Human Rights Guiding Principles on the Obligations of States with regards to the Delivery of Education by Public and Private Operators: Balancing Freedom of Education and Free Education by Maria Smirnova

As part of the NORRAG Debates stream, NORRAG is starting a series of blog posts by bringing to the fore questions surrounding the realization of the right to education (RTE). As the global education community makes progress towards the realization of the ‘SDG 4 – Education 2030 Agenda’, questions related to ensuring the RTE of all children are re-emerging. Consequently the tension is building between fast and measurable progress and country-specific and qualitative progress towards the SDG vision. One question within this debate concerns balancing the positive and negative effects of low-fee private schools. Indeed, how can we reconcile their utility in helping States’ increase school enrollment with the detrimental effect they can have on education systems. More broadly speaking, how can we allow private providers to support the realization of the RTE while ensuring that the nature and mode of delivery respect all aspects of the RTE? One response to this challenge has been to develop a set of Guiding Principles to frame the private provision of education. Whilst this goes some way to addressing the issue, a balancing act inevitably remains.  

Dr Maria Smirnova (LLM, PhD) is a Research Associate at the University of Manchester focusing on education law and the human right to education, constitutional law and international human rights law. Dr Smirnova responds by giving her thoughts on how we can reconcile free education with the need to respect freedom of education in the context of the development of the ‘Human Rights Guiding Principles on the obligations of States with regards to the delivery of education by public and private operators’.   

Unbridled development of private education and the right to education

The negative impact of low-fee private schools on the realisation of the right to education (RTE), particularly in the global South, has been on the international human rights agenda for several years. Indeed, in 2015 the Human Rights Council heard the report of Kishore Singh, the Special Rapporteur on the RTE, concerning the protection of the RTE against commercialisation. To cite more specific examples, in Ghana, the United Nations Committee on the Rights of the Child (CRC) has expressed serious concerns over increasing commercialization of education; in Kenya and Uganda  the negative effect of low fee private schools has been identified and condemned by courts; and in Chile the Committee on Economic, Social and Cultural Rights (CESCR) has described the education system as one of the most privatised in the world, causing ‘segregation and discrimination on socio-economic grounds’.

Commercialisation of education is, indeed, a general worldwide trend and a focus of consolidated effort of international society. However, through the development of the Human Rights Guiding Principles on the Obligations of States with regards to the delivery of education by public and private operators, attempts to respond to the aggressive development of low-fee private schools in poor and marginalised communities has now reached a new stage.

Moving forward with the Human Rights Guiding Principles on the obligation of States with regards to the delivery of education by public and private operators

Since 2015, various education stakeholders have been working together to develop the ‘Human Rights Guiding Principles on States’ obligations regarding private schools’. These Guiding Principles compile all existing customary and conventional human rights law as it relates to the provision of education, including its delivery by private actors. The Guiding Principles, which will be validated by recognised experts, unpack and apply the existing human rights framework, rather than creating new standards. As with similar guiding principles, which have been shown to have potentially significant authority, they will constitute a key global normative framework concerning education delivery, which may subsequently be adopted by states in the form of a declaration.

The on-going drafting of these Guiding Principles includes national and regional consultations which offer an opportunity for all interested stakeholders to take part in their development. Having recently participated in the Paris consultation for North America and Europe in March 2017, I would like to share my thoughts regarding the content of the Guiding Principles.

In my view, through the drafting process, it should be important that the Guiding Principles do not inadvertently condemn all private schools. Indeed, many operate legally and are not detrimental to the development of a particular domestic education system. On the contrary – some private schools provide a balanced alternative to fully accessible free public education. In order to counter this potential threat, I argue that the Guiding Principles should expressly address the following three ideas.

1. Freedom of education is a recognised international right

The freedom of parents and other actors to establish private schools is expressly and undisputedly recognized by universal and regional international law. There is already, in theory, a set of robust checks in place to ensure that private schools comply with requirements established by the state for their existence and operation.

Indeed, Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), demands that all state parties ‘have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities’ assuming they conform to the minimum educational standards of the state. The same requirements are repeated in Paragraph 4 Article 13 which reiterates the ‘liberty of individuals and bodies’ not only to choose, but also to ‘establish and direct educational institutions’. This is also often correlated with Article 18 of the International Covenant on Civil and Political Rights, Paragraph 4 of which repeats verbatim the Paragraph 3 of Article 13 of the ICESCR, thus doubling the legal protection of the liberty of parents ‘to ensure the religious and moral education of their children in conformity with their own convictions.’ Further, the liberty of parents to establish schools in conformity with their own pedagogical, religious or philosophical convictions is also recognized in Paragraph 2 Article 29 of the CRC as well as in less universally binding international human rights documents. For example, such liberty, with a usual disclaimer, is mentioned in Article 5 of UNESCO Convention against Discrimination in Education.

For this reason, the drafting of the Guiding Principles, requires very careful attention to the established international law on school choice and freedom of education and to the existing international and domestic practice.

2. The state has a right to offer full or partial funding to legally established and fully accredited private schools complying with domestic legislation

It is an established norm of international law that states have the primary responsibility in providing education. Indeed, CESCR General Comment No. 13 has interpreted Article 13 of the ICESCR and clearly identifies states as the main duty bearers when it comes to the provision of education.

However, the possibility to offer financial support to legally operating private schools which comply with all domestic legislation requirements, is also expressly provided for in universal international norms, as well as in many constitutions and national legislation around the world. This is additionally part of the RTE, as states are encouraged to support ‘the development of different forms of secondary education’ and to take appropriate measures, such as ‘offering financial assistance in case of need’ (Article 28 CRC).  For example, in some countries, such as Russia, fully accredited private schools have a right to claim state funding in the amount necessary to provide the compulsory elements of state curricula.

Considering the above, the Guiding Principles should address situations when funding private schools on a mass scale is detrimental to the public education as a whole. However, this should not inhibit the autonomy of the state to distribute its education funding to support fully accredited, legally operating and regularly monitored private schools, especially when they provide a distinct alternative to the general curriculum and can cater for specific needs in society.

3. The use of consistent terminology with existing human rights instruments will increase the chances of compliance

As we know, the format of the Guiding Principles is not new. The Ruggie Principles (2001) for instance have similarly been used to distil general principles of international law regarding business and human rights. Indeed, the Ruggie Principles can already be used to prevent such activities of ‘business enterprises’ that lead to human rights abuses. Principle 5, for instance, requires states to ‘exercise adequate oversight in order to meet their international human rights obligations when they contract with, or legislate for, business enterprises to provide services that may impact upon the enjoyment of human rights’. This provision is relevant for large education corporations that provide services that may impact on the enjoyment of the RTE on a large scale.

In the Ruggie Principles, ‘business enterprises’ are understood in the most general terms, as ‘specialized organs of society performing specialized functions’. Private schools acting within the territory or jurisdiction of the state (Principle 1) thus fit within this broad description. Further, Principle 14 highlights that ‘the responsibility of business enterprises to respect human rights applies to all enterprises regardless of their size, sector, operational context, ownership and structure’. It seems reasonable to assume that, without engaging in the debate on whether private schools are for-profit or non-profit, by referring to them as ‘business enterprises’ the Guiding Principles on private schools will demonstrate coherence with the existing terminology in international law. This approach will increase the protection of human rights through the use of other complementary regimes, which is undoubtedly beneficial for all actors involved.

Moving ahead

In conclusion, I would like to fully support the initiative to draft the Human Rights Guiding Principles on the obligations of States with regards to the delivery of education by public and private operators. As globalisation enhances opportunities for transnational business to increase its foothold in the education arena, initiatives such as this are extremely important. Furthermore, considering that the global financial crisis has left many societies and states in a vulnerable position, the adoption of the Guiding Principles is as poignant as it is timely.

At the same time, both the drafting process and the substance of the Principles should be based on an underlying presumption that a balanced, non-biased solution needs to be offered. Such a solution should first be firmly rooted in existing international law, both terminologically, and in substance. Secondly, it should address the needs of all stakeholders, particularly legally operating private schools, in states that agree to support them for the benefit of society. Finally, on a more procedural note, in order to remain balanced, this solution should involve the active participation of private schools in the drafting process and in the accompanying consultations. This approach will not only ensure that the diversity of private schools is reflected in the Guiding Principles, but also, most importantly, that the schools themselves feel part of the international process aimed at guaranteeing human rights mainstreaming in education.

Disclaimer: NORRAG’s blog offers a space for dialogue about issues, research and opinion on education and development. The views and factual claims made in NORRAG posts are the responsibility of their authors and are not necessarily representative of NORRAG’s policy or activities.