Right to Education: Challenging Tasks Ahead

Dr Kishore Singh (Ph.D in international law, Sorbonne, 1977) has been responsible for the Right to Education at UNESCO (1998-2009). He has been the Secretary of the Joint Expert Group, UNESCO (CR)/ECOSOC (CESCR) on the Monitoring of the Right to Education since its establishment in 2001, and has collaborated with the Office of the High Commissioner for Human Rights (OHCHR), Geneva, and participated in the work of the United Nations human rights treaty bodies. He has also cooperated with professional bodies and the intellectual community for promoting the Right to Education, and has provided technical assistance to several Member States for modernising the national legislations on education.

Dr Kishore Singh has a large number of publications to his credit, and has contributed substantially to the development and application of the Right to Education and its better understanding in its various dimensions, and is an internationally recognised authority on the Right to Education. He was appointed the UN Special Rapporteur on the Right to Education on June 18, 2010, and resumed his functions on August 1, 2010. His appointment to such a prestigious and challenging position in the UN system is most opportune in the context of the high importance being attached by India for achieving the Right to Education. The following is an interview Dr Singh gave to the Mainstream editor during his recent visit to New Delhi.

Question: You have recently been appointed as the UN Special Rapporteur on the Right to Education. Would you kindly explain what is your task as a Special Rapporteur on the Right to Education and also the mandate that you have from the UN Human Rights Council?

Answer: Thank you very much for giving me this opportunity of a dialogue with you on the important theme of the Right to Education. My tasks as the UN Special Rapporteur on the Right to Education emanate from the mandate given to me by the Human Rights Council. This is indeed broad, and its main thrust is to protect, promote and safeguard the Right to Education globally, with emphasis on the fulfilment of the state obligations within the framework of the UN human rights treaties.

The Special Rapporteur on the Right to Education is mandated to develop constructive dialogue with governments, civil society and other relevant actors with a view to identify obstacles encountered in achieving the Right to Education and solutions for its full implementation. The mandate also encompasses tasks related to the Education For All (EFA) agenda and the Millennium Development Goal with respect to universalising primary education by 2015.

The Special Rapporteur on the Right to Education is required to present to the Human Rights Council annually a report on the issues deemed to be of critical importance for advancing the Right to Education, which is followed by a dialogue with the Council for recommendations for action. A report is also presented annually to the UN General Assembly in a similar perspective.

Besides, the Special Rapporteur also undertakes country visits in response to official invitations. Such visits are aimed at advancing the Right to Education at the country level through dialogue with the government and public authorities, intellectual communities and NGOs and stakeholders and interest groups, and a report on the country visits is presented to the Human Rights Council. In this process, the Special Rapporteur is fully assisted by the Office of High Commissioner for Human Rights, and other UN agencies are expected to extend full cooperation.

Question: How is the Right to Education an internationally established right? What importance is accorded to it in international human rights law?

Answer: The Right to Education is an inter-nationally recognised right whose moral foundations are provided by the Universal Declaration on Human Rights (1948). It is comprehensively established by the UNESCO’s Convention against Discrimination in Education (1960) which lays down the fundamental principles of non-discrimination and of equality of opportunity in education. The Right to Education is similarly comprehensively covered by the International Covenant on Economic, Social and Cultural Rights (1966) in its Article 13. It is also provided in a number of other United Nations Human Rights Treaties, notably, the International Convention on the Elimination of All Forms of Racial Discrimination (1965); the Convention on the Elimination of All Forms of Discrimination against Women (1979); the Convention on the Rights of the Child (1989); the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990), and the Convention on Persons with Disability (2006). What is important is to note that these human rights treaties carry international legal obligations which are binding on the states parties to them.

Besides such hard law framework of the Right to Education, various recommendations of the UNESCO in the field of education, and resolutions adopted by the United Nations General Assembly as well as by the Human Rights Council provide soft law framework of the Right to Education, and carry a moral force as they reflect the political commitment by governments. The Dakar Framework for Action, adopted at the World Education Forum in 2000, reflects the collective political commitments by the international community for achieving the Right to Education For All, which is at the heart of the EFA process. Education is also central to achieving the Millennium Development Goals.

The Right to Education occupies an important place in the international law of human rights. Its importance as an overarching right must, in fact, be appreciated in view of the fact that it is not only a human right in itself but also indispensable for the exercise of all other human rights, be it the right to work, the right to health, or the right to participate in democratic processes. The Right to Education has a close nexus with the right to development. It is also crucial as education is a powerful tool in poverty reduction strategies. The Right to Education is indeed an integral part of the right to life.

Question: What is the nature and scope of the Right to Education?

Answer: The Right to Education covers all levels and all forms of education. As regards primary education, it is an inalienable right and states have the obligation to provide free compulsory education to all children and adults without exception. In fact, as part of the EFA process, the Right to Basic Education has emerged as a fundamental human right, such that it now generally extends to nine years of schooling. Life skills are considered part of basic education, and the Right to Education also includes technical education and vocational training which empowers its beneficiaries for productive work. In this respect, it is important to note that the Right to Education is also considered important in terms of literacy as a human right and in a broader perspective, encompasses life-long learning.

In case of higher education, the Right to Education is conditional in the sense that access to such education is based on merit and individual capacity, and governed by the principle of non-discrimination and equality of opportunity in education. The nature and scope of the Right to Education have been developed for its better understanding and application. This has been done by the United Nations Committee on Economic, Social and Cultural Rights by way of General Comment No. 13 on the Right to Education, which was elaborated in 1999. Similarly the objectives of education have been elucidated by the United Nations Committee on the Rights of the Child which subsequently elaborated General Comment No.1 of Article 29 of the CRC.

It is through education that an individual maximises his/her potential and acquires skills. Education is recognised as the key for empowering individuals in today’s knowledge societies. Society as a whole benefits from education. Thus, the Right to Education comprises two main dimensions: entitlement and empowerment. Normative action for promoting this right covers both these interrelated dimensions.

Question: How is the Right to Education monitored and enforced?

Answer: At the international level, the Right to Education is monitored by the United Nations human rights treaty bodies, which are composed of independent experts. For instance, the United Nations Committee on Economic, Social and Cultural Rights monitors the implementation of the International Covenant, and as such, the Right to Education in terms of provisions in its Article 13, just as the Committee on the Rights of the Child monitors the Right to Education in terms of Articles 28, 29 and 30 of the Convention on the Rights of the Child. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is monitored by the CEDAW-Committee. These UN human rights treaty bodies examine, by way of a constructive dialogue, reports periodically presented to them by states. At the end of this process, they adopt Concluding Observations for follow-up action. Similarly, the UNESCO’s Committee on Convention and Recommendations monitors the implemen-tation of the UNESCO’s instruments in the field of education. Moreover, the EFA Global Monitoring Report also presents detailed analysis of implementation of the EFA agenda. There are also regional and national mechanisms for monitoring the mplementation of the Right to Education.

As regards the justiciability and enforcement of the Right to Education. it primarily depends upon national legal systems—the judicial system has an essential role in upholding the Right to Education as a right. International, regional and national jurisprudence have demonstrated that the Right to Education is not an ideal or aspiration, but a legally enforceable right. In various regions of the world, the law courts have given a number of decisions for enforcing the Right to Education. Besides, there are other institutional mechanisms such as the national human right institutions, Ombudspersons and tribunals which also give effect to the Right to Education.

Question: What are the current developments as regards national legislations in the field of the Right to Education?

Answer: International legal and political obligations undertaken by the governments must be incorporated into the national legal system. As part of the EFA process, the recent trend of modernisation of national legislations is most significant in this respect. Many countries, especially since 2000, have elaborated national laws in order to provide for the Right to Education. In this process, many dimensions of the Right to Education have been developed. Most significantly, the Right to Basic Education has been recognised as a fundamental human right. As I mentioned, many countries now have adopted a system of basic education of nine years, free and compulsory; and in some countries, the Right to Free Education of 12 years is recognised.

Education laws also cover specific areas such as the rights and duties of teachers, parents and community etc. as well as the system of school management. In some countries, such laws also provide a legal framework for the financing of education. Moreover, national legislations on the status of teachers have been adopted in some other countries, constituting a significant landmark in terms of quality concerns. Another emerging area is that of national legislations on technical and vocational education and training. In the field of higher education also, many countries are developing national legislations for providing a legal framework for various areas of critical importance, having regard to the phenomenon of the internationalisation of higher education and the need for institutional autonomy, trans-parency, accountability and academic freedom. In line with these trends, the foundations of the Right to Education in national legal systems need to be strengthened.

Question: What are the main obstacles in realisation of the Right to Education and the major challenges which are being faced for achieving this right?

Answer: A major challenge which deserves foremost consideration is that of ensuring equality of opportunity in education, both in law and in fact. States today are faced with this continuing challenge—in both the developed and developing world. Extra measures and support services are required for those who are placed at a disadvantageous position at the start, with emphasis on equitable approaches. In this respect, it is important to note that the fundamental principle of equality of opportunity in education is common to all United Nations human rights treaties, and the UN treaty bodies consistently express their concern and the need for national level action in face of this continuing challenge.

Responding to quality imperatives in education is a major issue. The education that is provided, especially in developing countries both in government and private schools, with a few exceptions, is far from being of a good quality. This, of course, is on account of dearth of qualified teachers that has assumed alarming proportions. National level norms, with a proper system of benchmarks, need to be elaborated in order to ensure quality and minimum standards in education, whose application must be monitored, both in private and public schools. It is imperative to ensure full respect for the professional status and social standing of teachers, and provide them incentives with career development.

Ensuring respect of the Right to Education in its all-inclusive dimension is a major challenge. The rights of minorities are well established in international human rights law. But also there is more and more concern with socially and economically marginal and vulnerable groups who are underserved and often remain deprived of education. Gender-based disparities in access to education are an impediment to the exercise of the Right to Education by boys and girls on an equal footing. Disparities in access to education continue to be of serious concern and it is necessary to ensure that the Right to Education is fully respected as being universal, which admits of no exception and that especially children from poor households are given particular consideration and support.

Inadequate financing and public funding of education is a major constraint on the realisation of the Right to Education. Not only is it necessary to devote maximum possible resources to education since education is the best investment a country can make, but also to ensure that they are optimally and judiciously utilised. In educational budgets, generally, a large share goes to meet the teachers’ salaries and very little is devoted to the development of the quality aspect of education. The public funding of education needs to be devised in such a way that it effectively responds to quality imperatives, with resource allocation for development of quality education.

Question: What are the priority areas where you would like to concentrate as a Special Rapporteur on the Right to Education?

Answer: Well, the above mentioned obstacles and challenges—bringing about de facto equality of opportunity in education; removing disparities, in particular gender-based, in access to education; responding to quality imperatives by promoting normative action at the national level; greater emphasis on the inclusive dimensions of the Right to Education for making education all-inclusive; enforcement and justiciability of the Right to Education; legal and policy framework for resource mobilisation and investment in education etc.—deserve special attention. It is imperative to accelerate progress towards the MDG No. 2 as well as to give a further momentum to the EFA agenda which is falling behind, and ensure full compliance with the core obligation of governments for providing primary education free of charge for all as a priority area. In this, special focus needs to be placed on the Right to Education of children from poor households, especially those who are victims of extreme poverty. Giving high priority to the financing of education in the national agenda, innovative mechanisms and approaches for resource mobilisation are required to be explored. A special role in promoting the Right to Education is on the parliamentarians as law-makers and public figures.

In addition to dealing with global issues, specific countries, especially those which are lagging behind in achieving the Right to Education, need to be assisted in their national endeavour for facing the challenging tasks and overcoming obstacles in the realisation of this right. I look forward to the country visits in various regions in that spirit, giving priority to Africa.

In order to advance the Right to Education, it is also necessary to create much more awareness about it as an internationally recognised right, along with advocacy for the fulfilment of state obligations for promoting and protecting it. Universal ratification of international conventions as well as their universal application, with a focus on the full respect for the Right to Education should be central to such advocacy. It will be extremely important if networks and partner-ships are developed with the intellectual community, with the professional bodies and with NGOs and civil society organisations for enhanced advocacy of the Right to Education as a fundamental human right and for its full realisation.

I would devote myself with total commitment and dedication to the implementation of the mandate which has been entrusted to me in order to contribute to the advancement of the Right to Education, as a part of the work of the Human Rights Council, and within the frame-work of the institutional mandate of the United Nations.