JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(16) Human Rights

 What is the Human Right to Education?

The Right to Education

HR

Education

'Education makes a people easy to lead, but difficult to drive; easy to govern, but impossible to enslave.' This comment, attributed to the Member of Parliament and Lord Chancellor Baron Brougham (1778-1868), reminds us that education is essential to any effort to enhance human rights. In this sense, the right to education is crucial to empowering people to be able to enjoy their other rights. The right to education involves not only obligations to refrain from interfering with the right by closing schools or discriminating against certain pupils, but also includes obligations to fulfil the right to education by providing compulsory, free primary education for all. The right to education has been developed at the doctrinal level to encompass what is known as a '4As' approach: availability, accessibility, acceptability, and adaptability. (Some might hear echoes here of the 3Rs - reading, writing, and arithmetic.)

 

Fist, education has to be available in a functional sense so that, in the words of the UN Committee on Economic Social and Cultural Rights, there has to be: 'protection from the elements, sanitation facilities for both sexes, safe drinking water, trained teachers receiving domestically competitive salaries, [and] teaching materials.' The late UN expert Katerina Tomasevski pointed out that for availability to be meaningful, rather than formal, schools have actually to attract children. Not only must schools be formally open to both boys and girls, but they should be monitored to ensure that girls and boys are retained in school.

Inadequate teaching or lack of relevant schoolbooks will mean that children and parents will see little point in using the available facilities, and the government will fail in its obligation to provide compulsory primary education that is available free to all.

 

Second, the state must ensure that schools and programmes are accessible to all. This has three dimensions. First, accessibility means non-discrimination. This is an obligation on states with immediate effect. Affirmative action, or 'temporary special measures', intended to bring about equality for men and women, or for disadvantaged groups, is not considered a violation of the non-discrimination rule as long as it does not continue unnecessarily. Discrimination against girls remains a real problem. For example, pregnancy can trigger girls being expelled from school in violation of their right to education. Furthermore, for some parents, it is seen as economically irrational to invest in their daughters' education; they, therefore, privilege their boys' education. The second dimension to accessibility is physical accessibility. This means that children with disabilities are not excluded due to the design of the buildings and that education is within physical reach geographically. The third dimension is economic accessibility. While international law demands that education is free in the elementary and fundamental stages, there is a weaker obligation with regard to secondary education so that there should be a progression towards free secondary education.

This means that, although priority is to be given to ensuring free primary education, governments must also take concrete steps to ensure free secondary and tertiary education. Acceptability is the concept used to describe the importance of ensuring that education is conducted in a way that is acceptable to children and parents. The environment has to tackle not only material conditions, and aspects such as violence and scheduling, but it must also enable children to develop and learn. Corporal punishment in schools is a violation of the rights of the child, and bullying can be addressed in terms of human rights language which refers to cruel, inhuman, and degrading treatment.

From the earliest international articulation of the right to education, there has been a second dimension relating to parents' rights in education: the rights of parents to choose the kind of education to be given to their children. Parents have also used this human right to challenge national laws on corporal punishment in schools. Where Christian schools in South Africa claimed that banning corporal punishment in schools violated the human rights of parents to practise their religion under the Constitution, the Constitutional Court considered how to weigh respect for this right with the interests of the child. The Court brought the balance down firmly in favour of upholding the general ban on corporal punishment; the law banning corporal punishment was held to be designed to promote respect for the dignity and physical integrity of all children. The use of corporal punishment in Scotland was also successfully challenged before the European Court of Human Rights, where it held that the parents' philosophical convictions regarding discipline of their children are only protected when they are worthy of respect in a democratic society and are compatible with human dignity and the right to education of the child. The fourth aspect of the right to education, the concept of adaptability, raises fundamental questions about education. What is an education for? And who decides? As long as education is geared solely to admission to the next (selective) stage of education, some children will be ill-equipped for life. Article 29 of the Convention on the Rights of the Child sets out a number of aims for education. The stress is on developing the child's personality and instilling respect for particular values, including the protection of the environment.

 

J. Shultz, 'Bringing It All Back Home'

 

No example illustrates the enduring power of a good story better than Cochabamba, Bolivia's public revolt against privatisation of its water system. Here the evils of economic globalisation, and the valiant fight against them were played out in living colour. The World Bank used all the powers at its disposal to pressure the Bolivian Government to lease off its water system to a transnational corporation and it did so, to a subsidiary of the powerful US-based, Bechtel Corporation. Within weeks Bechtel had doubled and tripled people's water rates, sending a mass movement of urban and rural water users into the streets. This culminated in a weeklong general strike, the forced departure of the corporation and the return of the water system to public hands. In December 2001 Bechtel announced it was suing the Bolivian government for $25 million for breaking the water contract. During the water wars, Tanya Paredes, a mother who supports her four children by knitting baby clothes, became an international symbol after it was reported that her 300-per-cent water bill increase totalled more than what it cost to feed her family for a week. Even people who have never heard of the World Bank and don't have feelings one way or another towards Bechtel could grasp in an instant that something about globalisation had gone horribly wrong.

 

Christian Education South Africa® Minister of Education

 

 

The overlap and tension between the different clusters of rights reflect themselves in contradictory assessments of how the central constitutional value of dignity is implicated. On the one hand, the dignity of the parents maybe negatively affected when the state tells them how to bring up and discipline their children and limits the manner in which they may express their religious beliefs. The child who has grown up in the particular faith may regard the punishment, although hurtful, as designed to strengthen his character. On the other hand, the child is being subjected to what an outsider might regard as the indignity of suffering a painful and humiliating hiding deliberately inflicted on him in an institutional setting. Indeed, it would be unusual if the child did not have ambivalent emotions. It is in this complex factual and psychological setting that the matter must be decided. 

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