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Towards human rights
norms and standards to
assess privatisation in
education
SYLVAIN AUBRY
GLOBAL INITIATIVE FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS
The privatisation and human rights
project
Country
E
Involvement of private actors as providers of education acceptable
Involvement of private actors as providers of education not acceptable
Country
B
Country
D
Country
C
Education system in
country A
Public
sectorPrivate
sector
Regulations
Other
Human rights law
• Conventions
• Case-law
• Custom
• Expert interpretation
Human rights law matters
International Covenant on Economic,
Social, and Cultural Rights (ICESCR)
International Convention on the
Rights of the Child (CRC)
193 States parties162 States parties
General principle - article 13 ICESCR
3. The States Parties to the present Covenant undertake to have respect
for the liberty of parents and, when applicable, legal guardians to choose
for their children schools, other than those established by the public
authorities, which conform to such minimum educational standards as
may be laid down or approved by the State and to ensure the religious
and moral education of their children in conformity with their own
convictions.
4. No part of this article shall be construed so as to interfere with the
liberty of individuals and bodies to establish and direct educational
institutions, subject always to the observance of the principles set forth in
paragraph I of this article and to the requirement that the education given
in such institutions shall conform to such minimum standards as may be
laid down by the State.
5 pillars
Private providers of education should be allowed but their
existence/growth should:
1) Not be a source of segregation/discrimination/inequalities
2) Provide an alternative to and not affect the right to free,
quality, public education
3) Preserve the humanistic nature of education
4) Obey by minimum education standards adequately
enforced by the State
5) Develop following due process and with participation of
people
(1) Not be a source of
segregation/discrimination/inequalities (the law)
Article 2 ICESCR: “2. The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without discrimination of any kind
as to race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status”.
General Comment 13, para. 30: “The States 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”
General Comment 20, para. 39: “States parties must adopt an active approach to eliminating
systemic discrimination and segregation in practice”
Brown v. Board of Education, Supreme Court of the United States: “To separate them from
others of similar age and qualifications solely because of their race generates a feeling of
inferiority as to their status in the community that may affect their hearts and minds in a way
unlikely ever to be undone.”
Brown v. Board of Education, Supreme Court of the
United States: “To separate them from others of
similar age and qualifications solely because of their
[capacity to pay fees/social capital/location…]
generates a feeling of inferiority as to their status in
the community that may affect their hearts and minds
in a way unlikely ever to be undone.”
(1) Not be a source of
segregation/discrimination/inequalities (the law)
UNESCO Convention Against Discrimination in Education, art. 1: “For the purposes of
this Convention, the term 'discrimination' includes any distinction, exclusion, limitation
or preference which, being based on race, colour, sex, language, religion, political or
other opinion, national or social origin, economic condition or birth, has the purpose or
effect of nullifying or impairing equality of treatment in education and in particular:
(a) Of depriving any person or group of persons of access to education of any type or at
any level;
(b) Of limiting any person or group of persons to education of an inferior standard;
(c) Subject to the provisions of Article 2 of this Convention, of establishing or
maintaining separate educational systems or institutions for persons or groups of
persons; or
(d) Of inflicting on any person or group of persons conditions which are incompatible
with the dignity of man.
(1) Not be a source of
segregation/discrimination/inequalities (Example)
Chile
1. Not be a source of
segregation/discrimination/inequalities
(Challenges)
What level of inequalities/segregation is acceptable? Any? None?
Are fees ever acceptable? Under which conditions?
2. Provide an alternative to and not affect the
right to free, quality, public education (law)
ICESCR, Article 13 “1. The States Parties to the present Covenant recognize the right of
everyone to education. […]
2. The States Parties to the present Covenant recognize that, with a view to achieving the full
realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational 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; […]”
2. Provide an alternative to and not affect the
right to free, quality, public education (law)
ICESCR, Article 13 – 3: “The States Parties to the present Covenant undertake to have respect
for the liberty of parents and, when applicable, legal guardians to choose for their children
schools, other than those established by the public authorities”
General Comment 13, para. 48: “It is clear that article 13 regards States as having principal
responsibility for the direct provision of education in most circumstances”
Juma Musjid Primary School case, South Africa Constitutional Court: “It is clear that there is no
primary positive obligation on the Trust [private actor] to provide basic education to the
learners. That primary positive obligation rests on the MEC [the State]. […] the Trust does have a
negative constitutional obligation not to impair the learners’ right to a basic education.”
UN Special Rapporteur on the right to education, report October 2014: “Governments should
ensure that private providers only supplement public education, the provision of which is the
Government’s responsibility, rather than supplant it. “
2. Provide an alternative to and not affect the
right to free, quality, public education (law)
UNESCO Convention Against Discrimination in Education, art. 2 (c)
“When permitted in a State, the following situations shall not be
deemed to constitute discrimination, within the meaning of Article I
of this Convention:
[…] (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”
2. Provide an alternative to and not affect the right to
free, quality, public education (example)
2. Provide an alternative to and not affect the
right to free, quality, public education (challenges)
 What short-term measures for failed States? Can private
schools offer an immediate answer and progressively be
integrated into the public system?
3. Preserve the humanistic nature of education
(law)
ICESCR, article 13 (1): “[States] agree that education shall be directed to the full
development of the human personality and the sense of its dignity, and shall strengthen the
respect for human rights and fundamental freedoms. They further agree that education shall
enable all persons to participate effectively in a free society, promote understanding,
tolerance and friendship among all nations and all racial, ethnic or religious groups, and
further the activities of the United Nations for the maintenance of peace”.
General Comment 13, para. 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.
3. Preserve the humanistic nature of education
(example)
3. Preserve the humanistic nature of education
(challenges)
 What scope/limitation for
testing?
Is profit making in education
acceptable?
What does public/common good
mean?
4. Obey by minimum education standards
adequately enforced by the State (law)
ICESCR, article 13
3. The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to choose for their
children schools, other than those established by the public authorities, which
conform to such minimum educational standards as may be laid down or
approved by the State and to ensure the religious and moral education of their
children in conformity with their own convictions.
4. No part of this article shall be construed so as to interfere with the liberty of
individuals and bodies to establish and direct educational institutions, subject
always to the observance of the principles set forth in paragraph I of this article
and to the requirement that the education given in such institutions shall
conform to such minimum standards as may be laid down by the State.
4. Obey by minimum education standards
adequately enforced by the State (example)
Morocco
- Not regulated
- Not enforced
Low fee private school - Uganda
4. Obey by minimum education standards
adequately enforced by the State (challenges)
 How much money should governments spend in
regulating?
 What are good regulations?
 What to do in highly corrupted environments….?
5. Develop following due process and with
participation of people (law)
General principles of international human right law:
 Participation
 Accountability
 Access to remedies
 Transparency
5. Develop following due process and with
participation of people (example)
5. Develop following due process and with
participation of people (challenges)
At what stage to consult?
What resources to spend in processes, vs. substance?
5 pillars
Private providers of education should be allowed but their
existence/growth should:
1) Not be a source of segregation/discrimination/inequalities
2) Provide an alternative to and not affect the right to free,
quality, public education
3) Preserve the humanistic nature of education
4) Obey by minimum education standards adequately
enforced by the State
5) Develop following due process and with participation of
people
Sylvain Aubry
Social segregation “is bad not only for the
children of the poor but also for the
children of the rich and the privileged
groups” since “by segregating their
children, such privileged parents prevent
them from sharing the life and experiences
of the children of the poor and coming into
contact with the realities of life also render
the education of their own children
anaemic and incomplete […] If these evils
are to be eliminated […] we must move
towards the goal of a common school
system of public education.”
Kothari Indian education Commission 1964 - 66
sylvain@globalinitiative-escr.org
http://globalinitiative-escr.org

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Towards human rights norms and standards to assess privatisation in education

  • 1. Towards human rights norms and standards to assess privatisation in education SYLVAIN AUBRY GLOBAL INITIATIVE FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS
  • 2. The privatisation and human rights project
  • 3. Country E Involvement of private actors as providers of education acceptable Involvement of private actors as providers of education not acceptable Country B Country D Country C Education system in country A Public sectorPrivate sector Regulations Other
  • 4. Human rights law • Conventions • Case-law • Custom • Expert interpretation
  • 5. Human rights law matters International Covenant on Economic, Social, and Cultural Rights (ICESCR) International Convention on the Rights of the Child (CRC) 193 States parties162 States parties
  • 6. General principle - article 13 ICESCR 3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.
  • 7. 5 pillars Private providers of education should be allowed but their existence/growth should: 1) Not be a source of segregation/discrimination/inequalities 2) Provide an alternative to and not affect the right to free, quality, public education 3) Preserve the humanistic nature of education 4) Obey by minimum education standards adequately enforced by the State 5) Develop following due process and with participation of people
  • 8. (1) Not be a source of segregation/discrimination/inequalities (the law) Article 2 ICESCR: “2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. General Comment 13, para. 30: “The States 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” General Comment 20, para. 39: “States parties must adopt an active approach to eliminating systemic discrimination and segregation in practice” Brown v. Board of Education, Supreme Court of the United States: “To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Board of Education, Supreme Court of the United States: “To separate them from others of similar age and qualifications solely because of their [capacity to pay fees/social capital/location…] generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
  • 9. (1) Not be a source of segregation/discrimination/inequalities (the law) UNESCO Convention Against Discrimination in Education, art. 1: “For the purposes of this Convention, the term 'discrimination' includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular: (a) Of depriving any person or group of persons of access to education of any type or at any level; (b) Of limiting any person or group of persons to education of an inferior standard; (c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or (d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man.
  • 10. (1) Not be a source of segregation/discrimination/inequalities (Example) Chile
  • 11. 1. Not be a source of segregation/discrimination/inequalities (Challenges) What level of inequalities/segregation is acceptable? Any? None? Are fees ever acceptable? Under which conditions?
  • 12. 2. Provide an alternative to and not affect the right to free, quality, public education (law) ICESCR, Article 13 “1. The States Parties to the present Covenant recognize the right of everyone to education. […] 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational 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; […]”
  • 13. 2. Provide an alternative to and not affect the right to free, quality, public education (law) ICESCR, Article 13 – 3: “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities” General Comment 13, para. 48: “It is clear that article 13 regards States as having principal responsibility for the direct provision of education in most circumstances” Juma Musjid Primary School case, South Africa Constitutional Court: “It is clear that there is no primary positive obligation on the Trust [private actor] to provide basic education to the learners. That primary positive obligation rests on the MEC [the State]. […] the Trust does have a negative constitutional obligation not to impair the learners’ right to a basic education.” UN Special Rapporteur on the right to education, report October 2014: “Governments should ensure that private providers only supplement public education, the provision of which is the Government’s responsibility, rather than supplant it. “
  • 14. 2. Provide an alternative to and not affect the right to free, quality, public education (law) UNESCO Convention Against Discrimination in Education, art. 2 (c) “When permitted in a State, the following situations shall not be deemed to constitute discrimination, within the meaning of Article I of this Convention: […] (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”
  • 15. 2. Provide an alternative to and not affect the right to free, quality, public education (example)
  • 16. 2. Provide an alternative to and not affect the right to free, quality, public education (challenges)  What short-term measures for failed States? Can private schools offer an immediate answer and progressively be integrated into the public system?
  • 17. 3. Preserve the humanistic nature of education (law) ICESCR, article 13 (1): “[States] agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace”. General Comment 13, para. 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.
  • 18. 3. Preserve the humanistic nature of education (example)
  • 19. 3. Preserve the humanistic nature of education (challenges)  What scope/limitation for testing? Is profit making in education acceptable? What does public/common good mean?
  • 20. 4. Obey by minimum education standards adequately enforced by the State (law) ICESCR, article 13 3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.
  • 21. 4. Obey by minimum education standards adequately enforced by the State (example) Morocco - Not regulated - Not enforced Low fee private school - Uganda
  • 22. 4. Obey by minimum education standards adequately enforced by the State (challenges)  How much money should governments spend in regulating?  What are good regulations?  What to do in highly corrupted environments….?
  • 23. 5. Develop following due process and with participation of people (law) General principles of international human right law:  Participation  Accountability  Access to remedies  Transparency
  • 24. 5. Develop following due process and with participation of people (example)
  • 25. 5. Develop following due process and with participation of people (challenges) At what stage to consult? What resources to spend in processes, vs. substance?
  • 26. 5 pillars Private providers of education should be allowed but their existence/growth should: 1) Not be a source of segregation/discrimination/inequalities 2) Provide an alternative to and not affect the right to free, quality, public education 3) Preserve the humanistic nature of education 4) Obey by minimum education standards adequately enforced by the State 5) Develop following due process and with participation of people
  • 27. Sylvain Aubry Social segregation “is bad not only for the children of the poor but also for the children of the rich and the privileged groups” since “by segregating their children, such privileged parents prevent them from sharing the life and experiences of the children of the poor and coming into contact with the realities of life also render the education of their own children anaemic and incomplete […] If these evils are to be eliminated […] we must move towards the goal of a common school system of public education.” Kothari Indian education Commission 1964 - 66 sylvain@globalinitiative-escr.org http://globalinitiative-escr.org

Notes de l'éditeur

  1. This is about moving on the debate, but moving on based on what exist, on consensus, on rules Often discuss “the right to education”, but no detail… presentation to unpack the right, if take the right seriously
  2. Work in 8 countries – soon 9 with Pakistan Aim to move on the debate Engage in UN human rights mechanisms.
  3. Looking at countries as systems, and in each system various arrangements of public/private. Looking at the macro level. Looking at education as systems Looking at arrangements of role of private/public, way it is organised, and see if organised or not Looking for the red line, what is not acceptable From the perspective of human beings, rights of people. What hurts people’s dignity so badly, that not accepted.
  4. Diverse Conventions different from declarations Focus on States
  5. Set dignity principles Consensus of States Only existing broadly agreed norms Details of these conventions matters; each word discussed carefully and result of long negotiations amongst States We can discuss implementation, but normatively and in terms of support, no contestation
  6. Focus on States
  7. 5 principles that are clearly enshrined in international law Warnings!! This is what we know - Still draft All the pillars are inter-related Pillars do NOT provide answers, they provide principles against which to measure reality. Very important, as we don’t always agree on what to assess reality against. In this way, moving on. Violation of any of these principles is wrong, there is NO trade-off. Helps to identify what is not acceptable, whatever benefit we may get. Similar as torture. For each pillar, will present the law, briefly, examples, and challenges
  8. Also apply to virtually any country we work on: from the point of introducing fees, and forms of selection, on a broad enough scale, creates discrimination Study in Morocco: up to 70% schools private, school fees vary greatly, from 500 to 5000dham per month, fairly equally spread
  9. No obligation to fund Role of private education
  10. No obligation to fund Role of private education
  11. Other examples: Schools closing in Morocco and Ghana Areas where no quality schools offer, e.g. Uganda Rethink the rhetoric of “choice”: 1st, not a right, and 2nd, need real choice, which means a free, secular, quality, school nearby. Great quote: with education reform, it’s the schools that select the students, not the parents that choose a school
  12. No obligation to fund Role of private education
  13. Low-cost private school in Ghana Test: 12 times a year, need to pay every time, use textbook Also Bridge schools Morocco: total change of relationship teacher – parents – becomes seller – client, high marketisation of education (monetisation, etc.) Become positional good
  14. Trained teachers private schools Ghana Homeland SSS , Uganda: It only has 3 students in S.3, the rest never came back because of the fees structure, lack of teachers and indiscipline of the head teacher. Example also Nigeria schools, etc.
  15. Will not go into the details of the legal principles, as transversal – but very strongly backed up, consensual, basis for human rights
  16. Morocco complaint if child refused Morocco participation Bridge Kenya
  17. 5 principles that are clearly enshrined in international law Warnings!! This is what we know - Still draft All the pillars are inter-related Pillars do NOT provide answers, they provide principles against which to measure reality. Very important, as we don’t always agree on what to assess reality against. In this way, moving on. Violation of any of these principles is wrong, there is NO trade-off For each pillar, will present the law, briefly, examples, and challenges
  18. Not blaming parents or private actors; about how the system is organised by States (including donor States) Moving on is not about denying private schools exist or going beyond private vs public: there is a system to organise, where public and private play a different role, and this needs to take tough decisions. However, moving on is about understanding the respective role of private and public actors in education, the role that private actors should play, in particular in terms of diversity, catering for particular needs or preferences, and the rules within which they should fit. No trade-off: certain things are so bad, hurt our dignity so badly, that not acceptable, in any circumstance. If take rights seriously, cannot accept practices that hurt human dignity, in the short and long term.