RIGHT TO EDUCATION Master of Arts in Human

RIGHT TO EDUCATION Master of Arts in Human Rights and Conflict Management Aniceto Teodoro, Boniardi Fulvia, Gutierrez Norma, Manzotti Cecilia, Tronconi Veronica

Outline « Why is Right to Education Important? « Which are the rights related to the right to education? « What does Right to education Mean? « State Obligations « Where is the right codified? « The Rohingya’s case « Want to know more?

Why is Right to Education Important? 1. As a right in itself 2. As a key for the enjoyment of other Human Rights 3. As enshrining both Economic, Social and Cultural and Civil and Political rights

1. As a right in itself “Education shall be directed to the full development of the human personality and the sense of its dignity” ICESCR, art. 13 (1) “The importance of education is not just practical: a welleducated, enlightened and active mind, able to wonder freely and widely, is one of the joys and rewards of human existence” CESCR, General Comment 13, Right to Education

Human Rights v. Human Capital Approach “From the Human Rights viewpoint, education is thus an end in itself rather than merely a means for achieving other ends. Some economists may, however, define education as efficient production of human capital and classify all its Human Rights dimensions as externalities. ” Preliminary Report of the Special Rapporteur Katarina Tomasevski (1999)

An example “The contrast between the human rights and human-capital approaches is best illustrated by taking children with physical and learning disabilities as an example. The former may be excluded from school because providing wheelchair access, for example, may be deemed too expensive; the letter may be excluded from schooling because meeting their learning needs is deemed not to yield a sufficient marginal return on investment. This type of reasoning obviously challenges the very assumption of human rights, namely the equal worth of all human beings. ” Preliminary Report of the Special Rapporteur Katarina Tomasevski (1999)

2. As a key for the enjoyment of other Human Rights “Education is both a human right in itself and an indispensable means of realizing other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities. Education has a vital role in empowering women, safeguarding children from exploitative and hazardous labor and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth. General Comment 13, The Right to Education

Which are the rights related to the right to education? Right to Work and Social Security: “Without education, people are impeded from access to employment. Lower educational accomplishment routinely prejudices their career advancement. Lower salaries negatively affect the old-age security. Denial of the right to education triggers exclusion from the labor market and marginalization into some form of informal sector, accompanied by exclusion from social security scheme because of the prior exclusion from the labor market. Redressing the existing imbalance in life chances without the full recognition of the right to education is thus impossible. ” Annual Report of the Special Rapporteur Katarina Tomasevski (2001)

Freedom of expression and right to participation: “ The fulfillment of the Rt. E would allow the enkoyment of, inter alia, the right to freedom of opinion and expression and the right to participation. ” The Right to Education, Report submitted by the Special rapporteur, Mr. Vernor Muñoz Villalobo

• Freedom from racial discrimination: “The realization of the right to education […] contributes to the eradication of poverty and of racism, racial discrimination, xenophobia and related intolerance” Human Rights Council, Resolution 8/4, The Right to Education

• Freedom of Religion or Belief: “School, as an essential element of the education system, can also be an essential and preferred vehicle for prevention [of religious intolerance][…] and a place for learning about peace, understanding and tolerance among individuals, groups and nations in order to develop respect for pluralism. ” Civil and Political Rights, including religious intolerance, Report submitted by Mr. Abdelfattah Amor, Special Rapporteur on freedom of religion or belief(2004)

• Right to gender equality: “The right to education (is) a powerful tool for mainstreaming human rights and enhancing gender equality… Successful prolongation of girls’ schooling delays marriages and childbearing” Annual Report of the Special Rapporteur Katarina Tomasevski (2001)

3. As enshrining both Economic, Social and Cultural and Civil and Political rights “The right to education straddles the division of human rights into civil and political, on the one hand, and economic, social and cultural, on the other hand. It embodies them all. This feature affirms the conceptual universality of human rights. ” Annual Report of the Special Rapporteur Katarina Tomasevski (2001) An example: “While it is acknowledged that gender discrimination cannot be eliminated as long as it remains artificially divided between different categories of rights, further steps are necessary to design and put into practice a comprehensive strategy for its elimination with regard to the right to education. ” Annual Report of the Special Rapporteur Katarina Tomasevski (2001)

What does Right to education Mean? On the basis of treaty and customary law, the right to education encompasses the following components: 1. Equal and non-discriminatory enjoyment of and equal access to educational opportunities and facilities 2. Compulsory and free primary/basic education 3. Generally available and accessible secondary education in its different forms, and equally accessible higher education 4. Freedom of choice in education and freedom to establish private institutions 5. Full development of the human personality and the sense of its dignity, and strengthening of the respect for human rights and fundamental freedoms.

1. Equal and non-discriminatory enjoyment of and equal access to educational opportunities and facilities What does discrimination mean? ”Discrimination includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment. ” UNESCO Convention Against Discrimination in Education (1960)

In particular in the access and enjoyment of education it means: (a) Depriving any person or group of persons of access to education of any type or at any level (b) Of limiting any person or group of persons to education of an inferior standard (c) Establishing or maintaining separate educational system or institutions for persons or groups of persons (d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man. UNESCO Convention Against Discrimination in Education (1960)

Inclusion v. Discrimination “Inclusion is seen as a process of addressing and responding to the diversity of needs of all learners through increasing participation in learning, cultures and communities, and reducing exclusion within and from education. It involves changes and modifications in content, approaches, structures and strategies […]. Inclusion is concerned with the identification and removal of barriers. ” UNESCO’s Guidelines for Inclusion: Ensuring Access to Education for All, 2005

The peculiarity of the principle of non - discrimination The prohibition against discrimination “is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education. ” CESCR, General Comment 13, Right to Education

Which are the groups more exposed to discrimination in the access and enjoyment of the Right to Education? a. b. c. d. e. f. Women Refugees Migrants Indigenous people Persons with disabilities Other categories (Elderly people, street children, stateless persons, IDPs, persons in detention…)

a. Women CEDAW, art. 10 States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women: (a) The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas (b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard (c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods;

Main challenges faced by women in education: • • Difficulty to access to school and to attend it regularly Sexist and stereotypical teaching methods, contents and language Risk of sexual assault and harassment by male teachers and classmates Lower self-esteem and fewer future expectations

The example of India: In the Concluding Observations (2007), CEDAW • As regards women access to school: “Given the particularly disadvantaged situation of Muslim women and girls, the Committee calls upon the State party to strenghten its efforts […] to close the gap in literacy rates between men and women. ” • As regards the stereotypes: “ The Committee calls upon the State party to initiate and monitor the reform of text books to eliminate all gender-based stereotypes and to strenghten its efforts […] to combact the widespread acceptance of stereotypical roles of men and women”

b. Refugees Convention related to the Status of Refugees, art. 22 1) 2) The Contracting States shell accord to refugees the same treatment as is accorded to nationals with respect to elementary education. The contracting States shell accord to refugees treatment as favourable as possible, and, in any event, not less favourable then that accorded to aliens generally in the same circumstances, with respect to education other then elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.

Main challenges faced by refugees in education: In Emergency Situation: • Establishing an education system organized and run by the refugees themselves, to the extent possible, with proper outside support. • To use schools to disseminate survival and life skills messages, on issues such as health, sanitation and nutrition. • To give a structure and sense of normality to a dislocated and traumatized community through the setting up of schools. Not in Emergency Situation: • To be granted access to school • To overcome the language and cultural barriers

c. Migrants International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Article 30 Each child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned. Access to public pre-school educational institutions or schools shall not be refused or limited by reason of the irregular situation with respect to stay or employment of either parent or by reason of the irregularity of the child's stay in the State of employment.

Main challenges faced by migrants in education: • State recognition of its duty to provide education • State effective implementation of the right • Real access to school • Elimination of language and cultural barriers • Making school a tool to promote integration in the hosting society for irregular as well as for regular migrants • For irregular migrants, use of education to enjoy security and avoid exposition to criminal acts.

The example of Roma children in Italy, regarding the effective implementation of the right Concluding Observations (2008), CERD “The Committee […] reccomends that the State party strenghten its efforts to support the inclusion in the school system of all children of Roma origin and to address the causes of dropout rates […]. It further reccomends that it proceeds to include dialogue and communication between teaching personnel and Roma children, Roma communities and parents, including more frequent use of teaching assistants chosen from among the Roma. ”

Right to education and citizenship A widespread form of direct discrimination in access to education is against non-citizens. This can have disastrous effects on the education of refugees, children of asylum seekers, and children of migrant workers. International law is very clear on this point. The CRC extends protection to all children, making no distinction between citizens and noncitizens. […] The Inter-American Commission on Human Rights has upheld the right of all to education, irrespective of citizenship. “Economic, Social and Cultural Rights: A Guide for Minorities and Indigenous Peoples” , Edited by Margot E. Salomon

d. Indigenous People Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries Article 27 1. Education programmes and services for the peoples concerned shall be developed and implemented in co-operation with them to address their special needs, and shall incorporate their histories, their knowledge and technologies, their value systems and their further social, economic and cultural aspirations. They shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. 3. In addition, governments shall recognise the right of these peoples to establish their own educational institutions and facilities, provided that such institutions meet minimum standards established by the competent authority in consultation with these peoples. Appropriate resources shall be provided for this purpose.

Right to Education and empowerment in Indigenous Groups “Quality education enables indigenous children to exercise and enjoy echonomic social and cultural rights for their personal benefit as well as for the benefit of their community. Further more, it strenghten children’s ability to exercise their civil rights in order to influence political policy processes for improved protection of human rights. Thus, the implementation of the right to education of indigenous children is an essential means of achieving individual empowerment and self-determination of indigenous people. ” CRC, General Comment 11, Indigenpus Children and their rights under the Convention (2009)

e. Persons with Disabilities Convention on the Rights of Persons with Disabilities Art. 24 States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and life long learning directed to: a. The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity; b. The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential.

Right to education and Self-Awareness “It is crucial that the education of a child with disability includes the strengthening of positive self-awareness. The child must be able to observe that others respect him or her and recognize his or her human rights and freedoms. Inclusion of the child with disability in the groups of children of the classroom can show the child that he or she has recognized identity and belongs to the community of learners, peers, and citizens. ” General Comment 9 of CRC (2006), The rights of children with disabilities

Right to Education and Inclusion “Inclusive education should be the goal of educating children with disabilities. The manner and form of inclusion must be dictated by the individual educational needs of the child, since the education of some children with disabilities requires a kind of support which may not be readly available in the regular school system. ” General Comment 9 of CRC (2006), The rights of children with disabilities

In the case of International Association Autism Europe v. France (2003) European Committee on Social Rights ruled that the Government's overall lack of progress in this area constituted a violation of the Charter, namely the right of persons with disabilities to education, the right of children and young persons to education, and the right of all persons to non‑discrimination. When the realization of a Charter right was “exceptionally complex and particularly expensive”, a government was permitted some flexibility but realization of social rights must occur within a “reasonable time, with measurable progress and to an extent consistent with the maximum available resources”. Noting that there had been twenty years of national debate on the subject, and that the Disabled Persons Act had been passed in 1975, the Committee found that there was an unacceptable and chronic shortage of places.

2. Compulsory and free primary/basic education What does primary/basic education mean? primary/basic education ICESCR, art. 13 (2) “The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all” African Charter on the Rights and Welfare of the Child, art. 11 “States party to the present charter shell take all appropriate measure with the view to achieving the full realization of this right and shell in particular: (a) Provide free and compulsory basic education.

What does primary education mean? primary education Starting age: 6/7 years old Duration: 6 -15 according to Human Rights instruments “The logic behind human rights requirement is that the minimum duration of education should extend further then 11 years of age, at least to the minimum age for employment” Preliminary report of the Special Rapporteur Ms. Katarina Tomasevski (1999) What does basic education mean? basic education “Basic education goes beyond the confines of formal schooling to encompass non-formal education as well as early childhood education, including also “second chance” primary education for youth, adults and parents. ”. Preliminary report of the Special Rapporteur Ms. Katarina Tomasevski (1999)

Early Childhood Care and Education “Learning begins at birth. This calls for early childhood care and initial education. These can be provided through arrangements involving families, communities, or institutional progra mmes, as appropriate. ” Jomtien Declaration for Education for All (1990)

What does compulsory mean? compulsory “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 wether the child should have access to primary education. ” CESCR, General Comment 11, Plans of action for primary education “The requirements to make primary education compulsory has been translated into domestic law by many more States than the right to education. ” Preliminary report of the Special Rapporteur Ms. Katarina Tomasevski (1999)

• The Constitution of Italy 22 December 1947, art. 34 (2) Elementary education, imparted for at least eight years, is compulsory and free. • The Constitution of Cameroon 1972 as amended in 1996. Preamble The State shall guarantee the child's right to education. Primary education shall be compulsory • The Constitution of India, 1950 Art. 45. Provision for free and compulsory education for children. (1) The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

What does free mean? (1) free “The International HR treaties posit that primary education should be free, with the exception of the European Convention on HR. ”. Preliminary report of the Special Rapporteur Ms. Katarina Tomasevski (1999) Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedom Article 2 No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions.

What does free mean? (2) “The nature of this requirement is unequivocal. The right is expressly formulated so as to ensure the availability of primary education without charge to the child, parents or guardians. Fees imposed by the Government, the local authorities or the school, and other direct costs, constitute disincentives to the enjoyment of the right and may jeopardize its realization. They are also often highly regressive in effect[…] Indirect costs, such as compulsory levies on parents (sometimes portrayed as being voluntary, when in fact they are not), or the obligation to wear a relatively expensive school uniform, can also fall into the same category. ” CESCR, General Comment 11, Plans of action for primary education

What does free mean? (3) The meaning of free education was examined also by the Constitutional Court of Czech Republic upon the demand upon the state to provide textbooks and teaching materials free of charge. The Court has clarified: “The costs connected with putting the right to education into effect can be divided between the state and the citizen, or his legal representative. The expenses connected with putting the right to education into effect are a long-term investment into the life of the citizen. The state bears the essential part of these costs, however, it is not obliged to bear all of them. ” Constitutional Court od Czech Republic, Judgement US 25/94 of 13 june 1995

3. Generally available and accessible secondary education in its different forms, and equally accessible higher education • ICESCR, art. 13 (2) (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education. • African Charter on the Rights and Welfare of the Child, art. 11(3) States Parties to the present Charter shall take all appropriate measures with a view to achieving the full realization of this right and shall in particular: (b) encourage the development of secondary education in its different forms and to progressively make it free and accessible to all;

What does secondary education mean? secondary education “While the content of secondary education will vary among state parties and over time it includes complation of basic education and consolidation of the foundations for life-long learning and human development” CESCR, General Comment 13, The Right to Education What does Technical and Vocational Education mean? TVE consists of “all forms and levels of the educational process envolving, in addition to general knowledge, the study of technologies and related sciences and the acquisition of practical skills, know-how, attitudes and understanding relating to occupations in the various sectors of economic and social life. UNESCO Convention on Technical and Vocational Education (1989), art. 1(a)

What does generally available mean? available “The phrase "generally available" signifies, firstly, that secondary education is not dependent on a student's apparent capacity or ability and, secondly, that secondary education will be distributed throughout the State in such a way that it is available on the same basis to all. ” CESCR, General Comment 13, The Right to Education What does accessible mean? accessible “Accessibility has three overlapping dimensions: ” • Non discrimination • Physical Accessibility • Economic Accessibility

What does every appropriate means mean? every appropriate means “The phrase "every appropriate means" reinforces the point that States parties should adopt varied and innovative approaches to the delivery of secondary education in different social and cultural contexts. ” CESCR, General Comment 13, The Right to Education What does progressive introduction of free education mean? education “Progressive introduction of free education means that while states must prioratize the provision of free primary education, they also have an obligation to take concrete steps towards achieving free secondary and high education. ” CESCR, General Comment 13, The Right to Education

What does higher education mean? higher education “If higher education is to respond to the needs of students in different social and cultural settings, it must have flexible curricula and varied delivery systems. ” CESCR, General Comment 13, The Right to Education

What does equally accessible to all, on the basis of capacity mean? of capacity “Higher education is not to be "generally available", but only available "on the basis of capacity". The "capacity" of individuals should be assessed by reference to all their relevant expertise and experience. ” CESCR, General Comment 13, The Right to Education European Court of Human Rights in the case of Leyla Sahin v. Tukey (2005) stated: “The Council of Europe had stressed the key role and importance of higher education in the promotion of human rights and fundamental freedoms and the strengthening of democracy. Although the article (2 Protocol 1) did not impose a duty on the Contracting States to set up such institutions (of higher education), any State that did so was under an obligation to afford an effective right of access to them”.

4. Freedom of choice in education and freedom to establish private institutions What does freedom of choice in education and freedom to establish private institutions mean? 1. “States parties undertake to respect the liberty of parents and guardians to ensure the religious and moral education of their children in conformity with their own convictions. […] This element of article 13(3) permits public school instruction in subjects such as the general history of religions and ethics if it is given in an unbiased and objective way, respectful of the freedoms of opinion, conscience and expression. ”

In the case of Erkki Hartikainen v. Finland, where atheist parents Finland of a student claimed that the teaching of history of religion and ethics was in violation of art. 18(4) of the ICCPR since the textbooks used where written by Christians and consequently the teaching was religious in nature. The Committe expressed the following opinion: “The Committee does not consider that the requirement […] that instruction in the study of the history of religions and ethics should be given instead of religious instruction to students in schools whose parents or legal guardians object to religious instruction is in itself incopatible with art. 18(4), if such alternative course of instruction is given in a neutral and objective way and respects the convinctions of parents and guardians who do not believe in any religion. ”

2. “The second element of article 13(3) is the liberty of parents and guardians to choose other than public schools for their children, provided the schools conform to such minimum educational standards as may be laid down or approved by the State. ” 3. “This has to be read with the complementary provision […] which affirms the liberty of individuals and bodies to establish and direct educational institutions, provided the institutions conform to the educatonal objectives set out in article 13 (1) and certain minimum standards. CESCR, General Comment 13, The Right to Education

5. Full development of the human personality and the sense of its dignity, and strengthening of the respect for human rights and fundamental freedoms. What does full development of the human personality and the sense of its dignity mean? (1) “The goal is to empower the child by developing his or her skills, learning and other capacities, human dignity, selfesteem and self-confidence. “Education” in this context goes far beyond formal schooling to embrace the broad range of life experiences and learning processes which enable children, individually and collectively, to develop their personalities, talents and abilities and to live a full and satisfying life within society. ” CRC, General Comment 1, The aims of education

What does full development of the human personality and the sense of its dignity mean? (2) “The 1959 Declaration of the Rights of the Child articulates “the vision of the child of the time as a passive recipient of education rather than the principal subject of the right to education […] The child is today treated as the principal subject of the right to education, the child is not part to the decision-making on the realization of the right to education. International HR law divides decision-making between the parents and the State. The child’s right to education is reflected in the duty of the parents, community and State to educate the child as well as the duty of children to educate themselves. ” Preliminary report of the Special Rapporteur Ms. Katarina Tomasevski (1999)

What does full development of the human personality and the sense of its dignity mean? (3) In this regard Mr. Thomas Hammarberg, Commissioner for Human Rights at the Council of Europe underlines that an ideal primary school should be child-friendly, based on the right of the child “to be curious, to ask questions and receive answers, to argue and disagree, to test and make mistakes, to know and not know, to create and be spontaneous, to be recognized and respected”. Hammarberg T. , A School for Children with Rights, Innocenti lectures, UNICEF International Child Development Centre, Florence, 23/10/1997

What does strengthening of the respect for human rights and fundamental freedoms mean? • • Inclusion of human rights classes in the school curricula Adoption of a human rights based teaching approach “ The knowledge of human rights should become a priority in education policies, and the Special Rapporteur has therefore concentrated on the recognition of human rights in education as the necessary prerequisite for the teaching of human rights. Because it is well known that children learn through observation rather than exhortation, the recognition of their rights in education will greatly facilitate human rights education. ” Annual Report of the Special Rapporteur on the Right to Education, Katarina Tomasevski (2001)

State Obligations Like all the other Human Rights, The Right to Education imposes 3 levels of obligations on States: • TO RESPECT • TO PROTECT • TO FULFILL – to facilitate – to provide

To Respect: “The obligation to Respect requires State parties to avoid measures that hinder or prevent the enjoyment to the right to education” To Protect: “The obligation to protect requires states parties to take measures that prevent third parties from interfearing with the enjoyment of the right to education” CESCR, General Comment 13, The Right to Education

To Fulfil: • Facilitate: “The obligation to fulfil (facilitate) requires states to take positive measures that enable and assist individuals and communities to enjoy the right to education” • Provide: “First, it is clear that art. 13 regards states as having principle responsability for the direct provision if education in most circumstances […]. Secondly, given the differential wording of art. 13(2) in relation to primary, secondary, higher and fundamental education, the parameteres of a state partie’s obligation to fulfil (provide) are not the same for all levels of education. ” CESCR, General Comment 13, The Right to Education

What do these obligations require? According to the General Comment 13 education in all its forms and at all levels shall exhibit the following interrelated and essential features: ü Availability ü Accessibility ü Acceptability ü Adaptability

üAvailability “Functioning educational institutions and programs have to be available in sufficient quantity within the jurisdiction of the State party. ” What does functioning mean? “What they require to function depends upon numerous factors, including the developmental context within which they operate; for example, all institutions and programs 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” CESCR, General Comment 13, The Right to Education

The examples of Chad and Bangladesh: In the Concluding Observations the CRC underlines: Chad (2009) “Although more classrooms have been built and more teachers have been recruited and trained, the Committee notes with concern, the inadequate teachers to students ratio, the widespread lack of learning material, the law rate of school attendance of girls as compared to boys. ” Bangladesh (2003) “The Committe recommends that the state party: (d) Provide appropriate sanitation facilities, especially for females in all schools”

What does in sufficient quantity mean? in sufficient quantity “If the capacity of the schools is lower than the number of schoolage children, access to education will remain a need rather than a right. ” CESCR, General Comment 13, The Right to Education In the case R. v. Inner London Education Authority, the duty of Authority the local education authority to secure sufficient places at school for all children within the compulsory full age was not fully implemented and 300 children where deprived of primary education because of a shortage of teachers. However the Court held that the authority had done whatever was in its power to rectify the situation and was thus not in breach of its statutory duty

ü Accessibility 3 overlapping dimensions: 1. Non discrimination 2. Phisical accessibility 3. Economic accessibility

1. Non Discrimination “Education must be accessible to all, especially the most vulnerable groups, in law and fact, without a discrimination on any of the prohibited grounds. ” The example of Burkina Faso: In the Concluding Observations (2002) the CRC recommends that the State parties: (h) “Take measures to enable children with disabilities to have access to regular schools” The examples of Cambodia: In the Concluding Observations (2000) the CRC “Expresses its concern at the fact that […] there are gender disparities in school attendance […] and a majority of children belonging to minority groups do not have access to any form of education. ”

2. Physical accessibility “Education has to be within safe physical reach, either by attendance at some reasonably convenient geographic location or via modern technology. ” The examples of Burkina Faso: In the Concluding Observations (2002) the CRC recommends that the State parties: (a) “Ensure that all children, especially girls, wherever they live, including the least developed areas, have equal access to educational opportunities” The examples of Cambodia: In the Concluding Observations (2000) the CRC “Expresses its concern at the fact that […] equal access to quality education is not ensured owing to a lack of schools in rural and remote areas. ”

3. Economic accessibility “Education has to be affordable to all. Whereas primary education shall be available “free to all”, States parties are required to progressively introduce free secondary and higher education. ” CESCR, General Comment 13, The Right to Education The example of Mali: In the Concluding Observations (2007) the CRC: “Is concerned at […] the indirect school costs constituting barriers to education. ”

ü 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. ” CESCR, General Comment 13, The Right to Education In the case of Kjeldsen, Busk Madsen and Pedersen v. Denmark the Court held that “any teaching should respect parents religious and moral convictions. The State is forbidden to persue a name of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions.

ü Adaptability “Education has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings. ” CESCR, General Comment 13, The Right to Education

In concrete these obligations imply, for instance, that a State must: • Respect the availability of education by not closing private schools; • Protect the accessibility of education by ensuring that third parties, including parents and employers, do not stop girls from going to school; • Fulfil (facilitate) the acceptability of education by taking positive masures to ensure that education is culturally appropriate for minorities and indigenous people and of good quality for all; • Fulfil (provide) the adaptability of education by designing and providing resources for curricula which reflect the contemporary needs of students in a changing world; and • Fulfil (provide) the availability of education by actively developing a system of schools, including building classrooms, delivering programs, providing teaching materials, training teachers and paying them domestically competitive salaries. ”

According to art. 2(1) of the Covenant, in order to realize these obligations, “Each State Party to the present Covenant undertakes to take steps, individually and through international assistence and co-operation, especially economic and technical to the maximum of its available resources with the view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. ”

(a) "undertakes to take steps. . . by all appropriate means" In addition to legislative measures, administrative, judicial, economic, social and educational steps must also be taken. States parties are also obliged to develop policies and set priorities consistent with the Covenant They are also required to evaluate the progress of such measures and to provide effective legal or other remedies for violations.

(b) "to the maximum of its available resources The obligation of States is to demonstrate that, in aggregate, the measures being taken are sufficient to realize the right to education for every individual in the shortest possible time using the maximum available resources.

(c) "to achieve progressively" This obligation "to achieve progressively" must be read in the light of article 13 of the Covenant. The obligation of progressive realization, moreover, exists independently of any increase in resources. Above all, it requires effective use of resources available.

Where is the right codified? Legally Binding Treaties Universal: ØICESCR (1966) art. 13, 14 ØICCPR (1966) art. 18 (4) ØCERD (1965) art. 5 ØCEDAW (1979) art. 10 ØCRC (1989) art. 28, 29 23 (3), 32 (1), 40 (4) ØCMW (1990) art. 12, 30, 43, 45 ØCRPD (2006) art. 24 ØRefuggee Convention (1951) art. 22 ØStateless Persons Convention (1954) art. 22

Regional: Council of Europe: Ø Ø Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) art. 2 European Social Charter (1996) art. 7, 9, 10, 15, 17, 19 European Convention on the Legal Status of Migrant Worker (1977) art. 14, 15 Framework Convention for the Protection of National Minorities (1995) art. 12, 13, 14 European Union: Ø Ø Charter of Fundamental Rights of the European Union (2000) art. 14 OCSE: Final Act of Helsinki(1975) section on Co-operation and exchanges in the field of Education

Organization of the American States (OAS) ØCharter of the Organization of the American States (1948) art. 34(h), 39, 50 ØAmerican Declaration on the Rights and duties of Man (1948) art. 12 ØAdditional Protocol to the American Convention on Human Rights (Protocol of San Salvador) (1988) art. 13, 16 African Union ØAfrican Charter on Human and people’s Rights (1982) art. 17 (1) ØAfrican Charter on the Rights and Welfare of the Child (1990) art. 11 ØProtocol to the African Charter on the Rights of Women in Africa (2003) art. 12 ØArab Charter on Human Rights (2004) art. 30 (3), 41

Soft Law Declarations and GA Resolutions: ØUDHR (1948), art. 26 ØDeclaration on the Elimination of all Forms of Intolerance and Discrimination based on Religion or Belief (1981), art. 5(1) ØDeclaration on the Human Rights of Individuals who are not nationals of the country in which they live (1985) ØJomtien Declaration on Education for All (1990) ØGuiding Principles on Internal Displacement (1998), Principle 23 ØDeclaration on the Rights of Indigenous People (2007), art. 14, 15, 21 ØA/RES/52/84, December 1997, GA Resolution on Education for All ØA/RES/61/140, 2007, UN Literacy Decade: Education for All

The Rohingya’s case “As for the situation of refugee children in Malaysia in general, there is no legislation currently in place which provides them access to education. However, at present, an estimated 40 % of refugee children (from Somalia, Afghanistan and Myanmar, including Rohingyas) in Malaysia are accessing community-based learning centers and some of them up Form 3 of secondary school. ” -e-mail from UNHCR Malaysia

The Rohingya’s case Who are they? The Rohingya come from Burma, but for many years have fled repression there to Bangladesh, Thailand, Malaysia, and Indonesia. In total, the Rohingya number about two million people. Approximately 800, 000 remain in Burma, primarily in western Arakan State and Rangoon. About 50, 000 live in Malaysia, while others are scattered throughout the region. Primarily because the Burmese government denies them citizenship, most are stateless, not to mention that while they are in Burma, the "Rohingya" group is subject to restrictions of movement, marriage, forced labor, forced eviction and housing destruction among others.

The Rohingya’s case Background on Malaysia is not a party to the Convention relating to the Status of Refugees and Malaysian legislation does not contain judicial or administrative avenues for asylum-seekers to challenge and overturn their detention and repatriation. Reportedly, it is estimated that some 28, 000 persons seeking refuge currently live in Malaysia. Approximately 10, 000 are allegedly from the Aceh region of Indonesia, and another 10, 000 are members of the Rohingya Muslim minority of Myanmar. It is also reported that, Rohingya Muslim minority of Myanmar in October of 2004, the Government of Malaysia declared that it would provide official identity documents to the Rohingyas and not subject them to the deportation process. However, other persons seeking refuge would allegedly still be at risk of deportation.

The Rohingya’s case Right to education in Malaysia The right to education is not explicitly enshrined in the Constitution, but article 12 prescribes that there shall be no article 12 discrimination against any citizen on the grounds only of religion, discrimination citizen race, descent or place of birth, in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any public or private educational institution. It also prescribes that every religious group has the right to establish and maintain institutions for the education of children in its own religion, adding that no person shall be required to receive instruction in a religion other than his own.

The Rohingya’s case Right to education in Malaysia The Constitution of Malaysia Adopted 31 August 1957 Article 12 (1)… there shall be no discrimination against any citizen on the no discrimination citizen grounds only of religion, race, descent or place of birth: (a) In the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or (b) In providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution.

The Rohingya’s case Right to education in Malaysia Non-citizens are accepted into Government assisted schools, Non-citizens as long as the provisions of the Education Regulation are fulfilled and approval from the Ministry of Education has been obtained. They are also free to enroll in any has been obtained. private schools throughout the country. In view of the influx of foreign workers from Indonesia, Malaysia reached an agreement with Indonesia to appoint qualified teachers and develop syllabus for schools established by Humana, an institution established through mutual cooperation between the educational agencies of both countries, for children of foreign workers from Indonesia. NATIONAL REPORT SUBMITTED IN ACCORDANCE WITH PARAGRAPH 15 (A) OF THE ANNEX TO HUMAN RIGHTS COUNCIL RESOLUTION 5/1 *

The Rohingya’s case Right to education in Malaysia In full compliance with its treaty obligation under the CRC, all children in Malaysia are not denied access to education. The government also constantly engages with various international organizations such as the United Nations Children's Fund (UNICEF) and the Office of the United Nations High Commissioner for refugees (UNHCR), and civil societies, to ensure that children of illegal immigrants attend informal classes to be conducted by NGOs, such as, through community-based schooling. NATIONAL REPORT SUBMITTED IN ACCORDANCE WITH PARAGRAPH 15 (A) OF THE ANNEX TO HUMAN RIGHTS COUNCIL RESOLUTION 5/1 *

The Rohingya’s case The Rohingya – do they really enjoy the right to education? (video)

The Rohingya’s case Right to education in Malaysia ØAvailability ØAccessibility ØAcceptability ØAdaptability Report of the Special Rapporteur on the right to education, Vernor Muñoz Villalobos

The Rohingya’s case What has been done? Internationally ØHuman Rights Council ØUPR ØUNHCR Malaysia ØEuropean Parliament resolution

The Rohingya’s case What has been done? Regionaly ØASEAN ØAustralia ØChina

The Rohingya’s case What has been done? Nationaly ØSUHAKAM ØRohingya National Organization ØFundamental Rights of Rohingya Minority ØPending court case

Want to know more? --‘Everyone has the right to education’ – Article 26 of the Universal Declaration of Human Rights. A Human Rights-Based Approach to EDUCATION FOR ALL http: //unesdoc. unesco. org/images/001548/154861 E. pdf Right to Education Project http: //www. right-to-education. org/node/234 From the Millenium Development Goals 2 and 4 are directly related to UNESCO’s work in primary education. http: //www. un. org/millenniumgoals/education. shtml Right to Education: UNESCO http: //portal. unesco. org/education/en/ev. php-URL_ID=12228&URL_DO=DO_TOPIC&URL_SECTION=201. html The case of indigenous people in Guatemala http: //www. right-to-education. org/sites/r 2 e. gn. apc. org/files/Case_Study_Guatemala[1]. pdf The case of Roma children in Slovakia http: //www. right-to-education. org/sites/r 2 e. gn. apc. org/files/Case_Study_Slovakia[1]. pdf The case of Dominican children of Haitian descent http: //www. right-to-education. org/sites/r 2 e. gn. apc. org/files/Case_Study_Dominican_Republic[1]. pdf General outline on the right to Education from UNESCO http: //unesdoc. unesco. org/images/001612/161200 e. pdf General knowledge on the right to education: http: //www 1. umn. edu/humanrts/edumat/IHRIP/circle/modules/module 16. htm#8 b On Obligations of States http: //portal. unesco. org/education/en/ev. php-URL_ID=9123&URL_DO=DO_TOPIC&URL_SECTION=201. html On Obligations Under International Law http: //www. amnestyusa. org/demand-dignity/report-human-rights-for-human-dignity/3 -obligations-under-international-law/page. do? id=1102190 The right to education (GC. 13) 08/12/99. E/C. 12/1999/10. (General Comments) http: //portal. unesco. org/shs/en/files/7748/11212617231 SHS-April-S_5 -GC_13. pdf/SHS-April-S%2 B 5 -GC%2 B 13. pdf “Minimum Standards for Education” used in emergency situations world-wide http: //portal. unesco. org/education/en/ev. php-URL_ID=45509&URL_DO=DO_TOPIC&URL_SECTION=201. html

Want to know more? Special Rapporteur on the right to education http: //www 2. ohchr. org/english/issues/education/rapporteur/ Annual Reports of Special Rapporteurs http: //www 2. ohchr. org/english/issues/education/rapporteur/annual. htm Country Visits http: //www 2. ohchr. org/english/issues/education/rapporteur/visits. htm Excluded / Vulnerable Groups http: //www. right-to-education. org/node/47 THE CONTENT OF THE RIGHT TO EDUCATION—THEORETICAL FOUNDATIONS http: //www. chrgj. org/publications/docs/wp/Fisher%20 The%20 Content%20 of%20 the%20 Right%20 to%20 Education. pdf The protection of the right to education by international law (google book) http: //books. google. it/books? id=VWs 2 UCu. G-XQC&pg=PA 643&lpg=PA 643&dq=content+of+the+right+to+education&source=bl&ots=M_a. Yr. CM_J&sig=T 6 Ww 0 Op. XF-9 P 6 Ai 9 MY 9 Sh 9 fp 6 d 0&hl=it&ei=FYka. Sr. Hl. BZu 6 j. Afvl 8 Dx. DA&sa=X&oi=book_result&ct=result&resnum=4#PPA 635, M 1 European Parliament resolution on the situation of Burmese refugees in Thailand http: //www. europarl. europa. eu/sides/get. Doc. do? type=MOTION&reference=B 6 -2009 -0084&language=EN Human Rights Council Resolution 8/4. The right to education http: //ap. ohchr. org/documents/E/HRC/resolutions/A_HRC_RES_8_4. pdf Caselaw http: //www. escr-net. org/caselaw_results. htm CONSTITUTION FINDER http: //confinder. richmond. edu/ Human Rights and Humanitarian Law Search engine http: //www. whatconvention. org/index. php? langue=Eng Guiding Principles on Internal Displacement http: //www. unhchr. ch/html/menu 2/7/b/principles. htm On Minorities: http: //www 2. ohchr. org/english/issues/minorities/group/main. htm THE HAGUE RECOMMENDATIONS REGARDING THE EDUCATION RIGHTS OF NATIONAL MINORITIES & EXPLANATORY NOTE http: //www. osce. org/documents/html/pdftohtml/31521_1148_en. pdf. html

Want to know more? Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities http: //www 2. ohchr. org/english/law/minorities. htm Human Right Commission Malaysia http: //www. suhakam. org. my/home Rohingya National Organization http: //www. rohingya. org/index. php? option=com_content&task=blogcategory&id=28&Itemid=32 UPR MALAYSIA http: //www. ohchr. org/EN/HRBodies/UPR/PAGES/MYSession 4. aspx UNHCR MALAYSIA http: //www. unhcr. org. my/home Fundamental Rights of Rohingya Minority http: //www. rohingya. org/index. php? option=com_content&task=view&id=61&Itemid=32 Press Statement: 200 UNHCR recognised Rohingya refugees arrested by Rela http: //www. malaysianbar. org. my/letters_others/press_statement_200_unhcr_recognised_rohingya_refugees_arrested_by_rela. html A regional solution for Rohingyas http: //themalaysianinsider. com/index. php/malaysia/index. php/opinion/alice-nah/20814 -a-regional-solution-for-rohingyas ASEAN to Discuss Rohingya Refugee Issue http: //www. voanews. com/english/archive/2009 -02 -27 -voa 12. cfm? moddate=2009 -02 -27 Perilous plight - Burma’s Rohingya take to the seas http: //www. reliefweb. int/rw/RWB. NSF/db 900 SID/MUMA-7 SE 7 RY? Open. Document MYANMAR ETHNIC ROHINGYAS HUMAN RIGHTS ORGANIZATION MALAYSIA (MERHROM) http: //merhrom. wordpress. com/? s=rohingya&submit=Search Urgent appeal to Asean, world leaders: Save the Rohingyas http: //www. aliran. com/index. php? id=899&option=com_content&Itemid=40 Migrant Forum in Asia (MFA) http: //www. mfasia. org/mfa. Statements/MFA%20 Statement-Rohingya. Plight. An. ASEANIssue-07 Apr 09. pdf

Want to know more? ASEAN’s response over the Rohingyas casts doubts over its seriousness in community building http: //www. forum-asia. org/index. php? option=com_content&task=view&id=2084&Itemid=32 Plight of the Damned: Burma’s Rohingya http: //globalasia. org/pdf/issue 9/David_Scott_Mathieson. pdf Is Asean prepared to pressure Burma over the Rohingya refugees? http: //www. asianewsnet. net/news. php? sec=3&id=5366 ASEAN Head Says New Charter Will Put Pressure on Burma http: //www. rohingya. org/index. php? option=com_content&task=view&id=117&Itemid=68 THE ROHINGYAS Bengali Muslims or Arakan Rohingyas? http: //www. burmalibrary. org/docs 6/EBO_Briefing_Paper_No. _2_-_The_Rohingyas. pdf Arbitrary detention/ Fear of forcible return http: //www. amnesty. org/en/library/asset/ASA 28/003/2007/en/22 a 67671 -d 372 -11 dd-a 329 -2 f 46302 a 8 cc 6/asa 280032007 en. pdf South-east Asia agrees to regional Rohingya approach (Roundup) Read more: http: //www. monstersandcritics. com/news/asiapacific/news/article_1461917. php/Southeast_Asia_agrees_to_regional_Rohingya_approach__Roundup__#ixzz 0 Jl. Ta 7 s. Wz&C Rohingya (Myanmar Muslims) in Malaysia- Problems and Solutions http: //www. rohingyatimes. org/index. php? option=com_content&view=article&id=264: rohingya-myanmar-muslims-in-malaysia-problems-andsolutions&catid=49: papers&Itemid=103 http: //www. rohingyatimes. org/index. php? searchword=malaysia&ordering=&searchphrase=all&option=com_search Rohingya: A regional problem Solving the problem of Burmese Muslim refugees will take the full efforts of several of the region’s organisations http: //www. bangkokpost. com/news/investigation/136770/rohingya-a-regional-problem UN Human Rights Council Adopts Resolution on Religious Defamation http: //www. becketfund. org/index. php/article/765. html

Want to know more? Myanmar The Rohingya Minority: Fundamental Rights Denied http: //www. amnesty. org/en/library/asset/ASA 16/005/2004/en/9 e 8 bb 8 db-d 5 d 5 -11 dd-bb 24 -1 fb 85 fe 8 fa 05/asa 160052004 en. pdf Human rights in Malaysia under international review http: //www. themalaysianinsider. com/index. php/opinion/alice-nah/18097 -human-rights-in-malaysia-under-international-review Stateless Rohingyas in Malaysia: A Call for Action http: //wfol. tv/index. php? option=com_content&task=view&id=798&Itemid=9 UN Special Rapporteur's report on the right to education of persons in detention http: //www. penalreform. org/un-special-rapporteurs-report-on-the-right-to-education-of-persons-in-dete. html REPORT FOR THE UNIVERSAL PERIODIC REVIEW (UPR) ON MALAYSIA, 4 TH SESSION, FEBRUARY 2009 FROM THE HUMAN RIGHTS COMMISSION OF MALAYSIA (SUHAKAM) http: //www. forum-asia. org/news/press_releases/member/docs/SUHAKAM%20 -%20 individual%20 UPR%20 submission%20 -%20 Malaysia%20%20 February%202009. doc Report of the Special Rapporteur on the Right to Education, Vernor Muñoz Villalobos: addendum : mission to Malaysia http: //www. unhcr. org/refworld/topic, 4565 c 22544, 4565 c 25 f 54 b, 49 f 06 efd 2, 0. html Rohingyas right to education. (video) http: //www. youtube. com/watch? v=j 1 Buya. Gj. UHk

Questions? Thank you.