FAQs on the 'Human rights guiding principles on states’ obligations regarding private schools'

The human rights Guiding Principles related to States’ obligations and private schools will be a set of principles that are being developed to clarify existing legal obligations that States have regarding the delivery of education, and in particular the role and limitations of private actors in the provision of education. They are called “guiding principles” because they explain and provide more details about what the treaties mean by drawing from other sources of law and existing authoritative interpretation of the treaties.

The right to education, as laid out in international treaties, contains both a ‘social-equality’ dimension and a ‘freedom’ dimension. On the one hand, international human rights law requires States to adopt measure that guarantee the right to education of everyone on the basis of the principles of equality and non-discrimination. On the other hand, it requires States to respect the liberty of parents to ensure the religious and moral education of their children according to their own convictions and to choose for their children schools other than public schools, should they so wish. It also recognises the liberty of private actors - individuals or bodies - to establish and direct educational institutions, subject to the requirement that these schools conform to minimum standards established by the State and with the aims of education under international human rights law.

The Guiding Principles aim to clarify what these provisions mean and to provide guidance on how to put them into practice in the context of the rapid expansion of private sector involvement in education. Drawing on existing international human rights standards, they will compile and clarify States’ existing obligations as it relates to the State delivery of education and the role and limitations of delivery by private actors.

The Guiding Principles will unpack and apply the existing human rights framework, rather than create new standards, and will be validated by recognised legal experts. As with similar Guiding Principles, which have been shown to potentially have significant authority, they will thus constitute an key global normative framework with regards to the issue of the delivery of education. They may subsequently be adopted by States in the form of, for instance, a declaration. However, as they reflect already legally binding obligations they will apply to States irrespective of their adoption.

The Guiding Principles draw on various sources of international law. Article 38 of the Statute of the International Court of Justice (ICJ) - the supreme body in international public law - recognises four sources of law, which the Guiding Principles can draw from:

• Treaties between States, including the Convention on the Rights of the Child and the 1966 International Covenant on Economic, Social and Cultural Rights, amongst others that protect the right to education;
• Customary international law derived from the practice of States;
• General principles of law recognised by States; and,
• Case-law and expert opinions.

The aim of the Guiding Principles is to compile into one document all these various sources of law as they relate to the right to education and more specifically the delivery of education, including by private schools.

For each guiding principle, a legal justification will be provided in a legal commentary (similar to,  to,  for example, the commentary developed for the Maastricht Principles on States’ extraterritorial obligations). The commentary will refer to existing sources of law (listed above) and constitute an expert opinion, as under the fourth source of law above. This expert opinion will use available legal tools for interpretation as necessary, such as recommendations and declarations adopted by States, interpretation of international law made by human rights experts (Concluding Observations of UN treaties bodies, reports of UN Special Rapporteurs, commentaries by lawyers, among other documents), and decisions of international and national courts (case-law). A considerable amount of legal review and research into applicable standards has already begun with research undertaken in over 12 countries since 2014, a review of national legislation, and case-law research. Engagements with UN treaty bodies between 2014 and 2017 has additionally resulted in more than 20 UN Concluding Observations on the role of private schools and the right to education, that add to the previous ones. Initial ground work to analyse these legal data was published in an article in the Oxford Review of Education (September 2016), building on previous articles.

The Guiding Principles are being developed through an open, transparent, and broadly consultative process with a view to including a variety of perspectives and to reflect different contextual realities. From 2016 to 2018, a series of regional, national, and thematic consultations have been convened around the world. An online consultation open to all will be organised in July and August 2018.

While in other cases the development of guiding principles has mainly involved legal experts, the process for the development of these Guiding Principles aims to include inputs from all interested stakeholders, and to involve people from various backgrounds - human rights lawyers, education specialists and practitioners, and affected communities - and geographic regions. Specific efforts have been made by various partners to reach out to communities and rights-holders, as for instance in Nepal.

In addition to the consultations, other inputs contributing to the formulation of the Guiding Principles include:

• Conceptual research and Empirical research, including from a human rights perspective.
• Expert input from a constituency of experts from various backgrounds.

At the end of the drafting process, the Guiding Principles will be validated and adopted by a group of recognised experts before being open for endorsement by all interested stakeholders.

It is envisaged that the Guiding Principles will be finalised and launched by the first half of 2018.

This process builds on the experience of the last twenty years of development of human rights principles. An independent expert, Magdalena Sepúlveda (former UN Special Rapporteur on extreme poverty and human rights), developed a paper (to be published soon) taking stock of the experiences developing human rights principles in the last 20 years. The paper analyses the process and impact of several examples, and serves as a guide for the process for the GPs.

The following table sets out the timeline for the development of the Guiding Principles. This table will be regularly updated as dates may change.

At the end of the drafting period, the experts involved will validate and adopt the final text of the Guiding Principles, guaranteeing its rigour and legal validity. They will subsequently be open for endorsements by all interested stakeholders.

The Guiding Principles may eventually be adopted by States, through a declaration, for instance, and/or endorsed by UN experts, such as UN treaties bodies or the UN Special Rapporteur on the right to education.

The Guiding Principles are intended for use both by States when developing law and policies regarding the delivery of education, and by civil society to hold States to account. They may be used as a guiding tool in various instances, whether by a UN body or expert to analyse a particular situation in the context of a review of a country, or by a judge when assessing a case.

They may be endorsed and adopted by States, as a UNESCO recommendation or Human Rights Council resolution, for instance. They could also be endorsed by UN experts such as UN treaties bodies or the UN Special Rapporteur on the right to education. They will however apply to States irrespective of such an adoption or endorsement, as they will be reflecting already legally binding obligations.

The development of the Guiding Principles is coordinated by a Secretariat who synthesises the inputs and feedback from various consultations. The Secretariat is made up of individuals from Amnesty International (Solomon Sacco, Zimbabwe), the Equal Education Law Centre (Daniel Linde, South Africa), the Global Initiative for Economic, Social and Cultural Rights (Sylvain Aubry, France), the Initiative for Economic and Social Rights (Salima Namusobya, Uganda), and the Right to Education Initiative (Delphine Dorsi, France). These five people are coordinating the process for the development of the Guiding Principles.

The Secretariat supports the independent Expert Group, composed of recognised experts acting in their personal capacity, who will discuss, input into, and validate successive drafts of the Guiding Principles.

The Secretariat also supports a Steering Committee, made up of individuals representing civil society organisations, which will guide and take decisions regarding the process for the development of the Guiding Principles.

Experts are highly qualified individuals in the sense of article 38 of the State of the International Court to Justice. They may be academics or practitioners with a deep knowledge of, or experience with, the issue at stake. The have been chosen after an extensive consultation with a broad range of actors and a peer-review process, on the basis of various criteria, including:

• Qualification and experience;
• Diversity in terms of gender, geography, and expertise, amongst other dimensions;
• Commitment to the right to education.

To facilitate the development of the GPs, a smaller Drafting Committee of 10 individuals meeting the above criteria has started meeting since June 2018. This group will lead on the drafting process, building on the comments from the consultations, in coordination with other experts.

These experts act in their individual capacity as members of the Drafting Group facilitating the elaboration of the Guiding Principles on private actors in education. The institutions listed with the names of the authors are for the purpose of identification rather than endorsement of the content of the Commentary by these institutions. They are:

• Professor Ann Skelton [chair of the Committee] (South Africa, UNESCO Chair for Education Law in Africa; Director, Centre for Child Law at the University of Pretoria; Member UN, Committee on the Rights of the Child)
• Professor Aoife Nolan (United Kingdom, Professor of International Human Rights Law, University of Nottingham; Member, Council of Europe European Committee of Social Rights; Member, Scottish First Minister's Human Rights Leadership Advisory Group)
• Dr Jacqueline Mowbray (Australia; Associate Professor, University of Sydney Law School; external legal adviser, Australian Parliament's Joint Committee on Human Rights)
• Jayna Kothari (India; independent; Co-founder and Executive Director, Centre for Law and Policy Research; Counsel, Karnataka High Court & Supreme Court of India)
• Dr Magdalena Sepulveda (Chile; independent; former UN Special Rapporteur on Extreme Poverty; member of the Independent Commission for the Reform of International Corporate Taxation)
• Dr Maria Smirnova (Russia; independent; Honorary Research Fellow, Manchester International Law Centre, University of Manchester)
• Roman Zinigrad (Israel; J.S.D. candidate, University of Yale; Visiting Fellow, Sciences Po Law School)
• Professor Sandra Fredman (South Africa; Professor of the Laws of the British Commonwealth and the USA, University of Oxford; Director, Oxford Human Rights Hub; Honorary Queen's Counsel)
• Sandra Epal Ratjen (France; independent; International Advocacy Director, Franciscans International)

The Committee reflects diversity in many respects, including in terms of background, geography, expertise, legal system experience, language, personal views, and gender. The Committee members are some of the current best legal experts on the right to education and economic, social and cultural rights worldwide, and include current or former UN and regional human rights bodies’ mandate holders, acting in their individual capacities. The group is chaired by Ann Skelton, who is a member of the UN Committee on the Rights of the Child and the UNESCO Chair in education law in Africa at the University of Pretoria.

There have been already successful similar process of developing human rights guiding principles. A well-known example is the Maastricht Principles on extraterritorial obligations of States in the area of economic, social and cultural rights (‘ETO Principles’), which were developed to provide a technical explanation of an area of law that was at the time highly controversial: namely the extraterritorial obligations of States. They were adopted in 2011 by a group of 40 experts and are considered to be a restatement of existing international law. As explained by Iain Seiderman and Margot Salomon, two experts in international law, although the ETO Principles ‘are not the creation of an intergovernmental law-making body, their anticipated normative force and authority should not be minimized. They have resulted from rigorous research, extensive consultation, as well as careful preparation by the team of drafters’. The development of the GPs will follow a similar logic to the ETO Principles, involving rigorous research, extensive consultations, careful drafting and a complementary legal commentary.

The various existing human rights principles and guidelines, and the ETO Principles in particular, have already been applied in practice and have had a significant impact, which is discussed, for instance, by the Office of the High Commissioner for Human Rights, that considers these to be ‘authoritative statements’. They have been quoted in UN General Comments, UN Special Rapporteur’s reports, and UN Concluding Observations (recommendations to States). They have been the basis for the reports that the Right to Education Project, the Global Initiative for Economic, Social and Cultural Rights, and other organisations published on the UK’s human rights responsibilities regarding the UK Department for International Development’s support of private education in developing countries through its development aid. Members of the ETO Consortium, which was formed to promote the dissemination and use of the ETO Principles, are now actively working to get them used in courts, and other fora, as a tool to hold States accountable.

An independent expert, Magdalena Sepúlveda, also developed a paper (to be published soon) taking stock of the experiences developing human rights principles in the last 20 years. The paper analyses the process and impact of several examples, and serves as a guide for the process for the GPs, which seeks to build on the most impactful practices.

The Guiding Principles aim to lay out States’ obligations with regards to the provision and regulation of education, as it currently stands under international law. In reflecting international human rights law, they’ll articulate both the obligation to ensure the right to education without discrimination and the liberty of parents to choose a school other than a public school.  

They do not intend in any way to support privatisation of education. They are based on human rights law, under which the development of free quality public education systems is a priority, and education is a right.

In practice, they will help to identify instances where the existence or operation of private schools undermine and/or lead to violations of the right to education. They will also articulate the obligations of States to deliver quality public education and to regulate non-State schools when they exist.

The Guiding Principles are intended to be used at the local, national, regional, and international levels to inform discussion, advocacy, law and policy development, and litigation. For instance, they may be used by: civil society as an advocacy tool or in courts as a legal tool; communities to analyse their situation and engage with authorities; States to define adequate regulation of the education sector; and donor States to reflect on, for example, their development aid for education.

A practical guide on how to implement the Guiding Principles, which will include specific examples and recommendations for States and civil society on using the framework, will be developed following the validation of the Guiding Principles and the complementary legal commentary.

An existing guide on conducting research and advocacy on human rights impacts of private sector involvement in education can be found here.

Every effort will be made to make the final document as accessible and usable as possible by all audiences. In addition to the Guiding Principles themselves, supplemental documents will also be developed, to serve various needs and to reach various audiences:

• A guide for States and international organisations to implement the Guiding Principles in their policies;
• A series of explainers, including a guide for civil society and communities on using the Guiding Principles and other human rights tools; and,

An assessment framework to support research assessing the impact of private schools in an education system against the human rights framework.

The Guiding Principles are one tool or framework to guide action and advance thinking on the privatisation of education debate. They are based on international human rights law, and as such their added value is that they refer to legally binding States’ obligations making them a powerful tool for accountability and a useful framework to reflect on some of the theoretical debates related to the role of private schools. The intention is that the Guiding Principles help prevent an involvement of private actors that would undermines the right to education. They are also meant to help individuals and communities to demand and eventually benefit from quality accountable education systems, where everyone has access to a free quality public school, and where the involvement of private schools is in line with human rights standards. Similar principles in other areas have proven very effective in holding states accountable for economic, social and cultural rights, curbing illegal forced evictions, or developing the narrative and legal enforcement of states’ obligations beyond their borders. An independent expert, Magdalena Sepúlveda, also developed a paper (to be published soon) taking stock of the experiences developing human rights principles in the last 20 years. The paper analyses the impact of past principles, and the GPs build on this knowledge.

It is important to note that the Guiding Principles are limited by human rights law, and therefore should not be seen as exhausting the topic of the delivery of education by private actors or creating a ceiling or limit to what can be demanded or achieved. They will state the minimum conditions that need to be met to ensure the right to education is not violated. They are one tool amongst other tools and strategies that complement other, larger, efforts to address other issues to realise the right to education, such as promoting free quality public education.

Consultations offer an opportunity for all interested stakeholders to take part in the development of the Guiding Principles. During the consultations, participants are invited to share  their feedback on the draft Guiding Principles based on their expertise and/or experiences. The consultations are an opportunity to: learn more about the process for the development of the Guiding Principles, their purpose and potential use; exchange views on a challenging and controversial issue; and, to advance a shared understanding of the key issues from a human rights perspective.

Although the Guiding Principles are a legal document which will be validated by human rights experts, they are intended to be used by a wide range of stakeholders including communities, civil society organisations, and State representatives. It is important that these stakeholders have an opportunity to participate in the process for their development in order to ensure that the Guiding Principles respond to the realities and challenges they face.

The consultations are organised in various regions of the world so that they reach as many people as possible and cover a variety of regional and national contexts. Previous consultations have taken place in Bangkok and Nepal for the Asia-Pacific region, Nairobi for East Africa, Cap Town for Southern Africa, Dakar for West Africa and Paris  and Geneva for North America and Europe. Other smaller discussions have been held when the opportunity arose in thematic conference, such as during the 2016 ANCEFA Policy Forum, the 2017 Comparative International Education Society conference in Atlanta, and the launch of a report on strategic litigation in Sao Paulo.

The consultations are open to a range of stakeholders including civil society, State representatives, experts in the fields of education and law, academics, officials from inter-governmental organisations, and other actors committed to the right to education. Key education constituencies, including teachers, parents, and students are especially encouraged to input into the development of the Guiding Principles. All stakeholders will also have a chance to input during the online consultation. Participation in a consultation does not mean endorsement of the text.

Comments made during the consultations are documented in detail during the discussions, summarised in reports published on a dedicated webpage, and circulated to the respective consultation participants. After each consultation, the secretariat seeks to integrate the comments received while checking their basis in international law and that they fit within the scope of the Guiding Principles. In doing so, it tries wherever needed to find points of balance between the different points of view expressed. Concerns raised are taken very seriously, addressed in as much detail as possible, and details of the discussions are communicated to the experts in charge of drafting the Guiding Principles, who eventually make the final decision on their content.

The development of the Guiding Principles is a unique process in the sense that it aims to include as many interested stakeholders as possible.

For anyone who is concerned by the delivery of education domestically or globally, has views or expertise to share on this topic, and is committed to the respect of the right to education, this is a great opportunity to raise your voice and be involved in a process that seeks to strengthen the human rights framework and its enforcement.

Stakeholders are invited to contribute by participating in regional or national consultation or through the open online consultation that will start at the end of 2017. The Secretariat also welcomes feedback, suggestions, and comments at any time. Contact details are available below.

Please check the dedicated webpage on the development of the Guiding Principles, where you can get updated information.

You can also receive regular updates via email. To register, please click here https://groups.google.com/d/forum/hrguidingprincipleseducation or contact the Secretariat.

For more information, please email 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 / sylvain@globalinitiative-escr.org
• Delphine Dorsi (Executive Coordinator, Right to Education Initiative): delphine.dorsi@right-to-education.org
• Daniel Linde (Deputy Director, Equal Education Law Centre), daniel@eelawcentre.org.za
• Salima Namusobya (Executive Director, Initiative for Economic and Social Rights): snamusobya@gmail.com
• Solomon Sacco (Amnesty International): solomon.sacco@amnesty.org