Promoting access to quality, safe, and relevant education for all persons affected by crisis

Making Education Rights Justice-able

by Peter Hyll-Larsen, member of the INEE Working Group on Minimum Standards and Network Tools

Is the right to education relative? Do some learners have more rights than others?  Does it depend on where you live and if an emergency is on-going?

Of course not: “Education is a fundamental human right for all people” according to page one of our INEE Minimum Standards Handbook. And this we repeat, as we must, at every opportunity we get - currently in trying to cast education in emergencies as a right in the new post-EFA and post-MDG target, not just a goal or aspiration.

However, reality looks different. Every human and every learner may formally have the right to inclusive, quality education, but unfortunately that right may mean something different depending on where you live and who is trying to dodge responsibility under the guise of an emergency, caused by armed conflict or natural hazards.

There is, in other words, sometimes a gap between the right as it is proclaimed and defined (and which guides us in our Standards and aspirations), and the right as it is (or can be) enforced through the rule of law. This has been a fundamental drawback of the MDGs, and may sadly remain so as warned by many human rights voices, such as the Centre for Economic and Social Rights in a recent statement.

But this gap is perhaps nowhere more obvious than in emergencies. In emergencies, both the potential violations and the perceived impunities multiply. Rule of law goes out the window or has its hands tied. In emergencies, we ourselves even believe that we must talk and walk more carefully, sometimes pleasing the authorities that we would like to hold accountable. This is our dilemma and the dilemma of rights.

Accountable means that someone can be held responsible for violations and be made to change things for the better. These duty-bearers are duty-bound to respect, protect and fulfil the rights of people through available and functioning mechanisms for such accountability – also known as the rule of law. Another word for this is justiciability – a word so alien that most computer spell-checks will put a red line under it, but one that has justice at its core.

Kishore Singh, the current UN Special Rapporteur on the Right to Education, whose predecessor wrote a good report in 2008 on the right to education in emergencies, has just published a new report on this concept of justiciability. We in the EiE community need to read this important report and reflect on the dilemmas that it poses. Because we work in situations where it does not always appear evident (or practical) that justice can be immediately met and that accountability can be ensured.

In his report, the Special Rapporteur highlights the judicial and quasi-judicial mechanism necessary for greater enforceability and he also recommends how it may be more effectively ensured. One of his main recommendations is that we get better at teaching the right to education at universities and law schools. This also is hugely relevant for the education in emergencies community: we too must get better at ensuring not only the teaching of education in emergencies but also teaching the legal aspects surrounding education in emergencies.

Thus, the specialised field of international law to protect education in emergencies (caused by either conflict or natural hazards) must be made more prominent in law schools, and a legal module must be available at the equally specialised field of education in emergencies at teacher colleges. And the linkages to our colleagues in the protection field must continuously be made stronger – we have much to learn from each other, as the situation in places as varied as Palestine and Haiti tells us.Another excellent resource, recently published by Education Above All (EAA) and the British Institute of International and Comparative Law, is the exemplary Protecting Education in Insecurity and Armed Conflict. An International Law Handbook.

This book should form the backbone of such proposed courses at both law schools and teacher colleges, and it must soon be followed up with a companion volume that looks not only at situations of armed conflict, but also those caused by natural hazards and more complex emergencies, where applicable law is perhaps even less clear-cut than in armed conflict.

If we do not realise and subsequently teach our practitioners (be they teachers, educationalists, development workers or human rights lawyers) about the power and potentials of human rights and humanitarian principles as enforceable entities, rather than ‘just’ aspirations (i.e. the icing on the top of post- MDG and EFA declarations), then we will never bridge the gap between intentions and accountability.

However, all this may come at a price: are we willing to antagonize (donor) States, politicians, army commanders and law-makers (the aforementioned duty-bearers) by not just referring to their duties (and remember: donors and the international community have duties too, it’s not just bad guys in far-flung dictatorships) but actually educating and supporting a cadre that will hold them accountable, in court, if necessary? In emergencies, we often operate at the invitation of the State, how far are we willing to go to jeopardize this, are we willing to accept a shrinking humanitarian space and less access to affected populations, for the sake of greater justice-ability?

Or don’t they really care about international law and accountability, these bad guys? In which case we might as well walk the walk, now that we already talk the talk!

Big questions…

* This is a re-posting of Peter’s blog on the INEE Blog Space from 7th June 2013

 

Peter Hyll-Larsen works with education rights in emergencies, as an independent consultant and commentator, and as a long-standing INEE member. He was the focal point for human rights in the 2009 update of the INEE MS Handbook and has recently contributed to the contextualisation of these standards in both Ethiopia and Sri Lanka. He represents ActionAid International on both the INEE WG on Minimum Standards and Network Tools and on the Global Education Cluster Working Group, and he is an individual member of the INEE WG on Advocacy. Peter will be teaching a course on EiE and humanitarian- and human rights law this Autumn for http://www.hrea.org.

 

 

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