1. The Right to Education Human Rights instruments, EU and National legislation Legal Norms in a plural cultural and gendered reality
Legal norms in a complex reality of living lives
Helga Aune, Postdoktor
Dept. of Public and Int. law
Oslo, 26. April 2012

2. 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
See the General Comment of 1999 no 13 to article 13 of the Committee to the Int. Covenant on Economic, Social and Cultural Rights (CESCR)

3. 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. 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
How is the right to education ensured and what is the right to contain and how?

5. 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
Some use the terminology ”parallell societies” within the national state.
I have underlined girls, as this has been a topic for the Women`s Law research, but it may well be boys. The gender glasses need to be on the nose when looking at the education secotor. The High School drop-out rate for boys in vocatinal schools is staggering, 47% of immigrant boys drop out, 38% of boys with immigrant parents drop out (Saldo 2011). Research shows it is because of poor grades from elementary school and junior high school. They don`t have the theroteical platform to succeed. Then the gender aspect, how is it that boys fall out more than girls? How can these boys right to education be ensured? This is a legal and a pedagogical challenge.
This leads us to the inevitable questions, the need to identify the norms in action locally - affecting the individuals right to education. The need to make the right to education a reality regardless of sex, religion and culture – or should I say in conjunction with the existing norms?....
The great responsibility of the national State is to ensure all citizens their legal rights within a civil state democracy.

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)
I will provide a brief overview over the instruments providing a right to education, universal, regional and finally at the national level. I am fully aware that much more should have been listed, but is just to provide a frame

8. 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
Both of 1966

9. 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)
American Convention on Human rights - Additional Protocol in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) 1988, explicitly provides for the right to education.
African Charter, adopted 1981, in force 1986, Article 17
“1. Every individual shall have the right to education.”
The African Charter on the Rights and Welfare of the Child (1990)
Protocol to the African Charter on Human and People's Rights in the Rights of Women in Africa, several articles regarding equal acces to education regarding girls rights especialy.

10. 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. 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
The long-term effect of education : Both for the individual and for society. Education is the key for a beter future, better equipped to take good care of oneself and create a good life. Education is the precondition to use and safeguard the other human rights.

12. 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?
First of all, it is a plural legal reality and a major question is how the right to education remains in focus under varying conditions
As a legislative techniche are the legal standards..

13. 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
And with all this legislation how do we ensure that the rules are applied in a manner consistent with the laws and the rights of the individual, control and sanctions.

14. II – Legal obligations The values to be protected Dignity Freedom
Equality
Education shall enable all persons to participate in society

15. 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.
Underlined are rights

16. (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.
These are the common values on which Inga Bostad will reflect more on later today.

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

18. 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
Protocol 1 of 4 November The wording ”No person shall be denied the right to education, was not accidental, but was seen by the signing parties as ”less” demanding than stating the positive everyone has a right to education.”As regards the second sentence - Today 62 years down the road, we see a development in increased awareness about childrens independent rights as individuals and not only a ”property” of parents. When does children earn an independent right to respect for their own view on religious and philosophical matters? The issue is debated and opinions differ depending on the set of values to people discussing it, Here the intersection of culture, and religion will make an impact. I know this has been a topic for many researchers have been struggelig with the questions, Julia Köhler Oslen is defending her PhD in a couple of weeks.

19. 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. 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.
Values, principle of democracy and rule of law
Education as a fundeemental right is listed in Article 14

21. 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…
Read 50 cases where the word education was mentioned in one way or another, I made the following observations

22. 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
No elaborations as to the effect on the quality of education for the children having to live under the constant pressure of threats of eviction. These applicants all wanted to have a stable base and not travel around, also in regard the education of the children.

23. 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)
An important argument here is that whatever social class an individual belongs to, violence scars a person. If the person has an education – he or she will have better chances of seeking proper help and having the means to pay for it – later in life.
The case illustrates several important aspects, and I limit myself to only mentioning one: the right to education needs to be an integrated part of the social workers ”right-list”, very often I thing it looses out of sight when so much else is bad. We have several criminal cases of domestic violence where the implication of an individuals right to education is lost, the focus is on the criminal offence after the Penal Code. At the national level, cases on bullying/harassment of students from other students is another recurrent topic, we had a Supreme Court judgment in November 2011 where a person was awarded compensation from the local svhool owners because of loss of education and employment due to bullying.
4,5 years social services knew about the conditions the children were living under before they were removed.
According to the Norwegian National Stress and Trauma Center there is no legal research on violence and the right of children to education.

24. 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
Kjeldsen case is from Denmark, but the right to reproductive health is still a topic in ireland and many countries around the world.
Sahin, para – purpose of restriction was to preserve the secular character of educational institutions, reasonable relationship between the means and the aim in line with the principle of proportions. And it did not impair the very essence of the applicants right to education. Thus no violation of Article 2 in Protocol 1.

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

27. 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. 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. 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
the procedural safeguards will be a topic even more tomorrow. One could sigh and say that fortunately these terrible segregation cases happend far away from the Nordic countries, but that is not the case… the reasons why are complex, but we have schools in Oslo with less than 30% ethnic Norwegian students. Some parents have been arguing in the newspapers that they feel they have to move to ensure that their children get proper knowledge of Norwegian and good schooling. Last fall a High School placed all the white ethnick Norwegian students in two classes in a desperate attempt to make sure that hthese student remained at the school and thus made sure that there were some balance between students with an immigrant background and ethnic Norwegians… Did this Principal at the School have sufficient knowledge about the law?

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
The dissenting opinions made a points that they meant had not been problematized by the majority
Namely; the interest of students, both Croatian and Roma who did speak Croatian and who had no interest in being held back too much in their education owing to the insufficient language profficiency of a large number of children.
- I raise the question of the states obligations in combatting discrimination , lack of integration and education of also parents as a way of systemic discrimination. To mend this is a difficult task which demands a range of different measures. And with this I will end my presentation – hoping that I have raised plenty of issues to illustrate the complexity in ensuring the right to education in a multicultured and highly gendered divided reality. A multitude of norms interacting. Thank you.