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Human Rights Guiding Principles on the obligations of States regarding private actors in education

The last two decades have seen a dramatic increase in scale and scope of non-state actors in education, particularly in developing countries. This privatisation in education includes not only an increase in the number of traditional private schools catering to the elite, but also the rapid expansion of low-cost profit-making schools targeting poor households, large-scale commercial investments in private school chains, private tutoring, privatisation of education services such as testing, the adoption of private sector management techniques in the public education sector, and the growth of community and faith-based schools. A crucial question is thus to determine, in each particular case, whether this involvement of private sector is acceptable or not.

However, what is still missing is a broadly accepted understanding of the normative framework against which to make this assessment. While there is an increasing and broad range of studies about private schooling, there is not yet a common understanding of what is “good” and what is “bad” in private provision from a social justice perspective, and a delineation of the responsibilities and duties of different actors in education.

International human rights law, as a quasi-universal (the Convention on the Rights of the Child, which protects the right to education at articles 28 and 29, has for instance been ratified by all countries in the world but 1) legally binding and largely accepted framework has the potential to fill in that gap. It can offer guidance backed-up by the law on how to assess the role of private actors in education through its protection of the right to education. Nonetheless, as with other human rights, the norms relative to right to education are spread out in many conventions, court decisions, and other legal texts. In addition, the application of the human rights framework to privatisation in education is not straightforward as it guarantees two guiding principles that may conflict: (1) the right to free, quality, compulsory education without discrimination, and (2) the liberty of parents to set up and/or choose for their children non-governmental schools.

There is, therefore, a need to clarify what exactly the existing legal human rights framework entails as it applies to the role of private actors in education, in order to provide normative guiding principles against which to analyse reality from a human rights perspective. To do so, GI-ESCR has been working with the Right to Education Project (RTE) and the Open Society Foundation – Education Support Program since 2016 to put in place the process to develop such Guiding Principles, as a collection of existing content under customary and conventional human rights law. These guiding principles are (tentatively) called “Human Rights Guiding Principles on the obligations of States regarding private actors in education

In addition to filling a conceptual gap on the state of the law on the role of private actors in education provision, developing this set of Guiding Principles will provide a much-needed opportunity to conduct informed advocacy on a concrete basis. The final Guiding Principles will provide a long-term rigorous framework interpreting legally binding Conventions and Guiding Principles that States have committed to. It will be possible to use the Guiding Principles at the local, domestic, regional and international level to provide a basis for advocacy, policy development, and litigation.

This webpage provides the key information on the process and development of these Guiding Principles, and will be regularly updated.

On this page:

  1. Background on the development of the normative framework
  2. The project in a nutshell
  3. Timeline
  4. Consultations
  5. Forthcoming Consultations
  6. National Consultations
  7. Key documents
  8. Contacts

For more details, please see the concept note here. http://bit.ly/2ifLRvE

Background on the development of the normative framework

Work towards the development of the normative framework on private actors in education started in 2014 with empirical research at the local and national level, initially with a research project in Morocco. Since then, a growing body of research has been conducted from various perspectives to assess the impact of the dramatic increase in scale and scope of non-state actors in education, particularly in developing countries, on the right to education. GI-ESCR, the Right to Education Project and other organisations have worked with other civil society organisations at the national and international level in eleven countries to analyse the impact of privatisation in education on human rights and bring this research to UN and regional human rights bodies (see http://bit.ly/privatisationproject).

The research that has been conducted by various actors has raised important questions about the social justice implications of the growth of private actors in education, to the point where the UN Special Rapporteur on the right to education dedicated his October 2014 report to the issue and expressed the concern that “soon, it may not be an exaggeration to say that privatization is supplanting public education instead of supplementing it”, which “cripples the universality of the right to education as well as the fundamental Guiding Principles of human rights law by aggravating marginalization and exclusion in education and creating inequities in society”.

This research has allowed to develop initial tools to assess the growth of private actors against human rights principles. Drawing on this research, an initial assessment framework was prepared and discussed with key civil society organisations working on the topic at workshops in June 2014 and June 2015 in Geneva, Switzerland. Following these workshops, the assessment framework was further refined through a series of consultations with domestic civil society organisations in Ghana, Kenya and Uganda, and discussions with education and human rights experts. This analysis framework, called “Privatisation in education analysis framework (PAF)”, is based on empirical realities, and contains five human rights areas against which to assess private actors in education (used for instance in this report on Nepal: http://bit.ly/1U1IsMC). It has been consolidated and detailed in an academic article published in September 2016 in the Oxford Review of Education by Sylvain Aubry (GI-ESCR) and Delphine Dorsi (RTE): http://bit.ly/2eeCVrd. While this framework provides a useful initial tool to assess the private involvement in education against human rights standards and helps to start unpacking the normative content of the human rights framework, it does not provide the full extent of the Guiding Principles needed. This framework was thus used as a starting point to reflect on the drafting of the Guiding Principles, and will be reviewed and published as a companion methodological tool once the Guiding Principles are finalised. In addition,  RTE and GI-ESCR published in May 2016 a “Methological guide to human rights research and advocacy on the role of private actors in education” (available here http://bit.ly/282dwpH).

In addition, the empirical research conducted has allowed to unpack the human rights normative framework. The outcomes of the research were presented before UN and regional quasi-judicial human rights bodies, which made their own assessment, taking into account other submissions and interviewed State officials. On this basis, 19 country reports on 14 countries were issued between September 2014 and October 2016. These provide authoritative interpretation of the human rights framework, giving more details about it applies. They add to the existing case-law, which RTE and GI-ESCR have been researching in the last two years (see http://bit.ly/caselawprivat).

 

The project in a nutshell

For more details, see the concept note here: http://bit.ly/2ifLRvE

Why are a set of Guiding Principles needed?

  1. To stimulate an informed debate on the role and limitations of private education by gathering key information related to the state and application of human rights law related to private education.
  2. To clarify the normative framework with which to assess privatisation in education from a social justice perspective.
  3. To facilitate the analysis of concrete manifestations of privatisation in /privatised education by civil society organisations, and empower them to take action when relevant.
  4. To provide guidance to States and inter-governmental organisations on the complex topic of private education, including donor States funding education in a third countries, at a time when the pace of privatisation in education is outstripping analysis.
  5. To inform the reflection of private actors that have set up or are considering setting up private schools.

Objectives of the work

  1. Develop an authoritative and rigorous set of Guiding Principles analysing existing law applicable to the role of private actors in education.
  2. Garner broad support for the Guiding Principles.
  3. Raise awareness about the Guiding Principles.

 

Expected outcomes

The work should:

  1. Provide a normative reference point on the involvement of private actors in education.
  2. Provide a practical tool to help stakeholders analyse situations of privatisation in or privatised education.
  3. Develop a network of partners and allies supporting the Guiding Principles.
  4. Raise awareness with States and other key stakeholders about the Guiding Principles and related issues.

 

Key activities

  1. Review, analyse and unpack existing human rights law and Guiding Principles related to the role of private actors in education.
  2. Conduct a series of regional, global and institutional face-to-face and on-line consultations with a broad range of stakeholders.
  3. Conduct advocacy in parallel to the development of the framework.

guiding-principles-consultations

Timeline

Date Activity
January – June 2016 Development of an initial draft
March 2016 Pre-consultation during side-event at Comparative International Education Society (CIES) Conference in Vancouver, Canada
March 2016 – June 2017 Development of expert background papers on key issues/themes
April 2016 – September 2017 Series of regional, national, thematic and informal consultations (the following include consultations planned or confirmed so far):

  •  Regional consultations (planned thus far):
    • Asia-Pacific (August 2016, September 2017)
    • East Africa (Nairobi, September 2016)
    • Southern Africa (2017)
    • Western Africa + Francophone countries (2017)
    • Latin America (2017)
    • Europe (Paris, 13-14 March 2017; hosted by UNESCO)
  • Consultations with thematic groups:
    • Geneva stakeholders
    • CIES (Atlanta (USA), March 2017)
    • DC stakeholders/World Bank/GPE/North America
    • EU delegation
  • National consultations organised by partners:
    • Pakistan (January/February 2017; hosted by FOSI-Pakistan)
  • Informal consultations with States
  • Engagement of other stakeholders
October – December 2016 Review of the first draft based on inputs from consultations

Establishment of Guiding Principles Steering Committee and Expert Group

Development of second draft with experts

January 2017 – April 2017 Online consultations
May – September 2017 Review of second draft

Development of third draft

October – November 2017 Expert review and feedback
November – December 2017 Consolidation of the drafts

Validation at expert meeting

2018 Launch, dissemination, and advocacy

Consultations

So far there have been three major consultations on the guiding principles with different groups:

  1. A consultation meeting held in Vancouver during the Comparative and International Education Society Conference 2016 (CIES 2016), where about 30 academic experts attended a 2.5 hours meeting.
  1. The Asia Pacific Regional Consultation held in Bangkok was hosted by the Asia South Pacific Association for Basic and Adult Education (ASPBAE), and brought together a diverse group of more than 50 participants from 17 countries in the Asia Pacific region, representing national education coalitions, civil society and human rights organisations, experts, academics and UN institutions.

See the report of the consultation here: http://bit.ly/2ifrkHA 

  1. In September 2016, an Eastern Africa regional consultation was held in Nairobi, hosted by the East African Centre for Human Rights (EACHRights), the Initiative for Social and Economic Rights (ISER), the Africa Network Campaign for Education for All (ANCEFA), and Concern Worldwide Kenya, with the support of GI-ESCR, RTE and OSF-ESP. The consultation was attended by over 70 participants, including the new Special Rapporteur on the right to education, Dr Koumbou Boly. The participants represented national education coalitions, CSOs and government representatives from more than 10 countries in Africa, others representing the international partners.

See the report of the consultation here: http://bit.ly/2icON17

Forthcoming Consultations

The following consultations are scheduled for 2017:

  • Western Europe and North America, 13th – 14th March 2017, UNESCO, Paris, France.
  • Asia (second consultation), 4th – 5th September 2017, Kathmandu, Nepal.

The following consultations are tentatively planned for 2017:

  • Western Africa & Francophone countries, May – June 2017
  • Southern Africa, May – August, 2017
  • Pakistan, April – May, 2017

National Consultations

We encourage organisations to carry out national consultations with partners in their country, as this will add valuable perspective to the Guiding Principles. National consultations are organised similarly to regional consultations. They can be a 1 – 3 day meeting, where the draft is presented and discussed to various stakeholders, and feedback received and noted, followed by a discussion of what can be done next.

If you are interested in organising a national consultation, we’ll be happy to assist however we can by providing material, draft programs, and if possible have someone come to present the Principles. Please get in touch with us (see below) for more information.

Key documents

Contacts

For further information, please contact:

Delphine Dorsi (Executive Coordinator, Right to Education Project): +44 77 06 756 077 / dorsi@right-to-education.org

Mireille de Koning (Program Officer, Open Society Foundations -Education Support Program): +44 (0)20 7031 8250 / +44 (0)77 66 12 79 65 / mireille.dekoning@opensocietyfoundations.org

Sylvain Aubry (Legal and Policy Advisor, Global Initiative for Economic, Social and Cultural Rights): +254 7 88 28 96 34 / +33 7 81 70 81 96 / sylvain@globalinitiative-escr.org

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