International Non-Discriminatory Guarantees in Education: Empty Vows or Effective Mechanisms?

07 November 2002

 Päivi Gynther¹
 

The Problem

Violations of the right to education of Roma have been in the spotlight throughout Europe in recent years, although the issue of difficulties in securing fair and unbiased education is in no way novel. International human rights standards have set down the prohibition of such abuses decades ago. This article discusses why the 1960 United Nations Educational, Scientific and Cultural Organisation (UNESCO) Convention against Discrimination in Education (hereinafter "the Convention") has to date been unsuccessful in curbing the increasing trend of educational segregation among the poorest and socially most disadvantaged segments of Europe's population – groups such as Roma. Does the Convention address only the needs of those who are economically well-off while ignoring the most deprived? Or is the Convention merely a tool whose full potential has yet to be recognised by human rights advocates?

A Sleek Façade?

The Convention is a central document with respect to guaranteeing equality of treatment in education. Its Preamble recalls that the Universal Declaration of Human Rights of 1948 endorses the principle of non-discrimination and proclaims the right of every person to education. Pursuant to Article 1 of the Convention, the term "discrimination" includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, has the purpose or effect of nullifying or impairing equality of treatment in education. Specifically forbidden is the purpose or effect:

1. "[…] Of depriving any person or group of persons of access to education of any type or at any level;
    
2. Of limiting any person or group of persons to education of an inferior standard;
    
3.   […] of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or
    
4. Of inflicting conditions incompatible with the dignity of man."²

The Convention also identifies situations that should not be considered grounds for discrimination. When permitted in a State, the Convention accepts the establishment or maintenance of separate educational systems or institutions:

• For pupils of one gender/sex;
• For religious or linguistic reasons in keeping with the wishes of the pupil's parents or legal guardians; and
• For the provision of educational facilities in addition to those provided by the public authorities, on condition that the object of the institution is not to secure the exclusion of any group.³

The establishment or maintenance of separate educational systems or institutions for girls and boys is allowed, provided the institutions: (i) Offer equivalent access to education; (ii) provide a teaching staff with qualifications of the same standard; (iii) provide school premises and equipment of the same quality; and (iv) afford the opportunity to take the same or equivalent courses of study.

With regard to separate systems on the basis of religious or linguistic grounds, it is expressly stipulated that attendance at such institutions (a) be optional and that (b) the education provided shall conform to such standards as may be laid down or approved by the competent authorities. The last condition applies to private educational institutions operating in addition to the public school system.⁴ In other words, the Convention permits school officials to engage in differential treatment of male and female pupils and to set up private educational institutions, as long as the latter meet standard educational requirements. When viewed from a Nordic welfare state perspective, where a comprehensive educational system for both sexes and for various socio-economic classes has been the main aspiration of education policy for decades, these provisions appear somewhat suspect. First, maintaining separate schools for male and female students in many cases tends to hamper rather than promote equality in education. One only needs to look at gender-based segregation on the labour market. Secondly, the poorest minority groups can only view private schools as an unattainable dream, as the state is in no way obliged to fund their education at such schools.⁵

Limitations

The Convention's Article 1 extends the right not to be subjected to discrimination in education to "any person or group of persons". However, Article 3, which provides for positive obligations of the States Parties for the elimination and prevention of discrimination, does not refer to any person or group of persons. Under the Convention, States Parties commit themselves, inter alia, to ensure equal access to education for foreign nationals residing in their country, but no similar commitment is made with respect to stateless persons.⁶ This is of relevance to Roma, who, in a number of instances, have been made stateless or without a nationality during the previous decade – a result of upheavals in some Central and Eastern European countries.

This omission in the Convention, however, should not be interpreted as a loophole that would allow States Parties not to ensure equality in education for everyone. Given the interdependence of the Convention's provisions, it is essential that Article 1 undoubtedly cover stateless people and non-nationals residing in the respective country.⁷

• Although equal access to education is guaranteed by the Convention, it should be noted that this concept is quite narrow in the Convention's terms. By way of illustration, Ernesto Schiefelbein and Joseph P. Farrell identify four main aspects of screening processes used in education:
• Inequality of access as defined by criteria of admission, financial support, geographical location, etc.;
• Inequality of "survival" as defined by rate of grade-repeating, drop-out and graduation rates;
• Inequality of output – or rather immediate results – as defined by competences documented by examinations and test results; and
• Inequality of outcomes – or rather inequality of utility of outcomes – defined by positions and social status after completion of formal education.⁸

The Convention recognises clearly the first one of these four aspects, whereas the other three must be derived from the document's vaguely formulated general provisions. Thus, equal access to education is emphasised, but not the equality of outcomes. The Convention's text puts no real pressure on its member states to go beyond ensuring more than simply equal opportunities, to the detriment of equality of outcomes. Another noteworthy characteristic of the Convention, from the viewpoint of the educationally-disadvantaged, is that although the specific needs of people who have not received primary education are recognised, they are not mentioned in the so-called "rights language". Remedying such needs are included in the Convention in the weaker terms of programmatic objectives. For instance, primary education is not recognized as a basic right, but rather merely defined as a programme objective. Concerns of under-educated children and adults are relegated to a specialised "opt-out" provision, which calls for state Parties to take action, "by methods appropriate to the circumstances and to national usage."⁹ Such concepts as "indirect discrimination", "adverse effect" or "multiple discrimination" appear to have been unknown concepts in the non-discrimination discourse when the Convention was adopted. Although the meaning of the word "effect", in the formal definition of discrimination in Article 1 apparently covers indirect forms of discrimination, the full implementation of this provision is yet to be achieved.¹⁰

Filling the Gap

Multiculturalism and pluralism are more widely recognised characteristics of contemporary societies than they were in the 1960s, when the Convention was first adopted. Correspondingly, international anti-discrimination law has, over the years, evolved to take into account more and more aspects relevant to the achievement of equality. In addition to UNESCO standards, the United Nations Treaty system includes several fundamental non-discrimination conventions that explicitly mention education: the 1969 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the ICERD also includes, importantly, at Article 3, a comprehensive ban on racial discrimination. The 1979 International Covenant on Economic, Social and Cultural Rights (ICESCR); the 1981 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the 1989 Convention on the Rights of the Child (CRC). ICERD commits all State Parties to "undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: […] The right to education and training."¹¹ The ICESCR recognises "the right of everyone to education"¹² and guarantees that "the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."¹³ The education provision of CEDAW refers – in line with the UNESCO Convention – to all types and levels of education, and includes access to education, standards and quality of education and conditions under which it is provided.¹⁴ The CRC is applied to "every human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier," according to Article 1. Article 2 obliges States Parties to respect and ensure the rights set forth in the CRC to each child within their jurisdiction, "without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status." The CRC's core provisions on the right to education are found in Articles 28 and 29. Article 28 concerns the organisational aspects of the child's right to receive education, while Article 29 focuses on the aims of education, as well as the freedom of individuals and bodies to establish educational institutions.

The provisions noted above belong to multilateral treaties and are binding international legal obligations. UNESCO has also striven to improve the right of education through the establishment of recommendations and declarations. In contrast to the conventions, the declarations are not legally binding commitments. Declarations are sometimes therefore considered worthless instruments under international law, as they have no direct effect on a country's law and practice. Nevertheless, these documents are to be taken as solemn proclamations by State Parties, from which possible international and domestic pressure can be applied when a failure to achieve the declaration's goals and objectives is discernible.¹⁵ Additionally, there are numerous consultative forums and programmes, for example "Education for All" is an international watchdog mechanism to monitor global progress in the right to education.¹⁶

There is therefore no lack of legally binding provisions or policy statements in anti-discrimination work in the field of education. However, the gap between the haves and the have-nots is growing. The UNESCO Convention itself may contain many reasons for the lack of progress. A strength of the Convention is that reservations to it are not permitted. However, its implementation and monitoring procedures are weak. There is practically no monitoring mechanism in place other than periodic reporting of the State Parties to the UNESCO General Conference. As a supplement to the Convention, a separate Protocol established an inter-state complaints procedure, but this has only been ratified so far by a handful of states.¹⁷

Steps Forward

Can the UNESCO Convention be used to deliver substantive equality in countries bound by its terms? The answer is a cautious yes, provided that advocates take advantage of the following opportunities. First, the Convention can be used as a tool in public interest litigation, as since 1978, UNESCO has had in place a complaints procedure allowing victims of human rights abuses prohibited under the UNESCO Conventions, as well as anyone else with "reliable" knowledge on violations, to submit individual cases and general questions of human rights violations to it.¹⁸ There is, unfortunately, no definitive interpretation of what constitutes "reliable" knowledge. Moreover, this procedure emphasises an amicable settlement and lacks effective investigative or oversight mechanisms. However, as a result of the complaints procedure, the door is open to actors other than State Parties. Together, advocate groups and victims of human rights violations can press State Parties to observe their obligations under international law. Second, the Convention gives legal force to non-discrimination guarantees in the field of education.

There are several steps that must be taken in order to promote the development and application of international non-discrimination standards in education. One of the most important is to encourage national parliaments to take necessary measures so that the respective states become parties without reservation to international conventions concerning non-discrimination in education. It is also essential to encourage them to ensure that national legislation is in harmony with the provisions of such conventions. The adjoining table shows the ratification by Member States of the Council of Europe of some of the instruments discussed in this article. The table indicates that the UNESCO instruments have been ratified by far less states than ICERD and CEDAW. Eighty-nine states have ratified the UNESCO Convention, of which twenty-nine are Member States of the Council of Europe. Fourteen of the states listed in the table have not ratified the Convention, and only ten have ratified the Protocol of 1962. In contrast with the UNESCO Convention, it is possible to make reservations to the ICERD and to the CEDAW. No Member State of the Council of Europe has made reservations or declarations of objections to the ICERD education provision. With regard to CEDAW, three states have made reservations to Article 11, which provides inter alia for the right to vocational training. States with such reservations are noted with an "R" on the list.

Table: Ratification of Non-Discriminatory Instruments in Education by Member States of the Council of Europe 

Status of Ratifications as of May 1, 2002. Source: Treaty Base on http://untreaty.un.org/.

Another step which must be taken is the ratification of UNESCO Convention on Technical and Vocational Education – adopted in Paris in 1989. It has only eleven ratifications so far and has not yet entered into force. Ratification of this Convention is essential, due to the fact that education cannot be seen in isolation from its larger social context. There is little purpose in eliminating discrimination from education if it is rife in vocational training. Violations of educational rights on the secondary level must be scrutinised if we are to see the day when education becomes a true vehicle for the empowerment and development of the most disadvantaged groups. Prohibition of discrimination in vocational training is already mentioned in the ILO Discrimination (Employment and Occupation) Convention of 1960¹⁹ and in the CEDAW,²⁰ but these provisions have thus far gone relatively unimplemented. The mobilisation of diverse actors and resources to support ratification efforts of the UNESCO Vocational Education and Training Convention is therefore necessary.

It is also important to pay close attention to how such international law texts are translated into local languages. By way of illustration, the Finnish translation of the UNESCO Convention has, since its ratification in 1971, banned discrimination with the purpose or effect of limiting any person or group of persons to “primary education”, whereas the original text stipulates the prohibition of limiting any person or group of persons “to education of an inferior standard.” Mistranslations such as this one show that international non-discrimination standards are often not taken seriously at the national level.

Epilogue

Although the UNESCO Convention of 1960 strives for education free from discrimination, it nevertheless has, to date, been ineffective in ending such discrimination. In practice, it also reinforces a world-view in which individuals are continuously grouped according to their gender, religion, language, or economic status. This does not mean, however, that the Convention and other UNESCO documents are without value. It is up to us to work towards constructive usage of the UNESCO tools available to us.

Endnotes:

1. Päivi Gynther is a researcher affiliated with the Institute for Human Rights at the A°bo Akademi University in Finland, where she is preparing her doctoral thesis on systemic discrimination in education with special reference to Roma.
2. Convention against Discrimination in Education, Article 1.
3. Convention against Discrimination in Education, Article 2.
4. Ibid.
5. For discussion on the principle of freedom and right to education, see Gynther 2002, "Jurisprudence of the Oppressed", available online at http://www.joensuu.fi/syreeni/gynther.htm.
6. Emphasis added.
7. Furthermore, the Committee on Economic, Social and Cultural Rights has expressly specified with regard to education that "the principle of non-discrimination extends to all persons of school age residing in the territory of a State Party, including non-nationals, and irrespective of their legal status." Committee on Economic, Social and Cultural Rights, General Comment 13, The Right to Education (Article 13), U.N. Doc. E/C.12/1999/10 (1999), para. 34.
8. Schiefelbein, Ernesto & Farrell, Joseph, P., Eight Years of Their Lives: Through Schooling to the Labour Market in Chile, Ottawa: The International Development Centre Press, 1982.
9. Convention against Discrimination in Education, Article 4(c).
10. Convention against Discrimination in Education, Article 1.
11. International Convention on the Elimination of All Forms of Racial Discrimination, Article 5 (e)(v).
12. nternational Covenant on Economic, Social and Cultural Rights, Article 13.
13. International Covenant on Economic, Social and Cultural Rights, Article 2(2).
14. Convention on the Elimination of All Forms of Discrimination against Women, Article 10.
15. Recommendations and Declarations adopted by the General Conference of UNESCO.
16. See reports from the World Conference on Education for All (Jomtien, Thailand, 5-9 March 1990); Mid-Decade Meeting on EFA (Amman, Jordan, 16-19 June 1996); World Education Forum (Dakar, Senegal, 26-28 April 2000); and United Nations Resolution on Education for All 1997. All these documents are available on-line at http://www.unesco.org/education/efa.
17. Protocol Instituting a Conciliation and Good Offices Commission to be responsible for Seeking a Settlement of any Disputes which may arise between States Parties to the Convention against Discrimination in Education. Adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization on 10 December 1962. Entry into force, October 24, 1968.
18. Outline of the procedure can be found at http://www.unesco.org/general/eng/legal/hrights/.
19. ILO Convention No. 111, Article 1 (3).
20. CEDAW, Article 11 (1)(c).