Saturday, February 27, 2016

Conditions for the exercise of the right to freedom of education 8/9

39. In the area of education, the promotion of minority languages and, more specifically, the right to carry on educational activities should not result in the isolation or exclusion of certain ethnic and racial groups. The 1960 UNESCO Convention places three conditions on the exercise of this right (see article 5, paragraph 1 (c)):

 (a) It must not be “exercised in a manner which prevents the members of these minorities from understanding the culture and language of the community as a whole and from participating in its activities, or which prejudices national sovereignty”. There are, in fact, two distinct conditions here: the first relates to the linguistic and cultural integration of schoolchildren belonging to minorities, since knowledge of the official language tends to promote integration and social cohesion;33 the second protects the State’s territorial integrity and sovereignty and prohibits, in particular, the provision of education that might promote separatist tendencies;34

(b) As with separate educational establishments and private schools (see article 2 (b) and (c)), the level of education in minority schools must not be inferior to the general standard laid down or approved by the competent authorities;

 (c) Lastly, as with separate institutions established for religious or linguistic reasons (see article 2 (b)), attendance at such schools must be optional.$FILE/G0113802.pdf
Leer más...

Wednesday, February 24, 2016

Recognition of specific rights 7/9

 (i) The right to carry out educational activities

26. In many States, specific provisions, including constitutional provisions, guarantee minorities the right to establish and maintain their own schools, standards for the operation of which should be the same as for other schools.

27. The 1960 UNESCO Convention contains a provision especially intended for minorities: “It is essential to recognize the right of members of national minorities to carry on their own educational activities, including the maintenance of schools” (art. 5, para. 1 (c)). 

28. Article 26 to 31 of ILO Convention No. 169 of 27 June 1989 concerning Indigenous and Tribal Peoples in Independent Countries also recognize the right of these peoples to establish their own educational institutions and facilities. 

29. Similarly, article 13, paragraph 1, of the Council of Europe Framework Convention for the Protection of National Minorities recognizes that persons belonging to a national minority “have the right to set up and to manage their own private educational and training establishments” within the framework of the education system of the State, but, in paragraph 2, it appears to indicate that the exercise of this right may depend on the minority’s financial ability: “The exercise of this right shall not entail any financial obligation for the Parties”. 

30. Although there is a special provision of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 18 December 1992 relating to the content of education (art. 4, para. 4), there is no specific provision on the right to carry out educational activities on behalf of protected minorities. This gap does not appear to be decisive because, quite apart from any legal status this provision may have, States are bound, under article 8, paragraph 1, to respect the rights of minorities provided for in “international treaties and agreements to which they are parties” and article 8, paragraph 2, states that “the exercise of the rights set forth in the Declaration shall not prejudice the enjoyment by all persons of universally recognized human rights and fundamental freedoms”. (ii) Use and teaching of minority and migrant languages 

31. The question of language is intimately bound up with a group’s cultural identity and therefore with its sense of dignity. The mother tongue is what enables children to “take off” intellectually once they start school and is vital to “the continuity of children’s psychomotor, and affective and cognitive development”. Failure to respect this linguistic identity creates a feeling of exclusion from the majority group, and of discrimination, and runs directly counter to one of the basic tenets of education recognized in every international instrument: the development of the human personality.26 On the other hand, the use of an official language, even one that is formally a foreign language, may contribute to social cohesion and help to unify the State, particularly in developing countries with great linguistic diversity, although the use of a single minority language as an official language can give rise to a situation of discrimination as between the minority languages. In such cases, paradoxical as it might seem, a foreign language that is used officially or has constitutional status becomes a force for integration and national unity and guarantees non-discrimination among the minority languages, thereby showing the limits of linguistic diversity. 

32. Whatever the situation, there are two problems to be addressed: the right of the child belonging to a minority to teaching of his own language and to teaching in his own language. The positions adopted in international instruments vary greatly in this regard, reflecting the progressive recognition of the phenomenon of minorities.

No explicit recognition 

33. Several instruments contain no explicit provision obliging States to arrange for teaching of or in minority languages. Examples of this are the 1948 Universal Declaration of Human Rights and the two International Covenants of 1966, but particularly the International Covenant on Economic, Social and Cultural Rights, which, perhaps surprisingly considering that it deals with education as a whole (arts. 13 and 14), makes no special reference to the issue of the language to be used in teaching children belonging to minorities. Two hypotheses could be advanced in this regard. 

34. The first hypothesis is extensive and refers more to the spirit than to the letter of such instruments. It may be argued, either on the basis of the general principle of non-discrimination and the aims of education, or, more directly, on the basis of the rights recognized for minorities (article 27 of the International Covenant on Civil and Political Rights), that recognition of language rights as a vector for the development of the human personality and of the sense of dignity of the children concerned, places an implicit obligation on States. Non-discrimination on racial or ethnic grounds would then be viewed as a positive obligation to guarantee the children of such minorities teaching of and in their mother tongues through the State educational system. The Committee on Economic, Social and Cultural Rights does not shed any particular light on this issue in its General Comment No. 13 on article 13 of the Covenant. 35. However, on the basis of the rules of interpretation and as a matter of general principle, that hypothesis is difficult to accept. Even the most pertinent provisions (article 27 of the International Covenant on Civil and Political Rights) does not impose a positive obligation on States and indeed does not refer to the right to education. This is the interpretation which the European Court of Human Rights seems to give, in the Belgian “languages in education” case, to article 2 of the First Protocol to the European Convention on Human Rights (“No person shall be denied the right to education”). In its judgement on the merits, of 23 July 1968, the Court concludes that article 2 “merely [guarantees] to persons subject to the jurisdiction of the Contracting Parties the right ... to avail themselves of the means of instruction existing at a given time”. The Court confirmed the State’s right to determine the official languages to be used in public education and stated: “The Convention lays down no specific obligations ... In particular ... [it] does not specify the language in which education must be conducted ... .”

Explicit recognition 

36. The 1960 UNESCO Convention, though adopted well before the two International Covenants, explicitly recognizes the right of members of national minorities to “the use or the teaching of their own language” (art. 5, para. 1 (c)). However, that recognition, while explicit, does not apply to State schools but to schools established by minorities who wish “to carry on their own educational activities” (art. 5, para. 1 (c)). There do not appear, therefore, to be any additional obligations on the educational system established by the State. 

37. The instruments dealing particularly with minorities appear to give more protection to minorities’ identity in educational terms, although they are drafted in such a way as to give States discretion to decide for themselves whether it is appropriate to make provision for such education.29 (a) This applies to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which states as follows in article 4, paragraph 3: “States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue” (author’s emphasis); (b) The document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Cooperation in Europe (5-29 June 1990) proclaims, in paragraph 34, the rights of persons belonging to minorities to receive instruction of their mother tongue or in their mother tongue; (c) Article 14, paragraphs 1 and 2, of the Council of Europe Framework Convention for the Protection of National Minorities guarantees the same rights, but on condition that there are sufficient people belonging to minorities and having regard to the resources available to the State; (d) The 1993 draft United Nations declaration on the rights of indigenous peoples recognizes indigenous peoples’ “right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures ...” (art. 14) and indigenous children’s “rights to be provided access to education in their own culture and language”, even if they live outside their communities (art. 15).30 

38. The treaty bodies have an important role to play in interpreting convention provisions regarding the issue of non-discrimination in education. The Committee on the Elimination of Racial Discrimination, for example, rightly considers that the use of a minority language, including as a compulsory teaching language, is a step towards implementation of the principle of non-discrimination within the meaning of articles 1, paragraph 4, and 2, paragraph 2, of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.31 In many of its reports, the Committee also recommends that States parties should take all appropriate measures to ensure the promotion of minority languages and to enable children, including the children of migrant workers, to pursue their studies in their mother tongue.$FILE/G0113802.pdf
Leer más...

Friday, February 19, 2016

The education of minority, indigenous and migrant children 6/9

25. The “sense of dignity - cultural identity - diversity” triptych to be found in several international instruments is one of the basic objectives of education, whose purpose is not only to transmit knowledge. A person’s sense of dignity depends on the acquisition of “cultural identity”, defined as “a set of cultural values by which persons or groups define themselves, express themselves and wish to be recognized; cultural identity implies freedoms inherent in personal dignity and combines cultural diversity, the specific and the universal, and memory and project in a constantly evolving process”. The education and cultural identity of a group are thus closely related and any prejudice leading to discrimination or intolerance is a violation of a person’s integrity. The right to education is thus particularly significant for ethnic, linguistic and/or religious minorities as a means of safeguarding their cultural identity and protecting themselves from various kinds of discrimination. International instruments recognize that these minorities have specific rights, whose exercise is nevertheless subject to certain conditions, the basic reason for which is that the social cohesion and unity of the State should not be disrupted. (Specific obligations)$FILE/G0113802.pdf
Leer más...

Wednesday, February 17, 2016

The question of separate systems of education 5/9

 20. Public schools and compulsory schooling imply that young people of different origins attend the same schools. As a Swiss expert rightly indicates, “If children developed separately at school, they would continue to do so later on in society and this would intensify social, cultural and economic inequalities. Ghettos would spring up and violence would threaten social peace”. 

21. In strictly legal terms, the lawfulness of separate schools is still open to discussion (these are schools or classes set up in public education; they must therefore be distinguished from private schools). They may be said to create a situation of segregation and to be in breach of the principles of equality of treatment and equality of opportunity proclaimed by many international instruments. As the Committee on the Elimination of Racial Discrimination rightly pointed out in its 1983 annual report, establishing two systems of education may be understandable, but “might in time lead to the practice of discrimination among different strata of the population” (A/38/18, para. 197). Equality does not necessarily mean that treatment must be identical in all circumstances. According to established international case law and universally accepted doctrine, differentiation is not discrimination if the purpose is to achieve a legitimate goal and if there is a proportional relationship between the means used and the goal to be achieved. Only differentiation which is not justified de facto is inadmissible, provided that the criteria used are not reasonable and objective. In some countries, ethnic groups themselves assert their right to be treated as a separate and independent sector of the nation State’s education system and claim that they are entitled to a distinct indigenous education.
22. In the above-mentioned General Comment No. 13, the Committee on Economic, Social and Cultural Rights considers, not without some hesitation, that “in some circumstances, separate educational systems or institutions for groups … shall be deemed not to constitute a breach of the Covenant”; it merely endorses article 2 of the 1960 UNESCO Convention (E/C.12/199+9/10, para. 33), which is the one that provides the most detailed information on the question.

23. The UNESCO Convention deals with the question of “separate educational systems  orinstitutions” in the provision on situations deemed not to constitute discrimination within the meaning of article 1. According to the Convention, such an educational system must basically be exceptional in nature and integration thus depends on the establishment of a single public educational system in which pupils belonging to various minorities and ethnic and religious groups learn to frequent one another and live together peacefully from a very young age.

24. The Convention lays down very strict conditions for the establishment or maintenance of separate educational institutions, whether “for pupils of the two sexes” (art. 2 (a)) or “for religious or linguistic reasons” (art. 2 (b)), it being understood that, in some countries, the two may overlap. In the first case, four conditions, which are at least equivalent to those in force in the system of non-separate institutions, are laid down. They relate to access, the qualifications of teaching staff, the quality of school premises and equipment and courses of study in these institutions. It is obvious, however, that providing service of equivalent quality cannot be guaranteed if there are sharp disparities in State spending policies. Like schools for minorities (art. 5, para. 1 (c) (iii)), separate institutions established for religious or linguistic reasons must fulfil the condition of optional attendance or participation and conformity with such standards as may be laid down or approved by the State, in particular for education of the same level$FILE/G0113802.pdf
Leer más...

Saturday, February 13, 2016

Compulsory education free of charge 4/9

17. Equality of opportunity and treatment establishes a positive obligation for States to set up a system of education that is accessible to all. In the relevant international instruments and, in particular, the 1960 UNESCO Convention, the content of this obligation is closely linked to respect for the principle of non-discrimination and to the definition of prohibited discrimination. Thus, while article 1, paragraph 1 (a), defines discrimination, inter alia, as the fact “of depriving any person or group of persons of access to education of any type or at any level”, article 4 (a) requires States “to make primary education free and compulsory; make secondary education in its different forms generally available and accessible to all …”. At least as far as primary education is concerned, non-discrimination in education therefore directly involves the establishment of free and compulsory education for the benefit of all, regardless of race and/or religion.12 There is thus a close correlation between the principle of non-discrimination and the establishment of free and compulsory education, particularly for minorities and ethnic and religious groups.13 In its General Comment No. 11 (1999) on article 14 of the International Covenant on Economic, Social and Cultural Rights, the Committee reports that, “in developing countries, 130 million children of school age are currently estimated to be without access to primary education, of whom about two thirds are girls” and that “the work of the Committee has shown that the lack of educational opportunities for children often reinforces their subjection to various other human rights violations” (E/C.12/1999/4, paras. 3 and 4). Article 3 of the 1960 UNESCO Convention lists the measures that States must take in order to respect this obligation and ensure that it is respected by the entire public and private educational system, regardless of the nationality of pupils. As at the primary level, the State is bound to guarantee respect for the compulsory nature of education, particularly for the benefit of girl children, regardless of the religious or philosophical beliefs of the parents or legal guardians. General Comment No. 11 also states: “The element of compulsion serves to highlight the fact that neither parents, nor guardians, nor the State are entitled to treat as optional the decision as to whether the child should have access to primary education” (E/C.12/1999/4, para. 6).

18. With the exception of the European Convention of Human Rights, all the relevant international instruments establish the same obligation to guarantee free and compulsory education, but in the context of the general obligation inherent in the right to education. The latter is a matter of concern to the present study only as it relates to the problem of racial discrimination and religious intolerance. It should, however, be noted that, in article 13, paragraph 2, of the Covenant, the wording of this obligation warrants attention because it is directly linked to the objectives and content of education as provided for by article 13, paragraph 1 (“2. The States parties to the present Covenant recognize that, with a view to achieving the full realization of this right:”). As one author has stated, international instruments thus have “a core content” which must guarantee absolute minimum entitlements in respect of access to education, but must also provide for minimum entitlements in respect of the content of education and interculturalism.

19. Several studies on the scope of the principle of non-discrimination in the education of minorities and indigenous children have rightly shown that the principle of non-discrimination must be handled with a great deal of care. Differences of result in the educational system are not always attributable to the discrimination to which minority groups might be subject, but to various handicaps which affect both the majority and minorities (family, economic and social situations, etc.).16 As one study rightly concludes, the result is that: “In cases where the majority has no access to quality education, it seems legitimate to give priority to equality and non-discrimination rather than to the respect and promotion of diversity” (E/CN.4/Sub.2/AC.5/2000/WP.4, para. 24).

 General obligations (a) Compulsory education free of charge$FILE/G0113802.pdf
Leer más...

Thursday, February 11, 2016

Establishment of the educational system 3/9

12. There can be no development of the culture of any person or any group and no full enjoyment of other human rights if the person or group does not have access to the right education or is subject to discrimination in education.8 All international instruments unanimously agree in this regard and proclaim this right with slightly different wording, the most common expression being that “Everyone has the right to education” or variations thereon.9 The Convention against Discrimination in Education of 14 December 1960 (hereinafter referred to as the “1960 UNESCO Convention”) warrants some attention, however, because it deals with this question from the viewpoint of the definition of discrimination, including racial and religious discrimination.10 Based on a combined reading of its articles 1 and 4, the following introductory comments may be made on the topic of our study.

13. In the definition of discrimination contained in article 1, paragraph 1, the 1960 UNESCO Convention does not appear to attach any importance to the form discrimination may take. It may take a variety of more or less intense and more or less brutal forms: exclusion, limitation, distinction, preference. Article 2, paragraph 2, of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief of 25 November 1981 defines the term “intolerance” in identical terms, but as it relates to religion or belief; although the two concepts do not necessarily mean the same thing, they have the same result.

14. The 1960 UNESCO Convention also does not appear to be concerned about who is responsible for discrimination. There can be different perpetrators: the State, in the context of separate or non-separate public education; the educational authorities, in the private religious or non-religious sector; and the parents or guardians of a child when they violate a girl child’s right to education, particularly for religious reasons. In this connection, the child has certain rights, whose compulsory nature varies, of course, but which cannot be denied him by the State, by his parents, by his guardians or by society in general.

15. The 1960 UNESCO Convention also does not deal with the victims of discrimination. In its General Comment No. 13, the Committee on Economic, Social and Cultural Rights takes note of article 3 (e) of the UNESCO Convention and “confirms that the principle of non-discrimination extends to all persons of school age … including non-nationals, and irrespective of their legal status” (E/C.12/1999/10, para. 34). In this connection, reference may also be made to article 2 of the Convention on the Rights of the Child.

16. The 1960 UNESCO Convention also defines discrimination in terms of its purpose: prohibited discrimination is that which “has the purpose or effect or nullifying or impairing equality of treatment in education” (art. 1, para. 1). Such equality of opportunity and treatment is the basis of any educational system; it does not make it an obligation for States to guarantee education by building schools; it merely guarantees equality of access to already existing educational institutions.11 For States and for all educational authorities, it involves more or less specific obligations provided for by many international instruments.$FILE/G0113802.pdf
Leer más...

Wednesday, February 10, 2016


11. The common feature of all international instruments dealing with education, whether as the main subject matter or in association with human rights, is the principle of non-discrimination. The scope of this principle varies according to the educational system in question (sect. A) and the content of education and the objectives which education is designed to achieve (sect. B)

A. Discrimination by action
 1. Impermeability
 2. Domination and assimilation
 3. Marginalization or non-consideration

 B. Discrimination by omission
 1. Non-prevention
 2. Refusal to take affirmative action
 3. Lack or shortage of adequate resources$FILE/G0113802.pdf
Leer más...

Wednesday, February 3, 2016

Zika: A Perfect Storm of Climate Change, Disease, and SRHR

February 3, 2016
The Zika virus is now “spreading explosively,” announced the World Health Organization in a statement released last week[i] and “the level of alarm is extremely high.” The most recent spate of Zika virus infections was diagnosed in April 2015 in northeastern Brazil (the previous large outbreaks were in 2007 and 2013-2014 in the Pacific islands) and a possible result[ii] of the virus presented itself in a most tangible form in October 2015 when cases of microcephaly[iii] —smallness of the head, a congenital condition associated with incomplete brain development—began to appear among newborn infants.
Since its detection in Brazil, the virus has spread to 23 countries and regions in the Americas, and warnings are being issued to consider Zika a public health emergency. The spread of the virus and the responses to curbing it present a perfect storm of climate change, disease, and their intersections with and impact on women’s sexual and reproductive health and rights (SRHR).

Climate Change Accelerating Spread of Disease

A 2009 briefing paper by Oxfam posited “the effects of climate change on health will reach wider and faster across the world than any other fall-out from climate change.”[iv] The paper discussed the increase in water-borne, insect-borne, vector-borne diseases due to increases in temperature and rain, and the inability of health and municipal services to be able to plan and manage these changes. In Asia-Pacific, we see the year-on-year rapid increase in dengue, in particular in the Philippines and Indonesia.[v]
Dengue, Malaria, and now Zika are all examples of how mosquito-borne diseases are interlinked with effects of climate change such as rising temperatures and shifts in precipitation.[vi] Scientists say that long-term climate change will make it increasingly difficult to protect human beings from such diseases and the rapid spread of Zika over a few months is quite telling of this.

Zika and Women’s SRHR

Responses to Zika by Latin American governments currently have a major focus on the increase of microcephaly in infants, nearly 4,000 cases detected from October to date.[vii] The effects of microcephaly span a wide spectrum of outcomes, ranging from children who are not affected at all apart from the superficial issue of smaller head size to those who cannot walk or talk and need constant care and special needs therapy[viii]. Therefore an increase in children with microcephaly could place additional stress on families, communities, health services, and later on also on educational services. Given that the virus manifests itself in indiscernible ways on adults, women may not know they have contracted the virus, and if pregnant, until they deliver. There is also evidence emerging that on rare occasions, Zika could be sexually transmitted.[ix].
The responses point to one thing, especially in a region that has limited access to contraceptives, including condoms, and highly restrictive laws on abortion due to socio-religious norms. An undue burden is being placed on women, especially those from marginalised populations, who live in countries that face climate change, have conservative laws and policies (influenced by religion, and not recognising sexual and reproductive rights), and give little or no access to essential sexual and reproductive health services.
For an example, the government of El Salvador has advised women not to get pregnant until 2018, advice that has since been meted out by government officials in Colombia and Ecuador. This advice, challenged by women’s organisations[x] and not endorsed by organisations such as the WHO, fails to recognise the reality of the region where access to contraception is limited, abortion is highly criminalised, and pregnancies often occur as a result of sexual violence. A 2014 study by the Guttmacher Institute[xi] found that 56% of pregnancies in Latin America and the Caribbean are unintended—the highest proportion in the world—showing that women already have little control over their bodies and pregnancies.
While the governments in Latin America are saying that this advice is a secondary strategy to combat the virus, it remains an unprecedented sweeping request. Apart from being impossible to achieve, it is also feared that this approach would lead to women being forced to have unsafe abortions, resulting in death or severe complications, as well as legal consequences. This is particularly concerning in countries like El Salvador, where women may be jailed even for miscarriage of pregnancy.[xii]

Way Forward

A comprehensive approach that is rights-based is essential to combat diseases such as these. Such an approach would include:
  • Access to a full range of contraception including dual-protection methods that prevent pregnancy and prevent the transmission of diseases.
  • Access to information that would enable individuals and couples to make informed decisions about their bodies and their lives.
  • Access to comprehensive maternal health services: antenatal scans to enable early detection, access to a choice of safe abortion services, safe delivery services and neo-natal care.
  • Policy, programme, and paradigm changes that take into account the intersections between climate change and SRHR[xiii].
Civil society organisations across the world are calling on governments to reform their policies on contraception and abortion, and we stand in solidarity with them.
[ii] A causal relationship between Zika virus infection and birth malformations and neurological syndromes has not yet been established, but is strongly suspected.

Leer más...

Racial discrimination, religious intolerance and education 1/9

1. Wars and all forms of discrimination and intolerance are borne in the minds of men and action should thus be taken as a matter of priority at this level more than at others. This sentence, which is based on the preamble of the Constitution of the United Nations Educational, Scientific and Cultural Organization, eloquently sums up the cause-and-effect relationship between education, racial discrimination and religious intolerance.

 2. The role of education is, in fact, much broader. As the key to a nation’s development, education is one of the basic indicators used to measure the extent of the success of a country, a region or a particular group. As the Committee on Economic, Social and Cultural Rights stated in its General Comment No. 13 (twenty-first session, 1999) on the right to education (article 13 of the International Covenant on Economic, Social and Cultural Rights), “increasingly, education is recognized as one of the best financial investments States can make” (E/C.12/1999/10, para. 1). The reports of United Nations specialized agencies and programmes give it pride of place among the factors which contribute to a country’s human development.
 3. Education is a very broad concept and was defined by UNESCO in 1974 as “the entire process of social life by means of which individuals and social groups learn to develop consciously within, and for the benefit of, the national and international communities, the whole of their personal capacities, attitudes, aptitudes and knowledge”. This constant and ongoing process of the training of the mind thus does not involve only children and members of national communities. Article 26 of the Universal Declaration of Human Rights proclaims that “everyone has the right to education”. Education does not, moreover, take place only in school. It has a more global significance and involves several participants, whose importance varies, of course, according to the age of the person being educated, the type of society and the level of development of the country concerned, etc., but all of which go to make society as a whole responsible for the education of citizens. The family, taken both in the broad and in the narrow senses, schools, the media, religion, politicians, trade unions and the environment in general thus take part in one way or another in the process of education.
 4. For the purposes of this study, however, education, as it relates to racial discrimination and religious intolerance, has a more restrictive and at the same time decisive meaning. From the time he starts school, the future adult builds the basic elements of how he views himself and others. The concepts of teaching, instruction and schooling are more restrictive, of course, and, in principle, relate only to the transmission of knowledge and the intellectual training of children and even of adults (basic education), but it is mainly during the transmission of knowledge that society, through the intermediary of teachers and the educational system in general, imparts its beliefs, its dominant values and, in particular, its negative or positive ideas of the racial and religious diversity of the human race to children and adolescents. Schools - and families - are thus not only a context for instruction and the transmission of knowledge, they are also vehicles for “moral and social attitudes calculated to promote the egalitarian and pluralistic ideal”.

5. Article 5 of the World Declaration on Education for All (Jomtien, Thailand, 5-9 March 1990) summed up the importance of what is at stake in this regard in the following terms, which are entirely relevant to the purpose of the present study: “The main delivery system for the basic education of children outside the family is primary schooling. Primaryeducation must be universal, ensure that the basic learning needs of all children are satisfied and take into account the culture, needs and opportunities of the community”. In addition to “essential learning tools”, article 1 of the Declaration defines basic needs as “the basic learning content (such as knowledge, skills, values and attitudes) required by human beings to be able to survive …”. The importance of primary education is also demonstrated by the position it occupies in the International Covenant on Economic, Social and Cultural Rights (article 14 refers to “the progressive implementation of the principle of compulsory education free of charge for all”) and in the mandate of Ms. Katarina Tomaševski, Special Rapporteur of the Commission on Human Rights on the right to education, as defined in resolution 1998/33 of 17 April 1998 (the mandate is reproduced in paragraph 1 of the Special Rapporteur’s preliminary report (E/CN.4/1999/49)).
 6. All in all, school education, especially primary (or elementary) and secondary education, makes it possible to tackle the root causes that may lead to racial discrimination and religious intolerance or to tolerance and non-discrimination; it will thus be the focus of our attention. 

7. Education plays a key role, particularly in societies which are diversified along ethnic and/or religious lines. Far from being an exclusively technical or pedagogical matter or one involving the transmission of knowledge or know-how, it may also heighten or mitigate tensions, may promote confrontation or strengthen the cohesion and integration of groups within society and may build tolerance or be the seat of intolerance of all kinds. As Joseph Yacoub rightly points out, “it all starts in the head. A soldier fighting in a war starts out as a schoolboy fighting in the schoolyard”.4 

 8. It is therefore understandable that education must be based primarily on the principle of equality of opportunity and non-discrimination. These are the foundations of the transition from education as a global objective to a “right” inherent in it, i.e. “the right to education”, the implementation of which will establish a number of obligations for society in general and schools in particular, the highest ranking of which is respect for the principle of non-discrimination. Education is thus a key characteristic of the subject matter of the present study.
9. “Education is both a human right in itself and an indispensable means of realizing other human rights”.5 It enables economically, socially and culturally marginalized persons and groups to break out of the cycle of poverty and exclusion, play a useful role in society and develop their sense of dignity. It is not only an instrument for learning and communicating in a given language within an ethnic, religious or cultural minority, but is also indispensable for the very survival of the group.6 The multifaceted nature of the objectives of education are reflected in the nature of the resulting right. The right to education is typically a cross-sectoral right, at one and the same time a civil and political right and an economic, social and cultural right belonging to the first, second and even third generations of human rights (solidarity rights). It is a shining example of the indivisibility of human rights.7 As far as racial discrimination and religious intolerance are concerned, the realization of this right will therefore be a matter of concern to several categories of persons and, as will be seen, comes within the jurisdiction of several United Nations human rights bodies (treaty and non-treaty bodies).

10. The right to education is provided for in a large number of international instruments. However, the attention it has been given, particularly in terms of its relationship with the problem of racial discrimination and religious intolerance, does not appear to reflect the importance of the stakes described above. The study of legal aspects (chap. I) will enable us to understand the content and scope of these instruments, particularly the universal aspects, the contribution of which will have to be determined, especially as it relates to the practical foundations of racial non-discrimination and religious tolerance. The factual aspects (chap. II) will enable us to work out a typology and then make the necessary recommendations (chap. III) in the light of gaps in the legislation and the realities of discrimination itself.

Leer más...