Economic, Social and Cultural Rights

The Supreme Court in Abacha V. Fawehinmi held that the provisions of the charter have become part of Nigeria’s domestic law and are enforceable in Nigerian courts. That decision has gone a long way in settling the issue of the legal enforceability of ECOSOC rights under the charter in Nigeria.

The recent pronouncement in SERAC V. NIGERIA is a watershed in the evolving jurisprudence of ECOSOC rights under the charter. The commission affirmed the internationally accepted notions of four levels of obligations imposed by Human Rights instruments and held that these notions apply in the application of the charter. The commission noted that the obligations imposed on states embraced the duty to “respect, protect, promote and fulfill” the rights guaranteed under the charter.

Promoting Economic, Social and Cultural Rights using Domestic legal mechanisms

Three important factors impede effective promotion and protection of economic, social and cultural rights in most jurisdictions, in particular, common law jurisdictions such as Nigeria.

The first, arising from the classification of rights ijn international law into generations, is the wide conception that ECOSOC rights, unlike civil and political rights, are not justiciable.
Closely following this reasoning is yet a wider conception that the provisions of fundamental objectives and directive principles of state policies, in most modern written constitutions, are ECOSOC rights provisions, and therefore, are by the constitutions, non-justiciable.
The third factor is the provision of the very international treaty that codified ECOSOC rights to the effect that ECOSOC rights should be realized or implemented progressively. The justification for this is said to be that ECOSOC rights require financial and material resources and that international law or the municipal legislature would not impose obligations with the financial implications on the executive government. Each government should, therefore, fashion out how it would realize the ECOSOC rights based on the resource available to it.

It is noteworthy that not all ECOSOC rights require vast resources; for instance, labor rights, rights to free economic activity, and so on.

The International Convention On Economic, Social And Cultural Rights (ICESCR) provides in Article 2 (1) that:

“Each state party to the present Covenant undertakes to take steps… to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present covenant”

Directive Principles and ECOSOC Rights

Most written constitutions, such as Nigeria, set out objectives and state policy goals which the government is obligated to pursue for the better life of its citizens. These directive principles are also made non-justiciable.

Under the 1999 constitution, Directive Principles in Chapter 2 enjoins the state to ensure that its policies and actions aim towards the full realization of ECOSOC rights such as health, education, employment, etc.

Section 6(6) (c) of the constitution provides that:

“The judicial powers vested in the courts shall not extend to any issue or question to whether any law or any judicial decision is in conformity with the Fundamental objectives and Directive Principles of State Policy set out in Chapter 2 of the Constitution.”

The wide conception and interpretation given to the provision is that Chapter 2 of the constitution contains ECOSOC rights provisions, and Section 6(6) (c) of the constitution disallows the courts from entertaining complaints of the breach of those rights. In other words, the jurisdiction of the courts over ECOSOC rights has been removed by Section 6(6). In a number of cases concerning ECOSOC, the courts had declined to offer any remedy pleading the non-justiciability clause in Section 6(6) (c). In Uzoukwu V. Ezeonu II, the Nigerian Court of Appeal said concerning ECOSOC rights that:

“There are other rights which may pertain to a person which are neither fundamental nor justiciable in court. These may include rights given by a the constitution ads under the Fundamental Objectives and Directive Principles of State Policy under Chapter 2 of the constitution.”

Provisions for ECOSOC rights can be seen in many other municipal laws, for instance, the right to housing and protection from forceful eviction is provided under the National Housing Fund Decree, Recovery of Premises laws of various states of the federation. The latter provides that no one shall be evicted without due process and set out what amounts to due process in various circumstances depending on the nature of the tenure. The Land Use Act protects land tenure and provides for adequate compensation for land acquisition for public purposes.

Progressive Realization of ECOSOC rights

States are required to implement progressively to its capacity ECOSOC rights in the covenant. Resources and capacity of states vary, thus richer states would have more capacity to implement these rights that the poorer states. Therefore, each state is expected to implement those rights at the pace of its resources, though progressively.

There is no doubt that the implementation of most ECOSOC rights have financial implications, such as building schools, health centres, subsidizing healthcare, creating employment, etc. However, a state that cannot provide access to education cannot also guarantee the right to freedom of expression of its citizens. So, if a state unconstitutionally undertakes to implement civil and political rights, it must also be ready to implement ECOSOC rights in order to give effect and content to the former.

The African Charter and ECOSOC Rights

The African Charter contains a number of recognized ECOSOC rights such as the Rights to Health, Education, safe environment, etc. For instance, Article 15 – 17 of the Covenant provides that:

15. Every individual shall have the right to work under equitable and satisfactory conditions and shall receive equal pay for equal work.
16(1). Every individual shall have the right to enjoy the best attainabke state of physical and mental health.
(2). State parties to the present charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
17(1). Every individual shall have the right to education.
(2). Every individual may freely take part in the cultural life of the community.
(3). The provision and protection of morals and traditional values recognized by the community shall be the duty of the state.

Articles 21, 22 & 24 provide that:

21(1). All people shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
(2). In a case of spoliation, the disposed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.
22(1). All people shall have the right to their economic, social and cultural development with due regard to their freedom and in equal enjoyment of the common heritage of mankind.
(2). State shall have the duty, individually or collectively, to ensure the exercise of the right to development.
24. All parties shall have the right to a general satisfactory environment, favorable to their development.

The above provisions, are of course, part of the municipal laws of Nigeria, and are therefore, enforceable domestically. In fact, on the basis of the above judicial authorities, these provisions in the Charter are superior to any other domestic legislation. Though there is still debate as to whether the Charter’s provisions are superior to the constitution under the new democratic dispensation. The line of cases shows that the charter is on its own and cannot be inferior to any law, including the constitution. The Supreme Court has settled this controversy in favor of the constitution Abacha V. Fawehinmi.

Section 6 (6)(c) and the African Charter

Now, the provisions of Section 6 (6) (c) of the 1999 Constitution operates as an ouster clause over ECOSOC provisions in Chapter 2 of the constitution. To that extent, the powers of court to enforce those rights are prohibited. But the courts still have powers to enforce those same rights as contained in the African Charter.

There is no doubt that the African charter is a source of Human rights law in Nigeria and a good avenue for the enforcement of ECOSOC rights despite the prohibition of enforcement of Directive Principles by the constitution.

International Human Rights instruments on Ecosoc rights application in Nigeria

Universal Declaration of Human Rights

Article 22 - Right to Social Security
Article 23 - Right to work
Article 24 - Right to rest & leisure
Article 25 – Right to health
Article 26 – Right to education

African Charter on Human & People’s Rights

Article 15 - Right to work
Article 16 - Right to health
Article 17 - Right to education
Article 18 - Protection of family
Article 22 - Right to peoples to economic, social and cultural development
Article 24 - Right to a general environment favorable to their development

In SERAP V. NIGERIA, the African Commission on Human Rights construed the right to shelter from the specifically guaranteed right to health, right to property and the provisions of the Charter protecting family, life and found violation of the right to shelter, health, and environment of the Ogoni people.

Enforcement through Ecosoc covenant

The enforcement of ECOSOC rights is achievable through Bangalore Principles. The Bangalore principles declare that national courts should have regard to international obligations which a country undertakes – whether or not they have been incorporated into domestic law for the purpose of removing ambiguity from national constitutions, legislation or common law.

See progressive decision of TOBI JCA in Mojekwu V. Ejikeme holding that Nigeria is a party to CEDAW and the courts should give teeth to its provisions.

Enforcement through African Charter

The Supreme Court held in Abacha V. Fawehinmi that the provisions of the charter have become part of Nigeria’s domestic law and are enforceable in Nigerian courts.

Enforcement through expansive interpretation of civil and political rights guaranteed by the Constitution

The adoption of a holistic approach towards human rights – Vienna Declaration of Programme of action adopted at the World Conference Of Human Rights, Vienna (14th – 25th of June 1993) declared that the universality, indivisibility, interdependence and interrelatedness of human rights.

Indian courts have given expansive interpretation to civil and political rights to cover ECOSOC rights. In Olga Tellis V. Bombay Municipal Corporation, the Indian Supreme Court construed the right to livelihood from the right to life guaranteed by the Indian constitution.

In Director of SSS V. Agbakogba, the Court of Appeal held inter alia that the right to hold a passport is a necessary contaminant of the right to freedom of movement.

Enforcement through other Legislation

The provisions of Chapter II of the constitution which provides for directive principles of state policy are not justiciable by virtue of Section 6(6) (c) of the constitution. Note however that Section 6(6) (c) does not foreclose the possibility that any provisions of Chapter II can be made justiciable. Indeed, in AG. ONDO V. AG. FEDERATION & ORS, the Supreme Court sustained the constitutional validity of the ICPC Act vide Section 15 (5) and item 60 (a) on the Executive Legislature list, Part 1 of the Second Schedule to the constitution.

In Federal Republic of Nigeria V. Anachie, Niki Tobi JSC noted that the non-justiciability of Section 6 (6) (c) is not total or sacrosanct because other provisions of the constitution may make any provisions of Chapter II justiciable.

Examples of other laws protecting ECOSOC rights are:

The Labour Act (regulating employment)
Factories Act (regulating health and safety rules in employment)
Recovery of Premises Law (protecting the right to housing by prohibiting forced eviction)

Sometimes, government policies, although indirectly, also protect some ECOSOC rights.

Enforcement Through ECOWAS Court

There is a new window of enforcing ECOSOC rights through the Court of Justice of the Economic Community of West African States. In SERAP V. FEDERAL REPUBLIC OF NIGERIA (decided on 14th December 2012) the ECOWAS Court held that by virtue of Article 9 (4) of the Protocol of the Court (as amended) the court has jurisdiction to determine cases of violation of human rights that occur inb member states. Its human rights mandate, the court held, extends to all the international human instruments including the African Charter on Human and People’s Rights, the International Covenant on Civil and Political Rights and the ECOSOC Covenant.

The Right to Adequate Housing

The human right to adequate housing, which is thus derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights.

Pursuant to Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), state parties recognize that the right of everyone to an adequate standard of living for himself and his family, including adequate good, clothing and housing, and to the continuous improvement of living conditions.

The committee has been able to accumulate a large amount of information pertaining to this right. Since 1979, the committee and its predecessors have examined 75 reports dealing with the right to adequate housing. The committee has also devoted a day of general discussion to the issue at each of its third and fourth sessions.

In addition, the committee has taken careful note of information generated by the International Year of Shelter for the Homeless (1987) including the global strategy for shelter to the year 2000 adopted by the General Assembly.

Although a wide variety of international instruments address the different dimensions of the right to adequate housing, Article 11 (1) of the Covenant is the most comprehensive and perhaps the most important of the relevant provisions.

Despite the fact that the international community has frequently reaffirmed the importance of full respect for the right to adequate housing. There remains a disturbing large gulf between the standards set in Article 11 (1) and the situation prevailing in many parts of the world. While the problems are often particularly acute in some developing countries which confront major resources and other constraints, the committee also observes significant problems of homelessness and inadequate housing also exists in some of the most economically developed societies. The United Nations estimates that there are over 100 million persons homeless worldwide and over 1 billion inadequately housed. There is no indication that this number is decreasing. It seems clear that no state party is free of significant problems of one kind or another in relation to the right to housing.

The right to adequate housing applies to everyone. While the reference to "himself and his family" reflects assumption as to gender roles and economic activity patterns commonly accepted in 1966 when the covenant was adopted. The phrase cannot be read today as implying any limitations upon the applicability of the right to individuals or to female-headed households or other such groups.

Individuals as well as families are entitled to adequate housing regardless of age, economic status, group or other affiliation or status and other such factors. In particular, enjoyment of this right must in accordance with Article 2 of the Covenant not be subject to any form of discrimination.

In the committee’s view, the right to housing should not be interpreted in a narrow or restrictive sense, which equates it with, for example, the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. Rather, it should be seen as the right to live somewhere in security, peace and dignity. This is appropriate for at least two reasons:

In the first place, the right to housing is integrally linked to other human rights and the fundamental principles upon which the covenant is premised. Thus, “the inherent dignity of the human person” from which the rights in the Covenant are said to derive requires that the term “housing” be interpreted so as to take account of a variety of other considerations, most importantly the right to housing should be ensured to all persons irrespective of income or access to economic resources.

Secondly, the reference in Article 11 (1) must be read as referring not just to housing but to adequate housing.

As both the Commission on Human Settlements and the Global Strategy for Shelter to the year 2000 stated:

“Adequate shelter means… adequate privacy, adequate space, adequate security, adequate lighting, adequate ventilation, adequate infrastructure, and adequate location with regard to work and basic facilities – all at a reasonable cost.”

Thus, the concept of adequacy is particularly significant in relation to the right of housing. The committee identified certain aspects of this right that must be taken into account in any particular context. They include the following:

Legal Security of Tenure

Tenure takes a variety of forms, including rental (public and private) accommodation, corporative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.

Availability of Services, Material, Facilities and Infrastructure

An adequate house must contain facilities for health, security, comfort and nutrition. All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of land storage, refuse disposal, site drainage and emergency services.

Affordability

Personal or household financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. Steps should be taken by state parties to ensure that the percentage of housing-related costs in general, is commensurate with income levels. Subsidies should also be provided for those unable to obtain affordable housing. In accordance with the principles of affordability, tenants should be protected by appropriate means against unreasonable rent levels or rent increments.

Habitability

Adequate housing must be habitable, in terms of providing the inhabitants with adequate space and protecting them from cold, damp, heat, rain, wind or other threats to health, structural hazards and disease vectors.

Accessibility

Adequate housing must be accessible to those entitled to it. Disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Thus, such disadvantaged groups as the elderly, children, the physically disabled, the terminally ill, HIV-Positive individuals, persons with persistent health problems, the mentally ill, victims of natural disasters, people living in disaster-prone areas and other groups should be ensured some degree of priority consideration in the housing sphere.

Location

Adequate housing must be in a location which allows access to employment options, health-care services, schools, child-care centers, and other social facilities. Similarly, housing should not be built on polluted sites or in immediate proximity to pollution sources that threaten the right to health of the inhabitants.

Cultural Adequacy

The way housing is constructed, the building materials used and the policies supporting these must appropriately enable the expression of cultural identity and diversity of housing. Activities geared towards development in the housing sphere should ensure that the cultural dimensions of housing are not sacrificed, and that, inter alia, modern technological facilities, as appropriate are also ensured.

While the most appropriate means of achieving the full realization of the right to adequate housing will inevitably vary significantly from one state party to another, the Covenant clearly requires that each state party take whatever steps are necessary for that purpose. This will almost inevitably require the adoption of a national housing strategy which, as stated in Paragraph 32 of the Global Strategy for Shelter:

“defines the objectives for the development of shelter conditions, identifies the resources available to meet these goals and the most cost-effective way of using them and sets out the responsibilities and the time-frame for the implementation of the necessary measures.”

Both for reasons of relevance and effectiveness, as well as in order to ensure respect for other human rights, such a strategy should reflect extensive genuine consultation with, and participation by all those affected, including the homeless, the inadequately housed, and their representatives.

In some states, the right to adequate housing is constitutionally entrenched. In such cases, the committee is particularly interested in leaving the legal and practical significance of such an approach. Detail of specific cases and of other ways in which entrenchment has proved helpful should thus be provided.

The committee views many component elements of the right to adequate housing as being at least consistent with the provisions of domestic legal remedies. Depending on the legal system, such areas might include, but are not limited to:

Legal appeals aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions.
Legal procedures seeking compensation following an illegal eviction.
Complaints against illegal actions carried out or supported by landlords (whether public or private) in relation to rent levels, dwelling maintenance and racial or other forms of discrimination.
Allegation of any form of discrimination in the allocation and availability of access to housing, and;
Complaints against landlords concerning unhealthy or inadequate housing conditions. In some legal systems, it would be appropriate to explore the possibility of facilitating class action suits in situations involving significantly increased levels of homelessness,.

Finally, Article 11(1) concludes with the obligation of state parties to recognize the essential importance of international cooperation based n free consent. Traditionally, less than 5% of international assistance is devoted towards housing or human settlements, and often the manner by which such funding is provided, does little to address the housing needs of disadvantaged groups.

State parties, both recipients and provided, should ensure that a substantial proportion of financing is devoted to creating conditions leading to a higher number of persons being adequately housed.

Forced Evictions

In its General Comment No. 4 (1991), the committee observed that all persons should possess a degree of security of tenure which guarantees legal protection against eviction, harassment and other threats. It considered a significant number of reports of forced eviction in recent years, including instances in which it has determined that the obligations of state parties were being violated, the committee is now in a position to seek to provide further clarification as to the implications of such practices in terms of the obligations contained in the covenant. It seeks to protect all people from and providing legal protection and redress for forced evictions that are contrary to the law, taking human rights into consideration, and when evictions are unavoidable, ensuring as appropriate, that alternative suitable solutions are provided.

The Commission on Human Rights has also indicated that "forced evictions are a gross violation of human rights." This expression seeks to convey a sense of arbitrariness and illegality.

The term "forced evictions" as used throughout this general comment is defined as the permanent or temporary removal against the will of individuals, families, and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. The prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the International covenants on human rights.

Owing to the interrelationship and interdependency which exists among all human rights, forced evictions frequently violate other human rights. Thus, while manifestly breaching the rights enshrined in the covenant, the practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions.

Many instances of forced evictions are associated with violence, such as evictions resulting from international armed conflicts, internal strife and communal or ethnic violence.

Other instances of forced evictions occur in the name of development. Evictions may be carried out in connection with conflict over land rights, development and infrastructure projects, such as the construction of dams or other large-scale energy projects.

The obligations of state parties to the covenant in relation to forced evictions are based on Article 11.1. In particular, Article 2.1 obliges state parties to use all appropriate means to promote the right to a adequate housing. The state itself must refrain from forced evictions and ensure that the law is enforced against its agents or 3rd parties who carry out forced evictions. Moreover, this approach is reinforced by Article 17.1 of the International Covenant on Civil and Political Rights which complements the right not to be forcefully evicted without adequate protection. That provision recognizes inter alia, the right to be protected against "arbitrary or unlawful interference with one's home."

Women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionally from the practice of forced eviction. Women in all groups are especially vulnerable given the extent of statutory and other forms of discrimination which often apply in relation to property rights (including home ownership) or rights of access to property, of accommodation, and their particular vulnerability to acts of violence and sexual abuse when they are rendered homeless. The non-discrimination provisions of Articles 2.2 and 3 of the Covenant impose an additional obligation upon governments to ensure that, where evictions do occur, appropriate measures are taken to ensure that no form of discrimination is involved.

Whereas some evictions may be justifiable, such as the case of persistent non-payment of rented property without any reasonable cause, it is incumbent upon the relevant authorities to ensure that they are carried out in a manner and by a law which is compatible with the covenant and the that all the legal resourced and remedies are available to those affected. It is pertinent to recall Article 2.3 of the International Covenant on Civil and Political Rights which requires state parties to ensure "an effective remedy" for persons whose rights have been violated and the obligation upon the competent authorities to enforce remedies when granted.

Appropriate procedural protection and due process are essential aspects of all human rights but are especially pertinent in relation to matters such as forced evictions which directly invoke a large number of the rights recognized in both the international covenants on human rights. The committee considers that the procedural protections should be applied in relation to forced evictions include:

An opportunity for genuine consultation with those affected.
Adequate and reasonable notice for all affected persons prior to the scheduled date of eviction.
Information on the proposed evictions, and where applicable, on the alternative purpose for which the land or housing to be used, to be made available in reasonable time to all those affected.
Where groups of people are involved, government officials or their representatives should be present during an eviction.
All persons carrying out the eviction should be properly identified.
Evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise.
Provision of legal remedies and;
Provision, where possible, of legal aid to persons who are in need of it to seek redress from the Courts.

Right to Education

Education is both a human right in itself and an indispensible means of realizing other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities. Education has a vital role in empowering women, safeguarding children from exploitative and hazardous labor and sexual exploitation, promoting human rights and democracy, protecting the environment and controlling population growth. Increasingly, education is recognized as one of the best financial investments states can make. But the importance of education is not just practical; a well educated, enlightened and active mind, able to wander freely and widely, are one of the joys and rewards of human existence.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) dedicates two articles to the right to education, - Article 13 & Article 14.

Article 13, the longest provision in the covenant is the most wide-ranging and comprehensive article on the right to education in International Human Rights law. The committee has already adopted General Comment II on Article 14 (Plans of action for primary education); General Comment II and the present General Comment are complementary and should be considered together. The committee is aware that for millions of people throughout the world, the enjoyment of the right to education remains a constant goal. Moreover in many cases, this goal is becoming increasingly remote.

Normative Content of Article 13

Article 13 (1): Aims and Objectives of Education

State parties agree that all education, whether public or private, formal or informal, shall be directed towards the aims and objectives identified in Article 13 (1). The committee notes that these educational objectives reflect the fundamental purposes and principles of the United Nations as enshrined in Articles 1 & 2 of the charter.

For most part, they are also found in Article 26 (2) of the Universal Declaration of Human Rights, although Article 3 (1) adds to the declaration in three aspects:

Education shall be directed to the human personality’s “sense of dignity”.
It shall enable all persons to participate effectively in a free society.
It shall promote understanding among all ethnic groups, nations & religious groups.

Of those educational objectives which are common to Article 26(2) of the Universal Declaration of Human Rights and Article 13 (1) of the covenant, perhaps the most fundamental is that “Education shall be directed to the full development of Human Personality…”

The committee notes that since the General Assembly adopted the Covenant in 1966, other international instruments have further elaborated the objectives to which education shall be directed. Accordingly, the committee takes the view that state parties are required to ensure that education conforms to the aims and objectives identified in Article 13 (1).

Article 13 (2): The Right to recieve an Education

While the precise and appropriate application of the terms will depend upon the conditions prevailing in a particular state party, education in all its forms and at all levels shall exhibit the following interrelated and essential features:

Availability

Functioning educational institutions and programmes have to be available in sufficient quality within the jurisdiction of the state party.

Accessibility

Educational institutions and programmes have to be accessible to all, especially the most vulnerable groups, in law and fact, without discrimination on any of the prohibited grounds.

Non – Discrimination: Education must be available to all, especially the most vulnerable groups, in law and fact, without discrimination on any of the prohibited grounds.
Physical Accessibility: Education has to be within safe physical reach, either by attendance at some reasonably convenient geographical location (e.g. a neighborhood school) or via modern technology (e.g. access to a distance learning programme).
Economic Accessibility: Education has to be affordable to all. This dimension of accessibility is subject to the differential wording of Article 13 (2) in relation to primary, secondary and higher education; whereas primary education shall be available “free to all”. State parties are required to progressively introduce free secondary and higher education.

Acceptability

The form and substance of education, including curricula and teaching methods, have to be acceptable (e.g. relevant, culturally appropriate and of good quality) to students and, in appropriate cases, parents, this is subject to the educational objectives required by Article 13 (1).

Adaptability

Education has to be flexible so it can adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings.

When considering the appropriate application of those interrelated and essential features, the best interests of the student shall be a primary consideration.

Article 13 (2) (a): the right to primary education _

Primary education includes the elements of availability, accessibility and adaptability which are common to education in all its forms and at all levels.

The committee obtains guidance on the proper interpretation of the term “primary education” from the World Declaration on Education for all which states:

“The main delivery system for the basic education of children outside the family is primary schooling. Primary education must be universal, ensure that the basic learning needs of all children are satisfied and take into account the culture, needs & opportunities of the community.”

While primary education is not anonymous with basic education, there is a close correspondence between the two. In this regard, the committee endorses the position taken by UNICEF: “Primary education is the most important component of basic education. As formulated in Article 13 (2) (a), primary education has two distinctive features: It is “compulsory” and “available free to all”.

Article 13 (2)(B): The Right to Secondary Education

Secondary education includes the elements of availability, accessibility which are common to education in all its forms and levels. Secondary education includes completion of basic education and consolidation of the foundations for life-long learning and human development. It prepares students for vocational and higher educational opportunities.

Article 13 (2) (b) applies to secondary education in its different forms, “thereby recognizing that secondary education demands flexible curricula and varied delivery systems to respond to the needs of students in different social and cultural settings. The committee encourages “alternative educational programmes which parallel regular secondary school systems. According to Article 13 (2) (b), secondary education, “shall be made greatly available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education.

Technical and Vocational Education

Technical and vocational education forms part of both the right to education and the right to work. Article 13(2) (b) presents technical and vocational education as part of secondary education.

Also, the Universal Declaration of Human Rights states that technical and professional education shall be made generally available. – Article 26(1). According to the UNESCO Convention on Technical and Vocational Education (1989). Technical and vocational education consists of all forms and levels of the educational process involving, in addition to general knowledge, the study of technologies and related sciences and the acquisition of practical skills, know-how, attitudes and undertaking relating to occupations in the various sectors of economic and social life.

Underlined in this way, the right to technical and vocational education includes the following aspects:

It enables students to acquire knowledge and skills which contribute to their personal development, self-reliance and employability and enhances the productivity of their families and communities, including the state party’s economic and social development.
It takes account of the educational, cultural and social background of the population concerned; the skills, knowledge and levels of qualification needed in the various sectors of the economy and occupational health, safety and welfare.
Provides re-training for adults whose current knowledge and skills have become obsolete owing to technological, economic, employment, social or other changes.
It consists of programmes which give students, especially those from developing countries, the opportunity to receive technical and vocational education in other states, with a view to the appropriate transfer and adaptation of technology.
It consists in the context of the covenant’s non-discrimination and equality provisions of programmes which promote the TVE of women, girls, out-of-school youths, unemployed youths, the children of migrant workers, refugees, persons with disabilities and other disadvantaged groups.

Article 13 (2)(C): Right to a Higher Education

Higher education includes the elements of availability, accessibility, acceptability and adaptability which are common to education and its forms at all levels. While Article 13 (2)(c) is formulated in the same lines as Article 13 (2) (b), there are three differences between both provisions. Article 13 (2) (c) does not include reference to either education “in its different forms” or specifically to TVE. In the committee’s opinion these omissions reflect only a difference of emphasis between Article 13 (2) (b) and (c). if higher education is to respond to the needs of students in different social and cultural settings, it must have a flexible curricula and varied delivery systems, such as distance learning, in practice. Therefore, both secondary and higher education have to be available in different forms.

The third and most significant difference between the provisions is that while secondary education shall be made “generally available and accessible to all”, higher education shall be made “equally accessible to all, on the basis of capacity”. According to Article 13 (2) (c), higher education is not to be generally available, but only available to on the basis of capacity. The capacity of individuals should be accessed by reference to all their relevant expertise and experience.

Article 13 (2)(D): The Right to Fundamental Education

Fundamental education includes the elements of availability, accessibility, acceptability and adaptability which are common to education in all its forms and at all levels. In general terms, fundamental education corresponds with basic education set out in the World Declaration on Education for all. By virtue of this provision, individuals who have not received or completed the whole period of their primary education have a right to fundamental education, or basic education as defined in World Declaration on Education for all.

Since everyone has the right to the satisfaction of their basic learning needs as understood by the World Declaration, the right to fundamental education is not confined to those “who have not received or completed the whole period of their primary education.” The right to fundamental education extends to all those who have not yet satisfied their basic learning needs.

The enjoyment of the right to fundamental education is not limited by age or gender; it extends to children, youths & adults, including older persons. Fundamental education, therefore, is an integral component of adult education and lifelong learning.

Because fundamental education is a right of all age groups, curricula and delivery systems must be devised in a way which is suitable for students of all ages.

Article 13 (2)(E): A School system , Adequate Fellowship system, Material conditions for teaching staff

The requirement that the development of a system of school at all levels shall be actively pursued, means that a state policy is obliged to have an overall development strategy for its school system. The strategy must encompass schooling at all levels, but the covenant requires state parties to prioritize primary education.

The requirement that an “adequate fellowship system shall be established” should be read with the Covenant’s non-discrimination and equality provisions. The fellowship system should enhance quality of educational access for individuals from disadvantaged groups.

While the covenant requires that the material conditions of teaching staff should be continuously improved, in practice the general working conditions of teachers have deteriorated, and reached the unacceptably low levels, in many state parties in recent years. Not only is this inconsistent with the provision, but it is also a major obstacle to the full realization of student’s right to education.

The committee also notes the relationship between Articles 13 (2) (e), 2 (2), 3 and 6 – 8 of the Covenant, including the right of teachers to organize and bargain collectively, draws the state parties’ attention to the joint UNESCO – ILO Recommendation concerning the status of teachers (1966) and personnel (1997), and urges state parties to report on measures they are taking to ensure that all teaching staff enjoy the conditions and status commensurate with their role.

Article 13 (3)(4): The right to Educational Freedom

Article 13 (3) has two elements, one of which is state parties undertake to respect the liberty of parents and guardians to ensure the religious and moral education of their children in conformity with their own convictions.

The committee is of the view that this element of Article 13 (3) permits public school instruction in subjects such as the general history of religions and ethics, if it is given in an unbiased and objective way, respectful of the freedoms of opinion, conscience and expression. It notes that public education that includes instruction in a particular religion or belief is inconsistent with Article 13 (3) unless provision is made for non-discriminatory exemptions or alternatives that would accumulate the wishes of parents and guardians.

The second element of Article 13 (3) is the liberty of parents and guardians to choose other than public schools for their children, provided the schools conform to such “minimum educational standards as may be laid down or approved by the state.” The has to be read with the contemporary provision, Article 13 (4), which affirms the “liberty of individuals and bodies to establish and direct educational institutions”, provided the institutions conform to the educational objectives set out in Article 13 (1) and certain minimum standards. These minimum standards may relate to issues such as admission, curricula and the recognition of certificates. In their term, these standards must be consistent with the educational institutions. The liberty also extends to “bodies” i.e. legal persons or entities. It includes the right to establish and direct all types of educational institutions, including nurseries, universities and institutions for adult education. Given the principles of non- discrimination, equal opportunity and effective participation in society for all, the state has an obligation to ensure that the liberty set out in Article 13 (4) does not lead to extreme disparities of the educational opportunity for some groups in the society.

Article 13: Special Topics of broad application and non discrimination and equal treatment

The prohibition against discrimination enshrined in Article 2 (2) of the Covenant is subject to neither progressive realization nor the availability of resources, it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination.

The committee interprets Articles 2 (2) and (3) in the light of the UNESCO Convention against discrimination in education, the relevant provisions of the International Convention on the Elimination of all forms of Racial Discrimination, the Convention on the Rights of the Child and the International Labour Organization, Indigenous and Tribal Peoples Convention, 1989 (Convention no. 169), and wishes to draw attention to the following issues.

The 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 achieved.
In some circumstances, separate educational systems or institutions for groups defined by the categories in Article 2 (2), shall be deemed not to constitute a breach of the covenant. In this regard, the committee affirms Article 2 of the UNESCO Convention against Discrimination in Education (1960).
The committee takes note of Article 2 of the Convention on the Rights of the Child and Article 3 (e) of the UNESCO Convention against Discrimination in Education and confirms that the principle of non-discrimination extends to all persons of school age residing in the tertiary of a state party, including non-nationals, and irrespective of their legal status.
Sharp disparities in spending policies that result in differing qualities of education for persons residing in different geographic locations may constitute discrimination under the covenant.

Academic Freedom and Institutional Autonomy

In the light of its examination of numerous state parties’ reports, the committee has formed the view that the right to education can only be enjoyed if accompanied by the academic freedom of staff and students. Accordingly, even though the issue is not explicitly mentioned in Article 13, it is appropriate and necessary for the committee to make some observations about academic freedom and many of the following observations have general application.

Academic freedom includes the liberty of individuals to express freely, opinions about the institution or system in which they work, to fulfill their functions without discrimination or fear of repression by the state or any other actor, to participate in professional of representative academic bodies and to enjoy all the human rights applicable to other individuals in the same jurisdiction.

The enjoyment of academic freedom requires the autonomy of institutions of a higher education. Autonomy is that degree of self-governance necessary for effective decision making by institutions of higher education in relation to their academic work, standards, management and related activities.

Discipline in Schools

In the committee’s view, corporal punishment is inconsistent with the fundamental guiding principle of International Human Rights law enshrined in the Preambles to the Universal Declaration of Human Rights and both Covenants: “The dignity of the individual”. Other aspects of school discipline may also be inconsistent with the covenant. The committee welcomes initiatives taken by some state parties actively encouraging schools to introduce “positive”, non-violent approaches to school discipline.

Limitations on Article 13

The committee wishes to emphasize that the Covenant’s limitation clause; Article 4, is primarily intended to be the protective rights of individuals rather than permissive of the imposition of limitations of the state. Consequently, a state party which closes a university or other educational institution on grounds such as national security or the preservation of public order has the burden of justifying such a serious measure in relation to each of the elements identified in Article 4.