helga aune, postdoktor dept. of public and int. law oslo, 26. april 2012

Det juridiske fakultet, Universitetet i Oslo

The Right to Education Human Rights instruments, EU and National legislation

Legal Norms in a plural cultural and gendered reality Helga Aune, Postdoktor

Dept. of Public and Int. lawOslo, 26. April 2012


I – Education, a fundamental rightand a precondition to secure the other human rights• An individual right – a grounded

perspective• A universal right – different states face

different challenges• A common question – how may the

legal norms work as tools for ensuring the right to education


1. Identifying the right to education- Legal rights- Values

2. Complex reality of lives- family, religion, culture, ethnicity, gender- special individual needs

Legal norms interact with other norms (social, cultural, religious)

3. Ensuring the right - Responsibility, control and sanctions


The Education Sector – an intersection where various professions meet

Various standards professionally; all obliged to fullfill the requirements according to the law, but not necessarily law trained:– Civil administration– School leaders /Kindergartens– Teachers


Academic research• Women`s/girls positions constructed within

social institutions: family, religion, ethnic groups ( Stang Dahl, Anne Hellum, Sally Moore)

• Important to have knowledge about existing cultural and normative diversity in order to understand the effect this has on girls social and legal position

• State responsibility: ensure all citizens their legal rights within a civil state democracy


Universal Human Rights instruments• THE UNIVERSAL DECLARATION OF

HUMAN RIGHTS (1948)

• UN Convention on the Rights of the Child (1989)

• UN Convention on the Elimination of all kinds of Discrimination Against Women (CEDAW) (1981)


Universal Human Rights instruments, cont.• Int. Covenant on Economic, Social and

Cultural Rights (CESCR)

• Int. Covenant on Civil and Political Rights (ICCP)

• ILO – Convention 117• UNESCO Convention on Prohibition of

Discrimination in Education


Regional Human Rights instruments

• European Convention on Human Rights (1950)

• African Charter on Human and People`s Rights (1981)

• American Convention on Human Rights (1978)


Regional level, cont.

• EU• EEA (European Economic Area)

Recognition of professional qualifications – Directive 2005/36/EC– Free movement of employment, services

and goods – State aid (statsstøtteordninger)– Fundamental Principles for the Union/EEA

non-discrimination


The National State• Local governance – the school

owners (municipality + few private)• The individual student

– Right to education, right to privacy, family, health, good learning/working conditions

– The long-term effect of education

The interest of:- parents -different professions


DESIGN OF LEGISLATION

• Education law, civil administration law, tort/compensation law, employment law, family law, health law, anti-discrimination law

• Legal standards: More or less discretion in choices of solutions, or defined limits – classrooms of 27 students or ”base” rooms

with 60 students in a class?– safe and sound learning environment?– adequate level of learning?


DESIGN OF LEGISLATION, cont.• Acts and Regulations - How many?• Adm. Guidelines (Rundskriv) –

information about the interpretation of acts and regulations

• Circulars (Veiledere) - information about certain topics from the Directorate of EducationThe amount of details in explaining how to fulfill a legal obligation, may depending on its form – narrow the discretional room prescribed in the act itself OR it may help ensure the right of the individual


II – Legal obligations

• The values to be protected• Dignity• Freedom• Equality

– Education shall enable all persons to participate in society


THE UNIVERSAL DECLARATION OF HUMAN RIGHTS Article 26.(1) Everyone has the right to education.

Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.


(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.


• (3) Parents have a prior right to choose the kind of education that shall be given to their children.


European Convention on Human Rights (ECHR)Protocol 1, Article 2 – Right to Education

”No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the State shall respect the right of parents to ensure such education and to teaching in conformity with their own religious and philosophical convictions


ECHR Article 14 – Prohibition of discrimination

..rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with minority, property, birth or other status


EU - Charter of Fundamental RightsPREAMBLE

The peoples of Europe, are resolved to share a peaceful future based on common values,

The union is founded on the indivisble, universal values of human dignity, freedom, equality and solidarity, based on the principles of democracy and the rule of law.


ECHR Cases - ”Education”

1) Framing of issue:– mentioned initially, but …

(A) environmental interests (B) violence and health

2) Freedom of religion

3) Segregation/discrimination or separate classes based on special needs…


1 A) Education- environment

Cases: (Chapman), Coster, (Beard), Lee and Smith v The UK (2001)– Gypsies, all bougt land and stationed their

caravans without planning permission (right to private and family life article 8 vers. Communitys environmental interests)

– No violation of Article 2 of Protocol 1• Coster, now the children had left school• Lee, children had been attending school• Smith, children had been attending school


1B) Education – ViolenceStrongly affects the ability to learn

Z and Others v. The UK (2001)– Failure of local authority to protect the

children against inhumane, degrading treatment in family, violation of art. 3, 13

– Compensation for past and future pecuniary and non-pecuniary losses• A (not integrated to the education system)• B (in school, special needs group, will have problem

obtaining and sustaining employment)• C+Z (in school, but need future psychotherapeutic care)


2) Education – freedom of religion

• Kjeldsen, Busk Madsen (1976) – right to education about reproductive rights and sexuality v parents religious beliefs

• Leyla Sahin (2005) – headscarf

• Folgerø (2007) – curriculum

• Lautsi (2011) – crusifix


3) Education- segregation/discrimination• D.H v. Czech (2007)

• Orsus v Croatia (2010)

• A High School story from Oslo (2011)


D.H v. Czech (2007)

Czech Roma children placed in special schools based on specific educaional needs, mapped after a variety of tests, consent of parents

- more basic curriculum and the segregation the system causes

- Parental consent not acceptable at the risk of racial discrimination


D.H v. Czech (2007) cont.

• Legislation applied resulting in a disproportionate number of Roma children being placed in special schools without justification

• Judgment (13-4)Violation of art. 14 in conjunction with Article 2 Protocol 1


D.H v. Czech (2007), para 206Whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the State has, when fixing the regulatory framework, remained within its margin of appreciation


Orsus & Others v Croatia (2010)• Facts similar to D.H., but parents to non-

Roma children were to stage a demonstration in front of the school denying Roma children access to the school

• Violation of Article 14 in conjunction with Article 2 of Protocol 1 (Judg.9-8)

• Dissenting opinions (8): language deficit a result of obvious lack of parental support, objective reason for different treatment based on special needs

helga aune, postdoktor dept. of public and int. law oslo, 26. april 2012

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