10.There is, as yet, no comprehensive global definition of universal human rights obligations corresponding to the right to education. The process aimed at generating this definition entails clarifying and streamlining collective, universal human rights obligations to guide global education strategies and decisions concerning public funding. Promises of increased aid for education have been made but most have not yet materialized. Nevertheless, these represent a signpost for a reversal of aid flows. This process could be facilitated by clearly and powerfully argued purposes and objectives of education. Human rights mainstreaming usefully complements the current focus on the means of education, on the need for all children to start and finish primary school. It links the right to education to poverty eradication (E/CN.4/2001/52, paras. 9-10; E/CN.4/2002/60, paras. 59-63) as well as prevention of conflicts and violence (E/CN.4/2002/60, paras. 64-69; E/CN.4/2001/52, paras. 46-50). The Special Rapporteur recommends that purposes and objectives of education be prioritized in global education strategies.

11.The process of debt relief (E/CN.4/2002/60, paras. 17-18) has generated concrete commitments to increased funding for primary education as has the closely related World Bank Fast-Tracking Initiative (FTI). The FTI was launched by the World Bank in April 2002. It encompasses 18 countries, ⁴all of them heavily indebted and eligible for debt relief under Heavily Indebted Poor Countries Initiative (HIPC-II) on the basis of Poverty Reduction Strategy Papers (PRSPs). These countries are planned to be fast-tracked towards achievement of school enrolment and completion for six-year primary schooling. Compliance with specified education reforms is also required. At a joint meeting of the World Bank, UNESCO and the European Union, on 27 November 2002, seven countries were selected (Burkina Faso, Guinea, Guyana, Honduras, Mauritania, Nicaragua, and Niger) for the first phase of Afast-tracking. ⁵The FTI has been hailed as the first focused financing framework for the achievement of the Millennium Development Goals in education, but also critiqued for its exclusive focus on quantitative dimensions of education and the one-size-fits-all policy framework. Also, there are fears that aid dependence may be further increased. The Special Rapporteur will continue closely following ongoing developments and inform the Commission in her oral report.

12.One of theSpecial Rapporteur's concerns is the length of schooling - six years - especially in connection with the elimination of child labour (E/CN.4/2001/52, para. 28; E/CN.4/2000/6, paras. 61-65). A recent global overview of the legally determined minimum ages for, inter alia, education and employment ⁶ has revealed the scope of change that is necessary. Six years of primary school would entail children aged only twelve leaving school, when they are legally prohibited from working in most countries. TheCommission's emphasis on closing the gap between the school leaving age and the minimum age for employment (resolution 2003/23, para. 4(i)) reinforces the need for human rights mainstreaming in this area in cooperation with the ILO.

13.The Special Rapporteur is also worried about the expectation that primary education alone would result in poverty reduction. Empirical evidence that secondary, rather than primary education constitutes the key to poverty reduction (E/CN.4/2002/60, para. 62) supports her fears. The rationale behind making free and compulsory education the responsibility of the State was delayed its economic return, which occurs only where education is combined with other assets (E/CN.4/2001/52, para. 10). TheWorld Bank's overarching goal of combating poverty (E/CN4/2001/52, para. 34) emphasizes poverty reduction expected from primary education. As it gives loans which ought to be repaid, the economic case for primary education attains heightened importance. Whether WorldBank's approach will prove viable, and the expectations it has raised justified, is not only an empirical but also a legal question because children as young as twelve are not allowed to work. The Special Rapporteur recommends that the World Bank raise the school-leaving age to the minimum age for employment. She will, of course, be happy to contribute to the necessary process of change in every way she can, including through her cooperation with the ILO.

B. Rights-based law reform    [ Go to Contents ]

14.The SpecialRapporteur's report on her mission to Indonesia (E/CN.4/2003/9/Add. 1) has highlighted the role of education in eradicating poverty, mitigating and preventing conflict, and promoting gender equality. The Special Rapporteur is grateful to the Government for its supportive comments on her findings and recommendations and for the endorsement of her 4-A scheme as analytical framework. She is looking forward to contributing to the follow-up of her mission in every way she can. Her recommendations represent a considerable challenge for cross-sectoral and inter-institutional cooperation. Much as in other countries, education constitutes a separate sector, supported by a separate institutional structure; gender equality or child labour pertain to the remit of different institutions. Human rights obligations pertain to all parts of the Government, regardless of vertical and horizontal divisions of powers and responsibilities. Human rights mainstreaming requires regulatory and institutional coherence because human rights are interrelated and interdependent. The Special Rapporteur recommends operationalizing human rights mainstreaming through rights-based law reform, encompassing the right to education, human rights safeguards in education, and enhancing human rights through education.

1. The import of the rights of the child    [ Go to Contents ]

15.A definition of human rights as safeguards against abuse of power by the State is, especially for the rights of the child, necessarily complemented by adult duties and parental responsibilities. Parental obligations regarding the education of their children are complemented by numerous prohibitions against abuse or exploitation of children. The Government is responsible for securing the conditions for full realization of the rights of the child, including the enforcement of parental responsibilities towards their children, as well as adult duties, such as taxation.

16.The right to education involves three key actors: the Government as the provider and/or funder of public schooling, the child as the principal bearer of the right to education and of the duty to comply with compulsory-education requirements,and the child's parents who are "thefirst educators". The guaranteed freedom and the corollary responsibility of parents to choose education for their children constitutes one pillar of the right to education; another is embodied in the human rights obligations of the State. The rationale behind parental choice is not to legitimize their denial of theirchildren's right to education; in the case of a conflict between parental choice and the best interests of the child, the latter prevail. Rather, parental choice prevents State monopoly over education and protects pluralism.

17.Children have not yet been accorded the standing necessary to vindicate their right to education in most countries. They lack the knowledge, experience and political voice necessary to articulate and defend their rights; moreover, their passive legal status and financial dependence on adults prevent them from effectively using the existing legal or extra-legal mechanisms for human rights protection. The potential for abuse of power inherent in the vulnerability of children necessitates special public institutions to be created for children, alongside their own right to articulate and defend their rights. The rights of the child reach far beyond law since macro-economic and fiscal policies can jeopardize, or evenabrogate, children's entitlements. Anticipating the impact of particular policies on children is necessary, as is the avoidance (or at least mitigation) of harmful impacts. A variety of institutions have been established in different countries, including national human rights commissions orchildren's ombudsmen. These sometimes tend, however, to replicate the existing allocation of competence amongst government institutions. One may find an education-specific commission, another one dealing with children, yet another with women and/or gender, another one with human rights, yet another with minority issues. Such institutional frameworks make forging a rights-based education strategy both easier and more difficult. On one hand, a variety of public bodies can provide inputs highlighting specific dimensions that ought to be integrated in a comprehensive strategy. On the other hand, a single, comprehensive strategy may be difficult to elaborate due to co-existence of different government and public institutions with different remits and limited mandates. The Special Rapporteur recommends comparative studies into best practices for elaborating and implementing rights-based education strategies.

C. Delineating public and private law    [ Go to Contents ]

18.Renewed commitments to free primary education have facilitated the articulation of a global accountability framework so as to ensure the conformity of diverse global approaches and strategies with the core requirements of international human rights law. The rapidly changing international legal environment (E/CN.4/2002/60, paras. 19-21) necessitates delineating public and private law as well as addressing newly created conflicts of law.

19.Education as an individual entitlement under public law entails corresponding Government obligations; education as a traded service is regulated by private law as a commercial transaction. Freedom of scientific research relies on unimpeded access to the existing knowledge so as to generate new knowledge and transmit it through education. Protection of intellectual property rights threatens to transform knowledge from a public good into a commodity accessible only to those with purchasing power. Moreover, the need for conceptual and normative clarity is reflected in a widespread terminological confusion with regard to the term Arights . Human rights, the inherent properties of all members of humanity, are often terminologically equated with Arights under private law acquired through commercial transactions. The sale and purchase of education, a commercial transaction, becomes equated with the provision of education as a free public service. Public interest or charitable activities frequently become indistinguishable from commercial and/or profit-making work. For example, the IFC (International Financial Corporation) describes religious orders as Aprivate sector initiatives that have been providing education for centuries and hails Aentrepreneurial activity by NGOs. ⁷ The Special Rapporteur recommends giving priority to public over private law, to public over private interests, and the elaboration of rights-based solutions for recent and future conflicts of law.

II.OPERATIONALIZING RIGHTS-BASED EDUCATION    [ Go to Contents ]

20.A broad range of actors have become involved in promoting rights-based global education strategies. This has increased demand for operationalizing its nature and scope. ARights-based would have been redundant if only more education of better quality was required. Hence the need for operationalization. The Special Rapporteur has contributed to the 2002 EFA Global Monitoring Report ⁸ , and participated in the Nordic Solidarity Conference. The latter constituted a unique forum that combined education and development professionals and policy-makers. Human rights have introduced difficult questions in bridging Athe gap between education and overall human rights concerns. ⁹ Problem-defining triggers new and different questions and seeking different types of data to document underlying problems. As an academic discipline, human rights is applied research, aimed at broadening and strengthening human rights protection. The toolbox of problem-solving techniques has benefited from five decades of human rights work all over the world.

A. The potential and limitations of quantitative data    [ Go to Contents ]

21.The Special Rapporteur has continued working on rights-based indicators (E/CN.4/2002/60, paras. 27-29). The Commission's focus on the elimination of discrimination Aon the basis of race, colour, descent, national, ethnic or social origin, sex, language, religion, political or other opinion, property, disability, birth or other status (resolution 2002/23, para. 4(b)) has prioritized mapping out existing patterns of discrimination so as to properly address and effectively eliminate them. This has revealed the complete absence of appropriate quantitative data at the global level and their paucity in most countries. The process of generating education statistics based on the internationally prohibited grounds of discrimination has now started. It constitutes a considerable challenge, which can best be met through close cooperation between education and human rights professionals at all levels, from local to global.

22.Education as a universal human right requires universality of governmental human rights obligations because discrimination cumulates, as do the resulting inequalities since discrimination is often compounded by poverty. Education statistics inevitably show that not all children enjoy the right to education. Where linked with internationally prohibited discrimination, these highlight the pattern of exclusion that constitutes global historical heritage. The first step towards eliminating discrimination is to make it visible. Keeping a problem invisible facilitates inaction, thereby perpetuating exclusion. Those with the least access to education tend to leave this heritage to the next generation. Making individual families and local communities responsible for funding education broadens the gap between haves and have-nots. Breaking this vicious circle requires Governments, individually and collectively, to prioritize and equalize funding for education, from the local to the global level.

23.Government reports under the Convention on the Rights of the Child have revealed no less that thirty-two categories of children particularly likely to be excluded from education. These are, in alphabetical order: abandoned children; asylum-seeking children; beggars; child labourers; child mothers; child prostitutes; children born out of wedlock; delinquent children; disabled children; displaced children; domestic servants; drug-using children; girls; HIV-infected children; homeless children; imprisoned children; indigenous children; married children; mentally ill children; migrant children; minority children; nomadic children; orphans; pregnant girls; refugee children; sans-papiers (children without identity papers); sexually exploited children; stateless children; street children; trafficked children; war-affected children; and working children. As most of these combine several grounds of discrimination with poverty-related exclusion, the Special Rapporteur recommends merging the conventional focus on legislative measures for the elimination of discrimination with measures aimed at overcoming poverty-based exclusion.

24.The global priority for eliminating gender disparity in education by the year 2005 has revealed one key obstacle: the necessary statistics become available with a delay of some three years. Global assessments generated in the year 2002 rely on education statistics for 1999. From 10 to 12 October 2002, the Special Rapporteur attended the Expert Seminar on Article 4(1) of the Convention on the Elimination of All Forms of Discrimination against Women in Valkenburg/Maastricht, which discussed models for attaining gender equality, including in education and through education. An important message from that meeting is the need to define equality of women and men as the yardstick rather than merely between women and men. Indeed, gender mainstreaming points to the need to review different facets of gender disparity in education. The existing data may reflect the prevalence of male teachers and boys, or female teachers and girls, as the Special Rapporteur found in her own work (E/CN.4/1999/49, paras. 55 and 73). The identification of reasons for gender disparity requires qualitative data, especially concerning the affirmation of and obstacles to the exercise of all human rights that influence gender-related profiles of teaching and learning. The Special Rapporteur recommends prioritizing quantitative and qualitative data related to gender disparities in education so as to create the background for assessing progress in the year 2005.

B. Benchmarks for the quality of education    [ Go to Contents ]

25.The growing emphasis on the quality of education has prioritized strengthening human rights safeguards in education and emphasizing not only the means, but also - even more importantly - the ends of education. As a consequence, quantitative data on budgetary allocations or enrolments are complemented by qualitative data that reflect the purposes and underlying objectives of education, its orientation and contents, methods of teaching and learning.

26.In cooperation with the UNESCO Asia and Pacific Regional Bureau for Education in Bangkok, the Special Rapporteur has further operationalized rights-based education. A joint Regional Workshop on Universalizing the Right to Education of Good Quality: A Rights-Based Approach to Achieving Education for All, held in Manila, from 29 to 31 October 2002, marked the end of the first phase of cooperation. The Special Rapporteur was prevented from physically attending that meeting by bad weather conditions that kept her stranded at Schiphol Airport those three days. The continuation of cooperation includes a summarized guide on core international human rights standards in education aimed at education professionals and rights-based benchmarks for the quality of education. Education statistics present children as numbers, with school places matching the intake, or the ratio between teachers and pupils conforming to established standards. The diversity of intake moves the spotlight in a different direction, to recognizing each child's different identities, ranging from age, sex, race, religion or ethnicity, to ability and disability, to the importance of the child's family environment (or the lack of thereof), the distance which the child has to walk to school, other requirements upon the child that may interfere with the learning process. Fierce intellectual debates about the meaning of Aquality or Arelevance among educationists and educators demonstrate the immense progress towards clarifying the purposes and objectives that education should have. Defined ends and means of education in human rights constitute an opportunity for useful contribution

27.The realization of the right to education is a continuing process. Progress can be depicted through two broadening concentric circles, the first showing a gradual extension of the right to education, and the second an incremental inclusion of those previously excluded. Progressive realization of the right to education for previously excluded categories can be described by highlighting four main stages:

X. The first stage involves recognizing education as a right. Where the right to education is recognized, non-citizens are often explicitly excluded. Domestic servants or children without identity documents may be implicitly excluded, especially where such documents are required for enrollment.

X. Once education is recognized as a human right, the second stage involves segregation, whereby girls, indigenous people, children with disabilities, or members of minorities, are given access to education but confined to separate, routinely inferior schools.

X. The third stage involves shifting from segregation through assimilation towards integration. Categories newly admitted to mainstream schools have to adapt, abandoning their mother tongue or religion, or their usual residence if they are enrolled in boarding schools. Girls are admitted to schools whose curricula were designed for boys; indigenous and minority children placed in schools that provide instruction in an alien language and, often, teach them history that denies their very existence. This process may be underpinned by inclusionary goals, but these tend to be interpreted differently. Assimilation entails imposition of uniformity, integration acknowledges diversity but only as departure fromthe "norm". Hence, newcomers have to adjust to the"norm", which routinely extrapolates key features of the earliest, self-granted, bearers of rights - favouring male over female, or speakers of the dominant national language over those speaking a vernacular.

X. The fourth stage necessitates adaptation to diversity. The previous requirement upon children to adapt themselves to whatever education was available is being replaced by adapting education to the best interests of each child.

C. Multifaceted right to education    [ Go to Contents ]

28.The practice of States reflects the translation of requirements of international human rights law into correctives for education. Because education is a civil, cultural, economic, political and social right, it requires integrated rather than fragmented analytical approaches. This is further reinforced by the indivisibility of human rights, which necessitates studying linkages between education and all other human rights. This is best studied in situ, hence the importance of country visits. The Special Rapporteur received on 14 November 2002 an invitation to visit China and is planning to carry out a mission sometime between May and September 2003. Due to budgetary constraints, this will be a two-week visit confined to Beijing. The Special Rapporteur requested an invitation to visit Colombia on 21 October 2002, hoping to be able to schedule her mission at the beginning of February 2003. At the invitation of the first national Special Rapporteur on the right to education, Sergio Haddad, the Special Rapporteur will be on a two-week private visit to Brazil in January 2003. She is very much looking forward to supporting this precedent-setting development.

29.The Commission has requested the thematic mechanisms to highlight the lack of responsiveness (resolution 2002/84, para. 6) where it prevents them from effectively carrying out their mandates. Following the Commission's emphasis on promoting the right to education through international cooperation, the Special Rapporteur has initiated correspondence with key donors for education in Ethiopia so as to overcome the obstacle of the Government's refusal to permit her to visit the country (E/CN.4/2002/60, para. 23). In her statement before the Commission on 4 April 2002, she highlighted that case of non-cooperation as it had gratifyingly been the only one in her experience. However, the Special Rapporteur's efforts to follow-up her mission to Turkey (E/CN.4/2002/60/Add. 2) have thus far been impeded by the Government's silence. The Special Rapporteur wrote on 27 March 2002, 14 May 2002, 17 June 2002, and 29 October 2002 seeking clarification regarding, inter alia, the fate of the students who had launched an initiative aimed at introducing Kurdish as an elective course at the university, some of whom she met during her mission and about whose fate she has been deeply concerned. The constitutional and legislative changes subsequent to her mission have apparently promised increased human rights safeguards. Thus, the Special Rapporteur has been trying to determine whether this promise has been translated into practice and hopes that the new Government will break the silence.

30.The work of national human rights commissions merits emphasis as the Special Rapporteur has found them key actors in promoting the integrated human rights approach as well as merging legal and extra-legal methods of human rights protection. The Special Rapporteur has found her cooperation with national human rights institutions particularly useful, whether in Indonesia (E/CN.4/2002/6/Add. 1) or Northern Ireland (E/CN.4/2002/6/Add. 2). At the invitation of the South African Human Rights Commission, the Special Rapporteur visited South Africa from 15 to 21 September 2002. This visit included, inter alia, her participation in the Forum on Racism in Education, the launching of the Education Rights Project, and a seminar at the National Department of Education. The SpecialRapporteur's concerns regarding the continuing charging of school fees in compulsory education were a topic of her private meeting with the Minister of Education, Kader Asmal. In following-up her visit, she is prioritizing a search for ways and means to abolish formally and fully school fees in compulsory education. She is also looking forward to continuing cooperation with the South African Human Rights Commission on the right to education, human rights in education, and human rights education.

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