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

In French: http://bit.ly/2xypIAo

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.

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

You may also check the FAQs available here: http://bit.ly/GPprivatisationFAQ (in French: http://bit.ly/2i0ZAfx)

On this page:

• Background
• Background on the development of the normative framework
• Project in a nutshell
• Timeline
• Consultations
• Key documents
• Contacts

Background

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. The title for these guiding principles is still under discussion, it will broadly address the role of the State in delivering and regulating 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.

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, 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 FAQs here: http://bit.ly/GPprivatisationFAQ (in French: http://bit.ly/2i0ZAfx)

Why are a set of Guiding Principles needed?

• 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.
• To clarify the normative framework with which to assess privatisation in education from a social justice perspective.
• To facilitate the analysis of concrete manifestations of privatisation in /privatised education by civil society organisations, and empower them to take action when relevant.
• 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.

Objectives of the work

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

Expected outcomes

The work should:

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

 Key activities

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

Timeline

Consultations

There have been several regional consultations on the guiding principles:

• 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.
• 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 
• 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
• The Northern America and Western Regional Consultation was held in Paris, March 2017 and hosted by GI-ESCR,  RTE and OSF-ESP. See the report of the consultation here: http://bit.ly/2qgYz64
• A small consultation was held in Sao Paulo in April 2017 with the participants to the launch of a report on strategic litigation for the right to education.
• A consultation for Southern Africa was held in Johannesburg on 16-17 August 2017.
• Asia (second consultation), 11th September 2017, Kathmandu, Nepal
• Geneva stakeholders, February 2018: http://bit.ly/2LlAD8P
• Western Africa & Francophone countries, 23 - 26 October 2017, Dakar: http://nevendezpasleducation.org/suivi-de-la-rencontre/
• Nepal, Philippines, May/June 2018

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

• FAQs: http://bit.ly/GPprivatisationFAQ (in French: http://bit.ly/2i0ZAfx)
• Guide to Human Rights Guiding Principles on State Obligations Regarding Private Schools
  English: http://bit.ly/2qSiLr2 
  French: http://bit.ly/2qJdlCp 
  Spanish: http://bit.ly/2pqBQjN
• Report of the consultations
  • Asia consultation, August 2016: http://bit.ly/2ifrkHA
  • East Africa consultation, September 2016: http://bit.ly/2icON17
  • Northern America and Western Europe, March 2017: http://bit.ly/2qgYz64 
• Article by Sylvain Aubry  and Delphine Dorsi, “Towards a human rights framework to advance the debate on the role of private actors in education”: http://bit.ly/2eeCVrd
• Short summary PowerPoint presentation: http://bit.ly/2ii5WVt
• Methodological guide to human rights research & advocacy on the role of private actors in education - PAF: http://bit.ly/282dwpH 
• Blog post by Sylvain Aubry, “When is state funding of private schools a violation of human rights?”: http://bit.ly/28PxZbV
• Blog post by Sylvain Aubry, “The New UN General Comment on Business and Human Rights, Part 1: What Regulations Must States Put in Place when Private Actors are Involved in the Delivery of Essential Services?”: http://bit.ly/2uWeEgw
• Blog post by Syvlain Aubry: “The New UN General Comment And Privatisation, Part 2: Can States Entirely Privatise The Delivery Of Essential Services?”: http://bit.ly/2vtWTo2
• Blog post by Tom Lowenthal, OxHRH Managing Editor and DPhil Candidate, University of Oxford, “Drafting guiding principles on state obligations concerning schools: Lessons and strategic considerations from a rights perspective”: http://bit.ly/2ruMco9
• Blog post by Maria Smirnova, Research Associate at the University of Manchester, “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”: http://bit.ly/2DJUmL7 

Contacts

For further information, please contact the secretariat:

• 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 / [email protected]
• Delphine Dorsi (Executive Coordinator, Right to Education Project): +44 77 06 756 077 / [email protected]
• Salima Namusobya (Executive Director, Initiative for Economic and Social Rights): [email protected]
• Solomon Sacco (Amnesty International): [email protected]