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Addressing education agenda through rights-based approach
Shazzad Khan
Education has been regarded in all societies and throughout human history both as an end in itself and as a means for the individual and society to grow. Its recognition as a human right is derived from the indispensability of education to the preservation and enhancement of the inherent dignity of the human person.
The Universal Declaration of Human Rights (UDHR) states, “Everyone has the right to education.” In addition, it says that it shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Higher education shall be equally accessible to all on the basis of merit, and technical and professional education shall be made generally available.
The UDHR also stipulates that education should be directed towards the full development of the human personality and strengthen respect for human rights. Finally, it acknowledges that parents have a prior right to choose the kind of education that shall be given to their children.
Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) set out detailed formulations of the right to education. Article 13 contains a general statement that everyone has the right to education and that education should contribute to the full development of the human personality. It also specifically stipulates:
Primary education shall be compulsory and available free to all.
Secondary education, including technical and vocational education, shall be made generally available and accessible to all by every appropriate means, in particular by the progressive introduction of free education.
Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, in particular by the progressive introduction of free education.
Fundamental education shall be intensified for those persons who have not received or completed the whole period of their primary education.
Systems of schools shall be established and the material condition of teaching staff shall be continuously improved.
The liberty of parents or guardians to choose for their children schools other than those established by the public authorities which, conform to minimum educational standards shall be respected. In addition, article 13 recognises the liberty of parents or guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Education as development goal
Achieving the right to education for all is one of the biggest challenges of our times. The second International Development Goal addresses this challenge: universalising primary education in all countries by 2015. This is also one of the main objectives set at the World Education Forum (April 2000), where the right to basic education for all was reaffirmed as a fundamental human right.
Education is both a human right in itself and an indispensable means of realising other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalised 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 recognised 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.
Essential features
It has already been mentioned that ICESCR has ensured the most wide-ranging and comprehensive article on the right to education in international human rights law. While the precise and appropriate application of the terms will depend upon the conditions prevailing in a particular state party, education in all its forms and at all levels shall exhibit the following interrelated and essential features:
Availability: The functioning educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the state party. What they require to function depends upon numerous factors, including the developmental context within which they operate; for example, all institutions and programmes are likely to require buildings or other protection from the elements, sanitation facilities for both sexes, safe drinking water, trained teachers receiving domestically competitive salaries, teaching materials, and so on; while some will also require facilities such as a library, computer facilities and information technology.
Accessibility: The educational institutions and programmes have to be accessible to everyone, without discrimination, within the jurisdiction of the state party. Accessibility has three overlapping dimensions, such as i) non-discrimination, meaning education must be accessible to all, especially to the most vulnerable groups, in law and fact; ii) physical accessibility, meaning education has to be within safe physical reach, either by attendance at some reasonably convenient geographic location (e.g. a neighbourhood school) or via modern technology (e.g. access to a “distance learning” programme); and iii) economic accessibility, meaning education has to be affordable to all.
This dimension of accessibility is subject to the differential wording under article 13 in relation to primary, secondary and higher education; whereas primary education shall be available “free to all”, state parties are required to progressively introduce free secondary and higher education.
Acceptability: The form and substance of education, including curricula and teaching methods, have to be acceptable (e.g. relevant, culturally appropriate and of good quality) to students and, in appropriate cases, parents.
Adaptability: Education has to be flexible so that it can be adapted to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings.
Right to education
The fundamental question is how the obligations relating to the right to education undertaken by Member States under international and regional instruments are incorporated into national legal systems? This is all the more important for achieving the Dakar goals, in keeping with the commitments made by Governments for providing education for all, especially free and compulsory quality basic education. But in spite of such legal obligations and political commitments, millions of children still remain deprived of educational opportunities, many of them on account of poverty. They must have access to basic education as of their right, in particular to primary education which must be free. Poverty must not be a hindrance and the claim by the poor to such education must be recognised and reinforced.
The responsibility devolves upon the governments to ensure that political commitments undertaken at the World Education Forum are translated into national laws and policies. As a result, the constitutional and legislative foundation of the right to education assumes added significance, taking fully into account the legal implications of the Dakar Framework for Action. The discussion on the Right to Education and follow-up to the World Education Forum (Dakar, April 2000) organised by the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR), in co-operation with UNESCO on 14 May 2002, clearly showed how crucial it was to introduce constitutional provisions on the right to education as well as appropriate enabling legislation so that the state obligations under the relevant international conventions are incorporated into the domestic legal order.
In order to hold the state parties responsible for ensuring the right to education in the light of the relevant international conventions, a concerted effort is necessary from the social actors and reformers to bring about the desired change. In a concerted effort directed to materialising rights of the people, the dynamics between right-holders and duty-bearers is a must through some process or approach. One such popularly used and effective approach having been adopted globally is rights-based approach (RBA). In Bangladesh situation the obligation of the state towards implementing the agenda of education as part of fundamental rights is totally absent. The constitution of Bangladesh does not recognise education as a fundamental right. Merely an obligation of education is articulated in article 15 as part of “provision of basic necessities” under the fundamental principles of state policy. Unless and until the term “education” is taken for granted as a fundamental right, the obligation of the state will remain unchallenged from the common people. Therefore, a people’s movement though RBA facilitated by social actors and reformers is imperative in Bangladesh.
In this regard I want to take the opportunity to say a few words about the basics of rights-based approach, so that the readers can perceive the relationship between “right to education” and RBA, and feel incited to take on a movement to persuade the law makers and government to recognise education as a fundamental right.
Rights-Based Approach
A rights-based approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. It seeks to analyse inequalities which lie at the heart of development problems and redress discriminatory practices and unjust distributions of power that impede development progress.
Mere charity is not enough from a human rights perspective. Under a rights-based approach, the plans, policies and processes of development are anchored in a system of rights and corresponding obligations established by international laws. This helps to promote the sustainability of development work, empowering people themselves – especially the most marginalised – to participate in policy formulation and hold accountable those who have duties to act.
The concept of rights-based approach is an overarching composite right, which comprises both CPRs (civil and political rights) as well as ESCRs (economic, social and cultural rights). This is established by the fact that RBA is defined as the right to a particular process of development that ensures the realisation of all human rights – civil, political, economic, social and cultural. The realisation of human rights is not just a legalistic process wherein courts can enforce certain rights or hold the state responsible for providing those rights. It is dependent on the existence of a particular socio-economic environment, keeping human rights as the guiding principles.
A rights-based approach views development as the process of realising fundamental human rights and freedoms, thus expanding people’s choices and capabilities to live the lives that they value. Upholding human rights is crucial for guaranteeing people’s well-being and securing a humane and non-discriminatory society – and for enabling an active and engaged citizenry. Consequently, a rights-based approach integrates human rights concepts in the development process to effectively target human freedom. Specifically, it integrates human rights principles, the normative content of human rights, and human rights obligations, particularly state obligations, in development policies and programmes. A rights-based approach puts the poor, marginalised, vulnerable groups at the core of policy and the focus of capacity development strategies. Gender analysis is an intrinsic part of a rights-approach to development – not an add-on. That means, education as fundamental right needs to ensure people’s freedom to choose the education they need for their dignified living and self-actualisation. This nature of this education may vary in terms diversity in social, economic, political and cultural contexts.
Principles of RBA
A right-based approach to development brings certain guiding principles to the development arena. The most important and likewise implicit in the UN Charter, is that development has a responsibility in achieving the full realisation of human rights. Human rights cannot be realised without development. Development should seek empowerment both in the process and in the outcome of poverty eradication strategies.
Essentially, a rights-based approach integrates the norms, standards and principles of the international human rights system into the plans, policies and processes of development. The norms and standards are those contained in the wealth of international treaties and declarations. The principles include equality and equity, accountability, empowerment and participation. A rights-based approach to development includes the following elements: a) express linkage to rights, b) accountability, c) empowerment, d) participation, e) attention to vulnerable groups, and f) equality and non-discrimination.
The definition of the objectives of development in terms of particular rights – as legally enforceable entitlements – is an essential ingredient of human rights approach with the articulation and guarantee of normative links to the international, regional and national human rights instruments.
Rights-based approach is comprehensive in its consideration of the full-range of indivisible, interdependent and interrelated rights – civil, political, economic, social and cultural. This calls for a development framework with sectors that mirror internationally guaranteed rights, thus covering, for example, health, education, housing, justice administration, personal security and political participation.
By definition, this approach is incompatible with development policies, projects or activities that have the effect of violating rights, and it permits no “tradeoffs” between development and rights, not to say, “education and rights.”
Rights-based approach focuses on raising levels of accountability in the development process by identifying claim-holders/right-holders (and their entitlements) and corresponding duty-holders/duty-bearers (and their obligations). In this regard, it looks both at the positive obligations of duty-bearers (to protect, promote and provide) and at their negative obligations (to abstain from violations). It takes into account the duties of the full-range of relevant actors, including individuals, states, local organisations and authorities, private companies, donors and international institutions.
RBA also provides for the development of adequate laws, policies, institutions, administrative procedures and practices, and mechanisms of redress and accountability that can deliver on entitlements, respond to denial and violations, and ensure accountability. It calls for the translation of universal standards into locally determined benchmarks for measuring progress and enhancing accountability.
For all human rights, states must have both the political will and the means to ensure their realisation, and they must put in place the necessary legislative, administrative, and institutional mechanisms required to achieve that aim.
Under the International Covenant on Economic, Social and Cultural Rights, states are required to take immediate steps for the progressive realisation of the rights concerned, so that a failure to take the necessary steps, or any retrogression, will flag a breach of the state’s duties.
Under the International Covenant on Civil and Political Rights, states are bound to respect the rights concerned, to ensure respect for them and to take the necessary steps to put them into effect. Some rights claimed in some jurisdictions may not be justiciable before a court, but all rights must be enforceable.
Rights-based approach strongly gives preference to strategies for empowerment over charitable responses. It focuses on beneficiaries as the owners of rights and the directors of development, and emphasises on the human person as the centre of the development process (directly, through their advocates and through organisations of civil society). The goal is to give people the power, capacities, capabilities and access needed to change their own lives, improve their own communities and influence their own destinies.
Rights-based approach requires a high degree of participation and contribution, including from communities, civil society, minorities, indigenous peoples, women and others enjoyment of civil, political, economic, social and cultural. According to the UN Declaration on the Right to Development, such participation must be “active, free and meaningful” so that merely formal or “ceremonial” contacts with beneficiaries/programme participants are not sufficient.
Rights-based approach gives due attention to issues of accessibility, including access to development processes, institutions, information and redress or complaints mechanisms. This also means situating development project mechanisms in proximity to partners and beneficiaries. Such an approach necessarily opts for process-based development methodologies and techniques, rather than externally conceived “quick-fixes” and imported technical models.
Attention to vulnerable groups: The human rights imperative of such an approach means that particular attention is given to discrimination, equality, equity and vulnerable groups. These groups include women, minorities, indigenous and marginalised peoples, prisoners, etc, but there is no universal checklist of who is most vulnerable in every given context. Rather, rights-based approach requires that such questions be answered locally – who is vulnerable here and how? Development data need to be disaggregated, as far as possible, by race, religion, ethnicity, language, sex and other categories of human rights concern.
An important aspect of rights-based approach is the incorporation of expressed safeguards in development instruments to protect against threats to the rights and well-being of prisoners, minorities, migrants and other often domestically marginalised groups. Furthermore, all development decisions, policies and initiatives, while seeking to empower local participants, are also expressly required to guard against simply reinforcing existing power imbalances between, for example, women and men, landowners and peasants, and workers and employers.
All individuals are equal as human beings without discrimination or exclusion based on ethnicity, gender, age, language, religion, national or social origin, disability, birth, or geographic area, etc.
The challenge
Measuring a state’s performance in the implementation of the right to education is an arduous task in the absence of generally accepted criteria, benchmarks and methodology for evaluating the adequacy and effectiveness of steps taken towards its realisation. Developing the core competence for measuring the implementation is decidedly crucial to tracking what has been termed “the variable or shifting dimension” of state parties’ obligations.
Each state party’s right to education compliance can be measured using quantitative and qualitative indicators. Among other things, quantitative indicators present tangible data on budgets, literacy rates, enrolment rates, and commuting times, dropout and repetition percentages as distributed by gender, social class, age, geographic centres (e.g., by state and region, urban vs. rural areas), religion and ethnicity. In contrast, qualitative indicators assess non-tangibles like class interaction, textbook content and pedagogical programs. Assessing the qualitative aspects of education is far more complex than evaluating the quantitative status of education. Such complexity is derived from the web of relationships involved in the right to education (e.g., the relationship between the state, parents and child; the relationship between the state and minorities; the relationship between the state and traditionally disenfranchised persons; and the relationship between the church and the state). In this regard an effective, efficient, timely and context-specific rights-based programming for education is very crucial for the development actors.
The current poverty discourse stresses the need to integrate governance issues into poverty reduction strategies because more attention needs to be paid to accountability, transparency, empowerment, responsiveness and participation of people in poverty programmes. Needless to say, without “education as fundamental right” the existing poverty cannot be eliminated. The human rights framework in this respect is of invaluable assistance. It provides the normative foundation for tackling fundamental issues related to sustainable human development, and can play a catalytic role in bringing together governmental, institution-building and community-support programmes in order to tackle poverty including education agenda in a comprehensive and holistic way. The emphasis on the moral and legal character of human rights, and on the obligations and duties of states furthermore promote accountability, transparency, empowerment, responsiveness and participation.
By informing all stakeholders on the ground rules for development from human rights perspective, “participation, accountability and empowerment” become the logical modality for future development efforts. In this way the rights-based approach becomes a programming tool at the same time that it articulates a vision for human-centred sustainable development leading to poverty reduction and an educated society.
[The writer is the Programme Coordinator of Manusher Jonno Foundation.
Email: Shazzad@manusher.org]
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