CESCR
General Comment No. 13
The right to education (Art. 13)
Twenty-first session 1999
E/1991/23
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.
1. Normative content of article 13
Article 13 (1): Aims and objectives of education
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.[1]
Article 13 (2): The right to receive an education – some
general remarks
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.
Article 13 (2) (a): The right to primary education
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.
Article 13 (2) (b): The right to secondary education
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.
Technical and vocational education
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.
Article
13 (2) (c): The right to higher education
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).
Article 13 (2) (d): The right to fundamental education
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.
Article 13 (2) (e): A school system; adequate fellowship system;
material conditions of teaching staff
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.
Article 13 (3) and (4): The right to educational freedom
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.
Article 13: Special topics of broad application
Non-discrimination and equal treatment
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.
Academic freedom and institutional autonomy[16]
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.
Discipline in schools[17]
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.
Limitations on article 13
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.
2. States parties’ obligations and violations
General legal obligations
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.
Specific legal obligations
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)).
Violations
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.
3. Obligations of actors other than States parties
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
[1] The World Declaration on Education for All was adopted by 155
governmental delegations; the Vienna Declaration and Programme of
Action was adopted by 171 governmental delegations; the Convention
on the Rights of the Child has been ratified or acceded to by 191
States parties; the Plan of Action of the United Nations Decade
for Human Rights Education was adopted by a consensus resolution
of the General Assembly (49/184).
[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).
[3] See paragraph 6.
[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).
[5] Advocacy Kit, Basic Education 1999 (UNICEF), sect. 1, p. 1.
[6] See paragraph 6.
[7] See International Standard Classification of Education 1997,
UNESCO, paragraph 52.
[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.
[9] See note 8.
[10] See paragraph 6.
[11] See paragraph 15.
[12] See paragraph 6.
[13] See paragraph 9.
[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.
[15] According to article 2:
“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.”
[16] See UNESCO Recommendation Concerning the Status of Higher-Education
Teaching Personnel (1997). 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.
[17] 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)).
[18] See the Committee’s general comment No. 3, paragraph 1.
[19] See the Committee’s general comment No. 3, paragraph 2.
[20] See the Committee’s general comment No. 3, paragraph 9.
[21] See the Committee’s general comment No. 3, paragraph 9.
[22] 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.
[23] On the meaning of “compulsory” and “free”, see paragraphs 6
and 7 of general comment No. 11 on article 14.
[24] In appropriate cases, such a fellowship system would be an
especially appropriate target for the international assistance and
cooperation anticipated by article 2 (1).
[25] 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.
[26] 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).
[27] See the Committee’s general comment No. 3, paragraphs 13-14.
[28] See the Committee’s general comment No. 2, paragraph 9.
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