly at compulsory education because, as the US Supreme Court has clarified, attendance is involuntary and thus compulsory education involves the coercive power of the State ⁴⁹. Respect for parental freedom to have their children educated in accordance with their religious, moral or philosophical convictions has been affirmed in all general human rights treaties and is continuously subjected to litigation. The European Court of Human Rights has affirmed that human rights law requires the State actively to respect parental convictions within the public schools ⁵⁰, and the (former) Europan Commission on Human Rights has added that the State's obligation to respect parental convictions prohibits any indoctrination of pupils ⁵¹. International human rights law also obliges the State to respect the freedom of parents and communities to establish and operate schools. The rationale is, in the words of the Supreme Court of Spain, to remove the State's monopoly over education and protect educational pluralism ⁵².

75. Domestic courts have started to recognize that children themselves have standing to vindicate their right to education and rights in education. The Supreme Court of Colombia examined a complaint by two boys who had been prevented from continuing their education by attending evening classes (they had to work during the day, being too poor to afford full-time education) because of their homosexuality. The Court faulted the school for having failed to exhibit the values of tolerance and respect of diversity, adding that a public school which posits that homosexuality is sinful excludes potential learners ⁵³. Because children can be exposed to violence by their teachers and other children, the existing jurisprudence has addressed the need to ensure their safety. The Uganda Human Rights Commission addressed a case of physical punishment of a schoolboy by his teachers, apparently prompted by the boy's attempt to enter the staff room upon a request by another teacher to fetch something. The Commission settled the case by ordering financial compensation for the boy ⁵⁴. The Supreme Court of Sri Lanka decided in April 1998 on the constitutionality of a law that aimed to outlaw and suppress, inter alia, verbal abuse (called ragging, bullying and/or harassment) within educational institutions. The victimization of students, especially newcomers, through verbal abuse should be outlawed, the Court has affirmed, adding that ragging has far too long been cruel, inhuman and degrading. Our society has been unable to deal with the root causes of ragging, and the anxieties, fears and frustrations of youth on which ragging has fed and flourished ⁵⁵.

76. These examples show how much the entry of human rights has changed education law, which traditionally treated children as the object of education, specifying the rights of parents, teachers and the State. The affirmation of the best interests of the child constitutes an important step towards putting into practice the thrust of the Convention on the Rights of the Child. The Supreme Court of Canada has held that decisions should be made from a subjective, child-centred perspective, one which attempts to make equality meaningful from the child's point of view as opposed to that of the adults in his or her life ⁵⁶. The US Supreme Court has affirmed that First Amendment rights (free speech) apply to learners (in that specific case aged 13 to 16), which includes their right to challenge an officially prescribed orthodoxy ⁵⁷.

77. The few cases which could be referred to within the space limitations of this report demonstrate that steps towards affirming the child as the subject of the right to education have accompanied the wide recognition of the justiciability of the right to education and human rights in education. As part of the follow-up to her mission to the United Kingdom in October 1999 (E/CN.4/2000/6/Add.2), the Special Rapporteur has been dealing with the rights of the child. Children are not legally subjects of the right to education but rather objects of agreements between their parents and their school. The need for legal reform was brought to the Special Rapporteur's attention by a group of children, who approached her to help them articulate and vindicate their rights in education and did so impressively well. By her letter of 15 November 1999, the Special Rapporteur brought to the attention of the Government of the United Kingdom the case raised by these schoolchildren who had felt that their right to be consulted with regard to their own education had not been recognized during the legally mandated evaluation of their school. The Special Rapporteur is fully supportive of children being treated as the subject of the right to education, is exploring this issue as part of her collaboration with the Committee on the Rights of the Child, treating this subject-matter as a catalyst for the conceptual switch towards the full recognition of the rights of the child. The Government's response of 29 February 2000 informed the Special Rapporteur about on-going initiatives regarding children's participation in decisions on their schooling as well as the introduction of citizenship education. According to that letter, it is only at the level of secondary school that an entitlement for children to take part in decision-making is planned to be recognized. The Special Rapporteur will follow up this issue during her planned visit to England at the beginning of the year 2001.

VI. CONCLUSIONS AND RECOMMENDATIONS       [ Go to Contents ]

78. By its resolution 1998/33 of 17 April 1998, the Commission decided to appoint the Special Rapporteur on the right to education for an initial period of three years within its general effort to impart higher visibility to economic, social and cultural rights. The Commission's remedial action, aiming at a gradual elimination of disadvantages affecting economic, social and cultural rights, has itself faced many obstacles. One originates from the large number of mandates which have by far exceeded the capacity of the Office of the High Commissioner for Human Rights to provide support. The numerous obstacles and difficulties which the Special Rapporteur has faced in carrying out her mandate have led her to suggest as one option that her mandate not be renewed. Alternatives are to clarify her task as articulating, promoting and defending the right to education; to modify her mandate by emphasizing its features as a thematic procedure; or to broaden her mandate by combining the traditional features of thematic procedures with the promotion of the right to education through international development co-operation.

79. Education is increasingly defined as the key to development and the right to education as the key to the enjoyment of many other human rights. The reverse is seldom analyzed. Like dominoes, denials of the right to education place work, social security, or political representation beyond the reach of their victims, remaining on the margins of international and domestic scrutiny.

80. The complexity of economic and social rights is evidenced in the necessity of addressing obstacles at the global, not only the domestic level. The right to education requires close co-operation between, at least, educators and educationists, economists and human rights lawyers so as to make the mainstreaming of human rights in education strategies at all levels - from local to global - effectively reflect all its necessary components. The multi-disciplinarity of human rights work requires close collaboration between different professions with each contributing its own expertise.

81. Mainstreaming human rights in global education strategies necessitates overcoming two obstacles. The first stems from the fact that there are several strategies rather than a single one, hence there is much need for human rights input. Constantly increasing references to human rights provide a valuable entry point, while cautioning against potential abuses of human rights rhetoric to legitimize denials of the right to education. The international and domestic human rights law protecting the right to education and guaranteeing human rights in education should be used as a corrective for all education strategies. The Special Rapporteur recommends to all international actors involved in promoting education to review their approach using human rights as the yardstick. This is particularly important for the World Bank, which has become the major provider of international funding for education. The Special Rapporteur recommends an internal review of all Bank lending operations in order to identify departures from international legal requirements and undertake corrective action. As the first step, she suggests that an in-house review be carried out to identify where school fees in primary education are being charged, followed by an explicit requirement that these be abolished, and making this known to all affected populations. This would contribute towards creating the foundations upon which human rights could be mainstreamed in global education strategies.

82. The Special Rapporteur's co-operation with numerous inter-governmental actors working in education has enabled her to broach numerous discrepancies between education and the right to education and to articulate rights-based definitions. Categorizations of education into primary, elementary, fundamental, or basic are not internationally comparable and are unsuited to the requirements of international human rights law, which embodies the principle that children have to be in school until they reach the minimum age for employment. Compulsory and all-encompassing education effectively prevents child labour as well as child marriage. The international legal framework thus provides comprehensive guidance for adapting education to the rights of the child. The postulate of indivisibility and interrelatedness of human rights serves, furthermore, as simple and sensible guidance.

83. A particular benefit of the international legal framework is its comprehensiveness. The Special Rapporteur has started addressing the effects of different grounds of discrimination, especially multiple discrimination, on access to education and on accessing all other human rights through education as her contribution to the World Conference against Racism, Racial Discrimination, Xenophobia and the Related Intolerance. Governmental obligations mandating an active and interventionist role of the Government to secure the right to education for all and those requiring the Government to accept and respect freedom of education and freedom in education are two sides of the same coin. The former have rightly attracted most international attention because of the continued deprivation of education which victimizes millions of children. As a consequence, most quantitative and qualitative data have been generated on the availability and accessibility of schooling. The exercise of parental choice for the education of their children, freedom to set up schools, freedom from censorship in school textbooks, or protection of the trade union freedoms of teachers are important human rights issues in education for which the human rights community ought to provide input in global and domestic education strategies. The increasing international attention to HIV/AIDS prevention poses a considerable challenge, particularly because girls are disproportionately affected, and the UN 10-Year Girls' Education Initiative provides an excellent framework for responding to this challenge.

84. During the first three years of her mandate, the Special Rapporteur has focused on primary education, reflecting the guidance provided her by the Commission on Human Rights. Prioritizing the securing of access to schooling for the millions of children who have none is self-evident. The unintended consequence of the priority accorded to primary and/or basic education in global education strategies has been neglect of secondary and tertiary education. Two facets require particular attention: firstly, teachers need secondary and tertiary education lest primary education become doomed to unqualified teaching staff. Secondly, the neglect of higher education in international strategies, at the time of growing international trade in education services, is likely to jeopardize prospects for developing countries. The Special Rapporteur feels that this topic requires the Commission's attention.

85. In the process of according economic, social and cultural rights their due status, development organizations have been in the forefront of international action through endeavors such as the Campaign on the Right to Education, a joint activity of Oxfam, Education International and ActionAid. In individual countries, educationists have been at the forefront of domestic efforts to vindicate the right to education, including through litigation. Human rights organizations have started adapting to the need to elevate the status of economic, social and cultural rights in their work and most agree that much more needs to be done. Acknowledging that the right to education exists but not accepting the necessary consequence, namely that every right can be violated and the right to education is no exception, has often been an obstacle to giving the right to education the priority it deserves.

1.The Special Rapporteur is particularly thankful to Sida (the Swedish International Development Cooperation Agency) for funding research and secretarial assistance, travel, acquisition of documentation and the creation of jurisprudence database on the right to education. The Raoul Wallenberg Institute at Lund University has provided constant and unstinting support. Her research assistants, interns, former and current students are simply too numerous to be listed individually because of space constraints, but the huge amount of voluntary work done by the alumni of the Public International Law Masters Programme at Lund University deserves particular acknowledgment. The South Asia Human Rights Documentation Centre in New Delhi and RightsLink at Columbia University in New York have made valuable contributions to the development of the jurisprudence database on the right to education. «-- back

2.Tooley, J. - The Global Education Industry. Lessons from Private Education in Developing Countries, International Finance Corporation and Institute of Economic Affairs, Washington D.C. and London, 1999. «-- back

3.Country reports prepared for the Education for All (EFA) Forum in April 2000 are available at http://www2.unesco.org/efa/wef/countryreports/home-html. «-- back

4.Hyde, K. A. L. and Miske, S. - Thematic Study: Girls' Education, Education for All 2000 Assessment, International Consultative Forum on Education for All, 13 September 2000, p. 38. «-- back

5.Valdes, T. and Gomariz, E. - Latin American Women: Compared Figures, Instituto de la Mujer and FLASCO (Facultad Latinoamericana de Sciencias Sociales), Santiago de Chile, 1995, p. 105. «-- back

6.Mbilinyi, D.A. - Women and gender relations in school textbooks, in: Mbilinyi, D.A. and Omari, C. (eds.) - Gender Relations and Women's Images in the Media, Dar es Salaam University Press, Dar es Salaam, 1996, p. 93-94. «-- back

7.Bentall, C. et al. - Funding Agency Contributions to Education for All, Education for All 2000 Assessment, Thematic Studies, Overseas Development Institute, London, 11 February 2000, pp. 32-35. «-- back

8.Thomas, V. et al. - The Quality of Growth, The World Bank & Oxford University Press, Washington, D.C/New York, September 2000, p. 68. «-- back

9.UNICEF Innocenti Research Centre - Young People in Changing Societies, The MONEE Project, Regional Monitoring Report No. 7, Florence, 2000, p. 42. «-- back

10.ILO/UNESCO - Joint ILO/UNESCO Committee of Experts on the Application of the Recommendation concerning the Status of Teachers, Report of the Fourth Special Session, Paris, 15-18 September 1997, CEART/SP/1997/13. «-- back

11.The full text of the Convention as well as all information on ratification and implementation can be found at www.ilo.org. «-- back

12.In his address launching the United Nations 10-year Girls' Education Initiative at the World Education Forum on 26 April 2000, the Secretary-General's noted:" Prevented from going to school, [girls] are denied information about how to protect themselves against the virus. Without the benefit of an education, they risk being forced into early sexual relations, and thereby becoming infected. Thus, they pay many times over the deadly price of not going to school." «-- back

13.The Bank's operational policies, based on the Articles of Agreement, are formally approved by the Bank's Board and establish parameters for the lending operations. There are none for education or for human rights. Alongside environmental assessment, nine safeguard policies have been adopted for the protection of cultural property, disputed areas, forestry, indigenous peoples, international waterways, involuntary resettlement, natural habitat, pest management, and safety of dams. «-- back

14.Meltzer, A. - A better way to help the world, Financial Times, 24 April 2000. «-- back

15.The World Bank Annual Report 2000, Washington, D.C., 2000, p. 7, 9 and 19. «-- back

16.The World Bank - Program appraisal document on a proposed credit in the amount of SDR 28.5 million to the Republic of Zambia in support of the first phase of the Basic Education Subsector Investment Program (BESSIP), Report No. 19008 ZA, 5 March 1999. «-- back

17.US Congress - Foreign Operations, Export Financing, and Related Programs Appropriations «-- back

18.Tomaševski, K. - The influence of the World Bank and IMF on economic and social rights, Nordic Journal of International Law, vol. 64, 1995, pp. 385-395. «-- back

19.Umanna, E. (ed.) - The World Bank Inspection Panel. The First Four Years (1994-1998), The World Bank, Washington, D.C., November 1998, p. 324. «-- back

20.The World Bank - Conclusions of the Board's second review of the Inspection Panel, 20 April 1999, text available at www.worldbank.org/html/extdr/ipwg/secondreview.htm. «-- back

21.Psacharopoulos, G. and Woodhall, M. - Education for Development. An Analysis of Investment Choices, The World Bank/Oxford University Press, Washington, D.C., 1985, p. 150. «-- back

22.The World Bank - Education in Sub-Saharan Africa: Policies for Adjustment, Revitalization and Expansion, Washington, D.C., 1988, p. 53. «-- back

23.The World Bank - Primary Education, Washington, D.C., 1990, p. 44-45. «-- back

24.The World Bank Adjustment lending policy, Operational Directive 8.60 of 21 December 1992, specifies that explicit conditionality may be appropriate to enhance the poverty orientation of social expenditures and to sustain their levels. «-- back

25.Shihata, I. F. I. - The World Bank Inspection Panel - A background paper on its historical, legal and operational aspects, A paper submitted to the Expert Meeting on the Inspection Panel, Lund, Sweden, 23-25 October 1997, mimeographed, p. 28. «-- back

26.Umanna, E. (ed.) - The World Bank Inspection Panel. The First Four Years (1994-1998), The World Bank, Washington, D.C., November 1998, p. 326. «-- back

27.The Dakar Framework for Action - Education for All: Meeting Our Collective Commitments, Text adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, para. 3, available at http://www2.unesco.org/wef/en-conf/dakframeng.shtm. «-- back

28.The statement of the World Bank's president, James Wolfenson, included this section:" Here I also want to pay special tribute to the efforts of the NGOs involved in the Global Campaign for Education. They have played an important advocacy role. We fundamentally agree with their call that by the year 2015 free education be a right for all children up to age 15." Wolfenson, J.D. - A time for action: Placing education at the core of development, Presentation at the World Education Forum, Dakar, 27 April 2000, available at http://www2unecso.org/wef/en-news/coverage_speech_wolfen.shtm. «-- back

29.Commission on Human Rights - Report on the situation of human rights in Rwanda submitted by Mr. René Degni-Ségui, Special Rapporteur, U.N. Doc. E/CN.4/1997/61 of 20 January 1997, para. 25. «-- back

30.Wright, C. - Reflections on Sierra Leone, in: Tawil, S. (ed.) - Final Report and Case Studie of the Workshop on Educational Destruction and Reconstruction in Disrupted Societies, 15-16 May 1997, Geneva, organized Jointly by the International Bureau of Education and the University of Geneva, Geneva, 1977, p. 21-22. «-- back

31.Committee on Economic, Social and Cultural Rights - The relationship between economic sanctions and respect for economic, social and cultural rights: General comment No. 8 (1997), U.N. Doc. E/C.12/1997/8 of 12 December 1997, para. 5. «-- back

32.Commission on Human Rights - Human rights and unilateral coercive measures, resolution 1998/11 of 9 April 1998, para. 4. «-- back

33.Sub-Commission on the Promotion and Protection of Human Rights - The adverse consequences of economic sanctions on the enjoyment of human rights. Working paper prepared by Mr. Marc Bossuyt, U.N. Doc. E/CN.4/Sub.2/2000/33 of 21 June 2000, para. 26. «-- back

34.The World Bank - Attacking Poverty: World Development Report 2000/2001, Oxford University Press, New York, September 2000, p. 203. «-- back

35.Wolfenson pledges development reform, Financial Times, 29 September 1999. «-- back

36.Communique of the Interim Committee of the Board of Governors of the International Monetary Fund, Press release No. 99/46 of 26 September 1999 (corrected 27th September 1999), para. 5. «-- back

37.IMF and the World Bank support debt relief for Uganda, International Monetary Fund, Press release No. 00/34 of 2 May 2000. «-- back

38.Calamitsis, E. et al. - Adjustment and Growth in Sub-Saharan Africa, International Monetary Fund, WP/99/51, Washington, D.C., April 1999, p. 31-32; McDonald, C. et al. - Income Distribution, Informal Safety Nets and Social Expenditures in Uganda, International Monetary Fund, Washington, D.C., December 1999, p. 26. «-- back

39.IMF completes first review of Uganda under PRGF-supported program, extends arrangement and approves US$11.6 million credit, International Monetary Fund, News brief No. 00/78 of 7 September 2000. «-- back

40.Kelly, J. - Learning the new lessons of global >webucation', Financial Times, 6 September< /FONT > «-- back