· Web viewThis also takes into account that the drafters of the ICESCR were reluctant to use the word ‘right’ assuming the latter might imply an obligation for States to grant

Human Rights Guiding Principles on the obligations of States with regards to private involvement in education1V4 Public consultation ndash 21082018 Please do not alter use or make reference to this draft

The current draft of Guiding Principles is not final and cannot in any way prejudge the final document or the views of the member of Drafting Committee Please do not alter use or make reference to this draft Please contact the Secretariat if you have any question or if you wish to share this draft further

The footnotes indicate some of the information that will be eventually contained in the commentary The final version of this document will not include these footnotes The content of the footnotes is not exhaustive and only provides some indicative reference points to guide the reader For space purposes not all Guiding Principles have footnotes and the absence of footnotes does not indicate any less importance of or backing for the Guiding Principle

This document is restricted for editing to tracked changes and comments

Preamble (to be drafted)

Values

Vision

Objectives

1Scope application interpretation1 These Guiding Principles relate to the obligations of States with regards to the right to education in the context of private involvement in education including those private actors operating independently or in partnership with States as required by international law2

1 This is a working title that is likely to change2 CRC art 29(2)- requires minimum standards to be set by the state for private schools ICESCR Art 13(3) ndash requires conformity with minimum standards Most recently paragraph 5 Human Rights Council resolution on

2 These Guiding Principles apply to all State actors which have competencies over the implementation of the right to education3

3 These Guiding Principles should be interpreted as the minimal standards and nothing in these Principles should be read as limiting restricting or undermining any legal obligations or responsibilities that States international organisations and non-State actors such as transnational corporations and other business enterprises may be subject to under human rights standards whether these are contained in international regional constitutional or other national laws that are in conformity with international human rights law4 These Guiding Principles must not either be interpreted as limiting restricting or undermining the rights recognised under international human rights law and related standards or rights consistent with international human rights law as recognised under any national law5

4 These Guiding Principles must be interpreted and applied in the context of the obligations to respect protect and fulfil all human rights including civil cultural economic political and social rights both within their territories and extraterritorially

2Foundational principles6

Universality indivisibility inalienability and interdependence

5 All human beings everywhere are born free and equal in dignity and are entitled without discrimination to human rights and freedoms including the right to education7 All human rights are universal indivisible interdependent inalienable interrelated and of equal importance8

Nature of the right to education

6 The legal framework on the right to education recognises the role that education plays both in the personal and the collective spheres In the personal sphere education plays an essential role for advancing individualsrsquo physical mental spiritual moral and social development9 and for parents families and communities to transmit social and cultural values and practices In the collective sphere education contributes to achieving the public good and developing and maintaining healthy open transparent and fair societies that provide an environment conducive to the realisation of human rights

7 Everyone has a right to an education that allows them to flourish independently grow10 effectively participate in society11 and have the capacity and necessary critical thinking to elaborate

lsquoThe right to education follow up to the Human Rights Council Resolution 84 AHRC38L13 (03072018) The resolution urges all States to lsquoput in place a regulatory framework to ensure the regulation of all education providers including those operating independently or in partnership with States guided by international human rights law and principles that addresses any negative impact of the commercialization of educationrsquo3 These Guiding Principles apply to all contexts including emergency contexts They need to be interpreted in the light of local realities where they apply in line with international human rights law The term State refers in these Guiding Principles to all such public authorities4 Maastricht Principles on Extraterritorial Obligations (ETO Principles) Principle 435 Guiding Principles on Extreme Poverty and Human Rights principle 1086 This section restates basic international legal principles 7 Universal Declaration of Human Rights art 1 and 2 ETO Principles art 18 ETO Principles art 59 CESCR General Comment 13 para 1 10 ICCPR art 1811 CESCR General Comment 13 para 30 ICCPR art 25

and realise their own life project in an autonomous way12 This is the right to a well-educated enlightened and active mind able to wander freely and widely as one of the joys and rewards of human existence13

8 The right to education applies from birth to death and includes early childhood14 through adulthood as well as life-long learning in both formal and non-formal learning contexts

Non-discrimination

9 States must eliminate formal and substantive discrimination15 on any ground such as race colour sex language religion political or other opinion national or social origin property birth or other status in the enjoyment of the right to education This includes discrimination that is systemic or structural in nature

10 States must ensure that their laws policies or practices do not have the direct or indirect effect of creating furthering or entrenching discrimination in any educational context and must take all measures to prevent and where necessary redress16

a disparities of educational opportunity for some groups in society including people living in poverty17 that create systemic discrimination or

b levels of segregation of the education system that are discriminatory18 on the basis of the ability to pay19 or on any prohibited basis such as race colour sex language religion political or other opinion national or social origin property birth or other status20 or

c any other situation that is discriminatory on any ground21

11 Statesrsquo obligations to eliminate substantive discrimination22 includes an obligation to ensure that everyone has equal access to quality inclusive education on an equal basis with others in the

12 From the concept of ldquoproyecto de vidardquo in the jurisprudence of the Inter-American Court of human rights See eg IACrtHR Loayza Tamayo Case Reparations Judgment of November 27 1998 Series C No 42 paras 147-148 ldquoThe so-called ldquolife planrdquo deals with the full self-actualisation of the person concerned and takes account of her calling in life her particular circumstances her potentialities and her ambitions thus permitting her to set for herself in a reasonable manner specific goals and to attain those goals The concept of a ldquolife planrdquo is akin to the concept of personal fulfillment which in turn is based on the options that an individual may have for leading his life and achieving the goal that he sets for himself Strictly speaking those options are the manifestation and guarantee of freedom An individual can hardly be described as truly free if he does not have options to pursue in life and to carry that life to its natural conclusion Those options in themselves have an important existential value Hence their elimination or curtailment objectively abridges freedom and constitutes the loss of a valuable assetrdquo Specifically for children see also IACrtHR 26 May 2001 Reparations and Costs Villagran Morales et al v Guatemala Series C No 77 para 89 13 CESCR General Comment 13 para 114 From birth httpsenunescoorgthemesearly-childhood-care-and-education 15 UNESCO Convention against Discrimination in Education ICESCR art 2 CESCR General Comment 20 para 816 CESCR General Comment 20 para 4017 CESCR General Comment 20 para 3018 This refers to segregation that results in discriminatory learning opportunities where some people or groups have less opportunities than others due to the segregation 19 See CESCR General Comment 24 concluding observations Chile 20 UNESCO Convention on Discrimination in Education art 221 UNESCO Convention against Discrimination in Education ICESCR art 22 ICCPR art 21 CRC art 222 CESCR General Comment 20 para 8

communities in which they live23 without any discrimination on any ground24 It also includes an obligation to ensure reasonable accommodation of individualsrsquo requirements in education institutions

12 States must organise their education system so as to prevent discrimination and ensure substantive equality25 When discrimination including through segregation exists de jure or de facto in violation of international human rights law the State must immediately whether or not such discrimination has been directly caused by a public authority26 put in place all necessary measures in education and other areas27 to eliminate it as rapidly as possible28

13 States may be and in some cases are under an obligation to adopt special measures29 to attenuate or supress conditions that perpetuate discrimination in the enjoyment of the right to education Such measures must be reasonable objective and proportional means to redress de facto discrimination and be discontinued when substantive equality has been sustainably achieved and they may exceptionally need to be of a permanent nature30

3General content and obligations of the right to education

14 Everyone has the right to available accessible acceptable and adaptable education at all levels including pre-primary primary secondary fundamental and higher education as well as within technical and vocational education and training and lifelong learning31 This includes a right to free32 quality education on the basis of non-discrimination and equality

15 International human rights law recognises the liberty of parents or legal guardians to choose for their children an educational institution other than a public educational institution and the liberty of individuals to establish private educational institutions These liberties are subject to the conditions that these educational institutions conform to national standards that are in line with international

23 CESCR General Comment 20 para3524 Universal Declaration of Human Rights art 225 CESCR GC 2026 This means that even segregation that has grown sui generis and is not the product directly or indirectly of Statesrsquo actions or inactions or segregation that is not intended by the State must be redressed For the relationship with discrimination see CESCR General Comment 20 especially paras 8 10 12 and 39 27 Such as measures to address housing segregation to improve public transportation etc28 See eg CESCR Concluding observations Chile EC12CHLCO4 para 30 19 June 2015 httpbitly1RWOPkD para 30 CRC Concluding observations Chile CRCCCHLCO4-5 paras 67 ndash 68 and 69 ndash 70 15 October 2015 httpbitly1XRUqg8 paras 67-69 CESCR Concluding observations Kenya EC12KENCO2-5 paras 57-58 4 March 2016 httpbitly1pbiMFP paras 57-5829 Temporary measures to realise the equal enjoyment of the right to education and the best interest of the child so as to redress previous systemic discrimination is generally not discriminatory CESCR General Comment 20 para 9 See also CESCR General Comment para 32 ldquoThe adoption of temporary special measures intended to bring about de facto equality for men and women and for disadvantaged groups is not a violation of the right to non discrimination with regard to education so long as such measures do not lead to the maintenance of unequal or separate standards for different groups and provided they are not continued after the objectives for which they were taken have been achievedrdquo 30 CESCR General Comment 20 para 931 CESCR General Comment 13 para 6 This includes the right to quality education32 The nature of ldquofreerdquo education implies a ldquounequivocalrdquo requirement to make education free of charge which include ldquoindirect costs such as compulsory levies on parents (sometimesportrayed as being voluntary when in fact they are not) or the obligation to wear a relatively expensive school uniformrdquo CESCR General Comment 11 para 7

human rights law and that the exercise of this liberty does not undermine any other dimension of the right to education33

16 States must respect protect and fulfil34 the right of everyone within their jurisdiction35 to education on the basis of non-discrimination and equality This imposes both negative and positive as well as immediate and progressive obligations on States36

17 These obligations lie with the State which cannot be absolved from or transfer this obligation under any circumstance

18 States parties have a core obligation to ensure the satisfaction of at the very least minimum essential levels of the right to education including the most basic forms of education37 which they must prioritise These include at least the realisation of free primary education38 and free secondary education including nine years of compulsory education39 In order for a State to be able to attribute its failure to meet at least its core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy as a matter of priority those core obligations40

19 States must guarantee the delivery of education as a public service whether it is delivered by public or private actors41

33 Other dimensions are the rest of the content of the right to education including as detailed for instance in these Guiding Principles in particular section Error Reference source not found34 Including promote provide and facilitate35 As understood in the Maastricht ETO Principles including beyond national borders36 CESCR General Comment 3 para 137 CESCR General Comment 3 para 1038 CESCR General Comment 13 para 51 Demanda de inconstitucionalidad contra el artiacuteculo 183 de la Ley 115 de 1994 ldquoPor la cual se expide la ley general de educacioacutenrdquo Sentencia C-37610 expediente D-7933 para 82239 International human rights law requires achieving compulsory free education at the primary level and progressively free at the secondary level and for higher education (ICESCR art 132 CRC art 281) In the more recent Education 2030 Framework for Action 184 States committed to ldquoEnsure access to and completion of quality education for all children and youth to at least 12 years of free publicly funded inclusive and equitable quality primary and secondary education of which at least nine years are compulsoryrdquo httpunesdocunescoorgimages0024002456245656Epdf Early Childhood Care and Education (ECCE) is also increasingly considered as being part of the right to education (Moscow Declaration 2010 httpunesdocunescoorgimages0018001898189882epdf para 6) Adult education and life-long learning are part of fundamental education (CESCR General Comment 13 para24) guaranteed under the right to education (ICESCR art 13-2-d) It may thus be interpreted that right to free compulsory education extends to ECCE and adult (see eg recommendations for partly free higher education Beleacutem Framework for Action 2009 httpunesdocunescoorgimages0018001877187790epdf UNESCO recommendation on adult learning and education httpunesdocunescoorgimages0024002451245179epdf para 20 on literacy) 40 CESCR General Comment 3 para 10 See also CESCR General Comment 13 para 57 CESCR GC 3 para 10 The CESCR has made a non-exhaustive list of core obligations with respect to the right to education as follows ldquoto ensure the right of access to public educational institutions and programmes on a non discriminatory basis to ensure that education conforms to the objectives set out in article 13 (1) to provide primary education for all in accordance with article 13 (2) (a) to adopt and implement a national educational strategy which includes provision for secondary higher and fundamental education and to ensure free choice of education without interference from the State or third parties subject to conformity with ldquominimum educational standardsrdquo (art 13 (3) and (4))rdquo41 CESCR General Comment 24 paras 20-21

20 States should respect the principles of participation transparency non-discrimination accountability empowerment human dignity and the rule of law in the delivery and the decision-making process relating to education

21 States must devise and adopt a national education strategy for the enjoyment of the right to education at all levels This obligation is of immediate effect As a minimum the national education strategy should include targets and benchmarks identify those responsible for implementation a time-frame for their achievement be fully-costed and funded42 It should be developed in a transparent and participatory manner with active participation inter alia all sections of civil society43 and children It should be based on a diagnosis of the existing situation and must give special priority to identify the level of enjoyment of the right to education by vulnerable marginalised and disadvantaged groups within society

4Obligation of States to provide quality public education

aObligation to provide public education22 States have an obligation in most circumstances to directly provide free public education of appropriate level and of adequate quality to everyone under their jurisdiction to the maximum of their available resources44

23 The provision of free quality public primary and secondary education for all that is compulsory at for least nine years and the adoption and implementation of a national education strategy to provide pre-primary primary secondary higher and fundamental education as effectively and expeditiously as possible are core obligations of States45

24 States must ensure that public education is of adequate quality in accordance with the right to education This requires inter alia that State provide quality teacher training adequate curriculum and pedagogical material and a safe infrastructure and environment and put in place a participatory school governance system that are in line with the right to education standards and principles

25 States must as effectively and expeditiously as possible within their maximum available ressources put in place measures in areas that are determinant for the enjoyment of the right to education to realise the right to education without discrimination and where applicable to address segregation in education This requires States to take measures to address matters which indirectly affect individuals ability to enjoy the right to education46 which may include adequate housing policies to reduce segregation appropriate public transportation systems to provide access to educational institutions appropriate childcare services access to menstrual hygiene prohibitions on child labour prohibitions on child marriage protection of labour rights and measures to ensure the individualrsquos highest attainable standard of physical and mental health and access to adequate food

42 Vienna Declaration and Programme of Action43 CESCR General Comment 11 para 844 CESCR General Comment 13 paras 48 52 CESCR General Comment 24 para 2345 CESCR General Comment 13 para 5746 In line with the indivisibility of human rights

bMaximum available ressources for public education

26 States must allocate the maximum of their available resources to fund free quality public education47

27 Available resources include existing resources and additional resources that may be raised for instance through fair progressive taxation and other domestic income-generating mechanisms reallocation of public expenditures elimination of illicit financial flows and tax evasion and avoidance48 using fiscal and foreign exchange reserves managing debt by borrowing or restructuring existing debt and adopting a more accommodative macroeconomic framework and international co-operation49

28 Statesrsquo national education strategy50 must include time-bound robust fully-costed and funded and realistic plans and budgets that allocate ressources so as to fulfil as effectively and expeditiously as possible their progressive obligation to deliver free quality public education with a priority given to the lower levels of education and progressively moving to the higher levels51

cCapacity limitations and non-retrogressionCapacity limitation

29 Lack of will is distinct from a lack of capacity and the former cannot justify a Statersquos failure to provide free quality public education according to its obligations under human rights law

30 States must take all appropriate measures to ensure good governance transparency absence of corruption and accountability in the public education system that may prevent or limit the realisation of the right to education This is an immediate obligation and the failure or unwillingness to do so cannot justify the growth of private educational operators in violation of international human rights law

31 In order for a State party to be able to attribute its failure to provide free quality public education according to its core obligations or the benchmarks it set to a lack of available resources it must

a demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy as a matter of priority those obligations andor benchmarks52

47 From ICESCR art 21 CRC art 4 See 2030 benchmarks in SDGs and other documents See CESCR General Comment 3 para 9 CESCR General Comment 13 para 4448 CESCR General Comment 24 para 2349 Or other mechanisms such as corporate social responsibility funds (South Africa) or dedicated sectoral tax (on oil revenues Brazil) See eg The Obligation to Mobilise Resources Bridging Human Rights Sustainable Development Goals and Economic and Fiscal Policies httpswwwibanetorgArticleNewDetailaspxArticleUid=71b4b9cc-92b6-4da4-a8cd-aec64b4ffef6 Fiscal Space for Social Protection and the SDGs Options to Expand Social Investments in 187 Countrieshttpwwwiloorgwcmsp5groupspublic---ed_protect---soc_secdocumentspublicationwcms_383871pdf50 See Guiding Principle 2151 See ICESCR art 14 and art 21 CESCR General Comment 13 para 51 CESCR General Comment 1152 CESCR General Comment 3 para 10

b publicly and regularly reassess its incapacity in light of all existing and potential available ressources including international co-operation53 and specify what the gaps are

c continue to dedicate the maximum of its available resources to the right to education and in line with its national plan as effectively and expeditiously as possible progressively increase these resources and

d provide within its national education strategy54 a timeline for how it will address the capacity gap in the shortest possible time and provide free quality public education according to its core obligations or the benchmarks it set

Non-retrogression in public education

32 States must never reduce the budget allocated to public education which constitutes a retrogressive measure prohibited under international human rights law unless on a temporary basis in exceptional circumstances they can publicly demonstrate that the reduction has been introduced after the most careful consideration of all alternatives and that is fully justified by reference to the totality of its human rights obligations and in the context of the full use of the Statersquos maximum available resources55 To be permissible in terms of international human rights law any retrogression in terms of the right to education should

a be temporary by nature and in effect and limited to the duration of the crisis causing the situation of fiscal constraint56

b be necessary and proportionate57 comprehensively examine alternative measures58 and demonstrate that any other policy or a failure to act would be more detrimental to economic social and cultural rights

c be reasonable59

d not be directly or indirectly discriminatory60

e accord particular attention to the rights of vulnerable marginalised or disadvantaged individuals and groups and ensure that they are not disproportionately affected61

f identify the core content of the right to education and other affected economic and social rights and ensure the protection of this core content62

g involve genuine participation of affected groups in examining the proposed measures and alternatives63 and

53 See Guiding Principle 2654 As under Guiding Principle 2155 CESCR General Comment 13 para 45 CESCR General Comment 3 para 9 These measures may exceptionally be justified in case of an unforeseen large-scale event such as a natural catastrophe where international aid is unable to address the increased need and where it is a temporary short-term response 56 CESCR lsquoLetter to States Partiesrsquo 57 Ibid See also CESCR lsquoAn evaluationrsquo para 8(d)58 CESCR lsquoGeneral Comment No 19rsquo para 4259 Ibid60 Ibid CESCR lsquoLetter to States Partiesrsquo See also CESCR lsquoAn evaluationrsquo para 10(f)61 CESCR lsquoLetter to States Partiesrsquo62 Ibid CESCR lsquoGeneral Comment No 19rsquo para 42 See also CESCR lsquoAn evaluationrsquo para 10(b) See also ibid para 10(f)63 CESCR lsquoGeneral Comment No 19rsquo para 42 See also CESCR lsquoAn evaluationrsquo para 11

h be subject to meaningful review procedures at the national level64

33 In a situation of limited resources States must prioritise the protection of public education when considering how to address budgetary or programme constraints

dAssessment and monitoring of public education systems

34 States must regulate their own activities and put in place all necessary mechanisms to monitor implementation and decision-making related to education and provide appropriate remedies where the right to education has not been complied with

5Obligations to respect protect and fulfil the right to education in the context of private involvement of non-state actors

aScope of the liberties in education35 Inasmuch as States have an international obligation to respect the liberty65 of individuals66 to choose and the liberty of individuals and bodies to establish educational institutions other than those established by the public authorities such liberty is without prejudice to the effective implementation of the right of everyone to free quality public education

36 Private quality education may supplement and provide an alternative to public free quality education but shall not supplant or replace it

37 The establishment or maintenance of private educational institutions if the object of the institutions is not to secure the exclusion of any group but to provide educational facilities in addition to those provided by the public authorities if the institutions are conducted in accordance with that object and if the education provided conforms with such standards as may be laid down or approved by the competent authorities in particular for education of the same level does not constitute discrimination in accordance with international human rights law67

bScope of State responsibility38 Where private provision of education has historically filled in for insufficient public provision of free quality education States must take all measures to develop or restore access to free quality public provision of education as effectively and expeditiously as possible while phasing out those private educational operators that may be below the minimum standards set by the State68

64 CESCR lsquoGeneral Comment No 19rsquo para 4265 Right freedom or liberty Freedom usually means to be free from something whereas Liberty usually means to be free to do something (httpeylerfreeserverscomJeffPersjefpco26htm) This paragraph reproduces ICESCR articles 133 and 134 and CRC article 292 that both use lsquolibertyrsquo rather than right or freedom This also takes into account that the drafters of the ICESCR were reluctant to use the word lsquorightrsquo assuming the latter might imply an obligation for States to grant material assistance to private schools A3764 5 Dec 1957 (Draft International Covenants on Human Rights of the Third Committee httphr-travauxlawvirginiaedudocumenticcpra3764nid-112) 66 This may include parents legal guardian children or adults according to the situation67 UNESCO Convention against Discrimination in Education Article 2(c)68 This Guiding Principle does not imply in any circumstance that private educational operators that are operating below the minimum standards may be acceptable or legal It seeks to provide guidance to address a situation that may arise in practice within the human rights framework

39 The involvement of private educational operators69 in education does not in any way absolve the State from its obligations to ensure the fulfilment of the right to education or reduce the scope of such obligation

cObligation to regulate non-state actors40 States must use all appropriate means70 including particularly the adoption of regulatory measures71 to prevent the infringement of the right to education in the context of the involvement of private actors in education72 including when private educational operators conduct their activities without State involvement or control or when they operate informally or illegally73 This requires States to both address the systemic impacts of private educational operators on the enjoyment of the right to education and to guarantee that education delivered in all private educational institutions is consistent with all the obligations imposed by the international standards of the right to education74

Systemic impact

41 The involvement of private educational operators may have a negative systemic impact on the enjoyment of the right to education if inter alia it

a leads to disparities of educational opportunity for some groups in society which interfere with the right to non-discrimination and equality75

b nullifies or impairs or creates a risk of nullifying or impairing the capacity of the State to provide free quality education for all

c leads to the commercialisation76 of education77 including through misguiding or otherwise inappropriate advertising and marketing practices78

69 Private educational operators in this text are understood to include all private educational operators involved in the delivery of education services including private schools and home-schooling where allowed by domestic legislation 70 This includes administrative educational as well as other appropriate measures to ensure effective protection against violations of the right to education linked to private actors in education and that they provide victims of such abuses with access to effective remedies71 Including administrative measures such as policies decrees regulations etc72 CESCR General Comment 13 para 47 CESCR General Comment 24 para 1473 This does not imply in any way that private educational operators can or should operate illegally or should operate with or without State involvement but it recognises that in the case where illegal educational operators existed that this failure may fall within the scope of the State responsibility74 ICESCR art 21 See also CESCR General Comment 13 para 1375 CESCR General Comment 13 para 30 and 3176 See CRC Concluding observations Haiti CRCCHTICO2-3 29 January 2016 httpbitly1TIaPTM para 59(f) CRC Concluding observations Brazil CRCCOPACBRACO1 paras 75-76 28 October 2015 httpbitly2lV3jcb CRC General Comment 16 para 59 CRC General Comment 17 paras 36 47reports of the UN Special Rapporteur on the right to education Kishore Singh (2014 2015) Report of the Special Rapporteur in the field of cultural rights A69286 (2014)77 Including but not limited to the formal education system78 Report of the Special Rapporteur in the field of cultural rights A69286 (2014) paras 63 64 This for instance apply in the case of institutions attracting the best learners

d undermines the aims of education guaranteed under international human rights law79 and the nature of education as a public service

e undermines transparency public accountability or public participation by the concerned stakeholders in education or

f amounts to a retrogressive measure as defined under international human rights law80

Regulations

42 States have the exclusive responsibility for regulating private educational operators to prevent the infringement of the right to education in the context of the involvement of private actors in education

43 States must maintain their exclusive regulatory role by putting in place strict and effective regulations on private educational operators imposing on them public service obligations81 Such regulations must include at a minimum regulations regarding transparency and minimum standards

Transparency

44 States must put in place effective regulations to maintain transparency public participation and public accountability in education in particular by ensuring that

a no private educational operator or organised group of private educational operators is in a position to unduly influence the education system including where necessary by capping the number of private educational operators and

b there is no conflict of interest between a private educational operator and the public system of education82

Minimum standards

45 States must put in place effective regulations regarding to guarantee minimum standards applicable to private educational operators in accordance with international human rights obligations regarding the right to education These standards must be designed and adopted through a participatory process involving all stakeholders including the learners parents communities teaching staff and education unions and other civil society organisations Such standards must address specifically at a minimum83

79 These are the development of the childs personality talents and mental and physical abilities to their fullest potential the development of respect for human rights and fundamental freedoms and for the principles enshrined in the Charter of the United Nations the development of respect for the childs parents his or her own cultural identity language and values for the national values of the country in which the child is living the country from which he or she may originate and for civilizations different from his or her own the preparation of the child for responsible life in a free society in the spirit of understanding peace tolerance equality of sexes and friendship among all peoples ethnic national and religious groups and persons of indigenous origin and the development of respect for the natural environment From CRC art 29 See also CRC art 31 CRC General Comment 17 para 2780 CESCR General Comment 13 para 4581 CESCR General Comment 24 para 21 The scope and origin of ldquopublic servicesrdquo will be defined in the commentary82 CESCR General Comment 24 para 20 CRC General Comment 16 para B(b)83 These standards shall set the highest possible minimum quality standards within the context of the State

a The governance and accountability of private educational operators concerning at a minimum

i The registration and licencing

ii The involvement of parents children teachers and relevant stakeholders

iii The conditions of enrolment admission and learning ensuring that they are not de jure or de facto discriminatory in particular for vulnerable marginalised or disadvantaged groups

iv The standards applicable to of the management of education resources

v Where necessary to the protection of human rights the level of fees and other relevant charges

vi Transparency of and access to essential information about the operators including all potential charges the use of education resources the curriculum and pedagogical practices the conditions of enrolment and other policies of the operators and

vii The conditions of and transparency in the delivery of diplomas for the applicable levels

b The minimum qualification84 salary training labour conditions union rights labour rights and status of teachers and other staff which must conform to international standards and offer at least the same level of protection as that offered in public educational institutions85

c The curriculum to be used and with due regards to academic freedom and institutional autonomy86 the pedagogical practices in particular in order to ensure that appropriate time and expertise be allocated within the curriculum for children to learn participate in and generate cultural physical and artistic activities87 and that no pressure for educational achievement or emphasis on formal academic success undermine the right of the child to rest leisure play recreational activities cultural life and the arts88

d The limitations to the possibility of suspension and expulsion of the learners

e Standards for infrastructure including sanitary facilities and learning materials including textbooks and teaching aids

f Minimum requirements regarding disability access health safety and hygiene

g Access to information and transparency

84 Based on standards applicable for all teachers85 ICESCR art 7 protects the right of everyone to the enjoyment of just and favourable conditions of work ICESCR art 8 protects the right of everyone to form trade unions and join the trade union of heris choice the right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations the right of trade unions to function freely and the right to strike ILO conventions are also applicable and include the right to unionise the right to strike and the right to collective bargaining86 CESCR 13 General Comment 13 paras 38-4087 CRC art 31 CRC General Comment 17 para 57(g)88 CRC art 31 CRC General Comment 17 paras 41

h The physical and mental safety of learners including protection from abuse sexual harassment and bullying

i Discipline and the prohibition of corporal punishment89

j Privacy and data collection ensuring that no private data be used for commercial purposes

k The maximum acceptable teacherlearner ratio

l Special status of private educational institutions established or run by constitutionally protected groups such as religious or linguistic minorities

dAssessment and monitoring of private actors

46 States must regularly assess the impact of the existence of private educational operators on the enjoyment of the right to education90

47 Amongst other things such assessment should

a measure the systemic effect of the private educational operators in the short and long term assessing actual and potential impact on the right to education

b cover adverse human rights impacts that the private educational operators may cause or contribute to through their own activities which may be directly or indirectly linked to its operations or services

c be ongoing recognising that the risks to the right to education may change over time as the private educational operatorsrsquo activities and operating context evolve

d be participatory and involve affected stakeholders and

e be publicly available

48 The findings of this assessment should inform the policies and regulations put in place by the State in order to guarantee that the right to education is not undermined by the existence of private educational operators The State should track and communicate how impacts are addressed

49 States must establish maintain and adequately resource effective monitoring mechanisms to ensure compliance with educational regulations

50 Where private educational operators do not respect State regulations91States must take all necessary steps to remedy this situation in the shortest possible time Such steps may include liquidation of the educational institution after ensuring that all affected learners have access to an acceptable92 alternative educational institution

89 CESCR General Comment 13 para 41 CRC General Comment 1 para 8 See also references in httpswwwcoeintenwebchildrencorporal-punishment221244109722[1] 90 Including against the criteria laid out in these Guiding Principles91 See section 5c92 As defined under CESCR General Comment 13

51 States must ensure the availability of prompt accessible effective93 and independent grievance and redress mechanisms including where necessary judicial remedies allowing any rights-holder or where possible public interest groups to seek remedies for the failure of a private educational operator to comply with the applicable State regulations

eFinancing52 There is no obligation in human rights law for the State to fund private educational operators94

Schools that cannot be funded

53 States must not fund or support95 directly or indirectly including through tax deductions land concessions and other forms of indirect support any private educational operator whose activities are incompatible with the Statersquos legal obligations to ensure the enjoyment by everyone of the right to education This includes funding private educational operators that

a Discriminate including by being selective expelling or sorting learners whether directly or indirectly on the basis of the economic status of the learner family or community or on the basis of any another any ground prohibited under international human rights law that leads to a violation of the right to equality and non- discrimination or

b Are commercially-orientated or for-profit96 or

c Are not subject to democratic control by the populations that they serve or

d Are not of adequate quality or

e Are inadequately regulated or accredited as defined under these Guiding Principles or

f Undermine the realisation of human rights in any other way97

Conditions for exceptional funding

54 States should not fund directly or indirectly including through tax deductions land concessions and other forms of indirect support private educational operators In exceptional circumstances such funding might be compatible with human rights if it meets the following substantial procedural and other requirements

Substantial requirements

93 As defined under international human rights law This implies among other things that rights-holders must be informed and where necessary assisted for the use of these mechanisms94 CESCR General Comment 13 para 54 in conjunction with para 48 Case ldquorelating to certain aspects of the laws on the use of languages in education in Belgiumrdquo v Belgiumrsquo (European Court of Human Rights Application no 147462 167762 169162 176963 199463 212664)95 This does not apply to the procurement of materials that is strictly ancillary96 CESCR General Comment 24 para 22 read in conjunction with the obligation to use the maximum available resources See also CRC Concluding observations United Kingdom CRCCGBRCO5 3 June 2016 httpbitly1OeyD1M paras 16-17 CRC Concluding observations Brazil CRCCOPACBRACO1 paras 75-76 28 October 2015 httpbitly2lV3jcb CESCRConcluding observations EC12CHLCO4 para 30 19 June 2015 httpbitly1RWOPkD para 30 CRC Concluding observations CRCCCHLCO4-5 paras 67 ndash 68 and 69 ndash 70 15 October 2015 httpbitly1XRUqg8 paras 67-6997 This includes educational operators that would indoctrinate for instance on religious grounds See Human Rights Committee General Comment 22 para 6 Human rights includes all rights protected under human rights law and interpreted in instruments such as these Guiding Principles

55 Any potential public funding to a private educational operator must meet all the following substantial requirements

a It is a time-bound temporary measure to address an incapacity of the State to immediately fulfil its obligation to directly provide free quality public education and it seeks to

i realise the rights98 of a particular group of population including in particular minorities indigenous peoples and vulnerable marginalised or disadvantaged groups that cannot immediately be catered for satisfactorily in public educational institutions or

ii integrate99 within the public education system private educational operators that have previously operated separately or

iii respond to the demand for or pilot a diversity of pedagogical approaches and content that can be demonstrated not to be rapidly achievable in public educational institutions

b It is the most effective and expeditious allocation of ressources to realise the right to education paying particular attention to obligations related to non-discrimination equality and non-segregation100 and

c It does not risk impairing or delaying the fastest possible development of a quality public education system in accordance with Statesrsquo obligations to give effect to the right to education to the maximum of their available resources and

d It does not constitute a retrogressive measure as defined under international human rights law including by lowering the funding or standards in the public education system

e It does not constitute or contribute to the marketisation or commercialisation of the education system101

f It is set up in a way that it is possible in practice to reverse it or to transfer the role of the private educational operators to public authorities and

g It does not create a real risk of nullifying or impairing the discharge by the State of any other its human rights obligations102 particularly the obligation to prevent direct and indirect discrimination or segregation on the basis of economic status103

Procedural requirements

98 Including in particular cultural rights99 In order eg to improve the monitoring and supervision of schools and reinforce the public education system100 This Guiding Principle is a requirement that needs to be met and demonstrated by States It does not imply that public funding to private actors should or may be the most equitable means to advance the right to education 101 In accordance with the Guiding Principle 41c102 Including by meeting the totality of these Guiding Principles103 CESCR General Comment 13 para 54 See Supreme Court of Mauritius in the case of Tengur v The Minister of Education and Another Quoted by Saul Kinley and Mowbray in The International Covenant on Economic Social and Cultural Rights P 1159

56 Any potential public funding to a private educational operator must meet all the following procedural requirements

a The State has followed a participatory inclusive transparent and accountable consultation process involving all potentially affected rights-holders

b The State has publicly demonstrated that such public funding meets all of the substantial procedural and other requirements for funding of private educational operators listed in the present Guiding Principles

c There is in place an adequate regulatory framework addressing the specificities of the situation and

d The State has assessed and publicly demonstrated its capacity to continuously monitor and regulate the private educational operatorrsquos ability to meet the applicable standards

Other requirements

57 Should any private educational operator receive public funding the regulations applying to these private educational operators must impose at least the same level of requirements as of public educational institutions including the effective protection of labour and union rights

58 States should never fund private educational operators in such way that these operators constitute an undue influence on the education system or make up such a substantial part of an education system that it risks undermining any of the Guiding Principles herein104

59 Should a State fund a private educational operator for the reasons of deficiency of its public education system listed above it must make all possible efforts to overcome as expeditiously as possible the State inability to deliver or manage an aspect of education services that justified this funding The State must ensure that the arrangement reinforces and is regularly re-assessed against State capacities and that it includes from its inception a plan to be phased out when the State incapacity that justified this arrangement is addressed and the State is effectively able to manage the educational institution

60 Any public funding to a private educational operator must be subject to ex-ante on-going and where applicable ex-post human rights impact assessments which are made public and are used to continually re-evaluate the contribution of the funding to the realisation of the right to education and if necessary change or terminate the funding The assessment must measure both the separate and the systemic effect of each operator in the short and long term and involve all affected stakeholders including teachers children and parents States should make the continued provision of funding conditional on fulfilment of the required standard They must reserve the right to withdraw any public funding if the impact of the funding undermines the realisation of the right to education including the development of a public education system

61 States must consider when assessing the effectiveness and expeditiousness of a potential funding to a private educational operator105 the cost of the human rights impact assessment of the regulation efforts and of other requirements

104 This is a logical consequence of Guiding Principle 44-b The logical consequence of this is that in most cases a cap should be set in accordance with the context105 In accordance with Statesrsquo obligations to allocate their maximum available ressources for the realisation of the right to education as under the section 4b and the Guiding Principle 55b

62 States must ensure that all private educational operators receiving public funding make all proprietary data and material that can help to improve the education system including technology used in the classroom and management systems available without a licence to the relevant public authorities while preserving the learnersrsquo privacy and with respect to copyright law106

6Extraterritorial obligations of States63 States must respect protect and fulfil the right to education including the obligations reflected in the present Guiding Principles within and beyond their borders in accordance with their extraterritorial obligations107 This includes in particular complying with the principles highlighted here with due consideration of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic Social and Cultural Rights

64 States have the obligation to refrain from conduct which nullifies or impairs the enjoyment and exercise of the right to education of persons outside their territories

65 States must also refrain from any conduct which impairs the ability of another State or international organisation to comply with that Statersquos or that international organisationrsquos obligations as regards the right to education or aids assists directs controls or coerces another State or international organisation to breach that Statersquos or that international organisationrsquos obligations as regards the right to education

66 States separately or jointly must refrain in all circumstances from embargoes and equivalent measures impairing the realisation of free quality public education108

67 States must take all the necessary measures to ensure that non-State actors which they are in a position to regulate andor influence such as private educational operators do not nullify or impair the enjoyment of the right to education of people independently of where they live109 Measures may include administrative legislative investigative adjudicatory or any other measures110

68 States and other actors in a position to assist must provide international assistance and cooperation especially economic and technical to contribute to the fulfilment of the right to education in other States111 This international assistance and cooperation must be provided in a manner that is consistent with their human rights obligations including those reflected in the present Guiding Principles

69 International assistance and cooperation must prioritise the realisation of the right to education of vulnerable marginalised and disadvantaged groups112 and their core obligations including by prioritising free and compulsory quality primary and secondary education for all and moving as expeditiously as possible towards free quality education in public educational institutions at other

106 Special Rapporteur in the field of cultural rights Farida Shaheed UN AHRC2857 2014) paras 64 65 72 84 88 107 See Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic Social and Cultural Rights (ETO Maastricht Principles) httpbitlyETOPples 108 ETO Maastricht Principles 22109 ETO Maastricht Principles 25-26110 Ref to GC 16 CRC GC 24 CESCR and ETO Maastricht Principles 111 See eg CESCR General Comment 13 para 56112 Donor States must ensure they prioritise the realisation of the right to education of vulnerable marginalised and disadvantaged groups CESR General Comment 13 para 57

levels It should also aim to strengthen the regulation of private educational operators in accordance with Statesrsquo human rights obligations

70 International assistance and cooperation must always reinforce the building of quality public education systems in consultation with the concerned rights-holders and in partnership with the recipient country Every effort should be made at each phase of a development project to ensure that human rights are respected protected and fulfilled

71 If the development of private educational operators in a recipient country has a negative impact on the equal enjoyment of the right to education international assistance and cooperation must take all measures to remedy the situation including to develop or restore access to free quality public provision of education as effectively and expeditiously as possible in the recipient State while supporting that State to phase out those private educational operators that may be below the minimum standards set by the State113

72 States must refrain from supporting directly or indirectly private educational operators in a manner that is inconsistent with their human rights obligations

International organisations

73 States that transfer their competences to or participates in an international organisation such as the World Bank the Global Partnership for Education or regional development banks must take all reasonable steps to ensure that the relevant organisation behave consistently with the international human rights obligations of that State Such steps include

a closely monitoring the conduct of the international organisations including the policies omissions and other acts to ensure that it does not harm the right to education in accordance with the present Guiding Principles

b refraining from imposing and where necessary taking steps to avoid policies that would nullify or impair the capacity of a recipient State to meet its human rights obligations including those reflected in the present Guiding Principles These may include the imposition of privatisation deregulation policies or the limitation of the capacities of a recipient State to provide education114

74 promoting policies within these organisations that meet Statesrsquo obligations to respect and fulfil the right to education including the obligations reflected in the present Guiding Principles such as the obligation to develop a system of free quality public education

75 International organisations must meet their obligations related to the right to education under inter alia general international law and international agreements to which they are parties They should also ensure that their conduct is aligned with the present Guiding Principles

Retrogressive measures

76 International assistance and cooperation by States and where applicable by international organisations must avoid any deliberate retrogression in the enjoyment of free quality public education in the recipient country This includes retrogression due to fiscal adjustment policies or other measures related to their extraterritorial conducts115

113 See Guiding Principle 38114 ETO Maastricht Principles Principles 24-25115 ETO Maastricht Principles 15 ndash 16

77 If States or international organisations have previously taken or encouraged such illegal retrogressive measures through international assistance and cooperation such as the imposition made to a recipient State to introduce fees or defunding of public education and these measures even if they have stopped116 still have a negative impact on the enjoyment of the right to education States or international organisations should seek to remedy this situation in the shortest possible time

7Accountability for the realisation of the right to education

78 State must be held accountable117 for their obligations related to the right to education including when the involvement of private actors in education has led to violations of this right Accountability can be pursued through various means that include litigation parliamentary committees national human rights institutions and regional and international human rights mechanisms

Right to an effective remedy

79 States must guarantee the enjoyment of the right to an effective remedy for violations of the right to education118 This also applies in cases in which there is a violation of the right to education due to the conduct of a private educational actor

80 To be effective a remedy must provide alleged victims the prompt access to an independent and impartial competent authority including where necessary recourse to a judicial authority The right to effective remedy must guarantee the cessation of the violation if it is ongoing as well as the guarantee of adequate reparation including as necessary restitution compensation satisfaction rehabilitation and guarantee of non-repetition119

Human rights monitoring

81 States must regularly monitor compliance with the right to education and ensure all public policies and practices related to this right comply with human rights principles such as those of participation transparency access to information and non-discrimination This monitoring shall be based on human rights standards including the State legal obligations reflected in the current Guiding Principles

82 The results of such monitoring must be made public and shall lead to the necessary improvements in law policies and practices if gaps in human rights compliance have been identified

116 In application of the concept of ldquocontinuing violationrdquo 117 See eg CGolay No one will be left behind Geneva Academy of International Humanitarian Law and Human Rights Academy Briefing No11 January 2018 p11 ldquoHuman rights principles include the principles of participation accountability non-discrimination transparency human dignity empowerment the rule of law and solidarity (PANTHERS) Following the UN Common Understanding these human rights principles should be used as a guide in all phases of the programming process from assessment and analysis to law policy and programme design and planning (including the setting of goals) implementation monitoring and evaluation 118 See for instance article 8 UDHR As for any other human rights and in fulfilment of a general principle of law119 See eg UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law

8Implementation and monitoring of the Guiding Principles

83 States have an obligation to uphold the binding norms that are in the present Guiding Principles States should guarantee the effective implementation of all the present Guiding Principles by all appropriate means including where necessary by adopting and enforcing the required laws and constitutional changes and by dedicating the necessary human technical and financial resources They should in particular apply these Guiding Principles to all their relevant laws policies and practices including the design and implementation of national and global educational and development plans

84 States should monitor and put in place adequate accountability mechanisms for the implementation of these Guiding Principles as part of their efforts to respect protect and fulfil the right to education

85 States should disseminate the Guiding Principles to all relevant authorities and in particular educational institutions in the most effective language and format to facilitate implementation

86 States should ensure policy coherence in particular ensure that all public departments agencies and other State-based institutions that have a role in education policies are aware of and observe the Statersquos human rights obligations and these Guiding Principles when fulfilling their respective mandates

87 States should recognise and promote the fundamental role that National Human Rights Institutions acting in conformity with the United Nations Principles relating to the Status of National Institutions120 and civil society actors have in monitoring the implementation of these Guiding Principles by the relevant State authorities

88 Irrespective of the human rights obligations they may be subject to under human rights law specialised agencies of the United Nations system regional organisations and development partners are encouraged to support efforts by States to implement the Guiding Principles Such support may include technical cooperation financial assistance institutional capacity development knowledge sharing

120 Paris Principles

1 Scope application interpretation

2 Foundational principles

3 General content and obligations of the right to education

4 Obligation of States to provide quality public education

a Obligation to provide public education

b Maximum available ressources for public education

c Capacity limitations and non-retrogression

d Assessment and monitoring of public education systems

5 Obligations to respect protect and fulfil the right to education in the context of private involvement of non-state actors

a Scope of the liberties in education

b Scope of State responsibility

c Obligation to regulate non-state actors

d Assessment and monitoring of private actors

e Financing

6 Extraterritorial obligations of States

7 Accountability for the realisation of the right to education

8 Implementation and monitoring of the Guiding Principles

2 These Guiding Principles apply to all State actors which have competencies over the implementation of the right to education3

3 These Guiding Principles should be interpreted as the minimal standards and nothing in these Principles should be read as limiting restricting or undermining any legal obligations or responsibilities that States international organisations and non-State actors such as transnational corporations and other business enterprises may be subject to under human rights standards whether these are contained in international regional constitutional or other national laws that are in conformity with international human rights law4 These Guiding Principles must not either be interpreted as limiting restricting or undermining the rights recognised under international human rights law and related standards or rights consistent with international human rights law as recognised under any national law5

4 These Guiding Principles must be interpreted and applied in the context of the obligations to respect protect and fulfil all human rights including civil cultural economic political and social rights both within their territories and extraterritorially

2Foundational principles6

Universality indivisibility inalienability and interdependence

5 All human beings everywhere are born free and equal in dignity and are entitled without discrimination to human rights and freedoms including the right to education7 All human rights are universal indivisible interdependent inalienable interrelated and of equal importance8

Nature of the right to education

6 The legal framework on the right to education recognises the role that education plays both in the personal and the collective spheres In the personal sphere education plays an essential role for advancing individualsrsquo physical mental spiritual moral and social development9 and for parents families and communities to transmit social and cultural values and practices In the collective sphere education contributes to achieving the public good and developing and maintaining healthy open transparent and fair societies that provide an environment conducive to the realisation of human rights

7 Everyone has a right to an education that allows them to flourish independently grow10 effectively participate in society11 and have the capacity and necessary critical thinking to elaborate

lsquoThe right to education follow up to the Human Rights Council Resolution 84 AHRC38L13 (03072018) The resolution urges all States to lsquoput in place a regulatory framework to ensure the regulation of all education providers including those operating independently or in partnership with States guided by international human rights law and principles that addresses any negative impact of the commercialization of educationrsquo3 These Guiding Principles apply to all contexts including emergency contexts They need to be interpreted in the light of local realities where they apply in line with international human rights law The term State refers in these Guiding Principles to all such public authorities4 Maastricht Principles on Extraterritorial Obligations (ETO Principles) Principle 435 Guiding Principles on Extreme Poverty and Human Rights principle 1086 This section restates basic international legal principles 7 Universal Declaration of Human Rights art 1 and 2 ETO Principles art 18 ETO Principles art 59 CESCR General Comment 13 para 1 10 ICCPR art 1811 CESCR General Comment 13 para 30 ICCPR art 25

Non-discrimination

c be reasonable59

Systemic impact

Regulations

Transparency

Minimum standards

Other requirements










e Financing




Non-discrimination

c be reasonable59

Systemic impact

Regulations

Transparency

Minimum standards

Other requirements










e Financing




c be reasonable59

Systemic impact

Regulations

Transparency

Minimum standards

Other requirements










e Financing




c be reasonable59

Systemic impact

Regulations

Transparency

Minimum standards

Other requirements










e Financing




c be reasonable59

Systemic impact

Regulations

Transparency

Minimum standards

Other requirements










e Financing




c be reasonable59

Systemic impact

Regulations

Transparency

Minimum standards

Other requirements










e Financing




c be reasonable59

Systemic impact

Regulations

Transparency

Minimum standards

Other requirements










e Financing




Systemic impact

Regulations

Transparency

Minimum standards

Other requirements










e Financing




Systemic impact

Regulations

Transparency

Minimum standards

Other requirements










e Financing




Regulations

Transparency

Minimum standards

Other requirements










e Financing




Other requirements










e Financing




Other requirements










e Financing




Other requirements










e Financing




Other requirements










e Financing




Other requirements










e Financing




Documents

· Web viewThis also takes into account that the drafters of the ICESCR were reluctant to use the word ‘right’ assuming the latter might imply an obligation for States to grant