I.
INTERNATIONAL AUTHORITIES AND PRECEDENTS 1.
Draft United Nations Declaration on the Rights of Indigenous Peoples
(UN 1994) Article15: "Indigenous children have
the right to all levels and forms of education of the State. All indigenous
peoples also have this right and the right to establish and control their
educational systems and institutions providing education in their own
languages, in a manner appropriate to their cultural methods of teaching and
learning. Indigenous children living
outside their communities have the right to be provided access to education
in their own culture and language. States shall take effective
measures to provide appropriate resources for these purposes." Article 16: "Indigenous peoples have the
right to have the dignity and diversity of their cultures, traditions,
histories and aspirations appropriately reflected in all forms of education
and public information. States shall take effective
measures, in consultation with the indigenous peoples concerned, to
eliminate prejudice and discrimination and to promote tolerance,
understanding and good relations among indigenous peoples and all segments
of society." 2.
C 169, Convention on Indigenous and Tribal People (ILO Convention
1989) Article 21: "Members of the
peoples concerned shall enjoy opportunities at least equal to those of other
citizens in respect of vocational training measures." Article 22: 1. "Measures shall
be taken to promote the voluntary participation of members of the peoples
concerned in vocational training programs of general application. 2. Whenever existing
programs of vocational training of general application do not meet the
special needs of the peoples concerned governments shall, with the
participation of these peoples, ensure the provision of special training
programs and facilities. 3.
Any special training programs shall be based on the economic
environment, social and cultural conditions and practical needs of the
peoples concerned. Any studies made in this connection shall be carried out
in co-operation with these peoples, who shall be consulted on the
organization and operation of such programs. Where feasible, these peoples
shall progressively assume responsibility for the organization and operation
of such special training programs, if they so decide." Article 26: "Measures shall
be taken to ensure that members of the peoples concerned have the
opportunity to acquire education at all levels on at least an equal footing
with the rest of the national community." Article 27: 1. "Education
programs and services for the peoples concerned shall be developed and
implemented in co-operation with them to address their special needs, and
shall incorporate their histories, their knowledge and technologies, their
value systems and their further social, economic and cultural
aspirations." 2. The competent
authority shall ensure the training of members of these peoples and their
involvement in the formulation and implementation of education programs,
with a view to the progressive transfer of responsibility for the conduct of
these programs to these peoples as appropriate. 3. In addition,
governments shall recognize the right of these peoples to establish their
own educational institutions and facilities, provided that such institutions
meet minimum standards established by the competent authority in
consultation with these peoples. Appropriate resources shall be provided for
this purpose.' Article 28: 1. "Children
belonging to the peoples concerned shall, wherever practicable, be taught to
read and write in their own indigenous language or in the language most
commonly used by the group to which they belong. When this is not
practicable, the competent authorities shall undertake consultations with
these peoples with a view to the adoption of measures to achieve this
objective. 2. Adequate measures
shall be taken to ensure that these peoples have the opportunity to attain
fluency in the national language or in one of the official languages of the
country. 3. Measures shall be
taken to preserve and promote the development and practice of the indigenous
languages of the peoples concerned." Article 29: "The imparting
of general knowledge and skills that will help children belonging to the
peoples concerned to participate fully and on an equal footing in their own
community and in the national community shall be an aim of education for
these peoples." Article 30: 1. "Governments
shall adopt measures appropriate to the traditions and cultures of the
peoples concerned, to make known to them their rights and duties, especially
in regard to labor, economic opportunities, education and health matters,
social welfare and their rights deriving from this Convention. 2. If necessary, this
shall be done by means of written translations and through the use of mass
communications in the languages of these peoples." Article 31: "Educational
measures shall be taken among all sections of the national community, and
particularly among those that are in most direct contact with the peoples
concerned, with the object of eliminating prejudices that they may harbor in
respect of these peoples. To this end, efforts shall be made to ensure that
history textbooks and other educational materials provide a fair, accurate
and informative portrayal of the societies and cultures of these
peoples." 3. American Declaration on the Rights and Duties of Man (UN 1948) Article XII: “every person has
the right to an education, which should be based on the principles of
liberty, morality and human solidarity Every person has the right to receive
free, at least a primary education.” 4.
Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social And Cultural Rights (OAS 1988) Article 13: "Right to
Education 1. Everyone has the
right to education. 2. The States Parties to
this Protocol agree that education should be directed towards the full
development of the human personality and human dignity and should strengthen
respect for human rights, ideological pluralism, fundamental freedoms,
justice and peace. They further agree that education ought to enable
everyone to participate effectively in a democratic and pluralistic society
and achieve a decent existence and should foster understanding, tolerance
and friendship among all nations and all racial, ethnic or religious groups
and promote activities for the maintenance of peace. 3. The States Parties to
this Protocol recognize that in order to achieve the full exercise of the
right to education: a. Primary education
should be compulsory and accessible to all without cost; b. Secondary education
in its different forms, including technical and vocational secondary
education, should be made generally available and accessible to all by every
appropriate means, and in particular, by the progressive introduction of
free education; c. Higher education
should be made equally accessible to all, on the basis of individual
capacity, by every appropriate means, and in particular, by the progressive
introduction of free education; 4. In conformity with
the domestic legislation of the States Parties, parents should have the
right to select the type of education to be given to their children,
provided that it conforms to the principles set forth above. 5. Nothing in this
Protocol shall be interpreted as a restriction of the freedom of individuals
and entities to establish and direct educational institutions in accordance
with the domestic legislation of the States Parties."
5.
Artículo 5(c):
“debe reconocerse a los miembros de las minorías nacionales el
derecho a ejercer actividades docentes que les sean porpias, entre ellas la
de establecer y mantener escuelas y según la polítiica de cada Estado en
materia de educación, emplear y enseñar su propio idioma”. 6. International Covenant on Economic, Social and Cultural Rights (UN
1966) Article 13(1): “The State
Parties to the present Covenant recognize the right of everyone to an
education. They further agree
that education shall enable all persons to participate effectively in a free
society, promote understanding, tolerance and friendship among all nations
and al racial, ethnic or religious groups.” Article 13(2): “The State
Parties to the present Covenant recognize that, with a view to achieving the
full realization of this right: (a)
primary educations hall be compulsory and available free to all; (b)
secondary education in its different forms shall be made generally available
and accessible to all by every appropriate means (c) higher educations hall
be made equally accessible to all, on the basis of capacity, by every
appropriate means.” Article 13(3): “The State
Parties to the present Covenant undertake to have respect for the liberty of
parents, and when applicable, legal guardians, to choose for their children
schools, other than those established by the public authorities, which
conform to such minimum educational standards as may be laid down or
approved by the State and to ensure the religious and moral education of
their children in conformity with their own convictions.” Article 13(4): “No part of this
article shall be construed so as to interfere with the liberty of
individuals and bodies to establish and direct educational institutions,
subject always to the observance of the principles set forth in paragraph 1
of this article and to the requirement that the education given in such
institutions shall conform to such minimum standards as may be laid down by
the State.” 7.
Convention on the Rights of the Child (UN 1989) Article 28(1): “right of the
child to education on the basis of equal opportunity.” Article 28(1)(a): “[M]ake
primary education compulsory and available free to all.” Article 28(1)(b): “[E]ncourage
the development of different forms of secondary education.” Article 28(1)(c): “[M]ake
higher education accessible to all on the basis of capacity by every
appropriate means.” 8. International Convention on the Elimination of all Forms of Racial
Discrimination (UN 1965) Article 5(e)(v): “States
Parties undertake to prohibit and to eliminate racial discrimination in all
its forms and to guarantee the right of everyone (e)(v) To education and
training.” 9.
Convention Against Discrimination in Education (UNESCO 1960) Article 2: “When permitted in a
State, the following situations shall not be deemed to constitute
discrimination; (b) [t]he establishment or maintenance, for religious or
linguistic reasons of separate educational systems or institutions offering
an education which is in keeping with the wishes of the pupil’s parents or
legal guardians, if participation in such systems or attendance at such
institutions is optional and if the education provided conforms to such
standards as may be laid down or approved by the competent authorities, in
particular for education of the same level; (c) [t]he establishment or
maintenance of private educational institutions.” Article 4: “The State Parties
to this Convention undertake furthermore to formulate, develop and apply a
national policy which, by methods appropriate to the circumstances and to
national usage, will tend to promote equality of opportunity and of
treatment in the matter of education and in particular: (a) To make primary education
free and compulsory; make secondary education in its different forms
generally available and accessible to all; make higher education equally
accessible to all on the basis of individual capacity.” Article 5: “1. The State
Parties to this Convention agree that: (a) Education shall be directed
to the full development of the human personality and to strengthening of
respect for human rights and fundamental freedoms; it shall promote
understanding, tolerance and friendship among all nations, racial or
religious groups.” (b) It is essential to respect
the liberty of parents and, where applicable, of legal guardians, firstly to
choose for their children institutions other than those maintained by the
public authorities but conforming to such minimum educational standards as
may be laid down or approved by the competent authorities and, secondly, to
ensure...the religious and moral education of the children in conformity
with their own convictions; and no person or group of persons should be
compelled to receive religious instruction inconsistent with his or her
conviction; (c) It is essential to
recognize the right of members of national minorities to carry on their own
educational activities, including the maintenance of schools and, depending
on the educational policy of each State, the use or the teaching of their
own language, provided however: (i) That this rights is not
exercised in a manner which prevents the members of these minorities from
understanding the culture and language of the community as a whole and from
participating in its activities, or which prejudices national sovereignty; (ii) That the standard of
education is not lower than the general standard laid down or approved by
the competent authorities; and (iii) That attendance at such
schools is optional.” 10.
Universal
Declaration of Human Rights (UN 1948) Article 26(1): “Everyone has
the right to education. Education
shall be free, at least in the elementary and fundamental stages; (2) It
[education] shall promote understanding, tolerance and friendship among all
nations, racial or religious groups; (3) Parents have a right to choose the
kind of education that shall be given to their children.” 11.
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious or Linguistic Minorities (UN 1990) Article4(3): “States should
take appropriate measures so that, wherever possible, persons belonging to
minorities have adequate opportunities to learn their mother tongue or to
have instruction in their mother tongue.
(4): States should, where appropriate, take measures in the field of
education, in order to encourage the knowledge of the history, traditions,
language, and culture of the minorities existing within their territory.
Persons belonging to minorities should have adequate opportunities to
gain knowledge of the society as a whole.” 12.
Declaration
on Race and Racial Prejudice (UNESCO 1978) -Article
5(2): "States, in accordance with their constitutional principles and
procedures, as well as all other competent authorities and the entire
teaching profession, have a responsibility to see that the educational
resources of all countries are used to combat racism, more especially by
ensuring that curricula and textbooks include scientific and ethical
considerations concerning human unity and diversity and that no invidious
distinctions are made with regard to any people; by training teachers to
achieve these ends; by making the resources of the educational system
available to all groups of the population without racial restriction or
discrimination; and by taking appropriate steps to remedy the handicaps from
which certain racial or ethnic groups suffer with regard to their level of
education and standard of living and in particular to prevent such handicaps
from being passed on to children." 13.
Copenhagen Declaration on Social Development and Programme of Action
of the World Summit for Social Development (Copenhagen, Denmark, March 6-12,
1995) C.
Commitments Commitment 6.
"We commit ourselves to promoting and attaining the goals of
universal and equitable access to quality education, the highest attainable
standard of physical and mental health, and the access of all to primary
health care. The purpose of
these activities is to eradicate poverty, promote full and productive
employment and foster social integration.
To this end, at the national level, we will: (g) Recognize and support the right of indigenous people to
education in a manner that is responsive to their specific needs,
aspirations and cultures, and ensure their full access to health care;" Annex II:
Programme of Action of the World Summit for Social Development
Content. Chapter IV. Social Integration -Para. B(73):
"Eliminating discrimination and promoting tolerance and mutual
respect for and the value of diversity at the national and international
levels requires: (h) Setting an
example through State institutions and the educational system to promote and
protect respect for freedom of expression; democracy; political pluralism; diversity of
heritage, cultures and values; religious tolerance and principles; and the
national traditions on which a country has been built;" -Para. C(74):
"Governments should promote equality and social justice by: (h)
Expanding basic education by developing special measures to provide
schooling for children and youth living in sparsely populated and remote
areas, for children and youth of nomadic, pastoral, migrant or indigenous
parents [and] establishing, in partnership with indigenous people,
educational systems that will meet the unique needs of their cultures." 14.
African Charter on Human and Peoples’ Rights (Banjul Charter 1981) Article 17(1): “Every
individual shall have the right to education.” 15. European Charter for Regional or Minority Languages, adopted by the
Committee of Ministers of the Council of Europe, opened for signature 2
October 1992 Article 7(1): The Parties
undertake, in respect of regional or minority languages, to base their
policies, legislation and practice on the following objectives and
principles: (g) the teaching and study of regional and minority languages at
all appropriate stages.” Article 9(1):
Providing options for educational initiatives which include among
others that “[w]ith regard to education, the Parties undertake, within the
territory in which such languages are used and according to the situation of
each of these languages, to: make
available the whole” of pre-school, primary education or secondary
education “in the relevant regional or minority language” or “make
available a substantial part” of preschool, primary education or secondary
education in the relevant regional or minority language.”
The article also provides that with respect to primary, or secondary
education “the teaching of the relevant regional or minority languages”
can be provided “as an integral part of the curriculum” and in
pre-school situations provided “to those pupils whose families so request
and whose number is considered sufficient.” Article9 (g): “make
arrangements to ensure the teaching of the history and the culture which is
reflected by the regional or minority language. 16. Recommendation Concerning the Protection, at National Level, of the
Cultural and Natural Heritage, adopted by the Seventeenth Session of the
UNESCO General Conference (October 17-November 18, 1972) VI. "Educational and
Cultural Action: 61. Member States should
undertake educational campaigns to arouse widespread public interest in, and
respect for, the cultural and natural heritage. Continuing efforts should be
made to inform the public about what is being and can be done to protect the
cultural or natural heritage and to inculcate appreciation and respect for
the values it enshrines. For
this purpose, all media of information should be employed as required." 17.
Summit of the Americas Plan of Action, signed by 34 heads of state
participating in the Summit of the Americas (Miami, Florida 1994) I. "Preserving and
Strengthening the Community of Democracies of the Americas. 4.
Promoting Cultural Values. In order to promote cultural values, governments
will: Encourage more dynamic relations among public and private institutions
and organizations, including universities, museums, and centers of art and
literature, as well as among individual cultural actors.
Such exchanges emphasize our cultural diversity, recognize the value
of our local cultures and contribute to improving hemispheric
understanding." III. "Eradicating Poverty
and Discrimination in Our Hemisphere. 16.
Universal Access to Education. Governments will: Support decentralization
including assurance of adequate financing and broad participation by
parents, educators, community leaders and government officials in education
decision-making." 18.
Inter-American Commission on Human Rights, Report on the Situation of
Human Rights of a Segment of the Nicaraguan Population of Miskito Origin and
Resolution on the Friendly Settlement Procedure Regarding the Human Rights
Situation of a Segment of the Nicaraguan Population of Miskito Origin (Case
No. 7964) (1984) "based on the principle of
equality: for example, if a child is educated in a language which is not his
native language, this can mean that the child is treated on an equal basis
with other children who are educated in their native language.
The protection of minorities, therefore, requires affirmative action
to safeguard the rights of minorities whenever the people in question wish
to maintain their distinction of language and culture." 19. Advisory opinion of the Permanent International Court of Justice in
1935 on Minority schools in Albania (1935) "The idea underlying the
treaties for the protections of minorities is to secure for certain elements
incorporated in a State, the population of which differs from them in race,
language or religion, the possibility of living peaceably alongside that
population and co- operating amicably with it, while at the same time
preserving the characteristics which distinguish them from the majority, and
satisfying the ensuing special needs. In order to attain this object,
two things were regarded as particularly necessary, and have formed the
subject of provisions in these treaties. The first to ensure that
nationals belonging to racial, religious or linguistic minorities shall be
placed in every respect on a footing of perfect quality with the other
nationals of the State. The second is to ensure for the
minority elements suitable means for the preservation of their racial
peculiarities, their traditions and their national characteristics. These two requirements are indeed
closely interlocked for there would be no true equality between a majority
and a minority if the latter were deprived of its own institutions, and were
consequently compelled to renounce that which constitutes the very essence
of its being as a minority." 20.
Inter-American Commission on Human Rights. Report on the Situation of
Human Rights in Guatemala (1993) "…many actions by the
Guatemalan State reflect a cultural stereotype that is discriminatory. One
of these is the educational system, where the history, geographic place
names, language of instruction, and even the ethical values disdain or
ignore those used by the majority of the population, thereby undermining
their cultural integrity and their right to dignity. In January 1993,
President Serrano announced that the socio-linguistic map had been completed
to strengthen bilingual education by means of ambitious programs that would
begin this year."
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