A. The right to education
Education is imperative to the promotion of human rights; it is both a human right in itself and an indispensable means of realising other human rights. It is the precondition for the enjoyment of many economic, social and cultural rights; for instance, the right to receive higher education on the basis of ability, the right to enjoy the benefits of scientific progress and the right to choose work can only be exercised in a meaningful way after a minimum level of education is reached. Similarly, in the ambit of civil and political rights, the freedom of information, the right to vote and the right to equal access to public service depends on a minimum level of education, i.e. literacy. As a vehicle for empowerment, education can give marginalised adults and children the means to escape from poverty and participate meaningfully in their societies. Education is vital to empowering women, to safeguarding children from exploitation and hazardous labour, to the promotion of human rights and democracy and to the protection of the environment. Education, however, is frequently discussed in the language of economics. Governments often simply equate an investment in education with an investment in the national economy. Educational services, especially at the tertiary level, are habitually considered tradable goods - removed from a wider human rights context. Concerted efforts are being made to reverse this approach. The UN Special Rapporteur on the Right to Education, for instance, has said: ‘we need to start thinking once again about societies rather than the economy, and to understand that sound education begets sound knowledge and appropriate abilities. Clearly, all of us hope to gain economic benefits from education and literacy, but it is a different matter entirely to think that these benefits are education’s sole aim’ (2005 Activity Report). Consequently, the UN Human Rights Council has, for example, directed efforts towards the removal of discriminatory barriers and the realisation of universally free and compulsory primary education (Resolution 8/4).
Two major dimensions may be distinguished in the right to education: the social dimension and the freedom dimension. The social dimension requires states to make various forms of education available and easily accessible to all and to introduce progressively several forms of free education. The freedom dimension applies to the right to academic freedom and institutional autonomy and it implies the personalfreedom of individuals or their parents or guardians to choose the educational institutions meeting their educational standards, or their religious or moral convictions. This freedom implies, in addition, the freedom of individuals and bodies to establish and direct their own educational institutions.
The right to education has been included in several international instruments. The UDHR proclaims that ‘[e]ducation shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms’. Articles 13 and 14 ICESCR, Articles 28 and 29 CRC, Articles 10 and 14 CEDAW, Article 5 CERD, Article 30 CMW and Article 24 CRPD contain detailed provisions on education. In addition, the Convention Relating to the Status of Refugees provides for the right to education in Article 22. The UNESCO Convention against Discrimination in Education seeks not only to ban discrimination, but also to promote equal opportunities and equal treatment in education for the individual.
At the regional level, Articles 13 and 16 Protocol of San Salvador contain detailed provisions on education. Article 13 lays down the normative content of the right: respect for human rights and fundamental freedoms, friendship amongst all, pluralism, tolerance and the maintenance of peace. The aim of education is human dignity and the full development of the human personality.
In Europe, Article 2 First Protocol to the ECHR is phrased in negative terms: ‘No person shall be denied the right to education’; and focuses on the liberty of parents to ensure education in conformity with their own religious and philosophical convictions. Article 17 ESC contains provisions regarding education, while Article 19 contains provisions regarding language education of migrant workers and their children.
In Africa, Article 17 ACHPR only contains provisions regarding the duty of the state to promote and protect ‘morals and traditional values recognised by the community’. Provisions of the Cairo Declaration on Human Rights in Islam from 1990 stress the right of every human being to ‘receive both religious and worldly education’ (Article 9).
An analysis of the state obligations regarding the right to education is given below.
The Committee on Economic, Social and Cultural Rights has provided useful guidelines in its General Comment 13 on the implementation of the right to education. It has set out,inter alia, examples of possible violations of the right to education occurring through the direct action of states parties, acts of commission, or through their failure to take the steps required for the realisation of the right, acts of omission. By way of illustration, violations could include: the introduction or failure to repeal discriminatory legislation in the field of education; the failure to maintain a transparent and effective system to monitor implementation of the right to education; the failure to introduce compulsory, free primary education; the failure to take ‘deliberate, concrete and targeted’ measures towards the progressive realisation of secondary, higher and fundamental education; the prohibition of private educational institutions; the denial of academic freedom of staff and students; and the closure of educational institutions in times of political tension.
In 1998, the UN Commission on Human Rights appointed a Special Rapporteur on the right to education whose mandate was extended and assumed by the Human Rights Council. The first Rapporteur, Katarina Tomasevski, set out the obligations which the right to education places on states: the obligations to ensure that education is made available, accessible, acceptable and adaptable. Availability requires the government to permit the establishment of educational institutions by non-state actors, as well as requiring the government itself to establish institutions and fund them. The obligation to make education accessible entails that governments secure access to free education for all children of compulsory education age, but not for secondary or higher education where tuition or other charges may be applied to some extent. Acceptability implies that states have to ensure that the education is of a certain quality, by setting and enforcing standards on, e.g., textbooks, health, safety and qualification of educators. The concept of adaptability can best be demonstrated by the right to education of disabled children. The concept of children adapting to schools has been replaced by the notion that schools should adapt to children and in the instances where children cannot go to school - children that need to work or prisoners - education must be brought to them.
There is considerable case-law as regards the individual right to education in relation to other rights but limited when it comes to the right to education on its own.
The UN treaty bodies have dealt with the right to education, primarily through the prohibition of non-discrimination. An example is Waldman v. Canada, where the Human Rights Committee decided that by providing funding for the schools of one religious group (Roman Catholic) and not for another, without basing such different treatment on reasonable and objective criteria, Canada violated Article 26 ICCPR. The CERD Committee found a violation of a petitioner’s right to education and training after a carpentry firm, offering traineeships to students at a technical school, made it clear they would not accept applications from students of Pakistani descent (Er v. Denmark). Issues of discrimination also arise in cases that balance religion and secularism. The Human Rights Committee has been particularly cautious in cases where teaching could be construed as religious indoctrination. Where a country mandates a generally compulsory school course on different religious traditions (but in actual fact the course focuses on one faith in particular) teaching must occur impartially and exemptions from classes must be readily available (Leirvåg v. Norway). The Committee has also stated that restrictions on religious expression in universities that have the same intention or effect as direct coercion, such as those restricting access to education, are inconsistent with Article 18 ICCPR. Any limitations have to be justified and in this case the state had not provided justification for banning the Muslim headscarf in the university (Hudoyberganova v. Uzbekistan).
In the European context, the European Court has ruled on cases regarding the right to education; for instance, it has found a violation where no secondary schools were available for Greek Cypriots living in northern Cyprus (Cyprus v. Turkey); it has found a violation of parents’ rights where children were suspended from school for refusing – in accordance with their parents’ philosophical convictions – to be subject to corporal punishment (Campbell and Cosans v. The United Kingdom); if schools are obliged by the state to provide compulsory religious education, teaching must be conducted in ‘an objective, critical and pluralistic manner’ (Folgero and Others v. Norway); and avoid, to the greatest extent possible, any conflict with the philosophical or religious convictions of a student’s parents (Hasan and Eylem Zengin v. Turkey); the right of a nine-year-old boy to attend school in the Russian Federation could not be made conditional on his father (a forced migrant from Chechnya) having a registered place of residence (Timishev v. Russia); in the case of Leyla Sahin v. Turkey, concerning restrictions on religious dress in Turkish universities, the Court noted a state’s power to regulate access to education as long as it pursues a legitimate aim (through proportionate measures) – the Court went on to uphold the ban on Muslim headscarves by reference to the aim of safeguarding the secular nature of tertiary education; it has also ruled that a measure that conforms to Article 2 Protocol 1 violates this Article combined with Article 14 (non-discrimination) if it is discriminatory and that the phrase ‘religious or philosophical convictions’ does not cover parental preference for schools using a particular language (Belgian Linguistics case); and it has ruled that integrated, compulsory sex education in primary schools is not in violation of morals/convictions (Kjeldsen, Busk Madsen and Pedersen v. Denmark). The Grand Chamber recently issued the important judgement inD. H. and Others v. Czech Republic, another case combining Article 2 Protocol 1 with Article 14 of the Convention. In this case the Court turned its attention to the education system in the Czech Republic. Statistical evidence showed that a large percentage of Roma children were being placed outside the regular school system and in special schools with a lower standard of education. The Court decided that once statistical or other forms of evidence substantiate a claim of indirect discrimination the burden shifts to the state to prove that the practice at issue is not in fact discriminatory. The Czech Republic failed to meet this requirement. The Advisory Committee on the Framework Convention for the Protection of National Minorities has issued a thematic ‘Commentary on Education’ where it discusses the right to education under the Convention in detail.
The Inter-American Court has decided few cases on the right to education. Yean and Bosico v. The Dominican Republic concerned the denial of Dominican nationality to two girls of Haitian descent. The Inter-American Commission granted precautionary measures against the Dominican Republic – stopping the expulsion of the girls and allowing one of them to attend school. The matter was then referred to the Inter- American Court. The Court established that the girls had a right to nationality, but, more importantly (for our purposes), observed that the right to a primary education is absolute – regardless of nationality. In Yakye Axa Indigenous Community v. Paraguay the Court found that Paraguay’s failure to grant traditional land to an indigenous community created a detrimental chain of events leading to a violation of their right to education. In lieu of access to the land they were entitled to, the community was forced to live in a make-shift camp of sub-standard conditions. This in turn violated many of their rights under the Protocol of San Salvador – constituting a violation of their right to life. The Court held that the community’s inability to access proper education was one of the key factors evidencing the overall violation of their right to life.
In the African system, the African Commission has dealt with the exclusion of Jehovah’s Witnesses from access to education, ruling that the closure of universities and secondary schools, non-payment of teachers’ salaries, thus preventing them from providing education and students from attending school, was a violation of the right to education (Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v. Zaire, Communications25/89, 47/90, 56/91, 100/93).
B. The right to culture
Cultural rights were already subject to international litigation before World War II, as minorities sought protection against forced assimilation before the Permanent Court of International Justice. Minorities were a major concern of the League of Nations. Cultural rights have since remained controversial and during the negotiations on the Universal Declaration of Human Rights it proved impossible to achieve consensus on the protection of cultural rights. Agreement was only reached on the right to participate in cultural life and protection of scientific, literary and artistic production (Article 27 UDHR), and as such the Universal Declaration contains a rather narrow definition of cultural rights. Furthermore, the East-West controversies and other developments, including decolonisation, made protection of minorities and of cultural rights contentious.
There are several bones of contention regarding cultural rights. One reflects the policy of many nations to assimilate minorities. National sovereignty and national identity tend to be considered of prime importance and the recognition of cultural rights is seen as a hindrance to assimilation. Another problematic aspect is the collective element of cultural rights. Should cultural practices discriminating against women be recognised, allowing collective cultural rights to prevail over an individual woman’s right? Certain cultural practices grossly violate women’s rights to dignity and integrity, inter alia, female genital mutilation (FGM), forced marriages, female infanticide and ‘honour killings’. Furthermore, the concept of culture is considered vague. Is it to be limited to artistic expression or should the anthropological concept of culture be used? Or is a broad concept preferable?
While the field of human rights favours a broad concept of culture, with all expressions of culture considered as elements in cultural rights, there is still no consensus and the rights relating to culture remain as controversial. In 2005 the Committee on Economic, Social and Cultural Rights issued General Comment 17 to clarify the content of Article 15(1)(c) ICESCR on the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author. It pertains to the ‘moral’ rights of authors, and aims at discerning between intellectual property rights and a broader human rights discourse. The General Comment states:
[I]n contrast to human rights, intellectual property rights are generally of a temporary nature, and can be revoked, licensed or assigned to someone else. While under most intellectual property systems, intellectual property rights, often with the exception of moral rights, may be allocated, limited in time and scope, traded, amended and even forfeited, human rights are timeless expressions of fundamental entitlements of the human person. Whereas the human right to benefit from the protection of the moral and material interests resulting from one’s scientific, literary and artistic productions safeguards the personal link between authors and their creations and between peoples, communities, or other groups and their collective cultural heritage, as well as their basic material interests which are necessary to enable authors to enjoy an adequate standard of living, intellectual property regimes primarily protect business and corporate interests and investments. Moreover, the scope of protection of the moral and material interests of the author provided for by article 15, paragraph 1 (c), does not necessarily coincide with what is referred to as intellectual property rights under national legislation or international agreements.
The CERD Committee has also addressed the right to culture, calling on states to ‘recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the state’s cultural identity and to promote its preservation’ (General Recommendation 23).
UNESCO has convened several colloquia on cultural rights and adopted in 2001 the ‘Universal Declaration on Cultural Diversity’. The UNESCO Convention for the Safeguarding of Intangible Cultural Heritage, aimed at protecting ‘intangible cultural heritage’, entered into force in 2006. Intangible cultural heritage is defined as ‘the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.’
At the regional level, the Committee of Ministers of the Council of Europe initiated in 1993 the drafting of a protocol to the European Convention on cultural rights. The process, however, was suspended in January 1996, as the content could not be agreed on. Though the content of cultural rights is controversial, increased attention has been given to these rights in the past twenty years, especially in connection with minorities, an issue that became explosive as a result of the changes that took place in Central and Eastern Europe. Since minority rights are closely related to cultural rights, several standards have been established both at the global and the regional level. Moreover, supervisory mechanisms have produced a wealth of material, which has gradually contributed to a better understanding of cultural rights. Cultural rights, as set out in international human rights instruments, include the following distinct rights: a) the right to participate in cultural life; b) the right to enjoy culture; c) the right to choose to belong to a group; d) linguistic rights; and e) protection of cultural and scientific heritage.
The Universal Declaration on Human Rights sets out in Article 27 that ‘[e]veryone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’ and that ‘[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’.
Other early, important standards concerning cultural rights are Article 27 ICCPR, setting out the rights of minorities to enjoy, inter alia, their culture, which is interpreted here in a much broader sense and includes practising religion and using their own language. Articles 1 ICCPR and ICESCR set out the right to self-determination and the right of peoples to ‘freely pursue their cultural development’. Article 15 ESC sets out, inter alia, intellectual property rights and the right to take part in cultural life. Article 31 CRC stipulates that children have the right to participate freely in cultural life and the arts. Article 31 CMW recognises the right of migrant workers and their families to a cultural identity. Article 10 CRPD protects the equal right of persons with disabilities to participate in cultural life. Mention should also be made of the Convention on the Prevention and Punishment of the Crime of Genocide which has been interpreted to prohibit the deliberate destruction of a people and thus their culture. Apart from these, only limited standard setting has been adopted at the universal level.
At the regional level, Article 22 ACHPR stipulates that ‘all peoples have the right to economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind’.
Article 14 Protocol of San Salvador stipulates rights to the benefits of culture such as: a) the right to take part in the cultural and artistic life of the community; b) the right to enjoy the benefits of scientific and technological progress; and c) the right to benefit from the protection of moral and material interests deriving from any scientific, literary or artistic production of which the person is the author.
In the European system, cultural rights are mostly related to minority rights and include for instance language rights, protection against discrimination and protection of cultural heritage. Other human rights, closely related to cultural rights, are freedom of association, freedom of expression and freedom of religion.
The strained East-West relations in the seventies and eighties had a negative effect on the standard setting of cultural rights. The fear that collective rights would interfere with individual rights obstructed a constructive consensus on cultural rights. After the fall of the Berlin Wall, however, efforts at standard setting for the protection of minorities were revived, both at the global and the regional level (see IV§6). Major standards in the field of minority protection are the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the European Framework Convention on National Minorities and the European Charter for Regional and Minority Languages.
Individual complaint mechanisms have contributed substantially to the definition of cultural rights, particularly Article 27 ICCPR and various culture-related articles in the European Convention, such as Articles 9, 10 and 11, as well as Article 14 on non discrimination. These rights have generated important case-law, helping to clarify further the various aspects of cultural rights.
The search for a balance between individual or community interests on the one hand and public or general interests on the other seems to dominate the case-law of the supervisory organ of the ICCPR, the Human Rights Committee. In Mahuika et al. v. New Zealand and Diergaardt of Rehoboth Baster Community et al. v. Namibia, the Committee emphasised the importance of the right of communities and cultural rights, but at the same time recognised the legitimacy of states to act in the general interest of the community (see also Price v. South Africa).
Various treaty bodies have touched on culture in their General Comments. For instance, the Committee on Economic, Social and Cultural Rights released a General Comment on the ‘moral rights of authors’ under Article 15 ICESCR. In its General Comment 1, the Committee on the Rights of the Child has discussed issues such as a) the aims of education, b) possibly conflicting values and c) cultural identities and languages. The Committee has emphasised that:
[P]art of the importance of this provision lies precisely in its recognition of the need for a balanced approach to education and one which succeeds in reconciling diverse values through dialogue and respect for difference. Moreover, children are capable of playing a unique role in bridging many of the differences that have historically separated groups of people from one another.
At the European level, the reporting mechanism of the Framework Convention on National Minorities is gradually generating information on cultural issues, even though that information has not yet led to substantially changed insights into cultural rights. The Advisory Committee on the Framework Convention has yet to analyse the right to culture thematically.
The Inter-American Court has interpreted international standards (notably from the International Labour Organisation) in a way that allows indigenous communities a right to communal ownership over their ancestral lands (see The Mayagna (Sumo) Awas Tingni Community v. Nicaragua and Yakye Axa Indigenous Community v. Paraguay).
At the African level, the African Commission, like the Human Rights Committee, has stressed the need to weigh the rights of a particular cultural group with the interests of wider society. In a case concerning cannabis use by Rastafarians the Commission took the view that: ‘participation in one’s culture should not be at the expense of the overall good of the society. Minorities like the Rastafari may freely choose to exercise their culture, yet that should not grant them unfettered power to violate the norms that keep the whole nation together’ (Garreth Anver Prince v. South Africa, Communication 255/2002).