Working Paper on Right to Education,
Right to Political Affairs and
The Principles of Equality and Non-Discrimination
NETWORK SEMINAR ON HUMAN RIGHTS
BEIJING. 27-28 September 2004
The Secretariat of the EU-China Human Rights Network
at the Irish Centre for Human Rights would like to acknowledge the work of
Ms. Deirdre O’Leary in the preparation of this discussion paper
The EU-China Human Rights Network is a project funded by the European Commission. The opinions, findings and conclusions expressed do not necessarily represent the views of the European Commission.
The Right to Education & Political Affairs, and
The Principles of Equality & Non-Discrimination
The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life, at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community.
-Vienna Declaration and Programme of Action.[1]
Nowhere is the indivisibility of civil and political rights and economic and social rights more evident than in relation to the human rights of women. The task of ensuring human rights for women is incomprehensible without taking into account the social and economic conditions that characterise women’s lives around the world.[2] Women are the majority of the world’s poor and the number of women living in rural poverty has increased by 50 per cent since 1975.[3] In every country in the world, women are poorer than men, and their poverty and economic inequality affects every aspect of their lives- their basic survival and the survival of their children, their access to food and housing, their ability to escape from violence, their health, their access to education and literacy, their ability to participate in public life, their ability to influence and participate in decisions that affect them.[4]
In general, international human rights instruments protect the rights which men fear will be violated (protection for men within their public life), and pre-eminence was afforded to civil and political rights.[5] Invariably, women have been assigned to the private or domestic sphere, as men historically have both dominated public life and exercised the power to confine and subordinate women within the private sphere.[6] Economic and social rights, which affect life in the private sphere, have not been afforded the same importance, despite the situation that for many women, their right to a fair trial or freedom to manifest their religion or beliefs are secondary to their desire for clean drinking water, adequate nutrition or primary education for themselves or their daughters.[7] The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) recognises that despite legal rights being granted to women in many countries, discrimination persists, and women’s access to legal rights are curtailed by denial of women’s right to economic and social development. Founded on the principles of equality and non-discrimination, CEDAW straddles the traditional boundaries between civil and political and socio-economic rights.
Principles of Equality and Non-Discrimination
The legal principles of equality and non-discrimination are at the core of international human rights instruments and they are essential principles for the promotion of women’s human rights. Equality and the right to non-discrimination require that individuals be protected against unreasonable or unacceptable different treatment.[8] CEDAW is based on the interrelated principles of equality, non-discrimination and state obligation.
EQUALITY
Creating an environment that provides equality of opportunity for full economic and social participation is an essential building block of a modern, progressive and equitable society.[9]
A problematic issue with regard to equality is the relationship between formal equality (de jure equality) and substantive equality (de facto equality). Traditionally, formal equality has been understood to mean receiving the exact same treatment as someone else- the right to receive the same treatment as men for example. However, equal treatment of persons in unequal situations will operate to perpetuate rather than to eradicate injustice.[10] The basic legal norm of CEDAW is the prohibition of all forms of discrimination against women, but this norm cannot be satisfied solely by the enactment of gender-neutral laws. Neutral laws and policies treating men and women in the same way may seem to be non-discriminatory but are inadequate to ensure that women enjoy the same rights as men. Gender equality requires the achievement of equal outcomes for men and women, notwithstanding that they are starting from different positions of advantage, and are constrained in different ways.[11] For example, a neutral retrenchment policy of “last-in, first-out” would be discriminatory against women if it does not take into consideration the effect of past discriminatory recruitment policies, which denied women job opportunities.[12]
The substantive approach to equality, recognises that women and men cannot be treated the same, and for equality of results to occur, women and men may need to be treated differently. By demanding the practical realisation of rights, CEDAW promotes the substantive model of equality. In addition to demanding that women be accorded equal rights with men, the Convention goes further by prescribing the measure to be taken to ensure that women everywhere are able to enjoy the rights to which they are entitled.
NON-DISCRIMINATION AND
STATE OBLIGATION
Under international law the concept of equality of individuals includes two contemporary notions: (i) the principle of non-discrimination, which is a negative aspect of equality designed to prohibit differentiation on irrelevant, arbitrary or unreasonable grounds; and (ii) the principle of protection or special measures, designed to achieve ‘positive’ equality.[13]
CEDAW requires in Article 1[14], not only that women should be accorded rights equal to those of men, and that is there should be no de jure discrimination, but also that women should be able to enjoy all their rights in practice. The concept of discrimination set out in article 1 encompasses any difference in treatment on the grounds of gender which intentionally or unintentionally disadvantages women; prevents society as a whole from recognising women’s rights in both the domestic and public spheres; or which prevents women from exercising the human rights and fundamental freedoms to which they are entitled.[15] The definition of discrimination makes it clear that while a law or policy may not have the intention of denying a woman the enjoyment of rights, “if the result is a nullification or impairment of equal rights in any of the forms set out (in Article 1), then the differentiation is discriminatory and therefore prohibited under the Convention”.[16] Articles 2 to 4 of CEDAW set out the extent of the State parties obligations to eliminate discrimination against women, in both law and practice, and to take all appropriate measures to ensure the full development and advancement of women.[17] The Convention’s embrace of the concept of positive duties (affirmative action) is set out in article 4, which permits States to use special remedial measure to accelerate de facto equality between men and women.
In Article 5, CEDAW recognises the negative impact of social, customary and cultural practices, which are based on the “idea of the inferiority or the superiority of either sex or on the stereotyped roles for women and men.” States have a positive obligation to modify the social and cultural patterns of conduct to achieve the elimination of prejudices. Article 2(f) imposes an obligation on States parties to “modify or abolish existing laws, … customs and practices which constitute discrimination against women.” The Human Rights Committee, in a General Comment on Equality of Rights between Men and Women[18] recognises that inequality in the enjoyment of rights by women throughout the world, is deeply embedded in tradition, history and culture including religious attitudes. State parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all rights enshrined in the International Covenant on Civil and Political Right.[19] The subordinate role of women is illustrated by the various discriminatory practices which impinge the human rights of women, but which are defended in the name of culture. Such practices include:
a preference for sons, leading to female infanticide; female genital mutilation (FGM); sale of daughters in marriage, including giving them in forced marriage as child brides; paying to acquire husbands for daughters through the dowry system; patriarchal marriage arrangements, allowing the husband control over land, finances, freedom of movement; husband's right to obedience and power to discipline or commit acts of violence against his wife, including marital rape; witch-hunting; compulsory restrictive dress codes; customary division of food, which produces female malnutrition; and restriction of women to the roles of housewives or mothers, without a balanced view of women as autonomous and productive members of civil society.[20]
By placing an obligation on States parties to eliminate discrimination in both the public and private sphere, CEDAW redresses the abuses suffered by women in the name of family, religion, and culture which were previously concealed by the sanctity of the so-called private sphere, and thus allowed the perpetrators of such human rights violations to enjoyed immunity from accountability for their actions.[21]
The Right to Education
Education is both a human right in itself and an indispensable means of realising other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.[22]
The right to education bridges the division of human rights into civil and political on the one hand, and economic, social and cultural, on the other hand. The right to education is a civil and political right since it is central to the full and effective realisation of all human rights and freedoms. In this respect, the right to education epitomises the indivisibility and interdependence of all human rights.[23] Even the European Convention on Human Rights, which is generally considered to cover only civil and political rights issues, states that ‘no person shall be denied the right to education’.[24] The Committee on Economic, Social and Cultural Rights recognises in its General Comment that increasingly education is appreciated as one of the best financial investments states can make as it has a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth. [25] Nevertheless, millions of children around the world still fail to gain access to schooling, and even larger numbers among those who do enrol, leave prematurely, dropping out before the skills of literacy and numeracy have been properly gained.[26] A majority of such children are girls. As a result, the scourge of illiteracy still affects more than 860 million adults, almost two-thirds of whom are women.[27] The General Assembly in 1997 reiterated the importance of literacy as a human right and an indispensable element for economic and social progress while appealing to all governments to redouble efforts to achieve their own goals of education for all, by setting targets and timetables, where possible, including gender-specific education targets and programmes to combat the illiteracy of women and girls.[28]
Figure 1 [29]
DE JURE RIGHT TO EDUCATION
Educational inequality is a major infringement of the rights of women and girls and an important barrier to social and economic development.[30] The right to education under international law originated in article 26 of the Universal Declaration of Human Rights, which states that “everybody has the right to education.” The UDHR also declared that elementary education should be free and compulsory, and that the higher levels of education should be accessible to all on the basis of merit. This provision was followed up by the UNESCO Convention against Discrimination in Education, adopted in 1960, which placed the right to education in a binding treaty for the first time. Under article 4 of the UNESCO Convention the right to free and compulsory education is guaranteed, and States parties “undertake … to formulate, develop and apply a national policy, which … will tend to promote equality of opportunity and of treatment in the matter of education”. The right to education is protected comprehensively under articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)[31] which also enshrines a prohibition on discrimination based on sex, both in law and in fact.[32] The two most recent conventions – CEDAW in 1979 and the Convention on the Rights of the Child (CRC in 1990) – contain the most comprehensive set of legally enforceable commitments concerning both rights to education and to gender equality. By mid-2003, some 173 countries had ratified CEDAW, whereas the CRC has been ratified by all the nations of the world with the exception of Somalia and the United States.[33]
Article 10 of CEDAW sets out the right to education in terms of gender equality: “States parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education”. Article 10 also recognises that equality in education forms the foundation for women’s empowerment in all spheres: in the workplace, in the family and in the wider society. It is through education that traditions and beliefs, which reinforce inequality between the sexes can be challenged, thereby helping to break down the legacy of discrimination handed from one generation to the next.[34]
EDUCATING THE GIRL CHILD
Non-discriminatory education benefits both girls and boys and thus ultimately contributes to more equal relationships between women and men. Equality of access to and attainment of educational qualifications is necessary if more women are to become agents of change. Literacy of women is an important key to improving health, nutrition and education in the family and to empowering women to participate in decision-making in society.[35]
According to a report by the United Nations Girls’ Education Initiative, devoting resources to girls’ education is one of the best investments any society can make, since educating girls supports[36]:
- Protection of their human rights and an improved quality of life;
- Greater participation of girls and women in leadership and decision-making roles;
- Real and significant reductions in national levels of poverty;
- Increased ability of girls to protect themselves from HIV/AIDS and other diseases, sexual violence, economic exploitation, poverty and hunger;
- A gender perspective that draws attention to the specific needs of boys as well as girls;
- Later marriages, smaller family size, reduced maternal mortality and healthier, and better-nourished children;
- Increased household income and resources spent on children;
- Lasting benefits to future generations and all of society.
Universal education might seem a relatively straightforward goal, but it has proven as difficult as any to achieve. Girls continue to systematically lose out on the benefits that education affords. As a result, the children whose lives would have been saved if their mothers had been educated continue to die.[37]
BARRIERS TO EDUCATING THE GIRL CHILD
The single most important factor preventing girls from attending and achieving in school is gender discrimination. Problems affecting the exercise of rights to education include constraints in the family and within society that affect girls’ access to school. The prevalence of gender-role stereotypes is seen most particularly in the traditional concept of women's role in the domestic sphere. Many women are denied an education because their role is considered primarily as one of caring for the family. Moreover, this role is often viewed as unimportant and not, in itself, worthy of an education.[38] However, according to Sen,[39] ‘considerable empirical evidence’ suggests that gainful employment such as working outside the home for a wage as opposed to unpaid housework ‘can substantially enhance the deal that women get’. Working outside the home provides access to funds; improves a woman’s status and standing in the family; supplies a form of education by bringing home experience of the outside world; and as a result “counters the relative neglect of girls as they grow up, as women are seen as economic producers.”[40]
However, societies differ considerably in the extent to which women also participate in paid work outside the home: the most marked gender inequalities are generally found in societies where women are confined to the home and denied the possibility of participating in work outside it.[41] Countries in which there is a strong cultural preference for sons also tend to have the greatest gender inequalities. According to UNESCO, these societies exhibit ‘extreme’ forms of patriarchy. Gender inequalities in education in such societies are simply one aspect of a generalised and systematic discrimination against women and girls.[42] Indeed, owing to the strong social and economic pressure to have sons, women are at risk from before birth due to the practice in some areas of aborting female foetuses, and immediately after birth, because of higher incidence of female infanticide.[43] The preference for boys can also lead to the abandonment and non-registration of female children, who are thus not entitled to education, health care or other social benefits.[44]
Other barriers to the education of girls are the low level of parents’ education; family poverty; lower priority for girls’ education; a weak legal framework surrounding education; girls education is perceived as incompatible with traditional beliefs and /or religious principles; early marriages and pregnancies; the role of the girl/women as a wife and mother; inadequate and gender-biased teaching and educational materials, sexual harassment; lack of adequate and accessible schooling facilities; and sceptical attitudes towards the benefits and outcomes from educating girls.