International Convenant On Economic Social And Cultural Education Essay

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The States Parties to the present Covenant recognize the right of everyone to education. They agree 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. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

Primary education shall be compulsory and available free to all;

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;

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Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

Aims and Objectives of Education

Education is both a human right in itself and an indispensable means of realizing other human rights. [2] 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 labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth. In addition to the ICESCR, the other human rights treaties have similar provisions. [3] The ICESCR devotes two articles to the right to education, articles 13 and 14. Article 13, the longest provision in the Covenant, is the most wide-ranging and comprehensive article on the right to education in international human rights law.

According to Article 13(1) of the ICESCR, States parties agree that all education, whether public or private, formal or non-formal, shall be directed towards the aims and objectives identified in article 13 (1). The Committee in its general comment [4] observed that the States parties are required to ensure that education conforms to the aims and objectives identified in article 13 (1), as interpreted in the light of the World Declaration on Education for All (Jomtien, Thailand, 1990) [5] , the Convention on the Rights of the Child [6] , the Vienna Declaration and Programme of Action [7] , and the Plan of Action for the United Nations Decade for Human Rights Education [8] . While all these texts closely correspond to article 13 (1) of the Covenant, they also include elements which are not expressly provided for in article 13 (1), such as specific references to gender equality and respect for the environment. These new elements are implicit in, and reflect a contemporary interpretation of article 13 (1). [9] 

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The right to receive an education

Article 13(2) of the ICESCR, the full realization of this right envisages compulsory and free primary education for all, accessibility to secondary genral education, including technical and vocational secondary education and higher education with progressive introduction of free education and liberty for parents to choose schools for their children. [10] However, the precise and appropriate application of the term will depend upon the conditions prevailing in a particular State party. In her preliminary report to the Commission on Human Rights, the Special Reporter on the right to education sets out four essential features that primary school should exhibit, namely availability, accessibility, acceptability and adapbility. [11] 

Availability - The availability of educational institutions and programmes have to be available in sufficient quantity within the jurisdiction of the State party. What they require to function depends upon numerous factors, including the developmental context within which they operate; for example, all institutions and programmes are likely to require buildings or other protection from the elements, sanitation facilities for both sexes, safe drinking water, trained teachers receiving domestically competitive salaries, teaching materials, and so on; while some will also require facilities such as a library, computer facilities and information technology. [12] 

Accessibility - The educational institutions and programmes have to be accessible to everyone, without discrimination, within the jurisdiction of the State party. Accessibility has three overlapping dimensions:

Non-discrimination - education must be accessible to all, especially the most vulnerable groups, in law and fact, without discrimination on any of the prohibited grounds,

Physical accessibility - education has to be within safe physical reach, either by attendance at some reasonably convenient geographic location,

Economic accessibility - education has to be affordable to all. This dimension of accessibility is subject to the differential wording of article 13 (2) in relation to primary, secondary and higher education [13] : whereas primary education shall be available "free to all", States parties are required to progressively introduce free secondary and higher education;

Acceptability - the form and substance of education, including curricula and teaching methods, have to be acceptable (e.g. relevant, culturally appropriate and of good quality) to students and, in appropriate cases, parents; this is subject to the educational objectives required by article 13 (1) and such minimum educational standards as may be approved by the State according to Art. 13 (3) and (4), [14] 

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. [15] 

It is important for the State Parties, while considering the appropriate application of these "interrelated and essential features" the best interests of the student shall be a primary consideration. [16] 

The right to Primary Education

According to Article 13(2)(a) of the ICESCR, primary education shall be compulsory and free to all. Primary education includes the elements of availability, accessibility, acceptability and adaptability which are common to education in all its forms and at all levels. The Committee took guidance on the proper interpretation of the term "primary education" from the World Declaration on Education for All which states: "The main delivery system for the basic education of children outside the family is primary schooling." [17] Primary education must be universal, ensure that the basic learning needs of all children are satisfied, and take into account the culture, needs and opportunities of the community" [18] . The Declaration further defines "Basic learning needs" as essential learning tools, such as literacy, oral expression, numeracy and problem solving and the basic learning content such as knowledge, skills, values and attitudes required by human being to be able to survive, to develop their full capacities, to live and work in dignity, to participate fully in development, to improve the quality of their lives, to mae informed decisions, and to continue learning. [19] 

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While primary education is not synonymous with basic education, there is a close correspondence between the two. In this regard, the Committee endorses the position taken by UNICEF: "Primary education is the most important component of basic education." [20] As formulated in article 13(2)(a), primary education has two distinctive features: it is "compulsory" and "available free to all". The element of compulsion serves to highlight the fact that neither parents, nor guardians not the State are entitled to treat as optional the decision as to whether the child should have a access to primary education. [21] 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. [22] 

The right to Secondary Education

Article 13 (2) (b) applies to secondary education "in its different forms", thereby recognizing that secondary education demands flexible curricula and varied delivery systems to respond to the needs of students in different social and cultural settings. According to article 13 (2) (b), 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".

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. [23] Progressive introduction of free education" means that while States must prioritize the provision of free primary education, they also have an obligation to take concrete steps towards achieving free secondary and higher education. [24] 

Technical and vocational education

Technical and vocational education (TVE) forms part of both the right to education and the right to work under Art. 6(2). Article 13(2)(b) presents TVE as part of secondary education, reflecting the particular importance of TVE at this level of education. Article 6 (2), however, does not refer to TVE in relation to a specific level of education; it comprehends that TVE has a wider role, helping "to achieve steady economic, social and cultural development and full and productive employment". Also, according to Article 26(1) the Universal Declaration of Human Rights states that "technical and professional education shall be made generally available". Accordingly, the Committee takes the view that TVE forms an integral element of all levels of education. [25] 

According to the Article 1(a), TVE consists of "all forms and levels of the educational process involving, 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". [26] This view is also reflected in certain ILO Conventions. The right to TVE includes the following aspects:

(a) It enables students to acquire knowledge and skills which contribute to their personal development, self-reliance and employability and enhances the productivity of their families and communities, including the State party's economic and social development;

(b) It takes account of the educational, cultural and social background of the population concerned; the skills, knowledge and levels of qualification needed in the various sectors of the economy; and occupational health, safety and welfare;

(c) Provides retraining for adults whose current knowledge and skills have become obsolete owing to technological, economic, employment, social or other changes;

(d) It consists of programmes which give students, especially those from developing countries, the opportunity to receive TVE in other States, with a view to the appropriate transfer and adaptation of technology;

(e) It consists, in the context of the Covenant's non-discrimination and equality provisions, of programmes which promote the TVE of women, girls, out-of-school youth, unemployed youth, the children of migrant workers, refugees, persons with disabilities and other disadvantaged groups. [27] 

The right to higher education

Article 13(2)(c) is formulated on the same lines as article 13(2)(b), there are three differences between the two provisions. Article 13(2)(c) does not include a reference to either education "in its different forms" or specifically to TVE. [28] These two omissions reflect only a difference of emphasis between article 13(2)(b) and (c). 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, such as distance learning; in practice, therefore, both secondary and higher education have to be available "in different forms".

The third and most significant difference between article 13(2)(b) and (c) is that while secondary education "shall be made generally available and accessible to all", higher education "shall be made equally accessible to all, on the basis of capacity". [29] 

The right to fundamental education

By virtue of article 13(2)(d), individuals "who have not received or completed the whole period of their primary education" have a right to fundamental education, or basic education as defined in the World Declaration on Education For All. [30] Since everyone has the right to the satisfaction of their "Basic learning needs" as understood by the World Declaration, the right to fundamental education is not confined to those "who have not received or completed the whole period of their primary education". [31] The right to fundamental education extends to all those who have not yet satisfied their "basic learning needs". [32] Fundamental education, therefore, is an integral component of adult education and life-long learning. Because fundamental education is a right of all age groups, curricula and delivery systems must be devised which are suitable for students of all ages.

A school system; adequate fellowship system shall be established

The requirement that the "development of a system of schools at all levels shall be actively pursued" means that a State party is obliged to have an overall developmental strategy for its school system. The strategy must encompass schooling at all levels, but the Covenant requires States parties to prioritize primary education. [33] "Actively pursued" suggests that the overall strategy should attract a degree of governmental priority and, in any event, must be implemented with vigour. According to the Article 13(2)(e) "the material conditions of teaching staff shall be continuously improved", in practice the general working conditions of teachers have deteriorated, and reached unacceptably low levels, in many States parties in recent years. [34] Not only is this inconsistent with article 13(2)(e), but it is also a major obstacle to the full realization of students' right to education. The Committee also notes the relationship between articles 13(2)(e), 2(2), 3 and 6 to 8 of the Covenant, including the right of teachers to organize and bargain collectively; draws the attention of States parties to the joint UNESCO-ILO Recommendation Concerning the Status of Teachers (1966) and the UNESCO Recommendation Concerning the Status of Higher-Education Teaching Personnel (1997); and urges States parties to report on measures they are taking to ensure that all teaching staff enjoy the conditions and status commensurate with their role.

The right to educational freedom

Article 13(3) has two elements, one of which is that 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. [35] The Committee is of the view that 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. [36] It notes that public education that includes instruction in a particular religion or belief is inconsistent with article 13 (3) unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.

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". [37] This has to be read with the complementary provision, article 13(4), which affirms "the liberty of individuals and bodies to establish and direct educational institutions", provided the institutions conform to the educational objectives set out in article 13(1) and certain minimum standards. These minimum standards may relate to issues such as admission, curricula and the recognition of certificates. In their turn, these standards must be consistent with the educational objectives set out in article 13(1).

Under article 13(4), everyone, including non-nationals, has the liberty to establish and direct educational institutions. The liberty also extends to "bodies", i.e. legal persons or entities. [38] It includes the right to establish and direct all types of educational institutions, including nurseries, universities and institutions for adult education. Given the principles of non-discrimination, equal opportunity and effective participation in society for all, the State has an obligation to ensure that the liberty set out in article 13 (4) does not lead to extreme disparities of educational opportunity for some groups in society.

The ICESCR provides for progressive realization and acknowledges the constraints due to the limits of available resources; it also imposes on States parties various obligations, which are of immediate obligations in relation to the right to education, such as the "guarantee" that the right "will be exercised without discrimination of any kind" (Article 2(2)) and the obligation "to take steps" (Article 2(1)) towards the full realization of Article 13. Such steps must be "deliberate, concrete and targeted" towards the full realization of the right to education. [39] 

Progressive realization means that States parties have a specific and continuing obligation "to move as expeditiously and effectively as possible" towards the full realization of Article 13. State parties must closely monitor education including all relevant policies, institutions, programmes, spending patterns and other practices so as to identify and take measures to redress any de facto discrimination.

Article 14 of the ICESCR

Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.

Principle of Compulsory Education Free of Charge for All [40] 

Article 14 of the International Covenant on Economic, Social and Cultural Rights requires each State party which has not been able to secure compulsory primary education, free of charge, to undertake, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory primary education free of charge for all. In spite of the obligations undertaken in accordance with article 14, a number of States parties have neither drafted nor implemented a plan of action for free and compulsory primary education. [41] This obligation is a continuing one and States parties to which the provision is relevant by virtue of the prevailing situation are not absolved from the obligation as result of their past failure to act within the two year limit. The plan must cover all of the actions, which are necessary in order to secure each of the requisite component parts of the right, and must be sufficiently detailed so as to ensure the comprehensive realization of the right. The right to education, recognized in Articles 13 and 14 of the Covenant, as well as in a variety of other international treaties, such as the Convention on the Rights of the Child [42] and the Convention on the Elimination of All Forms of Discrimination against Women [43] , is of vital importance.

Plans of action prepared by States parties to the Covenant in accordance with article 14 are especially important as the work of the Committee has shown that the lack of educational opportunities for children often reinforces their subjection to various other human rights violations. [44] For instance these children, who may live in abject poverty and not lead healthy lives, are particularly vulnerable to forced labour and other forms of exploitation.

Article 14 contains a number of elements, which warrant some elaboration in the light of the Committee's extensive experience in examining State party reports. The element of compulsion serves to highlight the fact that neither parents, nor guardians, nor the states are entitled to treat as optional the decision as to whether the child should have access to primary education. Similarly, the prohibition of gender discrimination in access to education, required also by Articles 2 and 3 of the ICESCR, is further underlined by this requirement. It should be emphasized, however, that the education offered must be adequate in quality, relevant to the child and must promote the realization of the child's other rights. [45] 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 or the school, and other direct costs, constitute disincentives to the enjoyment of the right and may jeopardize its realization. [46] 

A state party cannot escape the unequivocal obligation to adopt a plan of action on the grounds that the necessary resources are not available. The reference to "international assistance and cooperation" under Article 2(1) and to "international action" in Article 23 of the ICESCR are of particular relevance for the states which are not able to submit plan of action because of lack of financial resources can seek assistance from the international community. The plan of action must be aimed at securing the progressive implementation of the right to compulsory primary education, free of charge, under Article 14. The Committee requested every State party to which Article 14 is relevant to ensure that its terms are fully compliled with and that the resulting plan of action is submitted to the Committee as an integral part of the reports required under the ICESCR. [47]