V.4 Public consultation – 21.08.2018. Please do not alter, use, or make reference to this draft.
Notes:
· The current draft of Guiding Principles is not final and cannot in any way prejudge the final document or the views of the member of Drafting Committee. Please do not alter, use, or make reference to this draft. Please contact the Secretariat if you have any question or if you wish to share this draft further.
· The footnotes indicate some of the information that will be eventually contained in the commentary. The final version of this document will notinclude these footnotes. The content of the footnotes is not exhaustive, and only provides some indicative reference points to guide the reader. For space purposes, not all Guiding Principles have footnotes, and the absence of footnotes does not indicate any less importance of or backing for the Guiding Principle.
· This document is restricted for editing to tracked changes and comments.
Preamble (to be drafted)
· Values
· Vision
· Objectives
1. Scope, application, interpretation
1. These Guiding Principles relate to the obligations of States with regards to the right to education in the context of private involvement in education,including those private actors operating independently or in partnership with States,as required by international law.[2]
2. These Guiding Principles apply to all State actors which have competencies over the implementation of the right to education.[3]
3. These Guiding Principles should be interpreted as the minimal standards, and nothing in these Principles should be read as limiting, restricting, or undermining any legal obligations or responsibilities that States, international organisations and non-State actors, such as transnational corporations and other business enterprises, may be subject to under human rights standards, whether these are contained in international, regional, constitutional, or other national laws that are in conformity with international human rights law.[4]These Guiding Principles must not either be interpreted as limiting, restricting, or undermining the rights recognised under international human rights law and related standards, or rights consistent with international human rights law as recognised under any national law.[5]
4. These Guiding Principles must be interpreted and applied in the context of the obligations to respect, protect and fulfil all human rights, including civil, cultural, economic, political, and social rights, both within their territories and extraterritorially.
2. Foundational principles[6]
Universality, indivisibility, inalienability, and interdependence
5. All human beings everywhere are born free and equal in dignity and are entitled without discrimination to human rights and freedoms, including the right to education.[7]All human rights are universal, indivisible, interdependent, inalienable, interrelated and of equal importance.[8]
Nature of the right to education
6. The legal framework on the right to education recognises the role that education plays both in the personal and the collective spheres. In the personal sphere, education plays an essential role for advancing individuals’ physical, mental, spiritual, moral and social development,[9]and for parents, families, and communities to transmit social and cultural values and practices. In the collective sphere, education contributes to achieving the public good and developing and maintaining healthy, open, transparent and fair societies that provide an environment conducive to the realisation of human rights.
7. Everyone has a right to an education that allows them to flourish, independently grow,[10]effectively participate in society,[11]and have the capacity and necessary critical thinking to elaborate and realise their own life project in an autonomous way.[12]This is the right to a well‑educated, enlightened and active mind, able to wander freely and widely, as one of the joys and rewards of human existence.[13]
8. The right to education applies from birth to death, and includes early childhood[14]through adulthood, as well as life-long learning, in both formal and non-formal learning contexts.
Non-discrimination
9. States must eliminate formal and substantive discrimination[15]on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, in the enjoyment of the right to education. This includes discrimination that is systemic or structural in nature.
10. States must ensure that their laws, policies or practices do not have the direct or indirect effect of creating, furthering, or entrenching discrimination in any educational context, and must take all measures to prevent and, where necessary, redress[16]:
a. disparities of educational opportunity for some groups in society, including people living in poverty,[17]that create systemic discrimination; or
b. levels of segregation of the education system that are discriminatory[18]on the basis of the ability to pay[19]or on any prohibited basis such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status;[20]or
c. any other situation that is discriminatory on any ground.[21]
11. States’ obligations to eliminate substantive discrimination[22]includes an obligation to ensure that everyone has equal access to quality inclusive education on an equal basis with others in the communities in which they live,[23]without any discrimination on any ground.[24]It also includes an obligation to ensure reasonable accommodation of individuals’ requirements in education institutions.
12. States must organise their education system so as to prevent discrimination and ensure substantive equality.[25]When discrimination, including through segregation, exists de jureor de facto in violation of international human rights law, the State must immediately, whether or not such discrimination has been directly caused by a public authority,[26]put in place all necessary measures in education and other areas[27]to eliminate it as rapidly as possible.[28]
13. States may be, and in some cases are, under an obligation to adopt special measures[29]to attenuate or supress conditions that perpetuate discrimination in the enjoyment of the right to education. Such measures must be reasonable, objective and proportional means to redress de facto discrimination and be discontinued when substantive equality has been sustainably achieved, and they may exceptionally need to be of a permanent nature.[30]
3. General content and obligations of the right to education
14. Everyone has the right to available, accessible, acceptable, and adaptable education at all levels including pre-primary, primary, secondary, fundamental and higher education, as well as within technical and vocational education and training and lifelong learning.[31]This includes a right to free[32]quality education on the basis of non-discrimination and equality.
15. International human rights law recognises the liberty of parents or legal guardians to choose for their children an educational institution other than a public educational institution, and the liberty of individuals to establish private educational institutions. These liberties are subject to the conditions that these educational institutions conform to national standards that are in line with international human rights law, and that the exercise of this liberty does not undermine any other dimension of the right to education.[33]
16. States must respect, protect and fulfil[34]the right of everyone within their jurisdiction[35]to education on the basis of non-discrimination and equality. This imposes both negative and positive, as well as immediate and progressive obligations on States.[36]
17. These obligations lie with the State, which cannot be absolved from or transfer this obligation under any circumstance.
18. States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of the right to education including the most basic forms of education,[37]which they must prioritise. These include at least the realisation of free primary education[38]and free secondary education, including nine years of compulsory education.[39]In order for a State to be able to attribute its failure to meet at least its core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those core obligations.[40]
19. States must guarantee the delivery of education as a public service, whether it is delivered by public or private actors.[41]
20. States should respect the principles of participation, transparency, non-discrimination, accountability, empowerment, human dignity, and the rule of law, in the delivery and the decision-making process relating to education.
21. States must devise and adopt a national education strategy for the enjoyment of the right to education at all levels. This obligation is of immediate effect. As a minimum the national education strategy should include targets and benchmarks, identify those responsible for implementation, a time-frame for their achievement, be fully-costed and funded.[42]It should be developed in a transparent and participatory manner, with active participation inter aliaall sections of civil society[43]and children. It should be based on a diagnosis of the existing situation and must give special priority to identify the level of enjoyment of the right to education by vulnerable, marginalised and disadvantagedgroups within society.
4. Obligation of States to provide quality public education
a. Obligation to provide public education
22. States have an obligation in most circumstances to directly provide free public education of appropriate level and of adequate quality to everyone under their jurisdiction, to the maximum of their available resources.[44]
23. The provision of free quality public primary and secondary education for all, that is compulsory at for least nine years, and the adoption and implementation of a national education strategy to provide pre-primary, primary, secondary, higher and fundamental education as effectively and expeditiously as possible, are core obligations of States.[45]
24. States must ensure that public education is of adequate quality in accordance with the right to education. This requires inter aliathat State provide quality teacher training, adequate curriculum and pedagogical material, and a safe infrastructure and environment, and put in place a participatory school governance system, that are in line with the right to education standards and principles.
25. States must, as effectively and expeditiously as possible, within their maximum available ressources, put in place measures in areas that are determinant for the enjoyment of the right to education to realise the right to education without discrimination and, where applicable, to address segregation in education. This requires States to take measures to address matters which indirectly affect individuals' ability to enjoy the right to education,[46]which may include: adequate housing policies to reduce segregation; appropriate public transportation systems to provide access to educational institutions; appropriate childcare services; access to menstrual hygiene; prohibitions on child labour; prohibitions on child marriage; protection of labour rights; and measures to ensure the individual’s highest attainable standard of physical and mental health and access to adequate food.
b. Maximum available ressources for public education
26. States must allocate the maximum of their available resources to fund free quality public education.[47]
27. Available resources include existing resources and additional resources that may be raised for instance through fair progressive taxation and other domestic income-generating mechanisms; reallocation of public expenditures; elimination of illicit financial flows and tax evasion and avoidance;[48]using fiscal and foreign exchange reserves; managing debt by borrowing or restructuring existing debt and adopting a more accommodative macroeconomic framework; and international co-operation.[49]
28. States’ national education strategy[50]must include time-bound, robust, fully-costed and funded, and realistic plans and budgets that allocate ressources so as to fulfil as effectively and expeditiously as possible their progressive obligation to deliver free quality public education, with a priority given to the lower levels of education and progressively moving to the higher levels.[51]
c. Capacity limitations and non-retrogression
Capacity limitation
29. Lack of will is distinct from a lack of capacity and the former cannot justify a State’s failure to provide free quality public educationaccording to its obligations under human rights law.
30. States must take all appropriate measures to ensure good governance, transparency, absence of corruption, and accountability in the public education system, that may prevent or limit the realisation of the right to education. This is an immediate obligation, and the failure or unwillingness to do so cannot justify the growth of private educational operators in violation of international human rights law.
31. In order for a State party to be able to attribute its failure to provide free quality public education according to its core obligations or the benchmarks it set, to a lack of available resources, it must:
a. demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those obligations and/or benchmarks;[52]
b. publicly and regularly reassess its incapacity in light of all existing and potential available ressources, including international co-operation,[53]and specify what the gaps are;
c. continue to dedicate the maximum of its available resources to the right to education, and, in line with its national plan, as effectively and expeditiously as possible progressively increase these resources; and,
d. provide within its national education strategy[54]a timeline for how it will address the capacity gap in the shortest possible time and provide free quality public education according to its core obligations or the benchmarks it set.
Non-retrogression in public education
32. States must never reduce the budget allocated to public education, which constitutes a retrogressive measure prohibited under international human rights law, unless on a temporary basis in exceptional circumstances they can publicly demonstrate that the reduction has been introduced after the most careful consideration of all alternatives and that is fully justified by reference to the totality of its human rights obligations and in the context of the full use of the State’s maximum available resources.[55]To be permissible in terms of international human rights law, any retrogression in terms of the right to education should:
a. be temporary by nature and in effect and limited to the duration of the crisis causing the situation of fiscal constraint;[56]
b. be necessary and proportionate,[57]comprehensively examine alternative measures,[58]and demonstrate that any other policy, or a failure to act, would be more detrimental to economic, social and cultural rights;
e. accord particular attention to the rights of vulnerable, marginalised or disadvantaged individuals and groups and ensure that they are not disproportionately affected;[61]
f. identify the core content of the right to education and other affected economic and social rights and ensure the protection of this core content;[62]
g. involve genuine participation of affected groups in examining the proposed measures and alternatives;[63]and
33. In a situation of limited resources, States must prioritise the protection of public education when considering how to address budgetary or programme constraints.
d. Assessment and monitoring of public education systems
34. States must regulate their own activities and put in place all necessary mechanisms to monitor implementation and decision-making related to education and provide appropriate remedies where the right to education has not been complied with.
5. Obligations to respect, protect and fulfil the right to education in the context of private involvement of non-state actors
a. Scope of the liberties in education
35. Inasmuch as States have an international obligation to respect the liberty[65]of individuals[66]to choose and the liberty of individuals and bodies to establish educational institutions other than those established by the public authorities, such liberty is without prejudice to the effective implementation of the right of everyone to free quality public education.
36. Private quality education may supplement and provide an alternative to public free quality education but shall not supplant or replace it.
37. 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, does not constitute discrimination in accordance with international human rights law.[67]
b. Scope of State responsibility
38. Where private provision of education has historically filled in for insufficient public provision of free quality education, States must take all measures to develop or restore access to free quality public provision of education as effectively and expeditiously as possible while phasing out those private educational operators that may be below the minimum standards set by the State.[68]
39. The involvement of private educational operators[69]in education does not in any way absolve the State from its obligations to ensure the fulfilment of the right to education or reduce the scope of such obligation.
c. Obligation to regulate non-state actors
40. States must use all appropriate means,[70]including, particularly, the adoption of regulatory measures,[71]to prevent the infringement of the right to education in the context of the involvement of private actors in education,[72]including when private educational operators conduct their activities without State involvement or control, or when they operate informally or illegally.[73]This requires States to both address the systemic impacts of private educational operators on the enjoyment of the right to education and to guarantee that education delivered in all private educational institutions is consistent with all the obligations imposed by the international standards of the right to education.[74]
Systemic impact
a. leads to disparities of educational opportunity for some groups in society which interfere with the right to non-discrimination and equality;[75]
b. nullifies or impairs or creates a risk of nullifying or impairing the capacity of the State to provide free quality education for all;
c. leads to the commercialisation[76]of education,[77]including through misguiding or otherwise inappropriate advertising and marketing practices;[78]
d. undermines the aims of education guaranteed under international human rights law[79]and the nature of education as a public service;
e. undermines transparency, public accountability, or public participation by the concerned stakeholders, in education; or
Regulations
42. States have the exclusive responsibility for regulating private educational operators to prevent the infringement of the right to education in the context of the involvement of private actors in education.
43. States must maintain their exclusive regulatory role by putting in place strict and effective regulations on private educational operators imposing on them public service obligations.[81]Such regulations must include, at a minimum, regulations regarding transparency and minimum standards.
Transparency
a. no private educational operator or organised group of private educational operators is in a position to unduly influence the education system, including where necessary by capping the number of private educational operators; and
b. there is no conflict of interest between a private educational operator and the public system of education.[82]
Minimum standards
45. States must put in place effective regulations regarding to guarantee minimum standards applicable to private educational operators, in accordance with international human rights obligations regarding the right to education. These standards must be designed and adopted through a participatory process involving all stakeholders including the learners, parents, communities, teaching staff and education unions, and other civil society organisations. Such standards must address specifically, at a minimum:[83]
a. The governance and accountability of private educational operators, concerning at a minimum:
i. The registration and licencing;
ii. The involvement of parents, children, teachers, and relevant stakeholders;
iii. The conditions of enrolment, admission and learning ensuring that they are not de jure or de facto discriminatory, in particular for vulnerable, marginalised or disadvantaged groups;
iv. The standards applicable to of the management of education resources;
v. Where necessary to the protection of human rights, the level of fees and other relevant charges;
vi. Transparency of and access to essential information about the operators, including all potential charges, the use of education resources, the curriculum and pedagogical practices, the conditions of enrolment, and other policies of the operators; and
vii. The conditions of and transparency in the delivery of diplomas for the applicable levels.
b. The minimum qualification,[84]salary, training, labour conditions, union rights, labour rights, and status of teachers and other staff, which must conform to international standards and offer at least the same level of protection as that offered in public educational institutions;[85]
c. The curriculum to be used and, with due regards to academic freedom and institutional autonomy,[86]the pedagogical practices, in particular in order to ensure that appropriate time and expertise be allocated within the curriculum for children to learn, participate in and generate cultural, physical, and artistic activities[87]and that no pressure for educational achievement or emphasis on formal academic success undermine the right of the child to rest, leisure, play, recreational activities, cultural life and the arts;[88]
d. The limitations to the possibility of suspension and expulsion of the learners;
e. Standards for infrastructure, including sanitary facilities, and learning materials, including textbooks and teaching aids;
f. Minimum requirements regarding disability access, health, safety and hygiene;
g. Access to information and transparency;
h. The physical and mental safety of learners, including protection from abuse, sexual harassment and bullying;
i. Discipline and the prohibition of corporal punishment;[89]
j. Privacy and data collection, ensuring that no private data be used for commercial purposes;
k. The maximum acceptable teacher/learner ratio;
l. Special status of private educational institutions established or run by constitutionally protected groups, such as religious or linguistic minorities.
d. Assessment and monitoring of private actors
46. States must regularly assess the impact of the existence of private educational operators on the enjoyment of the right to education.[90]
47. Amongst other things, such assessment should:
a. measure the systemic effect of the private educational operators in the short and long term, assessing actual and potential impact on the right to education;
b. cover adverse human rights impacts that the private educational operators may cause or contribute to through their own activities, which may be directly or indirectly linked to its operations or services;
c. be ongoing, recognising that the risks to the right to education may change over time as the private educational operators’ activities and operating context evolve;
d. be participatory and involve affected stakeholders; and
e. be publicly available
48. The findings of this assessment should inform the policies and regulations put in place by the State in order to guarantee that the right to education is not undermined by the existence of private educational operators. The State should track and communicate how impacts are addressed.
49. States must establish, maintain, and adequately resource effective monitoring mechanisms to ensure compliance with educational regulations.
50. Where private educational operators do not respect State regulations,[91]States must take all necessary steps to remedy this situation, in the shortest possible time. Such steps may include liquidation of the educational institution after ensuring that all affected learners have access to an acceptable[92]alternative educational institution.
51. States must ensure the availability of prompt, accessible, effective,[93]and independent grievance and redress mechanisms, including where necessary, judicial remedies, allowing any rights-holder or, where possible, public interest groups to seek remedies for the failure of a private educational operator to comply with the applicable State regulations.
e. Financing
52. There is no obligation in human rights law for the State to fund private educational operators.[94]
Schools that cannot be funded
53. States must not fund or support,[95]directly or indirectly including through tax deductions, land concessions and other forms of indirect support, any private educational operator whose activities are incompatiblewith the State’s legal obligations to ensure the enjoyment by everyone of the right to education. This includes funding private educational operators that:
a. Discriminate, including by being selective, expelling or sorting learners, whether directly or indirectly, on the basis of the economic status of the learner, family, or community, or on the basis of any another any ground prohibited under international human rights law that leads to a violation of the right to equality and non- discrimination; or
c. Are not subject to democratic control by the populations that they serve; or
d. Are not of adequate quality; or
e. Are inadequately regulated or accredited as defined under these Guiding Principles; or
Conditions for exceptional funding
Substantial requirements
a. It is a time-bound, temporary measure to address an incapacity of the State to immediately fulfil its obligation to directly provide free quality public education, and it seeks to:
i. realise the rights[98]of a particular group of population, including in particular minorities, indigenous peoples, and vulnerable, marginalised or disadvantaged groups, that cannot immediately be catered for satisfactorily in public educational institutions; or
ii. integrate[99]within the public education system private educational operators that have previously operated separately; or
iii. respond to the demand for or pilot a diversity of pedagogical approaches and content that can be demonstrated not to be rapidly achievable in public educational institutions.
b. It is the most effective and expeditious allocation of ressources to realise the right to education, paying particular attention to obligations related to non-discrimination, equality and non-segregation;[100]and
c. It does not risk impairing or delaying the fastest possible development of a quality public education system in accordance with States’ obligations to give effect to the right to education to the maximum of their available resources; and
d. It does not constitute a retrogressive measure as defined under international human rights law, including by lowering the funding or standards in the public education system;
e. It does not constitute or contribute to the marketisation or commercialisation of the education system;[101]
f. It is set up in a way that it is possible in practice to reverse it or to transfer the role of the private educational operators to public authorities; and
g. It does not create a real risk of nullifying or impairing the discharge by the State of any other its human rights obligations,[102]particularly the obligation to prevent direct and indirect discrimination or segregation on the basis of economic status.[103]
Procedural requirements
a. The State has followed a participatory, inclusive, transparent, and accountable consultation process involving all potentially affected rights-holders,
b. The State has publicly demonstrated, that such public funding meets all of the substantial, procedural and other requirements for funding of private educational operators listed in the present Guiding Principles;
c. There is in place an adequate regulatory framework addressing the specificities of the situation; and
d. The State has assessed and publicly demonstrated its capacity to continuously monitor and regulate the private educational operator’s ability to meet the applicable standards.
Other requirements
57. Should any private educational operator receive public funding, the regulations applying to these private educational operators must impose at least the same level of requirements as of public educational institutions, including the effective protection of labour and union rights.
58. States should never fund private educational operators in such way that these operators constitute an undue influence on the education system or make up such a substantial part of an education system that it risks undermining any of the Guiding Principles herein.[104]
59. Should a State fund a private educational operator for the reasons of deficiency of its public education system listed above, it must make all possible efforts to overcome as expeditiously as possible the State inability to deliver or manage an aspect of education services that justified this funding. The State must ensure that the arrangement reinforces and is regularly re-assessed against State capacities, and that it includes from its inception a plan to be phased out when the State incapacity that justified this arrangement is addressed and the State is effectively able to manage the educational institution.
61. States must consider, when assessing the effectiveness and expeditiousness of a potential funding to a private educational operator,[105]the cost of the human rights impact assessment, of the regulation efforts, and of other requirements.
62. States must ensure that all private educational operators receiving public funding make all proprietary data and material that can help to improve the education system, including technology used in the classroom and management systems, available without a licence to the relevant public authorities, while preserving the learners’ privacy and with respect to copyright law.[106]
6. Extraterritorial obligations of States
63. States must respect, protect and fulfil the right to education, including the obligations reflected in the present Guiding Principles, within and beyond their borders, in accordance with their extraterritorial obligations.[107]This includes in particular complying with the principles highlighted here, with due consideration of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights.
64. Stateshave the obligation torefrain from conduct which nullifies or impairs the enjoyment and exercise of the right to education of persons outside their territories.
65. States must also refrain from any conduct which impairs the ability of another State or international organisation to comply with that State’s or that international organisation’s obligations as regards the right to education; or aids, assists, directs, controls or coerces another State or international organisation to breach that State’s or that international organisation’s obligations as regards the right to education.
66. States, separately or jointly, must refrain in all circumstances from embargoes and equivalent measures impairing the realisation of free quality public education.[108]
67. States must take all the necessary measures to ensure that non-State actors which they are in a position to regulate and/or influence, such as private educational operators, do not nullify or impair the enjoyment of the right to education of people independently of where they live.[109]Measures may include administrative, legislative, investigative, adjudicatory or any other measures.[110]
68. States, and other actors in a position to assist, must provide international assistance and cooperation, especially economic and technical to contribute to the fulfilment of the right to education in other States.[111]This international assistance and cooperation must be provided in a manner that is consistent with their human rights obligations, including those reflected in the present Guiding Principles.
69. International assistance and cooperation must prioritise the realisation of the right to education of vulnerable, marginalised and disadvantaged groups[112]and their core obligations, including by prioritising free and compulsory quality primary and secondary education for all and moving as expeditiously as possible towards free quality education in public educational institutions at other levels. It should also aim to strengthen the regulation of private educational operators in accordance with States’ human rights obligations.
70. International assistance and cooperation must always reinforce the building of quality public education systems, in consultation with the concerned rights-holders and in partnership with the recipient country. Every effort should be made at each phase of a development project to ensure that human rights are respected, protected, and fulfilled.
71. If the development of private educational operators in a recipient country has a negative impact on the equal enjoyment of the right to education, international assistance and cooperation must take all measures to remedy the situation, including to develop or restore access to free quality public provision of education as effectively and expeditiously as possible in the recipient State, while supporting that State to phase out those private educational operators that may be below the minimum standards set by the State.[113]
72. States must refrain from supporting, directly or indirectly, private educational operators in a manner that is inconsistent with their human rights obligations.
International organisations
73. States that transfer their competences to, or participates in, an international organisation such as the World Bank, the Global Partnership for Education, or regional development banks, must take all reasonable steps to ensure that the relevant organisation behave consistently with the international human rights obligations of that State. Such steps include:
a. closely monitoring the conduct of the international organisations, including the policies, omissions, and other acts, to ensure that it does not harm the right to education, in accordance with the present Guiding Principles;
b. refraining from imposing, and where necessary taking steps to avoid, policies that would nullify or impair the capacity of a recipient State to meet its human rights obligations, including those reflected in the present Guiding Principles. These may include the imposition of privatisation, deregulation policies, or the limitation of the capacities of a recipient State to provide education;[114]
74. promoting policies within these organisations that meet States’ obligations to respect, and fulfil the right to education, including the obligations reflected in the present Guiding Principles such as the obligation to develop a system of free quality public education.
75. International organisations must meet their obligations related to the right to education under, inter alia, general international law and international agreements to which they are parties. They should also ensure that their conduct is aligned with the present Guiding Principles.
Retrogressive measures
76. International assistance and cooperation by States, and where applicable, by international organisations, must avoid any deliberate retrogression in the enjoyment of free quality public education in the recipient country. This includes retrogression due to fiscal adjustment policies or other measures related to their extraterritorial conducts.[115]
77. If States or international organisations have previously taken or encouraged such illegal retrogressive measures through international assistance and cooperation, such as the imposition made to a recipient State to introduce fees or defunding of public education, and these measures, even if they have stopped,[116]still have a negative impact on the enjoyment of the right to education, States or international organisations should seek to remedy this situation in the shortest possible time.
7. Accountability for the realisation of the right to education
78. State must be held accountable[117]for their obligations related to the right to education including when the involvement of private actors in education has led to violations of this right. Accountability can be pursued through various means that include, litigation, parliamentary committees, national human rights institutions and regional and international human rights mechanisms.
Right to an effective remedy
79. States must guarantee the enjoyment of the right to an effective remedy for violations of the right to education.[118]This also applies in cases in which there is a violation of the right to education due to the conduct of a private educational actor.
80. To be effective, a remedy must provide alleged victims the prompt access to an independent and impartial competent authority, including, where necessary, recourse to a judicial authority. The right to effective remedy must guarantee the cessation of the violation if it is ongoing, as well as the guarantee of adequate reparation, including, as necessary, restitution, compensation, satisfaction, rehabilitation and guarantee of non-repetition.[119]
Human rights monitoring
81. States must regularly monitor compliance with the right to education and ensure all public policies and practices related to this right comply with human rights principles such as those of participation, transparency, access to information and non-discrimination. This monitoring shall be based on human rights standards, including the State legal obligations reflected in the current Guiding Principles.
82. The results of such monitoring must be made public and shall lead to the necessary improvements in law, policies and practices if gaps in human rights compliance have been identified.
8. Implementation and monitoring of the Guiding Principles
83. States have an obligation to uphold the binding norms that are in the present Guiding Principles. States should guarantee the effective implementation of all the present Guiding Principles by all appropriate means, including where necessary by adopting and enforcing the required laws and constitutional changes and by dedicating the necessary human, technical and financial resources. They should in particular apply these Guiding Principles to all their relevant laws, policies and practices, including the design and implementation of national and global educational and development plans.
84. States should monitor and put in place adequate accountability mechanisms for the implementation of these Guiding Principles as part of their efforts to respect, protect and fulfil the right to education.
85. States should disseminate the Guiding Principles to all relevant authorities, and in particular educational institutions, in the most effective language and format to facilitate implementation.
86. States should ensure policycoherence, in particular ensure that all public departments, agencies and other State-based institutions that have a role in education policies are aware of and observe the State’s human rights obligations and these Guiding Principles when fulfilling their respective mandates.
87. States should recognise and promote the fundamental role that National Human Rights Institutions, acting in conformity with the United Nations Principles relating to the Status of National Institutions,[120]and civil society actors have in monitoring the implementation of these Guiding Principles by the relevant State authorities.
88. Irrespective of the human rights obligations they may be subject to under human rights law, specialised agencies of the United Nations system, regional organisations and development partners are encouraged to support efforts by States to implement the Guiding Principles. Such support may include technical cooperation, financial assistance, institutional capacity development, knowledge sharing.
[1]This is a working title that is likely to change.
[2]CRC art 29(2)- requires minimum standards to be set by the state for private schools. ICESCR Art 13(3) – requires conformity with minimum standards. Most recently, paragraph 5 Human Rights Council resolution on ‘The right to education: follow up to the Human Rights Council Resolution 8/4, A/HRC/38/L.13 (03/07/2018). The resolution urges all States to ‘put in place a regulatory framework to ensure the regulation of all education providers, including those operating independently or in partnership with States, guided by international human rights law and principles, that addresses any negative impact of the commercialization of education’.
[3]These Guiding Principles apply to all contexts, including emergency contexts. They need to be interpreted in the light of local realities where they apply, in line with international human rights law. The term State refers in these Guiding Principles to all such public authorities.
[4]Maastricht Principles on Extraterritorial Obligations (ETO Principles), Principle 43.
[5]Guiding Principles on Extreme Poverty and Human Rights, principle 108.
[6]This section restates basic international legal principles.
[7]Universal Declaration of Human Rights, art. 1 and 2. ETO Principles, art. 1.
[8]ETO Principles, art. 5.
[9]CESCR General Comment 13, para. 1.
[10]ICCPR, art. 18.
[11]CESCR General Comment 13, para. 30; ICCPR, art. 25.
[12]From the concept of “proyecto de vida”, in the jurisprudence of the Inter-American Court of human rights. See e.g. IACrtHR, Loayza Tamayo Case. Reparations. Judgment of November 27, 1998. Series C No. 42, paras. 147-148: “The so-called “life plan,” deals with the full self-actualisation of the person concerned and takes account of her calling in life, her particular circumstances, her potentialities, and her ambitions, thus permitting her to set for herself, in a reasonable manner, specific goals, and to attain those goals. The concept of a “life plan” is akin to the concept of personal fulfillment, which in turn is based on the options that an individual may have for leading his life and achieving the goal that he sets for himself. Strictly speaking, those options are the manifestation and guarantee of freedom. An individual can hardly be described as truly free if he does not have options to pursue in life and to carry that life to its natural conclusion. Those options, in themselves, have an important existential value. Hence, their elimination or curtailment objectively abridges freedom and constitutes the loss of a valuable asset”. Specifically for children, see also IACrtHR, 26 May 2001, Reparations and Costs, Villagran Morales et al. v. Guatemala, Series C No 77, para. 89.
[13]CESCR General Comment 13, para. 1.
[15]UNESCO Convention against Discrimination in Education; ICESCR, art. 2; CESCR General Comment 20, para. 8.
[16]CESCR General Comment 20, para. 40.
[17]CESCR General Comment 20, para. 30.
[18]This refers to segregation that results in discriminatory learning opportunities, where some people or groups have less opportunities than others due to the segregation.
[19]See CESCR General Comment 24; concluding observations Chile.
[20]UNESCO Convention on Discrimination in Education, art. 2.
[21]UNESCO Convention against Discrimination in Education; ICESCR, art. 2.2; ICCPR, art. 2.1; CRC, art. 2.
[22]CESCR General Comment 20, para. 8.
[23]CESCR General Comment 20, para.35.
[24]Universal Declaration of Human Rights, art. 2.
[25]CESCR GC 20.
[26]This means that even segregation that has grown sui generis, and is not the product, directly or indirectly of States’ actions or inactions, or segregation that is not intended by the State, must be redressed. For the relationship with discrimination, see CESCR General Comment 20, especially paras. 8, 10, 12, and 39.
[27]Such as measures to address housing segregation, to improve public transportation, etc.
[28]See e.g. CESCR Concluding observations: Chile, E/C.12/CHL/CO/4, para. 30, 19 June 2015, http://bit.ly/1RWOPkD, para. 30; CRC, Concluding observations: Chile, CRC/C/CHL/CO/4-5, paras. 67 – 68 and 69 – 70, 15 October 2015, http://bit.ly/1XRUqg8, paras. 67-69; CESCR, Concluding observations: Kenya, E/C.12/KEN/CO/2-5, paras. 57-58, 4 March 2016, http://bit.ly/1pbiMFP, paras. 57-58.
[29]Temporary measures to realise the equal enjoyment of the right to education and the best interest of the child so as to redress previous systemic discrimination is generally not discriminatory: CESCR General Comment 20, para. 9. See also CESCR General Comment, para. 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.”
[30]CESCR General Comment 20, para. 9.
[31]CESCR General Comment 13, para. 6. This includes the right to quality education.
[32]The nature of “free” education implies a “unequivocal” requirement to make education free of charge, which include “indirect costs, such as compulsory levies on parents (sometimes
portrayed as being voluntary, when in fact they are not), or the obligation to wear a relatively expensive school uniform”: CESCR General Comment 11, para. 7.
[33]Other dimensions are the rest of the content of the right to education, including as detailed for instance in these Guiding Principles, in particular section Error! Reference source not found..
[36]CESCR General Comment 3, para. 1.
[37]CESCR, General Comment 3, para. 10.
[38]CESCR General Comment 13, para. 51; Demanda de inconstitucionalidad contra el artículo 183 de la Ley 115 de 1994 “Por la cual se expide la ley general de educación”; Sentencia C-376/10; expediente D-7933, para. 8.2.2.
[39]International human rights law requires achieving compulsory free education at the primary level, and progressively free at the secondary level and for higher education (ICESCR art 13.2, CRC art. 28.1). In the more recent Education 2030 Framework for Action, 184 States committed to “Ensure access to and completion of quality education for all children and youth to at least 12 years of free, publicly funded, inclusive and equitable quality primary and secondary education, of which at least nine years are compulsory” http://unesdoc.unesco.org/images/0024/002456/245656E.pdf. Early Childhood Care and Education (ECCE) is also increasingly considered as being part of the right to education (Moscow Declaration, 2010, http://unesdoc.unesco.org/images/0018/001898/189882e.pdf, para. 6). Adult education and life-long learning are part of fundamental education (CESCR, General Comment 13, para.24) guaranteed under the right to education (ICESCR, art. 13-2-d). It may thus be interpreted that right to free compulsory education extends to ECCE and adult (see e.g. recommendations for partly free higher education: Belém Framework for Action, 2009, http://unesdoc.unesco.org/images/0018/001877/187790e.pdf; UNESCO recommendation on adult learning and education, http://unesdoc.unesco.org/images/0024/002451/245179e.pdf, para. 20 on literacy).
[40]CESCR General Comment 3, para. 10. See also CESCR General Comment 13, para. 57, CESCR GC 3, para. 10. The CESCR has made a non-exhaustive list of core obligations with respect to the right to education, as follows: “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)).”
[41]CESCR General Comment 24, paras. 20-21.
[42]Vienna Declaration and Programme of Action.
[43]CESCR General Comment 11, para. 8.
[44]CESCR General Comment 13, paras. 48, 52; CESCR General Comment 24, para. 23.
[45]CESCR General Comment 13, para. 57.
[46]In line with the indivisibility of human rights.
[47]From ICESCR art. 2.1, CRC art. 4. See 2030 benchmarks in SDGs and other documents. See CESCR General Comment 3, para. 9; CESCR General Comment 13, para. 44.
[48]CESCR, General Comment 24, para. 23.
[49]Or other mechanisms such as corporate social responsibility funds (South Africa) or dedicated sectoral tax (on oil revenues, Brazil). See e.g. The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals, and Economic and Fiscal Policies:https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=71b4b9cc-92b6-4da4-a8cd-aec64b4ffef6;
Fiscal Space for Social Protection and the SDGs: Options to Expand Social Investments in 187 Countries
[51]See ICESCR art. 14 and art. 2.1; CESCR General Comment 13, para. 51; CESCR General Comment 11.
[52]CESCR General Comment 3, para. 10.
[55]CESCR, General Comment 13, para. 45; CESCR, General Comment 3, para. 9. These measures may exceptionally be justified in case of an unforeseen large-scale event, such as a natural catastrophe, where international aid is unable to address the increased need, and where it is a temporary short-term response.
[56]CESCR, ‘Letter to States Parties’.
[57]Ibid. See also CESCR, ‘An evaluation’, para 8(d).
[58]CESCR ‘General Comment No 19’, para 42.
[59]Ibid.
[60]Ibid; CESCR, ‘Letter to States Parties’. See also CESCR, ‘An evaluation’, para 10(f).
[61]CESCR, ‘Letter to States Parties’.
[62]Ibid; CESCR ‘General Comment No 19’, para 42. See also CESCR, ‘An evaluation’, para 10(b). See also ibid. para 10(f).
[63]CESCR ‘General Comment No 19’, para 42. See also CESCR, ‘An evaluation’, para 11.
[65]Right, freedom or liberty? Freedomusually means to be free from something, whereas Libertyusually means to be free to do something (http://eyler.freeservers.com/JeffPers/jefpco26.htm). This paragraph reproduces ICESCR articles 13.3 and 13.4 and CRC article 29.2 that both use ‘liberty’ rather than right or freedom. This also takes into account that the drafters of the ICESCR were reluctant to use the word ‘right’ assuming the latter might imply an obligation for States to grant material assistance to private schools. A/3764 5 Dec 1957 (Draft International Covenants on Human Rights of the Third Committee, http://hr-travaux.law.virginia.edu/document/iccpr/a3764/nid-112).
[66]This may include parents, legal guardian, children, or adults, according to the situation.
[67]UNESCO Convention against Discrimination in Education, Article 2(c)
[68]This Guiding Principle does not imply in any circumstance that private educational operators that are operating below the minimum standards may be acceptable or legal. It seeks to provide guidance to address a situation that may arise in practice within the human rights framework.
[69]Private educational operators in this text are understood to include all private educational operators involved in the delivery of education services, including private schools and home-schooling, where allowed by domestic legislation.
[70]This includes administrative, educational, as well as other appropriate measures, to ensure effective protection against violations of the right to education linked to private actors in education; and that theyprovide victims of such abuses with access to effective remedies
[71]Including administrative measures such as policies, decrees, regulations, etc.
[72]CESCR General Comment 13, para. 47; CESCR General Comment 24, para. 14.
[73]This does not imply in any way that private educational operators can or should operate illegally, or should operate with or without State involvement, but it recognises that in the case where illegal educational operators existed, that this failure may fall within the scope of the State responsibility.
[74]ICESCR, art. 2.1. See also CESCR General Comment 13, para. 13.
[75]CESCR General Comment 13, para. 30 and 31.
[76]See CRC, Concluding observations: Haiti, CRC/C/HTI/CO/2-3, 29 January 2016,
http://bit.ly/1TIaPTM, para 59(f); CRC, Concluding observations: Brazil, CRC/C/OPAC/BRA/CO/1, paras. 75-76, 28 October 2015, http://bit.ly/2lV3jcb; CRC General Comment 16, para. 59; CRC General Comment 17, paras. 36, 47reports of the UN Special Rapporteur on the right to education, Kishore Singh (2014, 2015); Report of the Special Rapporteur in the field of cultural rights, A/69/286 (2014).
[77]Including, but not limited to, the formal education system.
[78]Report of the Special Rapporteur in the field of cultural rights, A/69/286 (2014), paras. 63, 64. This for instance apply in the case of institutions attracting the best learners.
[79]These are: the development of the child's personality, talents and mental and physical abilities to their fullest potential; the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; the development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; and the development of respect for the natural environment. From CRC art. 29. See also CRC art. 31, CRC General Comment 17, para. 27,
[80]CESCR General Comment 13, para. 45.
[81]CESCR General Comment 24, para. 21. The scope and origin of “public services” will be defined in the commentary.
[82]CESCR General Comment 24, para. 20; CRC General Comment 16, para. B(b).
[83]These standards shall set the highest possible minimum quality standards within the context of the State.
[85]ICESCR, art. 7 protects the right of everyone to the enjoyment of just and favourable conditions of work. ICESCR, art. 8 protects the right of everyone to form trade unions and join the trade union of her/is choice, the right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations, the right of trade unions to function freely, and the right to strike. ILO conventions are also applicable and include the right to unionise, the right to strike, and the right to collective bargaining.
[86]CESCR 13, General Comment 13, paras. 38-40.
[87]CRC, art. 31; CRC General Comment 17, para. 57(g).
[88]CRC, art. 31; CRC General Comment 17, paras. 41.
[89]CESCR General Comment 13, para. 41; CRC General Comment 1, para. 8. See also references in https://www.coe.int/en/web/children/corporal-punishment#{%2212441097%22:[1]}.
[90]Including against the criteria laid out in these Guiding Principles.
[92]As defined under CESCR General Comment 13.
[93]As defined under international human rights law. This implies among other things that rights-holders must be informed and where necessary assisted for the use of these mechanisms.
[94]CESCR General Comment 13, para. 54, in conjunction with para. 48. Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v Belgium’ (European Court of Human Rights, Application no 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64).
[95]This does not apply to the procurement of materials that is strictly ancillary.
[96]CESCR General Comment 24, para. 22, read in conjunction with the obligation to use the maximum available resources. See also CRC, Concluding observations: United Kingdom, CRC/C/GBR/CO/5, 3 June 2016, http://bit.ly/1OeyD1M, paras. 16-17; CRC, Concluding observations: Brazil, CRC/C/OPAC/BRA/CO/1, paras. 75-76, 28 October 2015, http://bit.ly/2lV3jcb; CESCR
Concluding observations, E/C.12/CHL/CO/4, para. 30, 19 June 2015, http://bit.ly/1RWOPkD, para. 30; CRC, Concluding observations, CRC/C/CHL/CO/4-5, paras. 67 – 68 and 69 – 70, 15 October 2015, http://bit.ly/1XRUqg8, paras. 67-69.
[97]This includes educational operators that would indoctrinate, for instance on religious grounds. See Human Rights Committee, General Comment 22, para. 6. Human rights includes all rights protected under human rights law and interpreted in instruments such as these Guiding Principles.
[98]Including in particular cultural rights.
[99]In order e.g. to improve the monitoring and supervision of schools and reinforce the public education system.
[100]This Guiding Principle is a requirement that needs to be met and demonstrated by States. It does not imply that public funding to private actors should or may be the most equitable means to advance the right to education.
[102]Including by meeting the totality of these Guiding Principles.
[103]CESCR General Comment 13, para. 54. See Supreme Court of Mauritius in the case of Tengur v. The Minister of Education and Another. Quoted by Saul, Kinley and Mowbray in: The International Covenant on Economic, Social and Cultural Rights. P. 1159.
[104]This is a logical consequence of Guiding Principle 44-b. The logical consequence of this is that in most cases, a cap should be set in accordance with the context.
[105]In accordance with States’ obligations to allocate their maximum available ressources for the realisation of the right to education, as under the section 4.b, and the Guiding Principle 55.b.
[106]Special Rapporteur in the field of cultural rights, Farida Shaheed, UN A/HRC/28/57 2014), paras. 64, 65, 72, 84, 88.
[107]See Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (ETO MaastrichtPrinciples):http://bit.ly/ETOPples
[109]ETO Maastricht Principles, 25-26
[110]Ref to GC 16 CRC, GC 24 CESCR and ETO Maastricht Principles.
[111]See e.g. CESCR General Comment 13, para 56.
[112]Donor States must ensure they prioritise the realisation of the right to education of vulnerable, marginalised and disadvantaged groups: CESR, General Comment 13, para. 57.
[114]ETO Maastricht Principles, Principles 24-25.
[115]ETO Maastricht Principles, 15 – 16.
[116]In application of the concept of “continuing violation”.
[117]See e.g. C.Golay, No one will be left behind, Geneva Academy of International Humanitarian Law and Human Rights, Academy Briefing No.11, January 2018, p.11 : “Human rights principles include the principles of participation, accountability, non-discrimination, transparency, human dignity, empowerment, the rule of law and solidarity (PANTHERS). Following the UN Common Understanding, these human rights principles should be used as a guide in all phases of the programming process, from assessment and analysis to law, policy and programme design and planning (including the setting of goals), implementation, monitoring and evaluation.
[118]See for instance, article 8 UDHR. As for any other human rights, and in fulfilment of a general principle of law.
[119]See e.g. UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
[120]Paris Principles.
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