EDUCATION WORK
ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

FACT SHEETS ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

FACT SHEET No. 3

Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR): The right to education


General Comments adopted by the UN Committee on Economic, Social and Cultural rights (December 1999)

This fact sheet deals with the right to education guaranteed by the ICESCR (Article 13) and interpreted by the UN Committee on Economic, Social and Cultural rights in its 1999 Comment. The General Comments are the main guides to the interpretation of the ICESCR. The ICESCR is binding on Canada and Québec, which have ratified and acceded to it.

The right to education (Article 13 of the Covenant)

Education is a fundamental right and one of the indispensable means of exercising the inherent rights of human beings. It 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, promoting human rights and democracy and protecting the environment. For these reasons, education is recognized as one of the best financial investments that can be made.

The International Covenant on Economic, Social and Cultural Rights devotes two articles to education: Articles 13 and 14. Article 13 is the most wide-ranging and comprehensive international standard. It is also the most detailed.

The General Comment deals essentially with the normative content of Article 13, some of the obligations arising from it and some characteristic violations.

SUSTANTIVE PROVISIONS OF ARTICLE 13

Article 13 (1): Aims and objectives of education

One of the most fundamental of the objectives common to the Universal Declaration of Human Rights (Article 26 (2) and the Covenant (Article 13 (1)) is that education “shall be directed to the full development of the human personality.” States Parties are required to ensure that education in all its forms and at all levels corresponds to the aims and objectives set out in Article 13 (1), interpreted in light of the World Declaration on Education for All (Jomtien, 1990), the Convention on the Rights of the Child, the Vienna Declaration and Programme of Action, and the Plan of Action for the United Nations Decade for Human Rights Education (1995-2004). As well as reiterating certain provisions of Article 13 on the right to education, these texts include aspects that are not explicitly covered by Article 13 – for example, equality between men and women and respect for the environment.

All these statements and Conventions should be taken as a whole, the parts of which cannot be interpreted separately or exclusively. The domestic (national) law of a State Party to these international texts must be consistent with the latter.

To better understand the aims and objectives sought, we must not limit ourselves to the wording of Article 13 of the ICESCR. It has been influenced by various laws, conventions and treaties that form a whole.

Article 13 (2): The right to receive an education – General Comments

Education in all forms and all levels must be characterized by the interrelated and essential features of availability, accessibility, acceptability and adaptability.

Availability: Educational institutions must exist in sufficient quantity, along with sufficient quantities of certain facilities and equipment, for example, libraries, computers and information technology.

Accessibility: Educational institutions and programmes must be accessible to everyone, without discrimination on any basis. Accessibility can be defined in three regards: non-discrimination, physical accessibility and economic accessibility. States Parties are required to progressively introduce free secondary and higher education.

Acceptability: The form and substance of education must be culturally acceptable.

Adaptability: Education must be flexible so as to be adapted to the needs of changing societies and communities.

Article 13 (2)(a): The right to primary education

Two fundamental characteristics are specific to primary education: it is “compulsory” and it is “free for all.”

Primary education must satisfy the criteria of availability, accessibility, acceptability and adaptability. UNESCO’s World Declaration on Education for All must be used to interpret the term “primary education” properly. The Declaration states that primary education must be universal and take into account the culture and needs of the community. “Basic learning needs” are defined in Article 1 of the Declaration.1

Article 13 (2)(b): Secondary education

Secondary education must also meet the criteria of availability, accessibility, acceptability and adaptability. It is aimed at completing fundamental education and consolidating the foundations for life-long learning and human development. It prepares students for vocational and higher educational opportunities. It therefore requires flexible curricula and varied delivery systems.

Secondary education must be made “generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education." The word “accessible” means that States Parties commit to adopting varied and innovative approaches to the delivery of secondary education in different social and cultural contexts.

The expression “progressive introduction of free education” means that while States must certainly give priority to free primary education, they also have an obligation to take concrete steps towards ultimately ensuring free secondary and higher education.

Technical and vocational education

Technical and vocational education forms part of both the right to education and the right to work (art. 6 (2)). No specific mention is made, however of the level at which this education should be offered. The Committee concludes that technical and vocational education forms an integral element of all levels of education.

An introduction to technology and to the world of work should not be confined to technical and vocational education; it should be understood as a component of
general education.

Article 13 (2)(c): The right to higher education

Higher education must satisfy the criteria of availability, accessibility, acceptability and adaptability, which are common to education in all its forms at all levels.

To meet the needs of students in different social and cultural settings, higher education must have flexible curricula and varied delivery systems. Distance learning is a good example. 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.

If this clause is read in conjunction with Article 3 of the International Covenant on Economic, Social and Cultural Rights, which guarantees equal rights for men and women, there is reason to fear that Article 13 alone is not enough to ensure full accessibility for women as well as men. To ensure full economic, social and cultural rights for women, the implementation of these rights must take into account the context in which they live. The economic and social devaluing of the paid and unpaid work traditionally done by women contributes even more to the stagnation of women in a position of economic and social inequality.

Article 13 (2)(b): The right to fundamental education

Fundamental education must meet the criteria of availability, accessibility and adaptability common to all forms of education, at all levels.

The right to fundamental education is not reserved to those who “have not received or completed the whole period of their primary education.” It is for all those who have not yet satisfied their "basic learning needs” – children, adolescents and adults, including the aged.

It is true that at first glance fundamental education does not seem to be a problem in Québec. But a closer look is warranted. For instance, in the Gazette officielle for October 8, 2003, the Québec government proposed a significant change to Bill 90 on labour-force training, the law that obliges employers to invest 1% of their total payroll in training for their employees. Up until then, businesses that refused to invest this 1% had to pay a corresponding amount into a national fund for workplace training. But under the new regulations proclaimed on December 10, 2003, this requirement no longer applies to businesses with a payroll of less than $1 million. In other words, 25,000 of the 36,000 businesses – 70% – previously required to fulfil these conditions no longer have to do so.

Article 13 (2)(e): Existence of a school system; establishment of an adequate fellowship system; improvement of teaching staff’s material conditions

The requirement that “the development of a system of schools at all levels shall be actively pursued" means that States Parties are obliged to have an overall developmental strategy for their schools. The phrase "actively pursued" suggests that the overall strategy should be given a certain priority and must, in any event, be implemented with vigour.

The requirement that "an adequate fellowship system shall be established" commits States Parties to ensuring that the fellowship system enhances equality of educational access for individuals from disadvantaged groups.

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 to unacceptably low levels in many States Parties in recent years. This is a major obstacle to the full realization of students' right to education, and can be correlated with the incessant attacks on and limitation of the right of teachers to organize and bargain collectively.

Article 13 (3) and (4): The right to educational freedom

Article 13 (3) has two elements. The first is that States Parties undertake to respect the freedom of parents and guardians to ensure the religious and moral education of their children in conformity with their own convictions. The second is the freedom of parents and guardians to choose schools that are not public for their children, provided the schools conform to "such minimum educational standards as may be laid down or approved by the State."

Article 13: Special topics of broad application

Non-discrimination and equal treatment

The prohibition against discrimination 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, without exception. 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 principle of non-discrimination.

It should be noted that sharp disparities in spending policies that result in educational services of differing quality for persons residing in different geographic locations may constitute discrimination under the Covenant. States Parties must therefore closely monitor education, including educational policies, institutions, programmes, spending and other practices, so as to identify and take measures to redress any de facto discrimination. The best way to do this is to establish democratic institutions that make it possible to supervise the world of education.

Academic freedom and institutional autonomy in education

The Committee came to the conclusion that the right to education cannot be exercised unless it is accompanied by academic freedom for teaching staff and students. Teaching staff and students in higher education are especially vulnerable to political and other pressures that undermine academic freedom. The Committee wished, however, to emphasize that teaching staff and students at all levels of education are entitled to academic freedom.

The enjoyment of academic freedom requires the autonomy of institutions of higher education. Autonomy must be consistent with systems of public accountability, especially with respect to State funding. An appropriate balance has to be struck between institutional autonomy and accountability. There is no single model, and each institution must adapt to its local environment and national requirements.

School discipline

In the Committee’s view, corporal punishment is inconsistent with one of the fundamental guiding principles of international human rights law, i.e., human dignity. Likewise, no form of discipline should breach other rights protected under the Covenant, such as the right to food. States Parties are obliged to take measures to ensure that discipline that is inconsistent with the Covenant does not occur in any public or private educational institution within its jurisdiction.


STATES PARTIES' OBLIGATIONS AND VIOLATIONS

General legal obligations

Although the Covenant provides for progressive realization of rights and acknowledges the constraints due to the limits of available resources, it also imposes on States Parties various obligations which are of immediate effect. States Parties have immediate obligations in relation to the right to education. This 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. Everything suggests that the Covenant does not permit any retrogressive measure in relation to the right to education or any other rights enunciated in the Covenant. For example, a State must tend towards free education, which implies that an increase in tuition or an end to tuition freeze by a State Party would be a breach of Article 13 of the ICESCR.

The obligation to respect the right to education requires States Parties to avoid measures that hinder or prevent the enjoyment of this right. The obligation to protect the right to education requires States Parties to take measures that prevent third parties from interfering with the enjoyment of this right.

Specific legal obligations

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). They are also obliged to establish and maintain a transparent and effective system that ensures that education contributes to the full development of the human personality.

States have obligations to respect, protect and fulfil each of the "essential features" of the right to education. States Parties are obliged to ensure that an educational fellowship system is in place to assist disadvantaged groups. 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. States Parties have an obligation to ensure that communities and families are not dependent on child labour. States Parties are obliged to remove gender and other stereotyping which impedes the educational access of girls, women and other disadvantaged groups.

At the international level, States have the obligation to assist and co-operate in achieving the full realization of the right to education. Finally, they also have the "minimum core obligation to ensure the satisfaction of, at the very least, minimum
essential levels of the right to education." This minimum core obligation includes the obligation to:
_ ensure access to public educational institutions and programmes on a non-discriminatory basis;
_ ensure that education conforms to the objectives set out in Article 13 (1);
_ provide primary education for all in accordance with Article 13 (2) (a);
_ adopt and implement a national educational strategy which encompasses secondary, higher and fundamental education;
_ and ensure free choice of education without interference from the State or third
parties, subject to conformity with "minimum educational standards" (Article 13 (3) and (4)).


1. See: www.unesco.org/education/nfsunesco/pdf/JOMTIE_E.PDF