1. Education is both a human right in
itself and an indispensable means of realizing other human rights. 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. Education
has a vital role in empowering women, safeguarding children from exploitative
and hazardous labour and sexual exploitation, promoting human rights and
democracy, protecting the environment, and controlling population growth. Increasingly, education is recognized as one
of the best financial investments States can make. But the importance of education is not just practical: a well‑educated, enlightened and
active mind, able to wander freely and widely, is one of the joys and rewards
of human existence.
2. The International Covenant on Economic,
Social and Cultural Rights (ICESCR) devotes two articles to the right to
education, articles 13 and 14. Article
13, the longest provision in the Covenant, is the most wide‑ranging and
comprehensive article on the right to education in international human rights
law. The Committee has already adopted
general comment No. 11 on article 14 (plans of action for primary
education); general comment No. 11 and the present general comment are
complementary and should be considered together. The Committee is aware that for millions of people throughout the
world, the enjoyment of the right to education remains a distant goal. Moreover, in many cases, this goal is
becoming increasingly remote. The
Committee is also conscious of the formidable structural and other obstacles
impeding the full implementation of article 13 in many States parties.
3. With a view to assisting States
parties’ implementation of the Covenant and the fulfilment of their reporting
obligations, this general comment focuses on the normative content of article
13 (Part I, paras. 4‑42), some of the obligations arising from it (Part
II, paras. 43‑57), and some illustrative violations (Part II, paras.
58‑59). Part III briefly remarks
upon the obligations of actors other than States parties. The general comment is based upon the
Committee’s experience in examining States parties’ reports over many years.
4. States parties agree that all
education, whether public or private, formal or non‑formal, shall be
directed towards the aims and objectives identified in article 13 (1). The Committee notes that these educational
objectives reflect the fundamental purposes and principles of the United
Nations as enshrined in Articles 1 and 2 of the Charter. For the most part, they are also found in
article 26 (2) of the Universal Declaration of Human Rights, although article
13 (1) adds to the Declaration in three respects: education shall be directed to the human personality’s “sense of
dignity”, it shall “enable all persons to participate effectively in a free
society”, and it shall promote understanding among all “ethnic” groups, as well
as nations and racial and religious groups.
Of those educational objectives which are common to article 26 (2) of
the Universal Declaration of Human Rights and article 13 (1) of the Covenant,
perhaps the most fundamental is that “education shall be directed to the full
development of the human personality”.
5. The Committee notes that since the
General Assembly adopted the Covenant in 1966, other international instruments
have further elaborated the objectives to which education should be
directed. Accordingly, the Committee
takes the view that States parties are required to ensure that education
conforms to the aims and objectives identified in article 13 (1), as
interpreted in the light of the World Declaration on Education for All
(Jomtien, Thailand, 1990) (art. 1), the Convention on the Rights of the Child
(art. 29 (1)), the Vienna Declaration and Programme of Action (Part I, para. 33
and Part II, para. 80), and the Plan of Action for the United Nations Decade
for Human Rights Education (para. 2).
While all these texts closely correspond to article 13 (1) of the
Covenant, they also include elements which are not expressly provided for in
article 13 (1), such as specific references to gender equality and respect for
the environment. These new elements are
implicit in, and reflect a contemporary interpretation of article 13 (1). The Committee obtains support for this point
of view from the widespread endorsement that the previously mentioned texts
have received from all regions of the world.
6. While the precise and appropriate
application of the terms will depend upon the conditions prevailing in a
particular State party, education in all its forms and at all levels shall
exhibit the following interrelated and essential features:[2]
(a) Availability
‑ functioning educational institutions and programmes have to be
available in sufficient quantity within the jurisdiction of the State
party. What they require to function
depends upon numerous factors, including the developmental context within which
they operate; for example, all institutions and programmes are likely to
require buildings or other protection from the elements, sanitation
facilities for both sexes, safe drinking water, trained teachers receiving
domestically competitive salaries, teaching materials, and so on;
while some will also require facilities such as a library, computer
facilities and information technology;
(b)
Accessibility ‑ educational institutions and
programmes have to be accessible to everyone, without discrimination, within
the jurisdiction of the State party.
Accessibility has three overlapping dimensions:
(i)
Non‑discrimination ‑ education must be
accessible to all, especially the most vulnerable groups, in law and fact,
without discrimination on any of the prohibited grounds (see paras. 31‑37
on non‑discrimination);
(ii)
Physical accessibility ‑ education has to be within
safe physical reach, either by attendance at some reasonably convenient
geographic location (e.g. a neighbourhood school) or via modern technology
(e.g. access to a “distance learning” programme);
(iii)
Economic accessibility ‑ education has to be
affordable to all. This dimension of
accessibility is subject to the differential wording of article 13 (2) in
relation to primary, secondary and higher education: whereas primary education shall be available “free to all”,
States parties are required to progressively introduce free secondary and
higher education;
(c) Acceptability
‑ the form and substance of education, including curricula and teaching
methods, have to be acceptable (e.g. relevant, culturally appropriate and of
good quality) to students and, in appropriate cases, parents; this is subject
to the educational objectives required by article 13 (1) and such minimum
educational standards as may be approved by the State (see art. 13 (3) and
(4));
(d) Adaptability
‑ education has to be flexible so it can adapt to the needs of changing
societies and communities and respond to the needs of students within their
diverse social and cultural settings.
7. When considering the appropriate
application of these “interrelated and essential features” the best interests
of the student shall be a primary consideration.
8. Primary education includes the elements
of availability, accessibility, acceptability and adaptability which are common
to education in all its forms and at all levels.[3]
9. The Committee obtains guidance on the
proper interpretation of the term “primary education” from the World
Declaration on Education for All which states:
“The main delivery system for the basic education of children outside
the family is primary schooling.
Primary education must be universal, ensure that the basic learning
needs of all children are satisfied, and take into account the culture, needs
and opportunities of the community” (art. 5).
“[B]asic learning needs” are defined in article 1 of the World
Declaration.[4] While primary education is not synonymous
with basic education, there is a close correspondence between the two. In this regard, the Committee endorses the
position taken by UNICEF: “Primary
education is the most important component of basic education.” [5]
10. As formulated in article 13 (2) (a),
primary education has two distinctive features: it is “compulsory” and “available free to all”. For the Committee’s observations on both
terms, see paragraphs 6 and 7 of general comment No. 11 on article 14 of the
Covenant.
11. Secondary education includes the elements
of availability, accessibility, acceptability and adaptability which are common
to education in all its forms and at all levels.[6]
12. While the content of secondary education
will vary among States parties and over time, it includes completion of basic
education and consolidation of the foundations for life‑long learning and
human development. It prepares students
for vocational and higher educational opportunities.[7] Article 13 (2) (b) applies to secondary
education “in its different forms”, thereby recognizing that secondary
education demands flexible curricula and varied delivery systems to respond to
the needs of students in different social and cultural settings. The Committee encourages “alternative”
educational programmes which parallel regular secondary school systems.
13. According to article 13 (2) (b),
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”. The phrase “generally
available” signifies, firstly, that secondary education is not dependent on a
student’s apparent capacity or ability and, secondly, that secondary education
will be distributed throughout the State in such a way that it is available on
the same basis to all. For the
Committee’s interpretation of “accessible”, see paragraph 6 above. The phrase “every appropriate means”
reinforces the point that States parties should adopt varied and innovative
approaches to the delivery of secondary education in different social and
cultural contexts.
14. “[P]rogressive introduction of free
education” means that while States must prioritize the provision of free
primary education, they also have an obligation to take concrete steps towards
achieving free secondary and higher education.
For the Committee’s general observations on the meaning of the word
“free”, see paragraph 7 of general comment No. 11 on article 14.
15. Technical and vocational education (TVE)
forms part of both the right to education and the right to work (art. 6
(2)). Article 13 (2) (b) presents TVE
as part of secondary education, reflecting the particular importance of TVE at
this level of education. Article 6 (2),
however, does not refer to TVE in relation to a specific level of education; it
comprehends that TVE has a wider role, helping “to achieve steady economic,
social and cultural development and full and productive employment”. Also, the Universal Declaration of Human
Rights states that “[t]echnical and professional education shall be made
generally available” (art. 26 (1)).
Accordingly, the Committee takes the view that TVE forms an integral
element of all levels of education.[8]
16. An introduction to technology and to the
world of work should not be confined to specific TVE programmes but should be
understood as a component of general education. According to the UNESCO Convention on Technical and Vocational
Education (1989), TVE consists of “all forms and levels of the educational
process involving, in addition to general knowledge, the study of technologies
and related sciences and the acquisition of practical skills, know‑how,
attitudes and understanding relating to occupations in the various sectors of
economic and social life” (art. 1 (a)).
This view is also reflected in certain ILO Conventions.[9] Understood in this way, the right to TVE
includes the following aspects:
(a) It
enables students to acquire knowledge and skills which contribute to their
personal development, self‑reliance and employability and enhances the
productivity of their families and communities, including the State party’s
economic and social development;
(b) It
takes account of the educational, cultural and social background of the
population concerned; the skills, knowledge and levels of qualification needed
in the various sectors of the economy; and occupational health, safety and
welfare;
(c) Provides
retraining for adults whose current knowledge and skills have become obsolete
owing to technological, economic, employment, social or other changes;
(d) It
consists of programmes which give students, especially those from developing
countries, the opportunity to receive TVE in other States, with a view to the
appropriate transfer and adaptation of technology;
(e) It
consists, in the context of the Covenant’s non‑discrimination and
equality provisions, of programmes which promote the TVE of women, girls, out‑of‑school
youth, unemployed youth, the children of migrant workers, refugees, persons
with disabilities and other disadvantaged groups.
17. Higher education includes the elements of
availability, accessibility, acceptability and adaptability which are common to
education in all its forms at all levels.[10]
18. While article 13 (2) (c) is formulated on
the same lines as article 13 (2) (b), there are three differences between the
two provisions. Article 13 (2) (c) does
not include a reference to either education “in its different forms” or specifically
to TVE. In the Committee’s opinion,
these two omissions reflect only a difference of emphasis between article 13
(2) (b) and (c). If higher education is
to respond to the needs of students in different social and cultural settings,
it must have flexible curricula and varied delivery systems, such as distance
learning; in practice, therefore, both secondary and higher education have to
be available “in different forms”. As
for the lack of reference in article 13 (2) (c) to technical and vocational
education, given article 6 (2) of the Covenant and article 26 (1) of the
Universal Declaration, TVE forms an integral component of all levels of
education, including higher education.[11]
19. The third and most significant difference
between article 13 (2) (b) and (c) is that while secondary education “shall be
made generally available and accessible to all”, higher education “shall be
made equally accessible to all, on the basis of capacity”. According to
article 13 (2) (c), higher education is not to be “generally
available”, but only available “on the basis of capacity”. The “capacity” of individuals should be
assessed by reference to all their relevant expertise and experience.
20. So far as the wording of article 13 (2)
(b) and (c) is the same (e.g. “the progressive introduction of free
education”), see the previous comments on article 13 (2) (b).
21. Fundamental education includes the
elements of availability, accessibility, acceptability and adaptability which
are common to education in all its forms and at all levels.[12]
22. In general terms, fundamental education
corresponds to basic education as set out in the World Declaration on Education
For All.[13] By virtue of article 13 (2) (d), individuals
“who have not received or completed the whole period of their primary
education” have a right to fundamental education, or basic education as defined
in the World Declaration on Education For All.
23. Since everyone has the right to the
satisfaction of their “basic learning needs” as understood by the World
Declaration, the right to fundamental education is not confined to
those ”who have not received or completed the whole period of their
primary education”. The right to
fundamental education extends to all those who have not yet satisfied their
“basic learning needs”.
24. It should be emphasized that enjoyment of
the right to fundamental education is not limited by age or gender; it extends
to children, youth and adults, including older persons. Fundamental education, therefore, is an
integral component of adult education and life‑long learning. Because fundamental education is a right of
all age groups, curricula and delivery systems must be devised which are
suitable for students of all ages.
25. The requirement that the “development of
a system of schools at all levels shall be actively pursued” means that a State
party is obliged to have an overall developmental strategy for its school
system. The strategy must encompass
schooling at all levels, but the Covenant
requires States parties to prioritize primary education (see para. 51). “[A]ctively pursued” suggests that the
overall strategy should attract a degree of governmental priority and, in any
event, must be implemented with vigour.
26. The requirement that “an adequate
fellowship system shall be established” should be read with the Covenant’s non‑discrimination
and equality provisions; the fellowship system should enhance equality of
educational access for individuals from disadvantaged groups.
27. While the Covenant requires that “the
material conditions of teaching staff shall be continuously improved”, in
practice the general working conditions of teachers have deteriorated, and
reached unacceptably low levels, in many States parties in recent years. Not only is this inconsistent with article
13 (2) (e), but it is also a major obstacle to the full realization of
students’ right to education. The
Committee also notes the relationship between articles 13 (2) (e), 2 (2), 3 and
6‑8 of the Covenant, including the right of teachers to organize and
bargain collectively; draws the attention of States parties to the joint UNESCO‑ILO
Recommendation Concerning the Status of Teachers (1966) and the UNESCO
Recommendation Concerning the Status of Higher‑Education Teaching
Personnel (1997); and urges States parties to report on measures they are
taking to ensure that all teaching staff enjoy the conditions and status
commensurate with their role.
28. Article 13 (3) has two elements, one of
which is that States parties undertake to respect the liberty of parents and
guardians to ensure the religious and moral education of their children in
conformity with their own convictions.[14] The Committee is of the view that this
element of article 13 (3) permits public school instruction in subjects such as
the general history of religions and ethics if it is given in an unbiased
and objective way, respectful of the freedoms of opinion, conscience and
expression. It notes that public
education that includes instruction in a particular religion or belief is
inconsistent with article 13 (3) unless provision is made for non‑discriminatory
exemptions or alternatives that would accommodate the wishes of parents and
guardians.
29. The second element of article 13 (3) is
the liberty of parents and guardians to choose other than public schools for
their children, provided the schools conform to “such minimum educational
standards as may be laid down or approved by the State”. This has to be read with the complementary
provision, article 13 (4), which affirms “the liberty of individuals and bodies
to establish and direct educational institutions”, provided the institutions
conform to the educational objectives set out in article 13 (1) and certain
minimum standards. These minimum
standards may relate to issues such as admission, curricula and the recognition
of certificates. In their turn, these
standards must be consistent with the educational objectives set out in
article 13 (1).
30. Under article 13 (4), everyone, including
non‑nationals, has the liberty to establish and direct educational
institutions. The liberty also extends
to “bodies”, i.e. legal persons or entities.
It includes the right to establish and direct all types of educational
institutions, including nurseries, universities and institutions for adult
education. Given the principles of
non‑discrimination, equal opportunity and effective participation in
society for all, the State has an obligation to ensure that the liberty set out
in article 13 (4) does not lead to extreme disparities of educational
opportunity for some groups in society.
31. The prohibition against discrimination
enshrined in article 2 (2) of the Covenant is subject to neither progressive
realization nor the availability of resources; it applies fully and immediately
to all aspects of education and encompasses all internationally prohibited
grounds of discrimination. The
Committee interprets articles 2 (2) and 3 in the light of the UNESCO Convention
against Discrimination in Education, the relevant provisions of the Convention
on the Elimination of All Forms of Discrimination against Women, the
International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention on the Rights of the Child and the ILO
Indigenous and Tribal Peoples Convention, 1989 (Convention No. 169), and wishes
to draw particular attention to the following issues.
32. The adoption of temporary special
measures intended to bring about de facto equality for men and women and for
disadvantaged groups is not a violation of the right to non‑discrimination
with regard to education, so long as such measures do not lead to the
maintenance of unequal or separate standards for different groups, and provided
they are not continued after the objectives for which they were taken have been
achieved.
33. In some circumstances, separate
educational systems or institutions for groups defined by the categories in
article 2 (2) shall be deemed not to constitute a breach of the Covenant. In this regard, the Committee affirms
article 2 of the UNESCO Convention against Discrimination in Education (1960).[15]
34. The Committee takes note of article 2 of
the Convention on the Rights of the Child and article 3 (e) of the UNESCO
Convention against Discrimination in Education and confirms that the principle
of non‑discrimination extends to all persons of school age residing in
the territory of a State party, including non‑nationals, and irrespective
of their legal status.
35. Sharp disparities in spending policies
that result in differing qualities of education for persons residing in
different geographic locations may constitute discrimination under the
Covenant.
36. The Committee affirms paragraph 35 of its
general comment No. 5, which addresses the issue of persons with disabilities
in the context of the right to education, and paragraphs 36‑42 of its
general comment No. 6, which address the issue of older persons in relation to
articles 13‑15 of the Covenant.
37. States parties must closely monitor
education ‑ including all relevant policies, institutions, programmes,
spending patterns and other practices ‑ so as to identify and take
measures to redress any de facto discrimination. Educational data should be disaggregated by the prohibited
grounds of discrimination.
38. In the light of its examination of
numerous States parties’ reports, the Committee has formed the view that the
right to education can only be enjoyed if accompanied by the academic freedom
of staff and students. Accordingly, even
though the issue is not explicitly mentioned in article 13, it is appropriate
and necessary for the Committee to make some observations about academic
freedom. The following remarks give
particular attention to institutions of higher education because, in the
Committee’s experience, staff and students in higher education are especially
vulnerable to political and other pressures which undermine academic
freedom. The Committee wishes to
emphasize, however, that staff and students throughout the education sector are
entitled to academic freedom and many of the following observations have
general application.
39. Members of the academic community,
individually or collectively, are free to pursue, develop and transmit
knowledge and ideas, through research, teaching, study, discussion,
documentation, production, creation or writing. Academic freedom includes the liberty of individuals to express
freely opinions about the institution or system in which they work, to fulfil
their functions without discrimination or fear of repression by the State or
any other actor, to participate in professional or representative academic
bodies, and to enjoy all the internationally recognized human rights applicable
to other individuals in the same jurisdiction.
The enjoyment of academic freedom carries with it obligations, such as
the duty to respect the academic freedom of others, to ensure the fair
discussion of contrary views, and to treat all without discrimination on any of
the prohibited grounds.
40. The enjoyment of academic freedom
requires the autonomy of institutions of higher education. Autonomy is that degree of self‑governance
necessary for effective decision‑making by institutions of higher
education in relation to their academic work, standards, management and related
activities. Self‑governance,
however, must be consistent with systems of public accountability, especially
in respect of funding provided by the State.
Given the substantial public investments made in higher education, an
appropriate balance has to be struck between institutional autonomy and
accountability. While there is no
single model, institutional arrangements should be fair, just and equitable,
and as transparent and participatory as possible.
41. In the Committee’s view, corporal
punishment is inconsistent with the fundamental guiding principle of
international human rights law enshrined in the Preambles to the
Universal Declaration of Human Rights and both Covenants: the dignity of the individual.[18] Other aspects of school discipline may also
be inconsistent with human dignity, such as public humiliation. Nor should any form of discipline breach
other rights under the Covenant, such as the right to food. A State party is required to take measures
to ensure that discipline which is inconsistent with the Covenant does not
occur in any public or private educational institution within its
jurisdiction. The Committee welcomes
initiatives taken by some States parties which actively encourage schools
to introduce “positive”, non‑violent approaches to school
discipline.
42. The Committee wishes to emphasize that
the Covenant’s limitations clause, article 4, is primarily intended to be
protective of the rights of individuals rather than permissive of the
imposition of limitations by the State.
Consequently, a State party which closes a university or other
educational institution on grounds such as national security or the
preservation of public order has the burden of justifying such a serious
measure in relation to each of the elements identified in article 4.
43. While the Covenant provides for
progressive realization and acknowledges the constraints due to the limits of
available resources, it also imposes on States parties various obligations
which are of immediate effect.[19] States parties have immediate obligations in
relation to the right to education, such as the “guarantee” that the right
“will be exercised without discrimination of any kind” (art. 2 (2)) and the
obligation “to take steps” (art. 2 (1)) towards the full realization of article
13.[20] Such steps must be “deliberate, concrete and
targeted” towards the full realization of the right to education.
44. The realization of the right to education
over time, that is “progressively”, should not be interpreted as depriving
States parties’ obligations of all meaningful content. Progressive realization means that States parties
have a specific and continuing obligation “to move as expeditiously and
effectively as possible” towards the full realization of article 13.[21]
45. There is a strong presumption of
impermissibility of any retrogressive measures taken in relation to the right
to education, as well as other rights enunciated in the Covenant. If any deliberately retrogressive measures
are taken, the State party has the burden of proving that they have been
introduced after the most careful consideration of all alternatives and that
they are fully justified by reference to the totality of the rights provided
for in the Covenant and in the context of the full use of the State party’s
maximum available resources.[22]
46. The right to education, like all human
rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and
fulfil. In turn, the obligation to
fulfil incorporates both an obligation to facilitate and an obligation to
provide.
47. The obligation to respect requires States
parties to avoid measures that hinder or prevent the enjoyment of the right to
education. The obligation to protect
requires States parties to take measures that prevent third parties from
interfering with the enjoyment of the right to education. The obligation to fulfil (facilitate) requires
States to take positive measures that enable and assist individuals and
communities to enjoy the right to education.
Finally, States parties have an obligation to fulfil (provide) the right
to education. As a general rule, States
parties are obliged to fulfil (provide) a specific right in the Covenant when
an individual or group is unable, for reasons beyond their control, to realize
the right themselves by the means at their disposal. However, the extent of this obligation is always subject to the
text of the Covenant.
48. In this respect, two features of article
13 require emphasis. First, it is clear
that article 13 regards States as having principal responsibility for the
direct provision of education in most circumstances; States parties recognize,
for example, that the “development of a system of schools at all levels shall
be actively pursued” (art. 13 (2) (e)).
Secondly, given the differential wording of article 13 (2) in relation
to primary, secondary, higher and fundamental education, the parameters of a
State party’s obligation to fulfil (provide) are not the same for all levels of
education. Accordingly, in light of the
text of the Covenant, States parties have an enhanced obligation to fulfil
(provide) regarding the right to education, but the extent of this obligation
is not uniform for all levels of education.
The Committee observes that this interpretation of the obligation to
fulfil (provide) in relation to article 13 coincides with the law and practice
of numerous States parties.
49. States parties are required to ensure
that curricula, for all levels of the educational system, are directed to the
objectives identified in article 13 (1).[23] They are also obliged to establish and
maintain a transparent and effective system which monitors whether or not
education is, in fact, directed to the educational objectives set out in
article 13 (1).
50. In relation to article 13 (2), States
have obligations to respect, protect and fulfil each of the “essential features”
(availability, accessibility, acceptability, adaptability) of the right to
education. By way of illustration, a
State must respect the availability of education by not closing private
schools; protect the accessibility of education by ensuring that third parties,
including parents and employers, do not stop girls from going to school; fulfil
(facilitate) the acceptability of education by taking positive measures to
ensure that education is culturally appropriate for minorities and indigenous
peoples, and of good quality for all; fulfil (provide) the adaptability of
education by designing and providing resources for curricula which reflect the
contemporary needs of students in a changing world; and fulfil (provide) the
availability of education by actively developing a system of schools, including
building classrooms, delivering programmes, providing teaching materials,
training teachers and paying them domestically competitive salaries.
51. As already observed, the obligations of
States parties in relation to primary, secondary, higher and fundamental
education are not identical. Given the
wording of article 13 (2), States parties are obliged to prioritize the
introduction of compulsory, free primary education.[24] This interpretation of article 13 (2) is
reinforced by the priority accorded to primary education in article 14. The obligation to provide primary education
for all is an immediate duty of all States parties.
52. In relation to article 13 (2) (b)‑(d),
a State party has an immediate obligation “to take steps” (art. 2 (1)) towards
the realization of secondary, higher and fundamental education for all those
within its jurisdiction. At a minimum,
the State party is required to adopt and implement a national educational
strategy which includes the provision of secondary, higher and fundamental
education in accordance with the Covenant.
This strategy should include mechanisms, such as indicators and
benchmarks on the right to education, by which progress can be closely
monitored.
53. Under article 13 (2) (e), States parties
are obliged to ensure that an educational fellowship system is in place to
assist disadvantaged groups.[25] The obligation to pursue actively the
“development of a system of schools at all levels” reinforces the principal
responsibility of States parties to ensure the direct provision of
the right to education in most circumstances.[26]
54. States parties are obliged to establish
“minimum educational standards” to which all educational institutions
established in accordance with article 13 (3) and (4) are required to
conform. They must also maintain a
transparent and effective system to monitor such standards. A State party has no obligation to fund
institutions established in accordance with article 13 (3) and (4); however, if
a State elects to make a financial contribution to private educational
institutions, it must do so without discrimination on any of the prohibited
grounds.
55. States parties have an obligation to
ensure that communities and families are not dependent on child labour. The Committee especially affirms the
importance of education in eliminating child labour and the obligations set out
in article 7 (2) of the Worst Forms of Child Labour Convention, 1999 (Convention
No. 182).[27] Additionally, given article 2 (2), States
parties are obliged to remove gender and other stereotyping which impedes the
educational access of girls, women and other disadvantaged groups.
56. In its general comment No. 3, the
Committee drew attention to the obligation of all States parties to take steps,
“individually and through international assistance and cooperation, especially
economic and technical”, towards the full realization of the rights recognized
in the Covenant, such as the right to education.[28] Articles 2 (1) and 23 of the Covenant,
Article 56 of the Charter of the United Nations, article 10 of the World
Declaration on Education for All, and Part I, paragraph 34 of the Vienna
Declaration and Programme of Action all reinforce the obligation of States
parties in relation to the provision of international assistance and
cooperation for the full realization of the right to education. In relation to the negotiation and
ratification of international agreements, States parties should take steps to
ensure that these instruments do not adversely impact upon the right to
education. Similarly, States parties
have an obligation to ensure that their actions as members of international
organizations, including international financial institutions, take due account
of the right to education.
57. In its general comment No. 3, the
Committee confirmed that States parties have “a minimum core obligation to
ensure the satisfaction of, at the very least, minimum essential levels” of
each of the rights enunciated in the Covenant, including “the most basic forms
of education”. In the context of
article 13, this core includes an obligation:
to ensure the right of access to public educational institutions and
programmes on a non‑discriminatory basis; to ensure that education
conforms to the objectives set out in article 13 (1); to provide primary
education for all in accordance with article 13 (2) (a); to adopt and implement
a national educational strategy which includes provision for secondary, higher
and fundamental education; and to ensure free choice of education without
interference from the State or third parties, subject to conformity with
“minimum educational standards” (art. 13 (3) and (4)).
58. When the normative content of article 13
(Part I) is applied to the general and specific obligations of States parties
(Part II), a dynamic process is set in motion which facilitates identification
of violations of the right to education.
Violations of article 13 may occur through the direct action of States
parties (acts of commission) or through their failure to take steps required by
the Covenant (acts of omission).
59. By way of illustration, violations of
article 13 include: the introduction or
failure to repeal legislation which discriminates against individuals or groups,
on any of the prohibited grounds, in the field of education; the failure to
take measures which address de facto educational discrimination; the use of
curricula inconsistent with the educational objectives set out in article 13
(1); the failure to maintain a transparent and effective system to monitor
conformity with article 13 (1); the failure to introduce, as a matter of
priority, primary education which is compulsory and available free to all; the
failure to take “deliberate, concrete and targeted” measures towards the
progressive realization of secondary, higher and fundamental education in
accordance with article 13 (2) (b)‑(d); the prohibition of private
educational institutions; the failure to ensure private educational
institutions conform to the “minimum educational standards” required by article
13 (3) and (4); the denial of academic freedom of staff and students; the
closure of educational institutions in times of political tension in non‑conformity
with article 4.
60. Given
article 22 of the Covenant, the role of the United Nations agencies, including
at the country level through the United Nations Development Assistance
Framework (UNDAF), is of special importance in relation to the realization of
article 13. Coordinated efforts for the
realization of the right to education should be maintained to improve coherence
and interaction among all the actors concerned, including the various
components of civil society. UNESCO,
the United Nations Development Programme, UNICEF, ILO, the World Bank, the
regional development banks, the International Monetary Fund and other relevant
bodies within the United Nations system should enhance their cooperation
for the implementation of the right to education at the national level, with
due respect to their specific mandates, and building on their respective
expertise. In particular, the
international financial institutions, notably the World Bank and IMF,
should pay greater attention to the protection of the right to education in
their lending policies, credit agreements, structural adjustment programmes and
measures taken in response to the debt crisis.[29] When examining the reports of States
parties, the Committee will consider the effects of the assistance provided by
all actors other than States parties on the ability of States to meet their
obligations under article 13. The
adoption of a human rights‑based approach by United Nations specialized
agencies, programmes and bodies will greatly facilitate implementation of the
right to education.
Notes
2 This approach corresponds with the Committee’s analytical
framework adopted in relation to the rights to adequate housing and
food, as well as the work of the United Nations Special Rapporteur on the right
to education. In its general comment
No. 4, the Committee identified a number of factors which bear upon the right
to adequate housing, including “availability”, “affordability”, “accessibility”
and “cultural adequacy”. In its general
comment No. 12, the Committee identified elements of the right to adequate
food, such as “availability”, “acceptability” and “accessibility”. In her preliminary report to the Commission
on Human Rights, the Special Rapporteur on the right to education sets out
“four essential features that primary schools should exhibit, namely
availability, accessibility, acceptability and adaptability”, (E/CN.4/1999/49,
para. 50).
4 The Declaration
defines “basic learning needs” as:
“essential learning tools (such as literacy, oral expression,
numeracy, and problem solving) and the basic learning content
(such as knowledge, skills, values, and attitudes) required by human
beings to be able to survive, to develop their full capacities, to live
and work in dignity, to participate fully in development, to improve the quality
of their lives, to make informed decisions, and to continue learning”
(article 1).
8 A view also reflected in the Human Resources Development
Convention 1975 (Convention No. 142) and the Social Policy (Basic Aims and
Standards) Convention 1962 (Convention No. 117) of the International Labour
Organization.
14 This
replicates article 18 (4) of the International Covenant on Civil and Political
Rights (ICCPR) and also relates to the freedom to teach a religion or belief as
stated in article 18 (1) ICCPR. (See
Human Rights Committee general comment No. 22 on article 18 ICCPR, forty‑eighth session,
1993.) The Human Rights Committee notes
that the fundamental character of article 18 ICCPR is reflected in the fact
that this provision cannot be derogated from, even in time of public emergency,
as stated in article 4 (2) of that Covenant.
“When
permitted in a State, the following situations shall not be deemed to
constitute discrimination, within the meaning of article 1 of this Convention:
(a) The
establishment or maintenance of separate educational systems or institutions
for pupils of the two sexes, if these systems or institutions offer equivalent
access to education, provide a teaching staff with qualifications of the same
standard as well as school premises and equipment of the same quality, and
afford the opportunity to take the same or equivalent courses of study;
(b) The
establishment or maintenance, for religious or linguistic reasons, of separate
educational systems or institutions offering an education which is in keeping
with the wishes of the pupil’s parents or legal guardians, if participation in
such systems or attendance at such institutions is optional and if the
education provided conforms to such standards as may be laid down or approved
by the competent authorities, in particular for education of the same level;
(c) The
establishment or maintenance of private educational institutions, if the object
of the institutions is not to secure the exclusion of any group but to provide
educational facilities in addition to those provided by the public authorities,
if the institutions are conducted in accordance with that object, and if the
education provided conforms with such standards as may be laid down or approved
by the competent authorities, in particular for education of the same level.”
17 In formulating this paragraph, the Committee
has taken note of the practice evolving elsewhere in the international human
rights system, such as the interpretation given by the Committee on the Rights
of the Child to article 28 (2) of the Convention on the Rights of the
Child, as well as the Human Rights Committee’s interpretation of article 7
of ICCPR.
18 The Committee notes that, although it is
absent from article 26 (2) of the Declaration, the drafters of ICESCR expressly
included the dignity of the human personality as one of the mandatory
objectives to which all education is to be directed (art. 13 (1)).
23 There are numerous resources to assist
States parties in this regard, such as UNESCO’s Guidelines for Curriculum and
Textbook Development in International Education (ED/ECS/HCI). One of the objectives of
article 13 (1) is to “strengthen the respect of human rights and
fundamental freedoms”; in this particular context, States parties should
examine the initiatives developed within the framework of the United Nations
Decade for Human Rights Education ‑ especially instructive is the Plan of
Action for the Decade, adopted by the General Assembly in 1996, and the
Guidelines for National Plans of Action for Human Rights Education, developed
by the Office of the High Commissioner for Human Rights to assist States in
responding to the United Nations Decade for Human Rights Education.
24 On the meaning of “compulsory” and “free”,
see paragraphs 6 and 7 of general comment No. 11 on article 14.
25 In appropriate cases, such a fellowship
system would be an especially appropriate target for the international
assistance and cooperation anticipated by article 2 (1).
26 In the context of basic education, UNICEF
has observed: “Only the State … can
pull together all the components into a coherent but flexible education
system”. UNICEF, The State of the
World’s Children, 1999, “The education revolution”, page 77.
27
According to article 7 (2), “(e)ach Member shall, taking into account
the importance of education in eliminating child labour, take effective and
time‑bound measures to: (c)
ensure access to free basic education, and, wherever possible and appropriate,
vocational training, for all children removed from the worst forms of child
labour” (ILO Convention 182, Worst Forms of Child Labour, 1999).