1. As with preceding General Observations adopted by the Committee for Economic, Social and Cultural Rights (hereafter, the Committee) instituted by the Economic and Social Council of the United Nations to monitor the application by States Parties of the Covenant of the same name (hereafter, the Covenant), the draft of General Observation No. 13 (hereafter, the Draft) aims at providing a framework for a more precise interpretation and, thereafter, a more exacting enforcement of Article 13 of the Covenant concerning the right to education. Using the experience acquired by the Committee through examination of reports furnished by States Parties of the Covenant which are applying this Article, the draft proposes to "specify the standards set by the Article and the agreements coming from them in order to help States Parties to implement the Covenant" (para.3). It also proposes to help these same States "to fulfill their agreement to report on the Covenant’s implementation in their territory" (idem.).

2. We are pleased that the text submitted for discussion did not find it useful to debate the issue of the true nature of the right to education: economic, cultural, social, civil, political, etc. This question probably has a large theoretical interest; however, it is of minor interest as far as the practices of States regarding the right to education. The Draft does underline in an interesting way the peculiarity of the right to education. In paragraph 1, we see that "education is at the same time a fundamental right in itself and one of the keys to the exercise of other rights inherent to the human person". The non-governmental organization The World Association for the School as an Instrument of Peace (EIP) shares this point of view as long as the educational content that is taught conforms to the objectives of peace, respect of human rights and tolerance as described in Article 13 of the Covenant.

3. This Draft is looked at in a context globally marked by the ineffectiveness of this right The Committee is certainly conscious of this. Indeed, the Draft states "The Committee knows that for millions of persons around the world, exercise of the right to education remains a faraway objective that, in addition, is moving further away in many cases…" (para. 3 of the Draft). Even worse perhaps, the right to education as foreseen by the Covenant seems to be moving backwards. The most severe observation is made in the report of Mrs. Katarina Tomasevski, Special Reporter for the Right to Education for the Human Rights Commission, who says "the exercise of the right to education has regressed instead of progressed with regard to the recommendations of the International Covenant on Economic, Social and Cultural Rights" (Committee on Economic, Social and Cultural Rights: Context document presented during the general debate on the right to education, E/C.12/1998/18, paragraph 1. Also see Jean-Bernard Gicquel, "Le droit à l’éducation et la persistance des inégalités" in CIFEDHOP: "Vues d’Afrique". L’éducation aux droits de l’homme, Collection Perspectives régionales, no. 1, October 1996).

4. The numbers are very eloquent. Firstly, they show that the right to education has not been respected around the world. To be convinced, one only needs to look at the last UNDP report, World Report on Human Development 1999 (De Boeck, Université, Brussels, 1999). The statistics by country of the literacy rate, the net rates of schooling or on the number of children not completing primary school, go beyond comment. (cf. The indicator 10 on the differences in teaching, p. 176 et al). It then shows how the differences between the North and the South are increasing. According the statistics furnished by UNESCO for 1996, whereas enrolment rates for primary schooling reached 100% in OECD countries, they decreased significantly in the South, and even more so for girls. The same holds true for other indicators: index of length of school life, supervision ratio, etc.

5. This situation is obviously due to the limited resources dedicated by these countries to education. It has been further aggravated by structural adjustment programs that have been applied in the educational domain as budget freezes and privatization. This is underlined by the Final Report on the Situation of Teachers (Dakar, June 23-26, 1997, Part 2: The impact of structural adjustment programs on the education sector). To this quantitative regression — that is to say, the number of persons in the world apt to benefit from this right — must be added a qualitative regression, concerning the content of the right to education.

6. This situation is even more deplorable given the derisory means given by the international community. As part of the "unloved ones" of human rights, i.e. the economic, social and cultural rights, the right to education was conceived in a manner that gives States a wide margin for interpretation and implementation, despite good efforts on the part of the Committee to improve their requirements. Furthermore, it is a right for which no means of recourse has been foreseen. It suffers from this as well as from economic restrictions linked to uncontrolled liberalization.

7. The Covenant is, therefore, both a horizon and a limit. It is a horizon in that it sets a number of objectives to achieve. It is a limit in that, given the characteristics outlined above, it gives neither the Committee nor the persons concerned the means to achieve these objectives. We, therefore, need to go past these limits. This can perhaps be done by recourse to the clauses of the Covenant itself, in other words, continue to exploit the potentialities in the same way as the Committee does, notably through General Observations. This can be done equally and in a complementary manner, by following the drafts or — why not? — initiating other drafts in order to give the rights they promote more visibility. It is in this perspective that the following remarks were prepared. They aim to give the Covenant a greater justiciability, and from there, a greater effectiveness to the right to education. The first remarks concern States and their agreements and the second remarks are concerned with the right to education and its subject matter.

8. Article 2, Paragraph 1, of the Covenant concerning the agreements of the States Parties, stipulates that each of them "…undertakes (…) to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant…" It follows that the agreements for States are variable. The variability comes from the nature of "progressive" in the realization of rights and from the phrase "to the maximum of its available resources". However, variability does not exclude the existence of agreement. In effect, Article 2 is not totally stripped of legal value. In its General Observation No 3 concerning the agreements of States Parties (Article 2, Paragraph 1 of the Covenant), The Committee underlines this fact when it states that "each State Party has the basic minimum obligation to ensure, at least, the realization of the essential of each of these rights" (Paragraph 9), and draws the conclusion in Paragraph 10 that "the Covenant would have no reason to exist if one could not draw from it this basic minimum obligation". The observation continues in this direction when it infers, even if it is implicitly, the prohibition of all regressive measures. There remains, however, a need to further define the phrase "to the maximum of available resources", which brings up the question of indicators concerning the application of the right to education.

9.The phrase "to the maximum of available resources", although not precise, still has legal value. It rests largely on criteria to measure the effectiveness of States in respect of the rights, in this case, the right to education. First of all, it must be noted that through Articles 2 and 13, States commit to dedicate resources to the application of the right to education. Furthermore, in as much as the Committee is charged with monitoring the implementation of the Covenant, it can only be done if it has parameters that allow it to verify if resources are at the level required according to the goals of the Covenant and according to what the State has available. We believe that the competence of the Committee to implement these indicators to measure the realization of the right to education can be established through the text of the Covenant itself.

10. Actually, Paragraphs 57 to 74 of the Draft, paragraphs dedicated to the agreements of States Parties and the violations of them, are totally silent on the subject. Failing the inclusion of this, the draft could have at least suggested that States take into consideration the work of international organizations competent on the subject. This lack is even more curious given that the editor, barring a namesake, is also author of an extremely interesting study on the issue; a study which was presented to the Committee (cf. Paul Hunt, Obligations of States, indicators and criteria: the right to education, E/C.12/1998/11, 16/7/1998). Not only is it an inventory of studies that have been carried out on the subject, but it also suggests a method to elaborate a set of indicators to measure the manner in which States have carried out the agreements foreseen in Article 13 (see also the Information Document presented by Entraide universitaire mondiale, 24/9/1998, to the general debate on the right to education., E/C.12/1998/15). From this, two proposals can be made: one on the necessity to reopen the debate on indicators, and the other regarding the Draft Observation itself.

11. Insomuch as the right to education is foreseen in a number of human rights instruments and that it is within the competency of a number of organizations, it is evident that collaboration is necessary between all the concerned parties. An inventory of these instruments was carried out by Mr. José L. Gomez del Prado (Comparative Analysis of the Right to Education as described in Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights and by the relevant clauses of other universal and regional instruments, and the mechanisms established to monitor the implementation of this right. E/C.12.1998/23). The initiative for a common debate as well as the coordination of efforts taken in this direction, must be taken in charge by the body responsible to monitor the application of the Covenant on Economic, Social and Cultural Rights, that is, the Committee of the same name. Actually, it is only in this Covenant that the right to education is fully apprehended, i.e., a right recognized for all human beings, whereas other texts stop at a specific category of persons: women, children, migrant workers, refugees, etc., or the human rights violations that can be committed (for example, International Convention on the Elimination of All Forms of Racial Discrimination).

12. While waiting for the finalization of this debate and the adoption of a set of criteria, Draft Observation No. 13, in our view, must not only take into account this prospect but it must also strongly recommend to States that when implementing Articles 2 and 13 they look to the indicators suggested by international organizations competent on the matter, notably UNESCO and UNDP.

III. The Right to Education and Educational Content

13. In the first paragraph of Article 13, the Covenant stipulates that "The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace".

This paragraph tells us that education, as envisaged by the Covenant, must not only provide teaching destined to allow individuals to play a useful role in society, but this education must be given with a view to developing their sense of dignity and to teach them tolerance, respect for human rights and a love of peace. The content of education as foreseen by the Covenant is therefore double: it has a dimension of utility, but this dimension was not conceived in itself and for itself, it must be placed in a philosophical dimension.

14. In Paragraphs 4 to 7, the Draft comments on this paragraph in a dynamic and contemporary manner. It interprets it on the basis of a number of international instruments that have appeared since the adoption of the Covenant. Amongst others, there are the World Declaration on Education for All (Jomtien, 1990), the Convention on the Rights of the Child (1989), and the suite of documents elaborated following the World Conference on Human Rights held in Vienna. These texts were all adopted in a manner that the Draft rightly considers as "…having received large support in all regions of the world" (Paragraph 6 and Note 2). The conclusion is that a number of objectives and goals that were detailed in these texts were considered as implicit in Paragraph 1 of Article 13. In particular, this applies to equality between sexes and environmental protection. It goes without saying that this obligation weighs as heavily on States when they directly organize access to education in public schools as when they fix minimum standards to be respected by the private schools that parents have the freedom to create according to Paragraph 3 of Article 13. The Draft underlines this, in particular in Paragraph 39, where it states that the freedom to create teaching institutions is "…subject to conformity with the educational objectives given in Paragraph 1 of Article 13…"

15. EIP, which was created to a large extent from this perspective, is extremely sensitive to the reminder made by the Draft of the objectives of education and its dynamic view of Paragraph 1 of Article 13. Since a number of years, it has carried out a variety of projects on the subject. For example, it has done much work on popularization, publishing a number of comic books on human rights. There has also been debate and reflection on educational questions linked to peace and human rights, as summarized in the Collection Thématique published by CIFEDHOP. In particular, No. 2, June 1994, "Démocratie, développement et droits de l’homme"; No. 3, June 1995, "Mondialisme et particularismes"; No. 4, June 1996, "Valeurs démocratiques et finalités éducatives"; No. 5, June 1997, "Droits de l’homme et citoyenneté"; No. 6, June 1998, "Nouvelles politiques éducatives: défis pour la démocratie", and No. 7, June 1998, "Cultures, éducation et sociétés".

16. Even though detailed in Paragraph 66 of the Draft, the contents of this agreement, as we see it, should be described more substantially and more precisely. It should also become part of the reports that States must provide to the Committee.

17.More precise description

Within the objectives of Paragraph 1 of Article 13, Paragraph 66 mentioned above seems to give priority to respect of human rights. As important as it is, this reference is not enough to encompass all of the objectives for education as seen by the Covenant: friendship amongst nations, racial, ethnic or religious groups, love of peace, or even less protection of the environment. Also, even concerning human rights, the reference made in Paragraph 66 seems to us to be lacking substance. It defers to "..initiatives elaborated in the framework of the United Nations Decade for Human Rights Education". In doing this, the draft puts a time limit on adherence to the educational objectives as foreseen by the Covenant when, as the Covenant itself states, they should be permanent objectives.

18.Integrate adherence to objectives in reports

In his study on "The right to schooling, a fundamental right. Draft of a definition" (Committee on Economic, Social and Cultural Rights, 30/11/1998, E/C.12/1998/16), Fons Coomans, also calling on the work of A. Eide, proposes to classify the various agreements undertaken by States in Article 13 into three categories: agreements to abide by, agreements to be protected and agreements to be put into concrete form. In the appendix of his study, he offers a table giving an overview of all the agreements of Article 13. If one was to classify the obligation of States to make sure that the education that they organize or allow to be organized respects the goals and objectives enumerated in Paragraph 1 of the Covenant, it seems obvious to us that it must be classified in the first category of agreements, i.e. those which they are bound to abide by. This agreement is legally binding. The goals are easily identifiable: full development of the human personality and the sense of its dignity, respect of human rights, etc. In other terms, it is what the Committee qualifies in its General Observation No. 3 concerning the nature of Parties agreements (E/1991/23 of 14/12/1990), as an agreement to results. It follows that, when a State organizes schooling or allows it to take place in private institutions, it must monitor that the programs, in addition to providing technical knowledge, are conceived to achieve the objectives of Paragraph 1 of Article 13.

19. The Draft seems to us to be short on this requirement. It only mentions that "…States Parties are obliged to put in place and use a transparent, efficient system to monitor that education aims or not to achieve the objectives detailed in Paragraph 1 of Article 13" (paragraph 66 in fine). Furthermore, as an agreement to results, adherence to the objectives should figure in the reports submitted by States to the Committee. It does not seem to be the case. In its revised directives concerning the form and content of the reports that States must submit in accordance with Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights (E/C.12/1991/1), dated June 17, 1991, there is no mention at all of the content of the education that is to be given. Of the nine paragraphs devoted to the right to education and which should indicate to States the requirements for the reports they must submit to the Committee (pp 18-20), none of them touches on this issue.

20. Further to that, it seems to us that by virtue of Article 13, States are not only required to oversee that textbooks and other pedagogical materials used in schools have been purged of racist, ethnic or sexist stereotypes or any other elements contemptuous of human rights, but they are also required to see that the content of these books and other materials are in accord with the objectives and goals of Article 13 as it has been updated by the Committee and they must integrate this dimension into the reports they submit to the Committee.