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Det juridiske fakultet, Universitetet i Oslo The Right to Education Human Rights instruments, EU and National legislation Legal Norms in a plural cultural.

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Presentation on theme: "Det juridiske fakultet, Universitetet i Oslo The Right to Education Human Rights instruments, EU and National legislation Legal Norms in a plural cultural."— Presentation transcript:

1 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. law Oslo, 26. April 2012

2 Det juridiske fakultet, Universitetet i Oslo I – Education, a fundamental right and 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

3 Det juridiske fakultet, Universitetet i Oslo 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

4 Det juridiske fakultet, Universitetet i Oslo 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

5 Det juridiske fakultet, Universitetet i Oslo 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

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7 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)

8 Det juridiske fakultet, Universitetet i Oslo 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

9 Det juridiske fakultet, Universitetet i Oslo 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)

10 Det juridiske fakultet, Universitetet i Oslo 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

11 Det juridiske fakultet, Universitetet i Oslo 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

12 Det juridiske fakultet, Universitetet i Oslo 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?

13 Det juridiske fakultet, Universitetet i Oslo 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 Education The 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

14 Det juridiske fakultet, Universitetet i Oslo II – Legal obligations The values to be protected Dignity Freedom Equality –Education shall enable all persons to participate in society

15 Det juridiske fakultet, Universitetet i Oslo 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.

16 Det juridiske fakultet, Universitetet i Oslo (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.

17 Det juridiske fakultet, Universitetet i Oslo (3) Parents have a prior right to choose the kind of education that shall be given to their children.

18 Det juridiske fakultet, Universitetet i Oslo 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

19 Det juridiske fakultet, Universitetet i Oslo 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

20 Det juridiske fakultet, Universitetet i Oslo EU - Charter of Fundamental Rights PREAMBLE 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.

21 Det juridiske fakultet, Universitetet i Oslo 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…

22 Det juridiske fakultet, Universitetet i Oslo 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

23 Det juridiske fakultet, Universitetet i Oslo 1B) Education – Violence Strongly 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)

24 Det juridiske fakultet, Universitetet i Oslo 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

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26 3) Education- segregation/discrimination D.H v. Czech (2007) Orsus v Croatia (2010) A High School story from Oslo (2011)

27 Det juridiske fakultet, Universitetet i Oslo 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

28 Det juridiske fakultet, Universitetet i Oslo 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

29 Det juridiske fakultet, Universitetet i Oslo D.H v. Czech (2007), para 206 Whenever 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

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31 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


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