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.

http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/daa1576d690994e1c1256a57003417a0/$FILE/G0113802.pdf