+

Human Rights Law & Theory - Week 12

+
Right to Education – An Introduction

 Education is both a human right in itself and an

indispensable means of realizing other human rights;

 Right to education is a multiplier right facilitating other rights

such as freedom of speech, freedom from child labour, right
to health, among others;

 As an empowerment right, education is the primary vehicle

by which economically and socially marginalized adults and
children can lift themselves out of poverty and obtain the
means to participate fully in their communities;

 Therefore, positive duties to provide education are not

merely to the advantage of the recipient. The community as a
whole benefits;
+
What is the aim of Education?

Article 26 (2) of UDHR: “Education shall be directed to the full

development of the human personality and to the strengthening of
respect for human rights and fundamental freedoms. It shall
promote understanding, tolerance and friendship among all
nations, racial or religious groups, and shall further the activities of
the United Nations for the maintenance of peace”.

Article 10 (c) of CEDAW: “…The elimination of any stereotyped

concept of the roles of men and women at all levels and in all
forms of education by encouraging coeducation and other types of
education which will help to achieve this aim…”

Article 29 (1) of CRC: “States Parties agree that the education of

the child shall be directed to the development of the child's
personality, talents and mental and physical abilities to their fullest
potential…the development of respect for human rights and
fundamental freedoms…the development of respect for the child’s
parents…”
+
Features of the Right to Education

Two aspects of the Right to Education laid down in international

documents:

(1) Positive State obligation: Effort on the part of the State to

make education available and accessible; This could translate into
a “right to receive education” for the recipient.

(2) Personal freedom of individuals: To choose between state-

organized and non-public education; Parents’ freedom to ensure
their children’s moral and religious education according to their
own beliefs; right to choose an education; This could translate into
a policy of non-interference by the State, which is a negative state
obligation;

Note: Both aspects found in Article 13 of the ICESCR; See in further

slides;
+
Features of the Right to Education

Article 13 (2) of ICESCR: (a) Primary education shall be

compulsory and available free to all; (b) Secondary education in
its different forms, including technical and vocational secondary
education, shall be made generally available and accessible to all
by every appropriate means, and in particular by the progressive
introduction of free education; (c) Higher education shall be made
equally accessible to all, on the basis of capacity, by every
appropriate means, and in particular by the progressive
introduction of free education; d) Fundamental education shall be
encouraged or intensified as far as possible for those persons who
have not received or completed the whole period of their primary
education; (e) The development of a system of schools at all levels
shall be actively pursued, an adequate fellowship system shall be
established, and the material conditions of teaching staff shall be
continuously improved;
+
Features of the Right to Education

Article 13 (3) of ICESCR: The States Parties to the present

Covenant undertake to have respect for the liberty of parents and,
when applicable, legal guardians 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.

Article 13 (4) of ICESCR: 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, subject always to the
observance of the principles set forth in paragraph I of this article
and to the requirement that the education given in such institutions
shall conform to such minimum standards as may be laid down by
the State.
+
The 4-A Scheme

The Committee on the Economic, Social and Cultural Rights

has explained the Right to Education to consist of four inter-
related features:

 Availability

 Accessibility

 Acceptability

 Adaptability

Note: This is a useful device to analyze the content of the right

to receive an education and the obligations of the State party;
+
Key Components of the Right to
Education from treaties, cases etc.
 Access to education on a non-discriminatory basis:

[Situation in Pakistan / Afghanistan; Roma children in European

countries; Pregnancy disclosure in some African countries;]

 The right to enjoy free and compulsory primary education:

[“Primary Education” not defined anywhere; It has been held to be

a part of the “right to life” in India; It may not necessarily be in the
form of traditional teaching; Also implies non-interference from
anyone for availing this right; It must be offered free of cost;]

Article 13 (2) (d) of ICESCR: Fundamental education shall be

encouraged or intensified as far as possible for those persons who
have not received or completed the whole period of their primary
education;
+
Key Components of the Right to
Education from treaties, cases etc.
 Free choice of education:

[Due regard to be given to one’s religious and philosophical

convictions; The curriculum must avoid indoctrination;]

 The right to be educated in the language of one’s own choice:

[In the Belgian Linguistics case, the ECHR stated, “the right to
education would be meaningless if it did not imply, the right to be
educated in the national language or in one of the national
languages, as the case may be”; As a minimum, the State must not
frustrate the right of members of national, ethnic or linguistic
minorities to be taught in their mother tongue at institutions
outside the official system of public education;]
+
State Obligations to provide a
Right to Education
Generally speaking, three phrases in Article 2.1 of the ICESCR are
very important:

 “undertakes to take steps… by all appropriate means”

In addition to legislative measures, administrative, judicial,

economic, social and educational steps must also be taken. States
parties are also obliged to develop policies and set priorities
consistent with the Covenant. They are also required to evaluate
the progress of such measures and to provide effective legal or
other remedies for violations.

 “to the maximum of its available resources”

The obligation of States is to demonstrate that, in aggregate, the

measures being taken are sufficient to realize the right to
education for every individual in the shortest possible time using
the maximum available resources.
+
State Obligations to provide a
Right to Education
 “to achieve progressively”

The obligation of progressive realization, moreover, exists

independently of any increase in resources. Above all, it
requires effective use of resources available.
+
State Obligations to provide a
Right to Education
General Obligations: Immediate obligations to prohibit
discrimination in law and in fact, in the area of education, and to
take steps to make primary education compulsory and free;
Obliged not to take retrogressive measures and to protect the
most vulnerable groups in society through special programmes;

Specific Obligations: – Draft, adopt and implement a

comprehensive national education strategy; To establish
minimum standards for private educational institutions; To
develop a curriculum that conforms to the purposes of
education; Set up a school inspection system;
+
State Obligations to provide a
Right to Education
CESCR General Comment:

 Obligation to respect

[Requires States to abstain from interference; UNESCO

Convention against Discrimination in Education]

 Obligation to protect

[Requires the State to guarantee the exercise of the right to

education in horizontal relations]

 Obligation to fulfill

[Requires the State to deliver results based on international

standards]
+
State Obligations to provide a
Right to Education
The Committee believes that the following constitute
Minimum core obligations with respect to the Right to
Education:

 Ensure the right of access to public educational institutions

on a non-discriminatory basis;

 Ensure that education conforms to the objectives set out in

Article 13 (1) of the ICESCR;

 Provide primary education for all;

 Implement a national educational strategy which includes

provision for secondary, higher and fundamental education;

 To ensure free choice of education without interference from

the State and other third parties;
+
Special Rapporteur on the Right to
Education
What is a Special Rapporteur: An independent expert appointed
by the Human Rights Council to examine and report back on a
country situation or a specific human rights theme;

When was the Special Rapporteur on the Right to Education

appointed: Original mandate established by the Commission on
Human Rights in 1998; Subsequently, the Commission was replaced
by the Human Rights Council and in 2006, the mandate of the
Rapporteur was extended by Resolution 8/4 of 2008;

Why was a Special Rapporteur on the Right to Education

appointed: Gather information on the status of the right to
education, make recommendations regarding it, intensify efforts to
identifying means to overcome obstacles in realizing the right;
Meeting Millennium Development Goals and Education for All
initiative;
+
Millennium Development Goals

 Eradicate Extreme Poverty and Hunger

 Achieve Universal Primary Education

 Promote Gender Equality and Empower Women

 Reduce Child Mortality

 Improve Maternal Health

 Combat HIV / AIDS, Malaria and other Diseases

 Ensure Environmental Sustainability

 Global Partnership for Development

+
Education for All Goals

 Goal 1
Expanding and improving comprehensive early childhood care
and education, especially for the most vulnerable and
disadvantaged children.

 Goal 2
Ensuring that by 2015 all children, particularly girls, children in
difficult circumstances and those belonging to ethnic minorities,
have access to, and complete, free and compulsory primary
education of good quality.

 Goal 3
Ensuring that the learning needs of all young people and adults
are met through equitable access to appropriate learning and
life-skills programmes.
+
Education for All Goals
 Goal 4
Achieving a 50 per cent improvement in levels of adult literacy
by 2015, especially for women, and equitable access to basic
and continuing education for all adults.

 Goal 5
Eliminating gender disparities in primary and secondary
education by 2005, and achieving gender equality in education
by 2015, with a focus on ensuring girls’ full and equal access to
and achievement in basic education of good quality.

 Goal 6
Improving all aspects of the quality of education and ensuring
excellence of all so that recognized and measurable learning
outcomes are achieved by all, especially in literacy, numeracy
and essential life skills.
+
Special Rapporteur on the Right to
Education
What all does the Special Rapporteur do:

Undertakes country visits; Responds to information received on

allegations concerning violations of the right to education in
particular countries; Develops constructive dialogue with
Governments, civil society and other relevant actors with a
view to identify solutions for the implementation of the right to
education; Submits annual reports to the Human Rights Council
and to the General Assembly covering the activities relating to
the mandate;
+
Report of the Special Rapporteur
on the Right to Education – The
promotion of equality of
opportunity in education

Factors affecting equality of opportunity in education:

 Physical barriers

 Financial barriers

 Linguistic and cultural barriers

+
Report of the Special Rapporteur
on the Right to Education
 Physical barriers – Inadequate public transportation and
inadequate school facilities; Threat of violence against girls
on the way to and from schools; Unhygienic toilets;

Remedy: Establishing schools within every village, providing

proper transportation;

 Financial barriers – Tuition fees, indirect costs

(transportation, school material, uniform)

Remedy: fellowship schemes, social assistance to families, mid-

day meals etc.

 Linguistic and Cultural barriers – Lack of education in

mother – tongue or a native language; Remedy: Allow /
encourage teaching in mother tongue / native language;
+
Report of the Special Rapporteur
on the Right to Education
 Legal enforcement of “equality of opportunity”

The enforcement of legal mechanisms guaranteeing equality of

opportunity in education is crucial;

Brown v. Board of Education (1954; US Supreme Court) is an

important case law that reflects the progress being made vis-à-
vis equality of opportunity

Though not related, its important to look at Unni Krishnan v.

State of AP (1993; Supreme Court of India) to see how the Right
to Education came about to be a part of the Right to Life.
+
Brown v. Board of Education (1954)

 Class action suit against the Board of Education of the City of

Topeka, Kansas;

 The Topeka Board of Education operated separate

elementary schools under a Kansas law which permitted
districts to maintain separate school facilities for black and
white students;

 The plaintiffs were thirteen Topeka parents on behalf of their

20 children;

 Plaintiffs petitioned for the Board of Education to reverse its

policy on racial segregation;
+
Brown v. Board of Education (1954)

 The court held that the question presented in these cases

must be determined not on the basis of conditions existing
when the fourteenth amendment was adopted, but in the
light of full development of public education and its present
place in American life throughout the nation;

 In this regard, the court noted that education is perhaps the

most important function of the State; It is the very foundation
of his life; This must be made available to all citizens on equal
terms;

 Court also relied in large part on those qualities which are

incapable of objective measurement but which make for the
greatness in a school – ability to study, engage in discussions,
exchange views;
+
Brown v. Board of Education (1954)

 A sense of inferiority affects the motivation of a child to

learn;

 Segregation with the sanction of law, therefore, has a

tendency to slow / retard the educational and mental
development of negro children and to deprive them of some
of the benefits they would receive in the racially integrated
school system;

 Based on the foregoing, it was held that in the field of public

education, the doctrine of “separate but equal” has no place;
Separate educational facilities are inherently unequal;
+
Unni Krishnan v. State of AP

The Supreme Court held that the right to basic education is

implied by the fundamental right to life (Article 21) when read in
conjunction with the directive principle on education (Article 41).

However, the Court also ruled that there is no fundamental right

to education for a professional degree that flows from Article
21. It concluded that after reaching the age of fourteen, the
child’s right to education is subject to the limits of economic
capacity and development of the state (as per Article
41). Quoting Article 13 of the International Covenant on
Economic, Social and Cultural Rights, the Court stated that the
state's obligation to provide higher education requires it to take
steps to the maximum of its available resources with a view to
achieving progressively the full realization of the right of
education by all appropriate means.
+
Conclusions and
recommendations of the
Rapporteur
 Adequate legal protection

[States should incorporate their obligations under domestic law;

Create a strong regulatory framework for public and private
education systems]

 Address multiple forms of inequality and discrimination

through comprehensive policies

[Inequality vis-à-vis boys / girls and rich / poor must be given

special attention]

 Adequate resource allocation

[Resources for fellowships, grants along with investment in social

protection bearing in mind the need to address exclusion]
+
Conclusions and
recommendations of the
Rapporteur
 Support mechanisms for enforcement

[Independent national human right institutions]

 Promote integrated follow-up to concluding observations

adopted by the UN treaty bodies

 Enhance international assistance and cooperation

 Strengthening collaboration with academic institutions and

civil society organizations
+
Important Provisions in other
Treaties for the Right to Education
Article 28 of CRC: 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:

(a) Make primary education compulsory and available free to

all;

(b) Encourage the development of different forms of secondary

education, including general and vocational education, make
them available and accessible to every child, and take
appropriate measures such as the introduction of free education
and offering financial assistance in case of need;

(c) Make higher education accessible to all on the basis of

capacity by every appropriate means;
+
Important Provisions in other
Treaties for the Right to Education
(d) Make educational and vocational information and guidance available
and accessible to all children;

(e) Take measures to encourage regular attendance at schools and the

reduction of drop-out rates.

2. States Parties shall take all appropriate measures to ensure that school
discipline is administered in a manner consistent with the child's human
dignity and in conformity with the present Convention.

3. States Parties shall promote and encourage international cooperation

in matters relating to education, in particular with a view to contributing
to the elimination of ignorance and illiteracy throughout the world and
facilitating access to scientific and technical knowledge and modern
teaching methods. In this regard, particular account shall be taken of the
needs of developing countries.
+
Important Provisions in other
Treaties for the Right to Education
Article 10 of CEDAW: States Parties shall take all appropriate measures
to eliminate discrimination against women in order to ensure to them
equal rights with men in the field of education and in particular to
ensure, on a basis of equality of men and women: (a) The same
conditions for career and vocational guidance, for access to studies and
for the achievement of diplomas in educational establishments of all
categories in rural as well as in urban areas; this equality shall be
ensured in pre-school, general, technical, professional and higher
technical education, as well as in all types of vocational training; (b)
Access to the same curricula, the same examinations, teaching staff with
qualifications of the same standard and school premises and equipment
of the same quality; (c) The elimination of any stereotyped concept of
the roles of men and women at all levels and in all forms of education by
encouraging coeducation and other types of education which will help
to achieve this aim and, in particular, by the revision of textbooks and
school programmes and the adaptation of teaching methods;
+
Important Provisions in other
Treaties for the Right to Education
(d ) The same opportunities to benefit from scholarships and
other study grants; (e) The same opportunities for access to
programmes of continuing education, including adult and
functional literacy programmes, particulary those aimed at
reducing, at the earliest possible time, any gap in education
existing between men and women; (f) The reduction of female
student drop-out rates and the organization of programmes for
girls and women who have left school prematurely; (g) The
same Opportunities to participate actively in sports and
physical education; (h) Access to specific educational
information to help to ensure the health and well-being of
families, including information and advice on family planning.
+
Important Provisions in other
Treaties for the Right to Education
Article 24 of CRPD: 1. States Parties recognize the right of
persons with disabilities to education. With a view to realizing this
right without discrimination and on the basis of equal opportunity,
States Parties shall ensure an inclusive education system at all
levels and life long learning directed to:

(a) The full development of human potential and sense of dignity

and self-worth, and the strengthening of respect for human rights,
fundamental freedoms and human diversity;

(b) The development by persons with disabilities of their

personality, talents and creativity, as well as their mental and
physical abilities, to their fullest potential;

(c) Enabling persons with disabilities to participate effectively in a

free society.
+
Important Provisions in other
Treaties for the Right to Education
2. In realizing this right, States Parties shall ensure that:

(a) Persons with disabilities are not excluded from the general
education system on the basis of disability, and that children with
disabilities are not excluded from free and compulsory primary
education, or from secondary education, on the basis of disability;

(b) Persons with disabilities can access an inclusive, quality and

free primary education and secondary education on an equal
basis with others in the communities in which they live;

(c) Reasonable accommodation of the individual's requirements is

provided;

(d) Persons with disabilities receive the support required, within

the general education system, to facilitate their effective
education;
+
Important Provisions in other
Treaties for the Right to Education
(e) Effective individualized support measures are provided in
environments that maximize academic and social development, consistent
with the goal of full inclusion.

3. States Parties shall enable persons with disabilities to learn life and
social development skills to facilitate their full and equal participation in
education and as members of the community. To this end, States Parties
shall take appropriate measures, including:

(a) Facilitating the learning of Braille, alternative script, augmentative and

alternative modes, means and formats of communication and orientation
and mobility skills, and facilitating peer support and mentoring;

(b) Facilitating the learning of sign language and the promotion of the
linguistic identity of the deaf community;

(c) Ensuring that the education of persons, and in particular children, who
are blind, deaf or deafblind, is delivered in the most appropriate
languages and modes and means of communication for the individual, and
in environments which maximize academic and social development.
+
General Comment 28 of HRC

Article 3 of the ICCPR states, “The States Parties to the

present Covenant undertake to ensure the equal right of men
and women to the enjoyment of all civil and political rights set
forth in the present Covenant.“

Article 3 of the ICESCR states, “The States Parties to the

present Covenant undertake to ensure the equal right of men
and women to the enjoyment of all economic, social and
cultural rights set forth in the present Covenant.“
+
General Comment 28 of HRC

 Inequality in the enjoyment of rights by women throughout

the world is deeply embedded in tradition, history and
culture, including religious attitudes. The subordinate role of
women in some countries is also illustrated by the high
incidence of prenatal sex selection and abortion of female
foetuses.

 In light of the foregoing and in light of the fact that there is a

huge gap between legislations being framed and these in
fact being enforced, the Human Rights Committee asked
State parties to include certain pointers in their reports.
Some of these are:
+
General Comment 28 of HRC

 No derogation from equal treatment even during the

state of emergency: Must report the impact on the situation
of women of any measures and should demonstrate that they
are non-discriminatory.

 Right to life under Article 6: States should provide data on

birth rates; Gender disaggregated data should be provided
for infant mortality rates; Data on female infanticide, burning
of widows and dowry killings;

 Clothing regulation: Must report on any specific regulation

of clothing to be worn by women in public. Such regulations
are in violation of a number of rights under the Covenant;
+
General Comment 28 of HRC

 Special protection for children: Information on national

laws and practice with regard to violence against women;
Safe abortion to women who have become pregnant as a
result of rape;
+

Thank you!