Excerpts from the Preliminary report of the Special Rapporteur on the right to education, Ms. Katarina Tomasevski, submitted in accordance with Commission on Human Rights resolution 1998/33
Quantitative and qualitative data necessary for monitoring the right to education
25. A comprehensive policy for the full realization of the right to education is necessary for a design of an integrated monitoring mechanism. Such a policy is long overdue and the Special Rapporteur shall strive to contribute to its development. A unique task of Governments is to elaborate educational strategy, regulate education by setting and enforcing minimum standards, and carry out permanent monitoring and corrective action. This task, carried out by Governments collectively and individually, forms the background against which monitoring mechanisms are established. The challenge for the human rights advocates is to integrate the human rights dimensions of education, including the principle of non-discrimination, into educational strategies and monitoring mechanisms because the existing ones are not derived from international human rights law.
26. A merger between quantitative and qualitative data is necessary to assess the state of realization of the right to education worldwide, as the Commission requested.
27. The Special Rapporteur has therefore started reviewing the work of human rights treaty bodies relating to the right to education in order to analyse their interpretations of this right. She is collecting and analysing international and domestic jurisprudence relating to the right to education with the aim of supplementing the existing quantitative data with qualitative data on the nature and scope of the right to education in the practice of States. Moreover, even a casual overview of the work of other Special Rapporteurs demonstrates the wealth of information that is already available. Their coverage ranges from denials of freedom to establish schools, to obstacles for education in minority languages, to the role of education in preventing child exploitation and trafficking in children, or to the policies of individual States concerning the financing of primary education. Many facets of the right to education are thus being addressed by various human rights organs and mechanisms and form the basis for analysing its nature and scope.
28. The emphasis of the United Nations bodies working in education on the universal coverage of primary school ("getting all children to school") ought to be complemented by the parallel emphasis on the parental freedom of choice under international human rights law. Alongside human rights treaty bodies with the global reach, jurisprudence has thus far been generated within the Council of Europe and possibilities have been created under the African Charter on Human and Peoples' Rights. The Protocol of San Salvador / The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights was adopted in 1988 and by the end of 1997 was ratified by 9 States; 11 ratifications are needed for its entry into force./ is likely to generate jurisprudence within the Inter-American human rights system. The Special Rapporteur plans to review the experience of all regional systems in the interpretation and application of the right to education and include the findings in her final report. Her objective is to design a comprehensive monitoring scheme for the right to education.
Creating a common language
12. The substantive mandate of the Special Rapporteur requires a regular dialogue with relevant United Nations bodies. Its implementation constitutes a considerable challenge because dialogue is impossible without a common language, while such a common language needs to be created. Linguistic variety prevails in the field of education and seems to be increasing. Working towards standardization of educational terminology and statistics on the basis of the right to education will constitute an important part of the Special Rapporteur's work, with the aim to develop strategies and indicators for the realization of the right to education.
13. The prevailing linguistic variety reflects different visions of what education should be. Education can be treated as a means for increasing the individual's earning capacity or for lowering women's fertility rates. Human rights law specifies the purpose and objective of education, increasingly calling for the mainstreaming of human rights throughout the contents and process of education. From the human rights viewpoint, education is thus an end in itself rather than merely a means for achieving other ends. Some economists may, however, define education as efficient production of human capital and classify all its human rights dimensions as externalities. A definition of people as human capital obviously differs from defining people as subjects of rights. The contrast between the human rights and human-capital approaches is best illustrated by taking children with physical and learning disabilities as an example. The former may be excluded from school because providing wheelchair access, for example, might be deemed too expensive; the latter may be excluded from schooling because meeting their learning needs is deemed not to yield a sufficient marginal return on investment. This type of reasoning obviously challenges the very assumption of human rights, namely the equal worth of all human beings. The Special Rapporteur therefore attaches a great deal of importance to emphasizing differences between education and the right to education so as to create a background for advocating changes within education aimed at conformity with the human rights requirements.
14. Among economists, some might classify governmental funding for education as expenditure, others as investment. Both economists and lawyers may, explicitly or implicitly, define education as a commodity which is traded against a price rather than a right. These divergencies in terms and underlying concepts demonstrate the need for a consistent and comprehensive advocacy for the human rights approach to education so as to integrate human rights into the existing domestic educational policies and laws as well as into international strategies and monitoring mechanisms.
15. The variety of categorizations of levels and types of education further illustrate the need to promote the human rights approach to education. Terms used in worldwide educational strategies have changed with time. In the 1960s, the mobilizing slogan was UPE (Universal Primary Education) and in the 1990s it is EFA (Education for All); universal primary education was planned to be achieved by 1980 and basic education for all by the year 2000. The language of international educational strategies shifted from primary to basic education, different from the continued use of primary education in human rights. The term basic education was introduced by the 1990 Jomtien Conference / Final Report of the World Conference on Education for All: Meeting Basic Learning Needs, Jomtien, Thailand, 5-9 March 1990, Inter-Agency Commission (UNDP, UNESCO, UNICEF, World Bank) for the World Conference on Education for All, New York, 1990./ and influenced the subsequent international and domestic strategies and statistical categories. UNICEF has affirmed that primary education is the core of basic education, but basic education goes beyond the confines of formal schooling to encompass non-formal education as well as early childhood education, including also "second chance" primary education for youth, adults and parents' education. / United Nations Children's Fund, "UNICEF strategies in basic education" (E/ICEF/1995/16) para. 6 and Figure 1./ Definitions of primary and basic education thus overlap but are not synonymous.
16. The varied terminology of educational strategies is reflected in the associated statistics. As is well known, international statistics do not follow the definition of the child as any person up to the age of 18. In the statistics on literacy, adulthood begins with the age of 15 while domestic laws on education have established a variety of age categorizations. The starting age for compulsory education seems fairly uniform worldwide and is set at 6 or 7, but the duration of primary school varies a great deal. The duration of compulsory education (dealt with in more detail in Part III) ranges from 3 to 12 years but the age for basic education is 6 to 11 years. There is an obvious mismatch between the 6-11 age categorization for basic education and the original understanding of primary education in the human rights instruments with the 6-15 age range. The logic behind human rights requirements is that the minimum duration of education should extend further than 11 years of age, at least to the minimum age for employment. Another feature of age categorizations is that children above the school-leaving age may be classified as young people rather than children. Moreover, the minimum age for marriage, especially for girls, may also be set low, at 12 for example. The minimum age of criminal responsibility may be set at a low age of 7 or 8. Primary school-age children may thus be found at work, in marriage or in prison rather than at school, while these phenomena are not captured by the existing educational statistics. When not reflected in statistics, such phenomena tend not to be monitored and there is a great deal of risk that their existence will not inform international educational strategies.
28. The emphasis of the United Nations bodies working in education on the universal coverage of primary school ("getting all children to school") ought to be complemented by the parallel emphasis on the parental freedom of choice under international human rights law. Alongside human rights treaty bodies with the global reach, jurisprudence has thus far been generated within the Council of Europe and possibilities have been created under the African Charter on Human and Peoples' Rights. The Protocol of San Salvador / The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights was adopted in 1988 and by the end of 1997 was ratified by 9 States; 11 ratifications are needed for its entry into force./ is likely to generate jurisprudence within the Inter-American human rights system. The Special Rapporteur plans to review the experience of all regional systems in the interpretation and application of the right to education and include the findings in her final report. Her objective is to design a comprehensive monitoring scheme for the right to education.
Table 3. Primary education: specific human rights guarantees
Universal Declaration of Human Rights: Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Parents have a prior right to choose the kind of education that shall be given to their children.
International Covenant on Economic, Social and Cultural Rights: Primary education shall be compulsory and available free for all. The States Parties to the present Covenant undertake to have respect for the liberty of parents ... to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. - No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, ... - International Covenant on Civil and Political Rights: The States Parties to the present Covenant undertake to have respect for the liberty of parents ... to ensure the religious and moral education of their children in conformity with their own convictions.
Convention on the Rights of the Child: States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: No part of [articles 28 and 29] shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions ... (a) Make primary education compulsory and available free for all. UNESCO Convention against Discrimination in Education: UNESCO Convention against Discrimination in Education: The States Parties to this Convention undertake to formulate, develop and apply a national policy which, ... will tend to promote equality of opportunity and of treatment ... and in particular: (a) to make primary education free and compulsory. The States Parties to this Convention agree that: (b) It is essential to respect the liberty of parents, ... firstly to choose for their children institutions other than those maintained by the public authorities but conforming to ... minimum educational standards, and secondly, to ensure ... the religious and moral education of the children in conformity with their own convictions.
European Convention, Protocol 1: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. .
Acceptability
62. Extreme views of the role of the State in education are embodied in treating the State as the sole funder and provider of education, with the other extreme deeming the State to be the regulator and facilitator rather than funder and provider. Much as in any other area, the extremes are rarely present in the States' practice and cloak the consensus around the regulatory role of the State, that is, its task to set and enforce educational standards. The right to education "by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals". / European Court of Human Rights, Belgian Linguistic Case, Judgment of 23 July 1968, Series A, No. 6, para. 5./ The State is obliged to ensure that all schools conform to the minimum criteria which it has developed as well as ascertaining that education is acceptable both to parents and to children.
63. Respect for parental freedom to have their children educated in conformity with their religious, moral or philosophical convictions has been affirmed in all general human rights treaties and is continuously subjected to litigation. The European Commission on Human Rights found that human rights law "requires the State actively to respect parental convictions within the public schools" / European Commission on Human Rights, Kjeldsen, Busk Madsen and Pedersen v. Denmark, Report of the Commission of 21 March 1975, Judgment of the Court, vol. 21, series B, pp. 44 and 46./ in addition to the required respect of their liberty to establish and operate schools. The contents of educational curricula and textbooks raise endless controversies, but the existing jurisprudence demonstrates the increasing importance of human rights criteria in decision-making.
67. From the rights of the child perspective, the obligation to make primary school acceptable goes far beyond parental freedom of choice or the language of instruction, and poses a great deal of challenge for all States. An ideal primary school should be child-friendly, based on the right of the child "to be curious, to ask questions and receive answers, to argue and disagree, to test and make mistakes, to know and not know, to create and be spontaneous, to be recognized and respected". / Hammarberg, T., A School for Children with Rights, Innocenti Lectures, UNICEF International Child Development Centre, Florence, 23 October 1997, p. 19./ The enormity of the task embodied in this vision clashes with the reality of schools that may be grappling with the lack of running water and sanitation, with the incompatibility of the school timetable with family and community life, or with violence against and among children.
69. The importance of a vision of primary school in which all the rights of the child are fully implemented is to define the ultimate goal to be attained, without which a precise definition of the full realization of the right to education remains impossible.
Adaptability
70. What children should learn at school and how the learning process should be organized is the source of never-ending challenge and change. The usual approach is to review the contents and process of learning from the viewpoint of the child as future adult, while the Convention on the Rights of the Child requires that the best interests of the child be given prominence. The choice in the Convention to refer to the best interests of the individual child highlights the need for the educational system to become and remain adaptable.
71. The countervailing pressures of globalization and localization in the 1990s highlight the need for adaptability. International flows of capital, information and trade are countered by the process of decentralization and/or localization in education, which facilitates responsivness to the local needs and affirmations of specific ethnic or linguistic or religious identities. Making education responsive to the immediate reality facing children in their own community and to the rapidly changing global realities is the challenge of the 1990s. Different ideas are being experimented with to move away from "the classroom-centred model designed to service a pre-industrial European society" / Dall, F., "Education and the United Nations Convention on the Rights of the Child: The challenge of implementation", Innocenti Occasional Papers, Child Rights Series No. 4, Florence, November 1993, p. 40./ that has remained the model for designing primary education much too long.
72. The knowledge, skills and values that the generation of future adults will need in their lifetime is not only unknown but unknowable. A balance between the exposure of children to the local and global community is complemented by their need to familiarize themselves with their own as well as foreign cultures. A focus on human rights education provides an opportunity to balance the previously prohibitory approach in international human rights law by a constructive one. A great deal of effort has targeted the prohibition of incitement to discrimination through prejudicial portrayal of racial or ethnic minorities, or migrants, or women and girls. An endless stream of projects aim at the revision of the existing curricula and textbooks or the creation of new ones so as to convey positive images rather than merely prohibiting negative ones. The International Commission on Education for the Twenty-first Century singled out as the first pillar upon which education should be founded "learning to live together by developing an understanding of others and their history, traditions and spiritual values". / UNESCO, Learning: The Treasure Within: Report to UNESCO of the International Commission on Education for the Twenty-first Century, UNESCO Publishing, Paris, 1996, p. 22.
III. COMPULSORY EDUCATION: RIGHT AND DUTY OF THE CHILD
75. The 1959 Declaration of the Rights of the Child laid down the entitlement of the child to receive education, / General Assembly resolution 1386 (XIV) of 20 November 1959, Principle 7./ articulating the vision of the child of the time as a passive recipient of education rather than the principal subject of the right to education. The changed vision of the child as a subject of rights embodied in the Convention on the Rights of the Child is slowly being translated into domestic laws and policies. Compulsory education has been included in the Convention on the Rights of the Child because of its undoubted value, but it is much older that the concept of the rights of the child and reflects the vision of the child as a recipient of education, which can be imposed upon the child. Indeed the corollary of the governmental obligation to make primary education compulsory is the duty of the child to attend school. The Convention on the Rights of the Child presents a challenge to make compulsory education fully consistent with the full range of the rights of the child.
76. Table 6 presents a bird's-eye view of compulsory education by categorizing countries in which primary education has been made compulsory according to its duration from 3 to 12 years.
77. The capacity of Governments to implement compulsory school laws varies as do enforcement measures. Many target parents in the form of fines for their failure to secure enrolment or school attendance by their children. Some target children, however. Enforcement of compulsory education thus raises important human rights issues. The Convention on the Rights of the Child goes no further than obligating States to encourage school attendance; enforcement is not mentioned. Older human rights treaties, such as the European Convention on Human Rights, provided for detention of a minor by lawful order for the purpose of educational supervision, which mandated compulsory schooling in the narrowest sense of this term. The specific offence of truancy was created to punish the child for breaching the duty to attend school.
Conclusions and recommendations of the Special Rapporteur on the right to education (E/CN.4/1999/49, paras. 80-81)
80. The 1990s have been a time of crisis-driven change in education. Many Governments - not only in developing countries - have been struggling with debt pressure, budget deficits, stagnant or falling revenue, and a great deal of effort was expanded to seek other-than-governmental funding for education. Blueprints for educational reform have been discussed at the global level within UNESCO or the World Bank or the Organization for Economic Co-operation and Development, as well as in many individual countries. The approaching turn of the century has made obsolete the many strategies which had "by the year 2000" in their title and shifted attention to designs for the twenty-first century. Education is a long-term process and the commitment should be equally long term and the Special Rapporteur intends to concentrate on a long-term vision of an educational strategy grounded in the right to education.
81. In this preliminary report, the Special Rapporteur has mapped out a range of issues that merit immediate attention, described the approach she intends to pursue and the initial framework for her analysis. She has also identified a number of issues that necessitate further study and noted that her focus will be to elucidate the full scope of the right to education by seeking an answer to the question: When is the right to education fully realized? A clear definition of the nature and scope of the right to education demands an in-depth study of the experience in putting into practice requirements of the international human rights law in different regions and countries, where the realm of the possible is delineated by the minimum acceptable standards which should be sought worldwide and the full realization of the right to education as the maximum standard.