Has the right to education a future within the United Nations? A behind-the-scenes account by the Special Rapporteur on the right to education 1998-2004

Human Rights Law Review

Volumn 5, Issue 2, 2005, Pages 205-237

  Tomaševski, Katarina ^a  

^a LUND UNIVERSITY   (Sweden)

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EID: 30844441645     PISSN: 14617781     EISSN: None     Source Type: Journal    
DOI: 10.1093/hrlr/ngi014     Document Type: Review

References (185)

1. The Economist imported this term into English from Italian to denote 'the study of what you cannot see', what happens behind the scenes and why it happens exactly as it does, 'Terrorism in Italy: The Life and Death of Aldo Moro', The Economist, 15 August 2002, 65.
2. The documents I wrote as the Special Rapporteur on the right to education have clarified the nature and scope of the right to education through my annual reports, and examined its realisation in situ through the reports on my missions to individual countries. There are 14 reports altogether, available at: www.right-to-education.org. Further analysis is contained in the four primers on the right to education that are also available on the website. An account of the uncertain fate of the right to education has been furnished in Tomaševski, Education Denied: Costs and Remedies (London: Zed Books, 2003)
3. which is also published in Spanish (El asalto a la educación (Barcelona: Intermón-Oxfam, 2004)).
4. The proposal to replace the Commission with a Human Rights Council was made public by the UN Secretary-General in March 2005. He repeated his previous criticism of the Commission's credibility deficit and declining professionalism to argue that 'if the Organization is to take the cause of human rights as seriously as those of security and development - then Member States should agree to replace the Commission on Human Rights with a smaller standing Human Rights Council', Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, 21 March 2005, A/59/2005 at paras 181-3. In December 2004, the High-Level Panel on Threats, Challenges and Change concluded that 'the Commission on Human Rights suffers from a legitimacy deficit that casts doubts on the overall reputation of the United Nations', Report of the High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, 2 December 2004, A/59/565, synopsis at 14.
5. Evans, 'Optimism Rises After the Tsunamis', Financial Times, 11 January 2005.
6. Editorial, 'Changes and Permanence', (2005) 4 Respect: The Human Rights Newsletter 1.
7. Legrain, Open World: The Truth about Globalization (London: Abacus, 2002) at 110-1.
8. See Spring, The Universal Right to Education: Justification, Definition, and Guidelines (Mahwah, New Jersey: Lawrence Erlbaum Associates, 2000);
9. and Hodgson, The Human Right to Education (Aldershot: Ashgate Publishing, 1998).
10. The Universal Declaration of Human Rights (1948) influenced national constitutions. The right to education had been affirmed in 37 per cent of the constitutions adopted between 1788 and 1948, increasing to 78 per cent in the constitutions adopted between 1949 and 1965. However, it fell again to 38 per cent in the constitutions adopted by the newly formed states. See van Maarseveen and van der Tang, Written Constitutions: A Computerized Comparative Study (Alphen aan den Rijn: Oceana Publications and Sijthoff & Nordhoff, 1978) at 204.
11. See Vision 2020 - Forecasting International Student Mobility: A UK Perspective (London: British Council, Universities UK and IDP Education Australia, 2004);
12. and, UNESCO, Globalization and the Market in Higher Education: Quality, Accreditation and Qualifications (Paris: UNESCO Publishing, 2002).
13. At its 59th session, in 2004, the General Assembly's 218 resolutions included 4 with 'education' in their name. These dealt with the United Nations Decade of Education for Sustainable Development, GA Res. 59/237, 24 February 2005, A/RES/59/237
14. the United Nations Literacy Decade: Education for All, GA Res. 59/149, 1 February 2005, A/RES/59/149
15. the World Programme for Human Rights Education, GA Res. 59/113, 17 February 2005, A/RES/59/113
16. and, Sport as a Means to Promote Education, Health, Development and Peace, GA Res. 59/10, 8 December 2004, A/RES/59/10. The full list of resolutions is available at: www.un.org/Depts/dhl/resguide.
17. Report of the Secretary-General, supra n. 3 at para. 144. the Commission on Human Rights suffers from a legitimacy deficit that casts doubts on the overall reputation of the United Nations', Report of the High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, 2 December 2004, A/59/565, synopsis at 14.
18. Constitutional guarantees whereby the right to education is 'ensured by free education at all levels' were found in the USSR and her allies at the time, as were definitions of education in terms of 'communist upbringing'; see Simons, The Constitutions of the Communist World (Alphen aan den Rijn: Sijthoff & Noordhoff, 1980).
19. Cohen, 'Witnessing the Truth', (1996) 1 Index on Censorship 40.
20. The creation of the first thematic mechanism in 1980, the Working Group on Disappearances, due to the Commission's inability to respond to disappearances in Argentina, is described in Guest, Behind the Disappearances: Argentina's Dirty War against Human Rights and the United Nations (Philadelphia: University of Pennsylvania Press, 1990) especially at 197-211. It was followed by Special Rapporteurs on summary executions in 1982 and torture in 1985.
21. Miko Lempinen summed up a common assessment thus: 'Because of the global character of a thematic mandate, governments made themselves vulnerable by creating a mechanism which is empowered to effectively place every government under scrutiny', Lempinen, Challenges Facing the System of Special Procedures of the United Nations Commission on Human Rights (Åbo/Turku: Institute for Human Rights, Åbo Akademi University, 2001) at 10.
22. Tomaševski, Responding to Human Rights Violations 1946-1999 (The Hague: Martinus Nijhoff Publishers, 2000) at 384-8.
23. My website on the Right to Education Project was launched on 15 March 2001 (www.right-to-education.org), just as the Commission was renewing my mandate. In line with transparency, an announcement had been included in the Annual Report of the Special Rapporteur on the right to education, Katarina Tomaševski, 11 January 2001, E/CN.4/2001/52, ('Annual Report 2001'), executive summary and para. 70.
24. On 7 April 2003, I launched my book, Education Denied: Costs and Remedies while the Commission was in session. To my publisher's dismay, I included anti-acknowledgements in my preface, explaining that 'acknowledgements' would have presented a distorted image of the fate of the right to education. Also to his consternation, I made a reference to putting up with more verbal abuse than I imagined possible. This proved accurate because verbal abuse increased with the specificity of my annual and mission reports. See Tomaševski, supra n. 2 at xiii-xiv.
25. See Tomaševski, supra n. 2 at xiii-xiv.
26. Preliminary Report of the Special Rapporteur on the right to education, Katarina Tomaševski, 13 January 1999, E/CN.4/1999/49 ('Preliminary Report');
27. Progress Report of the Special Rapporteur on the right to education, Katarina Tomaševski, 1 February 2000, E/CN.4/2000/6 ('Progress Report');
28. Annual Report 2001, supra n. 16
29. Annual Report of the Special Rapporteur on the right to education, Katarina Tomaševski, 7 January 2002, E/CN.4/2002/60 ('Annual Report 2002');
30. The Right to Education: Report of the Special Rapporteur, Katarina Tomaševski, 21 January 2003, E/CN.4/2003/9 ('Annual Report 2003');
31. and, The Right to Education: Report submitted by the Special Rapporteur, Katarina Tomaševski, 15 January 2004, E/CN.4/2004/45 ('Annual Report 2004').
32. Question of the Realization in all Countries of the Economic, Social and Cultural Rights Contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and Study of Special Problems which the Developing Countries Face in their Efforts to Achieve these Human Rights, 17 April 1998, E/ CN.4/RES/1998/33.
33. A Joint NGO statement of 29 March 2000 reads: 'First of all, we wish to express our sincere appreciation for the high quality of the work done by Ms Katarina Tomaševski, Special Rapporteur on the right to education. We congratulate her on her report and, in particular, for the approach taken in identifying with a view to eliminating obstacles to the realization of the right to education as well as forcefully reminding states of their binding obligations.' The delegation of Japan welcomed my work and stated on 3 April 2000 that the right to education deserved 'its own resolution.' Statement by H.E. Ambassador Koichi Haraguchi on Agenda item 10: Economic, Social and Cultural Rights, 56th Session of the Commission on Human Rights, 3 April 2000.
34. Resolution 1998/33 was adopted by a vote of 52-1, with the delegation of the US voting against because of the financial implications of the creation of a new mandate without any available funding, Report of the Commission on Human Rights on its 54th Session, 1 January 1998, E/CN.4/ 1998/177 at paras 28-39.
35. The large volume of documentation generated by the Commission is illustrated by the Annual Report of its 60th Session, 19 April 2004, E/ CN.4/2004/127, which is 600 pages long.
36. The following description of the General Assembly's practice also applies to the Commission: In recent years, the number of General Assembly resolutions approved by consensus has increased steadily. That would be good if it reflected a genuine unity of purpose among Member States in responding to global challenges. But unfortunately, consensus (often interpreted as requiring unanimity) has become an end in itself. It is sought first within each regional group and then at the level of the whole. This has not proved an effective way of reconciling the interests of Member States. Rather, it prompts the Assembly to retreat into generalities, abandoning any serious effort to take action. Such real debates as there are tend to focus on process rather than substance and many so-called decisions simply reflect the lowest common denominator of widely different opinions. Report of the Secretary-General, supra n. 3 at para. 159. T
37. Progress Report, supra n. 18 at paras 46-8.
38. See Report submitted by Ms Katarina Tomaševski, Special Rapporteur on the right to education: Mission to Uganda, 26 June-2 July 1999, 9 August 1999, E/CN.4/2000/6/Add. 1 ('Uganda Report') at paras 76-87
39. Report submitted by Katarina Tomaševski, Special Rapporteur on the right to education: Mission to the United Kingdom of Great Britain and Northern Ireland (England), 18-22 October 1999, 9 December 1999, E/CN.4/ 2000/6/Add. 2 ('England Report') at paras 75-87
40. and, Annual Report 2001, supra n. 16 at paras 73-7.
41. The simplest definition of human rights work is contained in Article 8, Universal Declaration of Human Rights, which postulates the right to a remedy for acts violating the fundamental rights granted by the constitution or by law. This relies on the ancient principle ubi ius ibi remedium, which reminds us that only law bestows rights and that they entail remedies.
42. Statement by Ambassador Wilhelm Höynck, head of the delegation of Germany on behalf of the European Union, 8 April 1999.
43. 'ELIMU Update', Newsletter of the Education is Life Campaign, Summer 1999.
44. Statement by Ambassador Alvaro Mendonça e Moura, head of the delegation of Portugal, on behalf of the European Union, 3 April 2000.
45. Statement by Ambassador Sverre Bergh Johansen, 2 April 2001.
46. Statement by the delegation of Sri Lanka at the 59th Session of the Commission on Human Rights, Agenda item 10: Economic, Social and Cultural Rights, April 2003.
47. During the debate on economic, social and cultural rights on 2 and 3 April 2001, all government delegations made supportive statements. Sweden referred to the need to overcome the obstacles facing mandate-holders; Sri Lanka quoted excerpts from my annual report highlighting their agreement with my approach; Swaziland, Nigeria and India described developments in their countries aimed at enhancing the right to education; Cuba noted the insufficient support to my mandate; and Malaysia suggested a stronger focus on violations of the right to education.
48. EI BAROMETER 2001 on Human and Trade Union Rights in the Education Sector (Brussels: Education International, 2001) at 3.
49. Education for All: Is the World on Track? EFA Global Monitoring Report 2002 (Paris: UNESCO Publishing, 2002) at 106.
50. Annual Report 2004, supra n. 18 at para. 1.
51. In its Resolution 2004/25, 16 April 2004, E/CN.4/RES/2004/25, the Commission extended the mandate of the Special Rapporteur on the right to education for a period of three years (para. 8), keeping the substantive description of the mandate unchanged. The Special Rapporteur was invited 'to intensify efforts aimed at identifying ways and means to overcome obstacles and difficulties in the realization of the right to education' (para. 9(b)). The only mention of 'violations' in the resolution related to the Commission's urging all states to protect children from abuse and violence, including sexual abuse and corporal punishment in schools and 'to incorporate in their legislation appropriate sanctions for yiolations' (para. 7(m)).
52. In July 2004, Vernor Muñoz Villalobos (Costa Rica) began his mandate as the Special Rapporteur on the right to education.
53. The Commission has not accepted that the logical consequence of the right to education is that this right can be violated. In its first resolution on the right to education, it acknowledged that there are 'obstacles limiting access to education' (UNCHR Res. 2001/29, The Right to Education, 20 April 2001, E/CN.4/RES/2001/29 at para. 3(b)) somewhat simplifying the clumsy formulation used previously, in the 'omnibus resolution' regarding 'obstacles and difficulties in the realization of the right to education.' (UNCHR Res. 2000/9, Question of the Realization in all Countries of the Economic, Social and Cultural Rights Contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and Study of Special Problems which the Developing Countries Face in their Efforts to Achieve these Human Rights, 17 April 2000, E/CN.4/RES/2000/9 at para. 10).
54. Report of the Secretary-General, Strengthening of the United Nations: An Agenda for Further Change, 9 September 2002, A/57/387 at para. 46.
55. World Economic Forum, 'Global Governance Initiative: Executive Summary 2004', 15 January 2004, available at: www.weforum.org.
56. See supra n. 3 and accompanying text.
57. Cuba is the most active government in this area as the initiator of resolutions on structural adjustment and foreign debt, social justice, equitable international order, international solidarity and the right to food. The resolutions on the rights to development and unilateral coercive measures (i.e. economic sanctions) were initiated by the Non-Aligned Movement (NAM), the resolution on toxic waste by the African Group, and the resolution on globalisation by Pakistan. This is described in Tomaševski, supra n. 2 at 90-1.
58. In our joint statement before the Commission, I emphasised that the Commission was creating new mandates without political or financial support, using a formulation from 'the Brahimi Report': 'the Member States crafted ambiguous and underfunded mandates and then stood back and watched as they failed.' At the time, there were 34 mandates, 19 short of the number of members of the Commission, and we anticipated that the number would exceed 53 and keep growing. The absence of political support for the work of the Commission was the key point of our statement. We pointed out Malaysia, Myanmar and Equatorial Guinea as countries that refused cooperation, asking the Commission to halt and reverse such practices. See Statement of Katarina Tomaševski, Chairperson of the Special Rapporteurs, Representatives, Experts and Chairpersons of Working Groups of the special procedures of the Commission and the Advisory Services Programme, Informal session of the Commission on Human Rights, 15 September 2001.
59. The Secretary-General's proposal for 'a smaller standing Human Rights Council' instead of the Commission was justified by 'its declining credibility and professionalism', evidenced by individual states seeking 'membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticise others'. Remedying that credibility deficit' will apparently preserve the two facets of the Commission's work which were assessed positively, namely 'a unique system of independent and expert special procedures to observe and analyse human rights compliance by theme and by country' and the 'close engagement with hundreds of civil society organizations'. See Report of the Secretary-General, supra n. 3 at paras 181-3.
60. Subtle linguistic changes in Commission resolutions indicated its increased disapproval of its first Special Rapporteur on the right to education. In 1999 the Commission 'welcomed' my preliminary report (UNCHR Res. 1999/25, Question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in their efforts to achieve these human rights, 26 April 1999, E/CN.4/RES/1999/25 at para. 1 (a));
61. in 2001 it noted my Progress Report 'with interest' (UNCHR Res. 2001/29, supra n. 38 at para. 1);
62. and by 2004 it merely 'took note' of my Annual Report (UNCHR Res. 2004/ 25, supra n. 36 at para. 1).
63. A press comment in 2004 questioned 'the principle that UN members should be treated as sovereign equals regardless of the character of their government' using as an example the voting of 'Sudan that wages a genocidal war on to the UN Human Rights Commission': Daalder and Lindsay, 'Our Way or the Highway', Financial Times, 6-7 November 2004.
64. In 1975, the report on the realisation of economic social and cultural rights praised the Socialist countries of Eastern Europe for providing education free of charge to note, at the end, that 'there appears to be no provision for confessional schools or schools only run by religious or voluntary associations or private individuals', Ganji, The Realization of Economic, Social and Cultural Rights (New York: United Nations, 1975) at 198.
65. This is described in Tomaševski, supra n. 2 at 63 and 90-1.
66. In 2004, 'the Working Group could not reach consensus with respect to beginning to draft an Optional Protocol. Given this degree of disagreement, the Working Group simply recommended that its mandate be extended for a further two years', Thiele and Gomez, 'A Review of the Sixtieth Session of the United Nations Commission on Human Rights', (2004) 22 Netherlands Quarterly of Human Rights 469 at 491.
67. Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Contribution from Katarina Tomaševski, Special Rapporteur on the right to education, 4 January 2004, E/CN.4/2004/WG23/CRP.4.
68. Statements of Shaukat Umer (Pakistan) regarding the Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. See 'Commission Approves Six Measures on Economic, Social and Cultural Rights', UN Press Release, 16 April 2004
69. and, 'Commission Adopts Resolutions on Economic, Social, Cultural, Civil and Political Rights, Rights of Women', UN Press Release, 10 April 2004.
70. Remarks by US Delegate Richard Wall, 59th UN Commission on Human Rights, Item 10: Economic, social and cultural rights, 4 April 2003.
71. Comments submitted by the US in the Report of the Open-Ended Working Group on the Right to Development, 20 March 2001, E/CN.4/2001/26, Annex III at para. 8.
72. For example, subsequent to the appointment of the Special Rapporteur on housing rights, UNCHR Res. 2000/9, supra n. 38 at para. 1 (e), the title of Commission resolution 2001/28 was altered from the original 'housing rights' or 'right to housing' to 'adequate housing as a component of the right to an adequate standard of living', Report on the Fifty-Seventh Session of the Commission, 1 December 2001, E/CN.4/2001/167 (Part II) at para. 258.
73. The statement also emphasised that 'a deliberate, organized and concerned effort is being made by participating states to weaken or abandon a wide spectrum of hard-won principles', and added that economic, social and cultural rights - notably the rights to food, education and housing - have been challenged, both in terms of their justiciability and in terms of their content.' It concluded: 'It is painfully apparent from the statements of governments at this Commission that there is also a systematic attempt being made to weaken the terms of reference and narrow the range of issues that thematic special rapporteurs, experts and working groups may address' (Joint statement by 11 NGOs (endorsed by additional 32), reproduced in 8 Human Rights Tribune/Tribune des droits humains 15-6).
74. In 2001, the Commission failed to adopt its annual resolution on special procedures. The resolution which was adopted one year later (UNCHR Res. 2002/84, Human Rights and Thematic Procedures, 26 April 2002, E/CN.4/ 2002/84) diluted the previous language by stating that the Commission 'encourages all governments to cooperate with the Commission,' and asked them to 'consider' inviting Special Rapporteurs on country missions. Human Rights Features has commented: 'A calculated attempt to undermine the special procedures of the Commission is underway, and the most likely protectors of the procedures seem incapable of mounting a worthy defense', Human Rights Features, 14 March 2003, available at: http://www.hrdc.net/sahrdc/hrfeatures/HRF73.htm.
75. Mitta, 'Education: Resolution Drafters Need to Study Harder', Human Rights Features, 14-20 April 2003, at 7, available at: http://www.hrdc.net/sahrdc/hrfchr59/Issue5/pdf.pdf.
76. It is unfortunate that funding for the mandates on economic and social rights is defended by countries such as Algeria, Cuba or Pakistan. On 4 April 2003, Pakistan's statement before the Commission on Human Rights included the 'Government's deep appreciation for the work being undertaken by the Special Rapporteur on the right to education, Ms Katarina Tomaševski. We are concerned that the Special Rapporteur is not being provided sufficient financial resources to fulfil her mandate. We would request the High Commissioner to kindly look into her request and alleviate the difficulties which she is facing.'
77. Cees Flinterman has found that 'around 180 individual experts are presently working within the United Nations human rights system: 105 experts in the framework of the now existing six treaty bodies, 26 independent members of the Sub-Commission on the Promotion and Protection of Human Rights and around 50 individual experts who serve as Special Rapporteurs or are members of Working Groups of the United Nations Commission on Human Rights.' See Flinterman, 'United Nations Human Rights Reform: Some Reflections of a CEDAW Member', (2003) 21 Netherlands Quarterly of Human Rights 620 at 621.
78. Seventeen Frequently Asked Questions about United Nations Special Rapporteurs, Fact Sheet No. 27, OHCHR, April 2001, at 6.
79. I consistently noted in my reports to the Commission the diminishing support by the OHCHR and that I had to finance an increasing part of the expenses related to my work as the Special Rapporteur out of my own pocket. See Annual Report 2001, supra n. 16 at para. 2
80. and, Annual Report 2004, supra n. 18 at para. 1. At the beginning of my mandate, the OHCHR anticipated professional servicing of my mandate at the cost of $30,700, which translated into about four months of full-time work by a junior professional.
81. Coomber, 'Analytical Report of the 56th Session, Geneva, 20 March-28 April 2000', (2000) 49-50 Human Rights Monitor 32.
82. 'Education: The Sums Don't Add Up', Human Rights Features, 17-21 March 2003, available at: http://www.hrdc.net/sahrdc/hrfchr59/Issue1/ indonesia.htm.
83. Boyle, 'Marking Another Birthday: Ten Years of the United Nations High Commissioner for Human Rights', (2004) 22 Netherlands Quarterly of Human Rights 301 at 306.
84. The first complaint addressed the OHCHR's refusal to allow me to issue a press release on the eve of my mission to Colombia, the alteration of my travel schedule (supposedly to save OHCHR's funds), and the deployment of a professional staff member to accompany me who did not speak the language in which the mission was carried out (incurring, for the OHCHR, a considerable expense). It was sent to the Executive Office of the Secretary-General on 15 October 2003 and, again, on 12 January 2004, as there had been no response. The second complaint, of 28 March 2004, dealt with the mistranslation of the report on my mission to Colombia, which turned around some of my findings, whereupon I issued a corrected translation myself for informal circulation during my last oral report to the Commission. Copies were made available to all who were interested on 30 March 2004 and remain on file.
85. Staff members of the OHCHR are international civil servants and 'responsible to their respective supervisors within the OHCHR' rather than the mandate holders. Also, 'OHCHR management decides on the funding of particular activities of special procedures in accordance with given priorities at a certain time', Guiding principles regarding the working relations between special procedures mandate-holders and OHCHR Staff, 20 August 2002.
86. Van Boven, People Matter: Views on International Human Rights Policy (Amsterdam: Meulenhoff, 1982) at 5.
87. The voting records and accompanying explanations of votes demonstrate a deep North-South split within the Commission regarding the whole cluster of development-related issues. In 2004, for example, the resolution on globalisation (UNCHR Res. 2004/24, 16 April 2004, E/CN.4/RES/2004/24) was adopted by 38 votes in favour and 15 opposed. The resolution on structural adjustment and foreign debt (UNCHR Res. 2004/18, 16 April 2004, E/CN.4/RES/2004/18) was adopted by 29 votes in favour, 14 opposed and 10 abstentions. In both cases, the dissenting votes were from the North. In the background are two intertwined issues. The first is the resistance of the North to affirming the human rights impact of globalisation or debt servicing. The second is the contents of Commission resolutions and the reports which they generate, which deal with relations between states rather than human rights.
88. The Commission does not explicitly include a mention of violations of the right to education in its resolutions, but I consistently dealt with violations using as justification that (1) the right to education is a civil and political right alongside being an economic, social and cultural right, and (2) the text of the resolutions on the right to education refers to 'obstacles and difficulties' in the realisation of the right to education, and I subsumed exposing and opposing violations under that formulation.
89. My correspondence with governments regarding cases of apparent violations of the right to education triggered only one letter questioning my queries. It was the letter from the Permanent Mission of Ethiopia to the United Nations of 27 August 1999. I had written to seek clarification regarding, inter alia, the trial and imprisonment of Dr Taye, a former President of ETA (Ethiopian Teachers' Association). The Mission replied that this 'had nothing to do with the right to education' and that it failed to understand the connection of that case with the resolution which established my mandate. I replied citing the Commission's annual resolutions on thematic procedures. The subsequent correspondence focused on that case and many others followed, so I requested on 15 November 2001 an invitation from the government to carry out a mission to Ethiopia, to be ultimately told by Ambassador Fisseha Yimer that no invitation would be forthcoming.
90. Annual Report 2001, supra n. 16 at paras 19 and 21.
91. Report submitted by Katarina Tomaševski, Special Rapporteur on the right to education: Mission to Turkey, 3-10 February 2002, 27 March 2002, E/CN.4/2002/60/Add.2 ('Turkey Report').
92. After protracted negotiations, my mission to Turkey took place from 3 to 10 February 2002, in a particularly eventful week. Legislative changes (the first harmonisation package) focused on Turkey's application for membership of the European Union and a students' initiative to introduce Kurdish as an optional university course was in full swing, while difficult relations with the government made the schedule for my mission a topic of repetitive and immensely unpleasant negotiations. The unpleasantness continued after my mission, with the government's attempt (supported by the OHCHR) to force me to delete references to the Armenian genocide and to Cyprus from my report. The presentation of my report to the Commission on Human Rights on 3 April 2002 triggered an outburst from Turkey's delegation. As subsequently become customary, I was accused of being abrasive, prejudiced, overstepping my mandate and much else.
93. He summed up the situation thus: 'the Special Rapporteur fears that with the Commission showing little or no interest in the reports of its special rapporteurs, representatives, independent experts or working groups, whatever impact these procedures may have with regard to early warning and prevention of imminent human rights and humanitarian crises is simply lost', Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur, Mr Bacre Waly Ndiaye, 14 December 1994, E/ CN.4/1995/61, at para. 276.
94. Seeking avenues to overcome the barrier of the Commission's silence, I wrote on 28 October 2002 to the governments of the United Kingdom and the US as follow-up to my missions to both countries. The purpose was to explore possibilities for integrating human rights considerations in aid to Ethiopia for education and to overcome the refusal of the Government of Ethiopia to cooperate with United Nations human rights mechanisms. The response by the United Kingdom's Department for International Development was immediate and positive, and we had a series of informal meetings. The response from USAID was evasive, highlighting two facets of the lack of linkage between aid and human rights. Firstly, 'U.S. efforts to strengthen democracy and governance most often fall short because they lack unified support from the entire U.S. government.' (USAID, 'Foreign Aid in the National Interest', 2002, at 9). This facet is exhibited in the criticism of Ethiopia's human rights record in annual reports of the US State Department and positive assessments by USAID. Secondly, 'a senior State Department official told Human Rights Watch that, after the attacks in the U.S. on September 11, 2001, the U.S. is even less inclined to demand respect for human rights in Ethiopia because it is completely dependent on the cooperation of this strategically located country.' (Human Rights Watch, Lessons in Repression: Violations of Academic Freedom in Ethiopia, January 2003, at 4).
95. The Commission rhetorically frowns upon such evident breaches of its own rules but does nothing to counter them. The lists of governmental delegations to the Commission as well as those of nominally independent experts are public documents and it would be easy to identify all those who are both members of governmental delegations and independent experts. In its resolution 2001/60, the Commission requested governments 'when nominating and electing members of the Sub-Commission, to be conscious of the strong concern to ensure that the body is independent and seen to be so.' The nominations are left to the discretion of each government, while there is no peer pressure against evident conflicts of interests. Moreover, this illustrates how ill-suited the Commission and the Sub-Commission are to upholding their own rules.
96. ICRC, 'Stemming the Tide of Violence: ICRC Activities in Relation to the International Community's Prevention Strategies. Special Report', 1 May 1998, at 5.
97. A frequent formulation in treaty provisions concerning government reports asks them to include in their reports 'the factors and difficulties, if any, affecting the implementation' of the treaty. See Article 40(2), International Covenant on Civil and Political Rights 1966. Article 17(2), ICESCR says that reports by states parties 'may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Covenant; and, Article 44(2), Convention on the Rights of the Child 1989 contains an identical provision. In the practice of treaty bodies, the concluding observations which follow the examination of a state's report, summarize after listing the positive aspects 'factors and difficulties impeding the implementation of the treaty.' That same formulation in the Commission's resolutions on the right to education conveys the message that the right to education would have been realised everywhere were it not for 'obstacles and difficulties' outside the government's control.
98. Progress Report, supra n. 18 at paras 10-1.
99. Annual Report 2001, supra n. 16 at paras 15-41.
100. A different part of the OHCHR services the special procedures, the mandates concerning torture, summary executions or disappearances, while my mandate was allocated to what was called 'Research and the Right to Development.'
101. Annual Report 2001, supra n. 16 at para. 6.
102. The major surveys used in the construction of global league tables in education are the Programme for International Student Assessment (PISA), the Trends in International Mathematics and Science Study (TIMS), and the International Adult Literacy Survey. Their summarised results have been provided in, for example, 'A League Table of Educational Disadvantage in Rich Nations', Innocenti Report Card, Issue No. 4, November 2002.
103. The annual 'Education at a Glance: OECD Indicators' has the self-description 'the consensus of professional thinking on how to measure the current state of education internationally', 'Education at a Glance: OECD Indicators 2002' at 7.
104. In the report on my mission to China, I noted the prevalent view that 'any schooling equals the right to education.' China's law defines education as an individual duty and recognises only 'the right to receive education' but not freedom to impart it. For example, religious education remains prohibited in both public and private institutions. (Report submitted by the Special Rapporteur, Katarina Tomaševski: Mission to the People's Republic of China, 10-19 September 2003, 1 November 2003, E/CN.4/2004/45/Add.1 ('China Report') at paras 6-7)
105. In Colombia, the law mandates differentiated treatment of the communities 'that have their own indigenous culture, language, traditions and codes of behaviour' but their 'right to remain different' has not been translated into practice. (The Right to Education. Report submitted by Katarina Tomaševski, Special Rapporteur: Mission to Colombia, 1-10 October 2003, 20 March 2004, E/CN.4/2004/45/Add.2/Corr.1 ('Colombia Report') at paras 35-8).
106. Cosmas Desmond put it thus: 'Amnesty was originally concerned not with human rights as such, nor even with the right to individual liberty, but simply with freedom of opinion and freedom of religion.' Desmond, Persecution East and West: Human Rights, Political Prisoners and Amnesty (London: Penguin, 1983) at 41.
107. The first session of the International Labour Conference, in 1919, adopted two conventions against child labour and as of 1921 the elimination of child labour was linked to free and compulsory education. See A Future without Child Labour: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work 2002, International Labour Conference, 90th session, Report I(B) 2002, at 7-9.
108. My survey of written constitutions showed that the right to education is guaranteed in 142, while 44 countries had no constitutional guarantee. See Annual Report 2001, supra n. 16 at paras 66-7.
109. Uganda Report, supra n. 25
110. England Report, supra n. 25
111. Report submitted by Katarina Tomaševski, Special Rapporteur on the right to education: Mission to the United States of America, 24 September-10 October 2001, 17 January 2002, E/CN.4/2002/60/Add.1 ('US Report');
112. The Right to Education: Report submitted by Katarina Tomaševski, Special Rapporteur: Mission to the United Kingdom (Northern Ireland), 24 November-1 December 2002, 5 February 2003, E/CN.4/2003/9/Add.2 ('Northern Ireland Report');
113. Turkey Report, supra n. 72
114. The Right to Education: Report submitted by Katarina Tomaševski, Special Rapporteur: Mission to Indonesia, 1-7 July 2002, 4 November 2002, E/CN.4/2003/9/Add.1 ('Indonesia Report');
115. China Report, supra n. 85
116. Columbia Report, supra n. 85.
117. The current tendency to transform human rights into development targets has reinforced my focus on the law. The reason is the underlying acceptance of the denial of the right to education. Through the human rights lens, the commitment to secure some primary education for all children in 2015 implies accepting that the right to education of today's children is denied, while the likely failure to remedy that by 2015 would repeat the previous failures of identical commitments made every decade in the past 50 years without anybody being held accountable.
118. Consecutive analysis has been summarised in my annual reports to the Commission: See Preliminary Report, supra n. 18 at paras 42-74
119. Progress Report, supra n. 18 at paras 30-65
120. and, Annual Report 2001, supra n. 16 at paras 64-72.
121. Committee on Economic, Social and Cultural Rights, General Comment No. 13: The Right to Education, 2 December 1999, E/C.12/1999/10;7 IHRR 303 (2002).
122. Intervención de la delegación del Uruguay en el tema 10 (derechos económicos, sociales y culturales), 56 Commission de Derechos Humanos.
123. See Defensoria del Pueblo, 'El derecho a la educacion en la Constitucion, la jurisprudencia, y los instrumentos internationacionales', 2003
124. and Human Rights Commission, 'The Right to Education: A Discussion Document, New Zealand Plan of Action for Human Rights', 2003.
125. See Centre for Studies on Inclusive Education, 'Social and Educational Justice: The Human Rights Framework for Inclusion'. 2002
126. and, National Human Rights Institutions and Economic, Social and Cultural Rights in Conflict Situations, ACHR Features, 1 September 2004, ACHRF/36/2004.
127. China Report, supra n. 85.
128. US Report, supra n. 89.
129. World Bank Operational Directive (OD) 4.15 as revised in 1993.
130. Two indicators are used to depict the importance of education in public expenditure. One compares budgetary allocations to education with gross national product (GNP), and countries are ranked from the highest allocation of 8 per cent of GNP or more to as low as 2 per cent or less. The other indicator is the percentage for education in a government's budget, where more than 20 per cent is deemed to be exceptionally high. In 2000, Uganda reached 33 per cent. See Tomaševski, supra n. 2 at 138.
131. Uganda Report, supra n. 25.
132. Annual Report 2001, supra n. 16 at para. 53.
133. Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo, 12 April 2001, S/2001/357.
134. That statement also focused on education in post-conflict societies: 'We also thank the Special Rapporteur on the right to education for her report on her visit to the United Kingdom during which she examined the role of education in peace-making in Northern Ireland. Her analysis and recommendations are of particular interest to us, and no doubt to many African countries, as well as other countries facing the challenges of upholding the right to education in a post-conflict environment. We shall study her report with keen interest, particularly in relation to the report she wrote after her visit to Uganda during 1999.' UN Press Release, 7 April 2003.
135. Annual Report 2003, supra n. 18 at para. 23
136. and, Annual Report 2002, supra n. 18 at paras 31-4.
137. England Report, supra n. 25 at paras 65-9.
138. International human rights law defines free and compulsory primary education as a public responsibility. The key provisions of human rights treaties reflect changes in the law during the past decades. Article 4(a), UNESCO Convention against Discrimination in Education 1960, stipulates that primary education should be free and compulsory. Article 13(2)(a), ICESCR says that 'primary education shall be compulsory and available free for all'; while Article 27(1)(a), Convention on the Rights of the Child obliges states to 'make primary education compulsory and available free for all' urging governments to progressively achieve every child's right to education on the basis of equal opportunity. UNICEF's interpretation has been that the Convention on the Rights of the Child 'countenances fees for private institutions, state kindergartens, secondary schools and universities.' ('A Decade of Transition', The MONEE Project CEE/CIS/Baltics 2001, at 81) With the advent of the General Agreement on Trade in Services, education has also become a traded service. The evolving law that regulates international trade in education services recognises that compulsory education may remain an individual entitlement and a corresponding government responsibility, but allows individual states to regulate education as a traded service, especially at post-compulsory stages. See Annual Report 2003, supra n. 18 at paras 18-9
139. and, Annual Report 2002, supra n. 18 at paras 19-21.
140. Colombia Report, supra n. 85 at para. 8.
141. China Report, supra n. 85 at paras 6-7.
142. Indonesia Report, supra n. 89 at paras 10 and 20.
143. Turkey Report, supra n. 72 at paras 18-21.
144. US Report, supra n. 89 at paras 40-5.
145. The National Commission on Human Rights Indonesia, 'Annual Report', 2001 at 69.
146. In India, the 93rd Constitutional Amendment transformed the right to education from a directive for state policy (as it still is in Bangladesh) into an individual right. The Constitution 93rd Amendment Bill 2001 was passed by unanimous vote in the Lok Sahba on 27 November 2001 and by Rajya Sahba on 14 May 2002. It says: 'The State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may by law determine.' See Tomaševski, supra n. 2 at 129-31.
147. The new UPE (United Progressive Alliance) government in 2004 prioritised education in its Common Minimum Programme, and a 2 per cent surcharge on all taxes (individual and corporate, including excise and customs duties) was introduced so as to generate additional funds. See Luce, 'Finance Minister Makes Downpayment on Future Reforms', Financial Times, 9 July 2004.
148. Uganda Report, supra n. 25 at para. 37.
149. During its second year, the Commission described 'a marked increase in the number of complaints filed against private individuals'. Indeed, 'more complaints were filed against private individuals than state organs' and many included what the Commission defined as 'the right to education', which was the duty of a parent to pay the cost of education for a child. See Uganda Human Rights Commission, 'Annual Report 1998: The Second Annual Report to Parliament, 1 January-31 December 1998', 1999, at 9 and 18.
150. Brown and Zuker, Education Law, 2nd edn (Scarborough, Ontario: Carswell, 1998).
151. See Yudof, Kirp and Levin, Educational Policy and the Law, 2nd edn (St Paul: West Publishing Company, 1992).
152. See Hyams, Law of Education (London: Sweet & Maxwell, 1998).
153. Tjeldvoll (ed.), Education and the Scandinavian Welfare State in the Year 2000: Equality, Policy and Reform (London: Garland/Taylor & Francis, 1998).
154. Martínez de Pisón, El derecho a la educación y la libertad de enseñanza, Cuadernos 'Bartolomé de Las Casa' No. 27, Universidad Carlos III de Madrid, Dykinson, 2003.
155. See Hervey and Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford: Hart Publishing, 2003);
156. and, Gori, Towards an EU Right to Education (The Hague: Kluwer Law International, 2001).
157. See Derechos económicos, sociales y culturales en el sistema Interamericano, CEJIL Gaceta, No. 12, 2000, available at: www.cejil.org.
158. These cases sometimes lead to the rectification of the prospective harm to economic and social rights by the very filing of a case and the expected publicity surrounding it. An illustrative request was filed in 1999 from Argentina because budgetary reductions had threatened to annihilate a programme assisting the poorest to grow their own food and produced immediate changes: The budget for that programme was doubled. (Argentina: Special Structural Adjustment Loan 4405-AR). Information on that case and a similar one submitted to the Independent Evaluation Office of the International Monetary Fund is available at: www.cels.org.ar.
159. The Constitutional Court, in the words of Manuel José Cepeda, who delivered the judgment, has emphasised the denial of constitutionally guaranteed rights of the displaced. As a consequence, an unknown, but large, number of the displaced were neither registered nor informed of the rights they had. Only a minority were provided with humanitarian assistance or housing, while budgetary allocations were diminished rather than increased. Having defined this situation as unconstitutional, the Court elaborated the list of basic rights of the displaced and laid down the time-frame for government's compliance with its human rights obligations. Corte Constitucional de Colombia, T-025 de 2004.
160. PROVEA - La defensa de los derechos económicos, sociales y culturales: Algunos mecanismos nacionales, 2004, available at: www.derechos.org.ve.
161. Annual Report 2004, supra n. 18 at paras 19-28.
162. The human rights discourse tends to be hostile towards the concept of individual duties although they represent the logical consequence of rights. One cannot imagine how any state would raise revenue to finance health, education, water and sanitation, or assistance for those too young or too old to work, were it not for taxation. The European Court of Human Rights has legitimised 'the States' power to pass whatever fiscal laws they considered desirable' so as to secure the payment of taxes, provided that judicial remedies exist lest taxation would amount to arbitrary confiscation. See Gasus Dosier- and Fördertecknik GmbH v Netherlands A 306-B (1995); (1995) 20 EHRR 403
163. Constitutional Court of the Czech Republic, judgment US 25/94 of 13 June 1995
164. Inter-American Commission on Human Rights, Case no. 12.189, Dilcia Yean and Violeta Bosica v Dominican Republic Report No. 30/03 (2003).
165. Annual Report 2002, supra n. 18 at para. 13
166. Annual Report 2003, supra n. 18 at paras 5-13
167. and, Annual Report 2004, supra n. 18 at paras 19-28.
168. John Daniel, the UNESCO Assistant General for Education at the time, noted in his editorial entitled 'The price of school fees' in the summer of 2004 that 'in the 1990s some of our partners flirted with the idea of creating a market and charging fees for primary education, adding that UNESCO believes that it is better to uphold the principle of free primary education and to address energetically the quality challenge posed by an enrolment surge than to ration access to school through fees' and that 'the unity of view on this issue between UNESCO and the World Bank is most encouraging'. See Education Today July-September 2004, available at: www.unesco.org/education.
169. All annual resolutions of the Commission on Human Rights on the right to education included, at my insistence, a complement to the usual formulation asking the Special Rapporteur to cooperate with a range of international organisations, and stated that I should continue my dialogue with the World Bank. That paragraph was carried verbatim from one annual resolution to another: '[The Commission on Human Rights] Encourages the Special Rapporteur to pursue her collaboration with the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child and her cooperation with the United Nations Children's Fund, the United Nations Educational, Scientific and Cultural Organization, the International Labour Organization and the Office of the High Commissioner for Refugees and her dialogue with the World Bank.'
170. Uganda Report, supra n. 25.
171. Progress Report, supra n. 18 at para. 48.
172. That recommendation followed from my visit to the World Bank in November 2000 (Annual Report 2001, supra n. 16 at para. 81). The in-house review was initiated in 2001 (Annual Report 2002, supra n. 18 at para. 16). I sent comments on the draft in June 2002 and discussed this further during my visit to the World Bank in November 2002. (Annual Report 2003, supra n. 18 at para. 9). The review was finalised in July 2004. See Bentaouet Kattan and Burnett, 'User Fees in Primary Education', available at: www.worldbank.org.
173. Preliminary Report, supra n. 18 at para. 20.
174. Progress Report, supra n. 18 at paras 23-9.
175. Annual Report 2001, supra n. 16 paras 31-41.
176. Statement by the World Bank Special Representative, 'Economic, Social and Cultural Rights: The contribution of the World Bank', 2 April 2001, at 19-23.
177. Ibid. at 21.
178. 'WB Kept Silent About Embezzlement. Sida Hard Line Forcing Bank to Extend Investigation of Trust Fund Corruption', Development Today, 15 December 2000, at 6.
179. Greg Thompson has commented: 'The resistance to dialogue by the World Bank as experienced by the Special Rapporteur on the right to education, Katarina Tomaševski, is telling. Ms Tomaševski sought to remind those institutions of their obligation to ensure the realization of the right to education and the reaction of these institutions reflects the lack of what the High Commissioner has called 'multi-lingualism' on the part of economic institutions.' Thompson, 'Towards Humanising Globalization', Human Rights Features, 2-7 April 2002.
180. Supra n. 138 at 22.
181. World Bank, 'A Chance to Learn: Knowledge and Finance for Education in Sub-Saharan Africa', February 2001.
182. The president of the World Bank as of 2005, Paul Wolfowitz, was the sole candidate for this position. As is customary, the nomination was made by the US Government and was not opposed. The Financial Times commented on the stir that the nomination had created for 'his role as the intellectual architect of the US war in Iraq' ('Wolfowitz Secured Unanimous Vote from World bank', Financial Times, 1 April 2005).
183. Development Today was less kind and asked whether the Nordic funding for the World Bank may 'turn out to be a grave mistake' with 'Bush's Iraqi wolf at the helm.' (Development Today, 21 March 2005).
184. EFA Global Monitoring Report 2003/4, Gender and Education for All: The Leap to Equality (Paris: UNESCO Publishing, 2003).
185. Tomaševski, Manual on Rights-Based Education: Global Human Rights Requirements Made Simple (Bangkok: UNESCO, 2004).