The rule according to a higher law is a statement which
expresses that no law may be enforced by the government unless it
conforms with certain universal principles (written or unwritten) of
fairness, morality, and justice. Thus, the rule according to a higher law may serve as a practical legal criterion to qualify the instances of political or economical decision-making, when a government, even though acting in conformity with clearly defined and properly enacted legal rules, still produces results which many observers find unfair or unjust.
The idea of a law of ultimate justice over and above the
momentary law of the state—a higher law—was first introduced into
post-Roman Europe by the Catholic canon law jurists. "Higher law" can be interpreted in this context as the divine or natural law or basic legal values, established in the international law—the choice depending on the viewpoint; no matter the source, it is a law above the law. And it is in this capacity that it possesses the equal legal value for both the common and civil law jurisdictions, as opposed to natural law which is largely associated with common law.
"To recognize the necessary connection between the rule of law as an
ideal and well-constructed constitutional government does not and should
not be taken to imply that all states can or should maintain the same
constitutional structures in practice".
The rule according to higher law is a practical approach
to the implementation of the higher law theory that creates a bridge of
mutual understanding (with regard to universal legal values) between the
English-language doctrine of the rule of law, traditional for the countries of common law, and the originally German doctrine of Rechtsstaat, translated into other languages of continental Europe as état de droit (French), estado de derecho (Spanish), stato di diritto (Italian), and Правовое государство (pravovoe gosudarstvo) (Russian).
The latter doctrine is the product of continental European legal
thought, which had adopted it from German legal philosophy. Its name can
be translated into English as "state of law"—meaning the state in which
the exercise of governmental power is kept in check by the higher law
rather than by the changeable law established by this state. Amartya Sen mentioned that the legal theorists in ancient India used the classical Sanskrit term "nyāya" in the sense of not just a matter of judging institutions and rules, but of judging the societies themselves.
Examples
Before the U.S. Civil War, African Americans
were legally denied equal rights and freedoms pursuant to formally
valid codes prescribing the relations between master and slave. Although
these codes were de jure fully suitable for application in legal practice, their enforcement by the U.S. government de facto violated basic human rights of a significant part of the population. William H. Seward famously proclaimed that slavery is forbidden under "a higher law than the Constitution".
Generally speaking, the occurrence of such "justly enacted unjust
laws" fully depends on the stance taken by the country's political
leadership towards the rule of law principle.
In some countries, the political leaders assert that the rule of
law is purely a procedural concept. Therefore, they argue that any
government may strip its subjects of their fundamental freedoms or
infringe their vital interests so long as this is done by way of a duly
implemented legal mechanism. For example, at the Nuremberg trials, in an attempt to justify their crimes against Jewish and Romani population of Europe during World War II, some of the former leaders of Nazi Germany
argued that they had broken none of the laws effective when Hitler had
been in power. It was only by invoking the rule according to a higher
law that the Allied prosecutors were able to overcome such defenses.
In other countries, conversely, the political leaders assert that
all written laws must be kept in line with the universal principles of
morality, fairness, and justice. These leaders argue that, as a
necessary corollary to the axiom that "no one is above the law", the
rule of law requires the government to treat all persons equally under
the law. However, the proclaimed right to equal treatment is susceptible
to instantly becoming void each time the government denies a sufficient
level of respect, dignity, and autonomy to a certain class of
individuals or to human rights in general.
Therefore, the unwritten and universally self-explanatory principles of
equality, autonomy, dignity, and respect are said to overrule
conventional written laws enacted by the government. It is these
principles that are often referred to as "natural law". They also
constitute the basis of the "higher law theory".
Rechtsstaat
The Rechtsstaat
doctrine (legal state, state of right, constitutional state,
constitutional government) was first introduced by the German
philosopher Immanuel Kant in his latest works completed after the U.S. and French constitutions had been adopted in the late 18th century. Kant's approach is based on the supremacy of country's written constitution
created using principles of the Higher Law. This supremacy meant
creating guarantees for the implementation of his central idea: a
permanently peaceful life as a basic condition for the happiness and
prosperity of the citizens. Kant was basing his doctrine exclusively on
the idea of constitutionalism and constitutional government.
The Russian legal system, born in the 19th century as a result of the transformations initiated by the reforms of the Emperor Alexander II,
was (and still is) based primarily upon the German legal tradition. It
was from the latter that Russia had adopted the doctrine of Rechtsstaat, which literally translates as "legal state". Its closest English analogue is "the rule of law".
The Russian legal state concept adopts the written constitution as the
country's supreme law (the rule of constitution). It is a fundamental
but undefined principle that appears in the very first dispositive
provision of Russia's post-communist constitution: "The Russian
Federation – Russia – constitutes a democratic federative legal state
with a republican form of governance." Similarly, the very first
dispositive provision of Ukraine's constitution declares that "Ukraine
is a sovereign and independent, democratic, social, legal state." Hence,
the effort to invest meaning to the "legal state" definition is
anything but theoretical.
Valery Zorkin,
President of the Constitutional Court of Russia, wrote in 2003,
"Becoming a legal state has long been our ultimate goal, and we have
certainly made serious progress in this direction over the past several
years. However, no one can say now that we have reached this
destination. Such a legal state simply cannot exist without a lawful and
just society. Here, as in no other sphere of our life, the state
reflects the level of maturity reached by the society."
The Russian concept of legal state has adopted many segments of constitutional economics which serves as a practical implementation of the higher law theory in economics.
A number of other major international human rights instruments
contain provisions relating to economic, social and cultural rights. The
Convention on the Rights of the Child
recognizes and protects many of the economic, social and cultural
rights recognized in the ICESCR in relation to children. Including the right to health in Article 24, the right to social security in Article 25, the right to an adequate standard of living in Article 27, the right to education in Article 28, and the right to protection from economic exploitation in Article 32. The Convention on the Elimination of All Forms of Racial Discrimination
prohibits discrimination on the basis of racial or ethnic origin in
relation to a number of economic, social and cultural rights. The Convention on the Elimination of All Forms of Discrimination Against Women affirms a range of economic, social and cultural rights to women. The ILO Conventions of the International Labour Organization (ILO) protect a range of work related economic, social and cultural rights.
Common global standards were agreed by some 195 states in the
Recommendation on Science and Scientific protect and reassert scientific
freedoms, the rights of scientists, and rights of research subjects,
and the right of everyone to science.
A
range of secondary legal sources exist on economic, social and cultural
rights which provide guidance on their normative definition. An
important secondary legal source is the United Nations Committee on Economic, Social and Cultural Rights which is overseeing the implementation of the International Covenant on Economic, Social and Cultural Rights
(ICESCR). The Committee has been central in developing the normative
definition of key economic, social and cultural rights, interpreting the
role of State Parties to the ICESCR, and monitoring protection and
violation of the ICESCR rights. The Committee issues guiding
pronouncements in the form of general comments, and other human rights treaty bodies may also issue comments relevant to economic, social and cultural rights.
Other important secondary legal sources on economic, social and cultural rights are the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights 1987 and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights
1997. The Limburg Principles have been extensively used in national
legal systems as an interpretive tool for establishing violations of
economic, social and cultural rights. The Maastricht Guidelines build on
the Limburg Principles and identify the legal implications of acts and
omissions which are violations of economic, social and cultural rights. Various United Nations Special Rapporteurs have influenced the normative development of economic, social and cultural rights. Appointed by the Commission on Human Rights
and its sub-commissions, key rapporteurs include the Special Rapporteur
on the Realization of Economic, Social and Cultural Rights, the Special
Rapporteur on the Right to Adequate Housing, the Special Rapporteur on
the Right to Education, and the Special Rapporteur on Violence Against
Women.
National constitutions
A number of national constitutions recognize economic, social and cultural rights. For example, the 1996 Constitution of South Africa includes economic, social and cultural rights and the South African Constitutional Court has heard claims under these obligations (see Grootboom and Treatment Action Campaign cases). India's constitution,
which does not explicitly recognize economic and social rights in their
constitution, has nonetheless found that these rights exist, though unenumerated, inferable from the right to life.
Constitutional recognition of economic, social and cultural
rights has long been thought to be counterproductive, given that courts
might be tasked to adjudicate them, and hence disrupt the democratic
chains of accountability of the so-called elected branches. Nonetheless, a growing literature from the Global South has tracked very different judicial responses.
Sympathetic critics argue that socio-economic rights appear
‘quite negligible’ factors in terms of ensuring overall human
development. Contemporary welfare states tend to emphasize decommodification, general welfare and the common good,
not rights. Sweden, Finland, and Denmark, for example, adhere to a
comparatively robust welfare effort, built primarily through social
democratic parties and trade union mobilisation, without relying on
judicial review of socio-economic rights.
Nonetheless, majoritarian political arenas such as parliaments and
trade union structures may remain unresponsive to minorities. The gains
won through litigation, modest though they may be, can nonetheless be of
value for those who benefit from them.
Civil society movements have advanced alternative institutions,
norms and practices for constitution-making and making socio-economic
rights effective. Participants in recent constitution-making experiments
in Iceland, Bolivia and Ecuador have all linked economic and social rights to new institutional arrangements such as participatory budgeting or technologically-enhanced direct democracy as well as to new norms and discourses, notably those concerning ecological stewardship and the commons as well as care and social reproduction. In Ireland, social movements such as the ‘Right2Water’ and ‘Repeal the 8th’ campaigns have demonstrated how highly networked
individuals and communities can mobilise both alongside and outside of
traditional institutions, act collectively, and advance economic, social
and cultural rights.
State parties to the ICESCR are required to take "progressive
action" towards fulfilment of the ICESR rights. While immediate
fulfilment may not be possible due to the economic situation of a
country, postponement of proactive action is not permitted. State
parties must show genuine efforts to secure the economic, social and
cultural rights enshrined in the ICESCR. The burden of proof for
progressive action is considered on be with the state party. The
prohibition on discrimination
in relation to economic, social and cultural rights is regarded as
having immediate effect. State parties must abolish laws, policies and
practices which affect the equal enjoyment of economic, social and
cultural rights and take action to prevent discrimination in public
life. All state parties, regardless of the economic situation in the
country or resource scarcity, are required to ensure respect for minimum
subsistence rights for all. State parties must also ensure that
available resources are accessed and used equitably. Therefore,
government decisions on how to allocate resources should be subject to
scrutiny. Legislative measures alone are not sufficient to ensure
compliance with the ICESCR and state parties are expected to provide
judicial remedies in addition to taking administrative, financial,
educational and social measures.
Monitoring, enforcement and implementation framework
Intergovernmental organisations and non-governmental organisations (NGOs) have persistently neglected economic, social and cultural rights over the past 50 years.
While all human rights are said to be "equal, indivisible,
interrelated, and interdependent", the monitoring, enforcement and
implementation framework for economic, social and cultural rights is
less advanced than that for civil and political rights.
International enforcement mechanisms are strongest for civil and
political rights, and their violation is considered more serious than
that of economic, social and cultural rights. There are few
international NGOs that focus on economic, social and cultural rights
and there are few lawyers who have the knowledge or experience to defend
economic, social and cultural rights at a national or international
level. Economic, social and cultural rights are less likely than civil
and political rights to be protected in national constitutions.
In 2017, for the common global standards in the Recommendation on
Science and Scientific Researchers relating to the right to science,
states agreed at the UNESCO General Conference to adopt four-yearly
reporting on implementation, and agreed that UNESCO's Executive Board is
competent to manage monitoring, with the networks of UNESCO National
Commissions and academic partners mobilized in countries to ensure
implementation and monitoring at country level.
For the other major international human rights conventions mentioned
above there are various other treaty bodies to ensure some monitoring of
implementation. And each may transmit to the Human Rights Council
reports of individual cases when a state is the subject of a Universal
Periodic Review.
The right to education places the individual at the centre of education frameworks.
Education as a human right has the following characteristics:
it is a right: Education is not a privilege or subject to
political or charitable whims. It is a human right. It places mandatory
demands on duty-bearers (particularly the state, but also parents,
children, and other actors.)
it is high priority: Education is a key priority of the state. Obligations to ensure the right to education cannot be dismissed
it is a key right: Education is instrumental in ensuring all other human rights. It has economic, social, cultural, civil, and political dimensions
The right to education places legal obligations on states when they
make decisions regarding education and the education system. It offers
an internationally agreed normative framework for the standards that
states must not fall beneath concerning the education of its citizens
and non-citizens.
Education as a multiplier right
These standards define what states must do and avoid doing in order to ensure the dignity
of the individual. The right to education is broad and covers many
aspects of education. This means that for the specific areas related to
education, states must act within the boundaries permitted under international human rights law (IHRL).
Networking groups such as ESCR-Net
are working to create online resources and spread information about
effective cases, initiatives, and working groups promoting ideals and
celebrating victories of human rights initiatives and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
Currently, human rights advocacy groups are working diligently to
fine-tune rules, regulations and implementation schemes; little news of
complaint successes or failures is available. The Centre on Housing Rights and Evictions (COHRE) has helped to establish the Housing and Property Directorate (HPD/HPCC) in Kosovo.
The right to education has been recognized as a human right in a number of international conventions, including the International Covenant on Economic, Social and Cultural Rights which recognizes a right to free, compulsory primary education for all, an obligation to develop secondary education
accessible to all, on particular by the progressive introduction of
free secondary education, as well as an obligation to develop equitable
access to higher education,
ideally by the progressive introduction of free higher education.
Today, almost 75 million children across the world are prevented from
going to school each day. As of 2015, 164 states were parties to the Covenant.
The right to education also includes a responsibility to provide basic education
for individuals who have not completed primary education from the
school and college levels. In addition to these access to education
provisions, the right to education encompasses the obligations of the
students to avoid discrimination at all levels of the educational system, to set minimum standards of education and to improve the quality of education.
"Everyone has the right to education. Education shall be
free, at least in the elementary and fundamental stages. Elementary
education shall be compulsory. Technical and professional education
shall be made generally available and higher education shall be equally
accessible to all on the basis of merit. Education shall be directed to
the full development of the human personality and to the strengthening
of respect for human rights and fundamental freedoms. It shall promote
understanding, tolerance and friendship among all nations, racial or
religious groups, and shall further the activities of the United Nations
for the maintenance of peace. Parents have a prior right to choose the
kind of education that shall be given to their children."
In Europe, Article 2 of the first Protocol of 20 March 1952 to the European Convention on Human Rights
states that the right to education is recognized as a human right and
is understood to establish an entitlement to education. According to the
International Covenant on Economic, Social and Cultural Rights,
the right to education includes the right to free, compulsory primary
education for all, an obligation to develop secondary education
accessible to all in particular by the progressive introduction of free
secondary education, as well as an obligation to develop equitable
access to higher education in particular by the progressive introduction
of free higher education. The right to education also includes a
responsibility to provide basic education for individuals who have not
completed primary education. In addition to these access to education
provisions, the right to education encompasses also the obligation to
eliminate discrimination at all levels of the educational system, to set
minimum standards, and to improve quality. The European Court of Human Rights in Strasbourg has applied this norm for example in the Belgian linguistic case. Article 10 of the European Social Charter guarantees the right to vocational education.
According Indian constitution under 86th Amendment act 2002 gives
a right to free and compulsary education upto 6–14 years of age.
Definition
Education
consists of formal institutional instructions. Generally, international
instruments use the term in this sense and the right to education, as
protected by international human rights instruments, refers primarily to education in a narrow sense. The 1960 UNESCO
Convention against Discrimination in Education defines education in
Article 1(2) as: "all types and levels of education, (including such)
access to education, the standard and quality of education, and the
conditions under which it is given."
In a wider sense education
may describe "all activities by which a human group transmits to its
descendants a body of knowledge and skills and a moral code which enable
the group to subsist".
In this sense education refers to the transmission to a subsequent
generation of those skills needed to perform tasks of daily living, and
further passing on the social, cultural, spiritual and philosophical
values of the particular community. The wider meaning of education has
been recognised in Article 1(a) of UNESCO's 1974 Recommendation
concerning Education for International Understanding, Co-operation and
Peace and Education relating to Human Rights and Fundamental Freedoms.
"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 capabilities, attitudes, aptitudes and knowledge."
The European Court of Human Rights
has defined education in a narrow sense as "teaching or instructions...
in particular to the transmission of knowledge and to intellectual
development" and in a wider sense as "the whole process whereby, in any
society, adults endeavour to transmit their beliefs, culture and other
values to the young."
The Abidjan principles were passed in early 2019 and provide
comprehensive guiding principles on the intersection between private
education and the right to education
Assessment of fulfilment
The
fulfilment of the right to education can be assessed using the 4 As
framework, which asserts that for education to be a meaningful right it
must be available, accessible, acceptable and adaptable. The 4 As
framework was developed by the former UN Special Rapporteur on the Right
to Education, Katarina Tomasevski, but is not necessarily the standard used in every international human rights instrument and hence not a generic guide to how the right to education is treated under national law.
The 4As
The 4 As framework proposes that governments, as the prime
duty-bearers, have to respect, protect and fulfil the right to education
by making education available, accessible, acceptable and adaptable.
The framework also places duties on other stakeholders in the education
process: the child, which as the privileged subject of the right to
education has the duty to comply with compulsory education requirements, the parents as the ‘first educators’, and professional educators, namely teachers.
The 4 As have been further elaborated as follows:
Availability – funded by governments, education is universal, free
and compulsory. There should be proper infrastructure and facilities in
place with adequate books and materials for students. Buildings should
meet both safety and sanitation standards, such as having clean drinking water.
Active recruitment, proper training and appropriate retention methods
should ensure that enough qualified staff is available at each school.
Accessibility
– all children should have equal access to school services, regardless
of gender, race, religion, ethnicity or socio-economic status. Efforts
should be made to ensure the inclusion of marginalized groups including
children of refugees, the homeless or those with disabilities; in short
there should be universal access to education i.e. access to all. Children who fall into
poverty should be granted the access of education because it enhances
the growth of their mental and social state. There should be no forms of
segregation or denial of access to any students. This includes ensuring
that proper laws are in place against any child labour or exploitation
to prevent children from obtaining primary or secondary education.
Schools must be within a reasonable distance for children within the
community, otherwise transportation should be provided to students,
particularly those that might live in rural areas, to ensure ways to
school are safe and convenient. Education should be affordable to all,
with textbooks, supplies and uniforms provided to students at no
additional costs.
Acceptability
– the quality of education provided should be free of discrimination,
relevant and culturally appropriate for all students. Students should
not be expected to conform to any specific religious or ideological
views. Methods of teaching should be objective and unbiased and material
available should reflect a wide array of ideas and beliefs. Health and
safety should be emphasized within schools including the elimination of
any forms of corporal punishment. Professionalism of staff and teachers
should be maintained.
Adaptability
– educational programs should be flexible and able to adjust according
to societal changes and the needs of the community. Observance of
religious or cultural holidays should be respected by schools in order
to accommodate students, along with providing adequate care to those
students with disabilities.
In Europe, before the Enlightenment of the eighteenth and nineteenth century, education was the responsibility of parents and the church. With the French and American Revolution,
education was established also as a public function. It was thought
that the state, by assuming a more active role in the sphere of
education, could help to make education available and accessible to all.
Education had thus far been primarily available to the upper social
classes and public education was perceived as a means of realising the egalitarian ideals underlining both revolutions.
However, neither the American Declaration of Independence (1776) nor the French Declaration of the Rights of Man and of the Citizen (1789) protected the right to education, as the liberal concepts of human rights
in the nineteenth century envisaged that parents retained the primary
duty for providing education to their children. It was the states
obligation to ensure that parents complied with this duty, and many
states enacted legislation making school attendance compulsory.
Furthermore, child labour
laws were enacted to limit the number of hours per day children could
be employed, to ensure children would attend school. States also became
involved in the legal regulation of curricula and established minimum educational standards.
In On LibertyJohn Stuart Mill
wrote that an "education established and controlled by the State should
only exist, if it exists at all, as one among many competing
experiments, carried on for the purpose of example and stimulus to keep
the others up to a certain standard of excellence." Liberal thinkers of
the nineteenth century pointed to the dangers to too much state
involvement in the sphere of education, but relied on state intervention
to reduce the dominance of the church, and to protect the right to
education of children against their own parents. In the latter half of
the nineteenth century, educational rights were included in domestic
bills of rights. The 1849 Paulskirchenverfassung, the constitution of the German Empire,
strongly influenced subsequent European constitutions and devoted
Article 152 to 158 of its bill of rights to education. The constitution
recognised education as a function of the state, independent of the
church. Remarkable at the time, the constitution proclaimed the right to
free education for the poor, but the constitution did not explicitly
require the state to set up educational institutions. Instead the
constitution protected the rights of citizens to found and operate
schools and to provide home education. The constitution also provided for freedom of science and teaching, and it guaranteed the right of everybody to choose a vocation and train for it.
The nineteenth century also saw the development of socialist
theory, which held that the primary task of the state was to ensure the
economic and social well-being of the community through government
intervention and regulation. Socialist theory recognised that
individuals had claims to basic welfare services against the state and
education was viewed as one of these welfare entitlements. This was in
contrast to liberal
theory at the time, which regarded non-state actors as the prime
providers of education. Socialist ideals were enshrined in the 1936 Soviet Constitution,
which was the first constitution to recognise the right to education
with a corresponding obligation of the state to provide such education.
The constitution guaranteed free and compulsory education at all levels,
a system of state scholarships and vocational training in state
enterprises. Subsequently, the right to education featured strongly in
the constitutions of socialist states. As a political goal, right to education was declared in F. D. Roosevelt's 1944 speech on the Second Bill of Rights.
The role of education for individuals, the society and the state
Education in all its forms (informal, non-formal, and formal) is crucial to ensure human dignity of all individuals. The aims of education, as set out in the International human rights law (IHRL), are therefore all directed to the realization of the individual’s rights and dignity.
These include, among others, ensuring human dignity and the full and
holistic development of the human personality; fostering physical and
cognitive development; allowing for the acquisition of knowledge,
skills, and talents; contributing to the realization of the full
potential of the individual; enhancing self-esteem and increasing
confidence; encouraging respect for human rights; shaping a person’s
sense of identity and affiliation with others; enabling socialization
and meaningful interaction with others; enabling a person to shape the
world around them enables their participation in community life;
contributing to a full and satisfying life within society; and
empowering and allowing for the increased enjoyment of other human
rights.
The multiple benefits of education
Education is also transformative for the state and society. As one of
the most important mechanisms by which social groups, in particular indigenous peoples and minorities are maintained from generation to generation, passing on language, culture, identity, values, and customs, education is also one of the key ways states can ensure their economic, social, political, and cultural interests.
The main role of education within a society and the state is to:
Allow for the transmission of culture, values, identity, languages, and customs from one generation to the next;
Promote sustainable economic growth;
Foster democratic and peaceful societies;
Encourage participation and inclusion in decision-making processes;
Encourage sustainable development, including respect for the environment.
Implementation
International law does not protect the right to pre-primary education and international documents generally omit references to education at this level. The Universal Declaration of Human Rights
states that everyone has the right to education, hence the right
applies to all individuals, although children are considered as the main
beneficiaries.
The rights to education are separated into three levels:
Primary (Elemental or Fundamental) Education. This shall be
compulsory and free for any child regardless of their nationality,
gender, place of birth, or any other discrimination. Upon ratifying the International Covenant on Economic, Social and Cultural Rights States must provide free primary education within two years.
Secondary (or Elementary, Technical and Professional in the UDHR) Education must be generally available and accessible.
At the University Level, Education should be provided according to
capacity. That is, anyone who meets the necessary education standards
should be able to go to university.
Both secondary and higher education shall be made accessible "by
every appropriate means, and in particular by the progressive
introduction of free education".
The
rights of all children from early childhood stem from the 1948
Universal Declaration of Human Rights. The declaration proclaimed in
article 1: ‘All human beings are born free and equal in dignity and
rights’. The declaration states that human rights begin at birth and
that childhood is a period demanding special care and assistance [art. 25 (2)]. The 1959 Declaration of the Rights of the Child
affirmed that: ‘mankind owes to the child the best it has to give’,
including education. This was amplified by the International Covenant on
Economic, Social and Cultural Rights of 1966 which states 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.
The World Declaration on Education for All (EFA) adopted in 1990 in Jomtien, Thailand, states in article 5 that: ‘Learning begins at birth [...] This calls for early childhood care and initial education.’
A decade later, the Dakar Framework for Action on EFA established six
goals, the first of which was: ‘expanding and improving early childhood
care and education, especially for the most vulnerable and disadvantaged
children.’ Protection of children of all ages from exploitation and
actions that would jeopardize their health, education and well-being has
also been emphasized by the International Labour Organization
in Conventions No. 138 on the Minimum Age of Employment (1973) and No.
182 on the Prohibition and Immediate Action for the Elimination of the
Worst Forms of Child Labour (1999). The United Nations contributed to
such endeavours by the Declaration of the Rights of the Child
unanimously adopted by the General Assembly in 1959.
There are various NGO's working towards the right to education. EClickKart is one of such platforms initiated by Rohit N Shetty which states that Education is the basic right and EClickKart is working towards it.
The impact of privatization on the right to education
The privatization of education can have a positive impact for some social groups, in the form of increased availability of learning opportunities, greater parental choice and a wider range of curricula.
However, it can also have negative effects resulting from insufficient
or inadequate monitoring and regulation by the public authorities
(schools without licences, hiring of untrained teachers
and absence of quality assurance), with potential risks for social
cohesion and solidarity. Of particular concern: "Marginalised groups
fail to enjoy the bulk of positive impacts and also bear the
disproportionate burden of the negative impacts of privatisation." Furthermore, uncontrolled fees demanded by private providers could undermine universal access to education.
More generally, this could have a negative impact on the enjoyment of
the right to a good quality education and on the realization of equal
educational opportunities.
Supplemental private tutoring, or ‘shadow education’, which
represents one specific dimension of the privatization of education, is
also growing worldwide. Often a symptom of badly functioning school systems,
private tutoring, much like other manifestations of private education,
can have both positive and negative effects for learners and their
teachers. On one hand, teaching can be tailored to the needs of slower
learners and teachers can supplement their school salaries. On the other
hand, fees for private tutoring may represent a sizeable share of household income,
particularly among the poor, and can therefore create inequalities in
learning opportunities. And the fact that some teachers may put more
effort into private tutoring and neglect their regular duties can
adversely affect the quality of teaching and learning at school.
The growth of shadow education, the financial resources mobilized by
individuals and families, and the concerns regarding possible teacher
misconduct and corruption are leading some ministries of education to
attempt to regulate the phenomenon.
Universal access to education is the ability of all people to have equal opportunity in education, regardless of their social class, race, gender, sexuality, ethnic background or physical and mental disabilities. The term is used both in college admission for the middle and lower classes, and in assistive technology for the disabled. Some critics feel that this practice in higher education, as opposed to a strict meritocracy, causes lower academic standards. In order to facilitate the access of education to all, countries have right to education.
Universal access to education encourages a variety of pedagogical
approaches to accomplish the dissemination of knowledge across the
diversity of social, cultural, economic, national and biological
backgrounds. Initially developed with the theme of equal opportunity
access and inclusion of students with learning or physical and mental disabilities, the themes governing universal access to education have now expanded across all forms of ability and diversity.
However, as the definition of diversity is within itself is a broad
amalgamation, teachers exercising universal access will continually face
challenges and incorporate adjustments in their lesson plan to foster
themes of equal opportunity of education.
As universal access continues to be incorporated into the U.S. education system,
professors and instructors at the college level are required (in some
instances by law) to rethink methods of facilitating universal access in
their classrooms. Universal access to college education may involve the
provision of a variety of different assessment methods of learning and
retention. For example, in order to determine how much of the material
was learned, a professor may enlist multiple methods of assessment.
Methods of assessment may include a comprehensive exam, unit exams,
portfolios, research papers, literature reviews, an oral exam or
homework assignments.
Providing a variety of ways to assess the extent of learning and
retention will not only identify the gaps in universal access but may
also elucidate the ways to improve universal access.
Non-discrimination and equality in education
Examples of marginalized groups
Human rights are universal rights, therefore it applies to everyone equally and without discrimination. However, a significant number of individuals miss out on education due to discrimination preventing access to education.
Discrimination occurs most obviously in terms of accessing education. For example, girls can face gender-based barriers such as child marriage, pregnancy, and gender-basedviolence which often prevent them from going to school or contribute to them dropping-out of school. People with disabilities
often face literal accessibility issues, such as a lack of ramps or
appropriate school transportation, making it difficult to get to school.
Migrants often face administrative barriers that prevent them from
enrolling, effectively barring them from education systems.
However, discrimination also occurs within education systems when
certain groups receiving an inferior quality of education compared with
others, for instance, the quality of education in urban schools tends
to be higher than that found in rural areas.
Discrimination also happens after education where different
groups of people are not able to draw the same benefits from their
schooling. For example, educated boys tend to leave school with higher
wage potential than equally educated girls.
Non-discrimination and equality provisions found in international human rights law
(IHRL) exist to ensure that the principle that human rights are
universal is applied in practice. Non-discrimination and equality are
not abstract concepts under international human rights law (IHRL). They are elaborated human rights
that have been developed over decades to address the discrimination
that people face on a day-to-basis. Particularly education where the
rights to non-discrimination and equality have been applied to the right to education across numerous human rights treaties, including one dedicated to the issue, known as UNESCO CADE.
Despite the strength of non-discrimination and equality law,
eliminating discrimination and inequalities is a challenge that
individual states and the international community face. This was
acknowledged in 2015 when the international community vowed to ‘leave no
one behind’.
International and regional human rights treaties apply the rights to non-discrimination and equality to the right to education of specific marginalised
groups. Marginalised groups are those who have suffered prolonged and
historical discrimination, usually, but not exclusively, on the basis of
identity (gender, for example), characteristics (ethnicity, race), or
circumstance (refugees, migrants, internally displaced persons). Marginalisation are very likely to be subject to multiple, compound, or intersectional forms of discrimination.
In
2009 the House of Indian Parliament and the President of India both
signed and approved a bill that would grant free law mandated education
for children ages six to fourteen.
It was a great step towards universal education for all. Muchkund Dubey
author of the article “The Right of Children to Free and Compulsory
Education Act, 2009 : The Story of Missed Opportunity" discusses and
highlights the issues of access, quality of education, financial
implication, and discrimination.
In the United States, Brown vs. Board of Education was a landmark
decision because it found and declared that, “separate educational
facilities are inherently unequal”. This began the process of desegregation in many schools that had not desegregated yet.
The significance of Brown vs. Board was the universal right of all
students to attend educational institutions equally rather than
separately based on their race. Jonathan Kozol, author of The Shame of
the Nation,
talks about how “physical conditions in these newly integrated schools
were generally more cheerful…state of mind among the teachers and the
children [was] more high-spirited” in the aftermath of desegregation.
Universal access
Universal
Access to education means people have equal opportunities to take part
in any educational system. However, not all individuals, groups, or
ethnic groups are given equal access. The United States is credited with
the current idea of universal access as a concern for handicapped
persons.
Two international agencies (World Health Organization and World Bank)
estimated that around one billion people all over the world various
types of disabilities. Between 93 and 150 million of them are children.
Plan International revealed that these kids will not possibly attend
school and if ever they enroll will be separated from normal pupils.
The Global Partnership for Education said approximately 90 percent of
children afflicted by disabilities from low and middle income nations
are not studying. Historically, these kids are not included in the ordinary education system and referred to special learning schools.
It is unfortunate that education up to this very day is not
accessible to millions of schoolchildren globally. 72 million or more
children of primary education age do not go to school. Some 759 million
adults are uneducated. They do not have the knowledge needed in
improving their families’ living conditions. Poverty leads to lack of education.
In almost all countries (developing and developed), children are denied
education as a result of inequalities that emanate from health, gender,
and cultural identity like religion, language, and ethnic origin.
Factors associated with poverty including unemployment, illiterate
parents, and ailments increase the possibility of non-schooling, and
dropout rates.
Universal primary education has turned out as a major problem for many
nations. Majority of these developing states do not possess sufficient
financial resources to build schools, provide books and other materials,
and recruit, train, and pay teachers. The Sub-Saharan African region is the most affected region as 32 million African children are still uneducated. This is followed by Central and East Asia as well as the Pacific with 27 million or more. However, observers noted that universal access to education remains an attainable goal by 2030.
Bibliography
The Big Test - a history of the twentieth century development in the United States of universal access to colleges.
