HerAtlas methodology

CADE is the first legally binding instrument covering the right to education comprehensively and has been recognised as a cornerstone of Education 2030 (UNESCO, “Decision adopted by the Executive Board at its 197th session”, 2015, Doc: 197 EX/Decision). CADE prohibits discrimination in all forms, including by gender, and addresses discrimination both in access to and quality of education.

Sources

• CADE Convention

CEDAW is the most specific and substantive treaty with regard to the rights of women, defining the normative content and legal obligations of states towards gender equality including in education.

Sources 

• CEDAW Convention
• General recommendations 28 (paras. 3, 13, 21 and 36), 25 and 36.

Constitutional protection provides the possibility, when supplemented by judicial measures, for the highest domestic court to adjudicate on potential violations regarding the right to education. By offering constitutional protection, a more lasting protection is given than that of legislations, which are subject to political changes.

Sources

• Committee on Economic, Social and Cultural Rights, General Comment No. 13, para. 34.
• CEDAW General Comment No 36 para. 24.
• CADE Art.1 and 6.

National legislation implements constitutional provisions. When the right to education is absent from the Constitution, it acts as the primary legal means by which the right is recognized, if it is recognized as a legally enforceable right. Education legislations also gives full effect of the right to education at the domestic level.  

Sources

• CEDAW General Comment No 36 para. 24 c) and d) 
• ICCP General Comment 28 (paras 28 and 31)  

Lack of legislation on compulsory education or failure to enforce laws on compulsory education, are, among others, a barrier to girls’ education that has been considered to reinforce girls’ school non-attendance (UNESCO UIS and UNICEF, “Fixing the broken promise of education for all”, 2015). 

Sources

• CEDAW General Comment No 36 para. 39 a)  
• Framework for Action, SDG4, target 4.1 
• ICESCR Art.13 

Lack of free education is a financial burden for poor families, who may be forced to select which of their children will go to school. In this case, boys are usually preferred over girls (CEDAW, General Recommendation No. 36, 2017, para. 37). Several studies show that once this financial barrier is removed, girls’ school attendance increases (K. Deininger, “Does cost of schooling affect enrollment by the poor? Universal primary education in Uganda." Economics of Education review 22.3, 2003, pp. 291-305; J. Heymann, “Children's chances: how countries can move from surviving to thriving”, Harvard University Press, 2013; World Policy Analysis Center, “Facilitating girls’ access to quality education: global findings on tuition-free and compulsory education”, 2014, p. 2). 

Sources

• CEDAW General Comment No 36 para. 39 a) 
• Framework for Action, SDG4, target 4.1 
• ICESCR Art.13 
• CRC Art 28 (primary, free) 

“Early childhood care and education lays the foundation for children’s long-term development, well-being and health (Education 2030 – Framework for Action, 2015, para. 35). Numerous country-level studies show that students who complete pre-primary education are more likely to complete primary and secondary school, less likely to repeat grades and are more likely to be literate and numerate (UNICEF, “A World Ready to Learn: prioritizing quality early childhood education”, p. 12). Pre-primary education can therefore level the playing field and give girls a springboard to educational achievement in later years, especially in regions where there is a large gender disparity in education. Provision of early childhood education can also remove some of the barriers that prevent mothers from re-entering education and employment, and challenge stereotypes that child rearing is the primary responsibility of women. 

Sources

• Framework for Action, SDG 4, target 4.2 :  
• CRC General Comment N°7, para. 28 
• CEDAW General Comment N°36, para. 39 

Post-secondary education, or tertiary education, “includes what is commonly understood as academic education but also includes advanced vocational or professional education”. (UNESCO UIS and UNESCO Right to education handbook, p.108).  

“Opportunities for access to higher levels of education are often insufficient, particularly in least developed countries, resulting in a knowledge gap with serious consequences for social and economic development. […] wide disparity in access to tertiary education, in particular at university level, with regard to gender, to social, regional and ethnic background, and to age and disability remain. Disadvantages for females occur particularly in low-income countries, and for males in high-income countries.” (SDG4-Education 2030 Framework for Action, 2015, para 38)  

Sources

• SDG 4, target 4.3  
• CRC Art 28 
• ICESCR Article 13 2 (c) 

Child marriage is a discriminatory practice as often girls can marry at a younger age than boys. Their educational development is placed at greater risk than boys and violates their right to education as they are more likely to drop out of school and children who are not in school are more likely to get married. (UNESCO, “Right to education handbook”, 2019, p. 89) 

Sources

• CEDAW Convention, article 16 (2) 
• CRC and CEDAW Joint Recommendation (2019), para. 20.  
• African regional human rights law sets the minimum age of marriage at 18 without exception:  
• Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003), Art. 6 (b) 
• African Charter on the Rights and Welfare of the Child, (1990), Art. 21 (2). 
• CEDAW General Recommendation N°36, para. 55(c). 
•  CRC General Comment 4, para. 20. 

If the minimum age of employment is below that of compulsory education, the child is at risk of dropping-out of school to work and therefore not completing compulsory education. On the other hand, if compulsory education is lower than the minimum age of employment, once the child completed compulsory education, the door is opened to child exploitation and violation of labour laws. (A. Merchiorre and E. Atkins, “At what age?”, 2011, p. 21; ILO, “Child Labour and Education”, 2015). As such, minimum age labour laws and those of compulsory education laws are interdependent and mutually reinforce each other.  

Girls are particularly vulnerable to child labour, as education is often not considered a sound investment by parents. Employment patterns also tend to be gender-specific as girls predominantly work in the agricultural sector and carry out heavy domestic chores. When they are in school, they often bear the double burden of work inside and outside the home often with little or no time left for schooling. (ILO, “Give girls a chance”, 2009, p. 22). 

Sources

• The ILO Minimum Age Convention n°138, Article 2, see Article 7 for ‘light work’. 
• CEDAW General Recommendation N°36, para. 55(i) 

“Violence in schools affects both girls and boys. … Studies from certain European countries indicate that boys are generally subject to violence more often than girls, but that girls to a larger extent than boys are victims of certain severe forms of violence, including sexual violence … The types of violence range from assault and harassment on the way to and from school to bullying, sexual harassment and mental and physical abuse in education facilities, including as means of corporal punishment. Violence is not limited to primary and secondary schools but is also reported from tertiary education, often in the form of sexual coercion and harassment … Discrimination against girls in education leads to the debasement of their status as women. Violence against girls in schools is a form of discrimination globally, of varying nature and prevalence but with far-reaching impact on girls’ education.” (OHCHR, Info note, The right to education – violence against women and girls in schools).  

“[School-related gender-based violence (SRGBV)] violates children’s fundamental human rights and is a form of gender discrimination. Children have the right to be protected from all forms of violence, including in their school lives. Experiencing SRGBV can compromise children’s well-being, their physical and emotional health, as well as harming their cognitive and emotional development.”(UNESCO, Global Guidance on addressing SRGBV, 2016, p. 21). 

Sources

SRGBV is defined as “acts or threats of sexual, physical or psychological violence occurring in and around schools, perpetrated as a result of gender norms and stereotypes, and enforced by unequal power dynamics” (UNESCO/UNGEI Policy paper 17, 2015).  

See also: 

• CEDAW General Recommendation N°19, para. 6. 
• Education 2030 framework for Action para. 27 
• SDG4 Target 4.5 and 4.a 
• SDG5 target 5.2 
• SDG16 Target 16.2 

Like child marriage, pregnancy and motherhood causes girls to drop out of school, they also can be banned from school and from sitting exams and often lack access to bridging programmes which allows girls to resume their education (UNESCO, “Right to Education handbook”, 2019, p. 89) 

Sources

• CEDAW General Recommendation No 36, para. 24 (g) 
• SDG4, Target 4.5 
• African Charter on the rights and welfare of the child, Article 11. 

• Yes/No  

Scoring process

The instruments of "acceptance" or "approval" of a treaty have the same legal effect as ratification and consequently express the consent of a state to be bound by a treaty (Vienna Convention on the Law of Treaties, 1969, Arts.2 (1) (b))

Therefore, acceptance, approval, succession and ratification all correspond to: Yes.  

CADE does not allow reservations.  

• Yes/ Yes, with reservations/No  

Scoring process

As for the previous indicator, acceptance, approval, succession and ratification correspond to: Yes  

CEDAW allows reservations. "Reservation" means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.2

Therefore, when the Convention was ratified with reservations, the score is Yes, with reservations.

Where the signature is subject to ratification, acceptance or approval, the signature does not establish the consent to be bound. However, it is a means of authentication and expresses the willingness of the signatory state to continue the treaty-making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty (Vienna Convention on the Law of Treaties 1969, arts. 10 and 18). However, the State is not considered as Party to the Convention, therefore the score attributed is: No.

Limitations

Unlike reservations, declarations merely clarify the state's position and do not purport to exclude or modify the legal effect of a treaty (United nations Treaty Collection, Glossary [accessed on 27/05/2019]), therefore they won’t affect the score of a state.

• Yes, without discrimination based on sex and/or gender/ Yes, Partially/ No, the right to education is not enshrined/ It is discriminatory.

Scoring process

For this indicator, only constitutional provisions are taken into account.  

When analyzing the existence of a constitutional provision that enshrines the right to education, certain formal deficiencies which could hinder its enforcement were taken into account by the scoring system. To this end, for a full and proper protection of the right to education (Yes, without discrimination based on sex/gender), it is expected that it must be phrased as:

• Universal. Everyone should have the right to education, without discrimination. This includes not just children, but all ages. Similarly, the right to education cannot be afforded just to citizens, but as an inherent, universal right, it must extend to all within the territory.
• Expansive. The right to ‘access education’; to ‘equal opportunities in education’; to ‘learning’, or to a specific level of education only will be considered a limited right to education. The internationally agreed normative framework for education provides a wide range of standards that states must not fall beneath concerning the education of its citizens and non-citizens. By limiting this right to one specific aspect of education, the legal framework does not provide comprehensive protection. States not only need to ensure that education abides by the 4As framework, which elaborates essential features of the right to education (education must be available, accessible, acceptable and adaptable) but also that the State abides by the human rights obligations to respect, protect and fulfill.
• Immediate. Legal provisions that assure the right to education of a progressive basis do not provide any mandatory demands on the State, nor legitimize the claims of right-holders to have their rights fulfilled.

If the Constitution has been amended and the text of the Constitution amended is available online, the link provides for the latest version. However, if amendments have been made but a unique document of the Constitution amended is not available, the link provides for the latest version available, and a link to the law amending the Constitution is provided only when it changed a provision linked to the right to education of girls and women.  

• Yes, without discrimination based on sex/gender; Yes; Partially; No, the right to education is not enshrined; It is discriminatory. 

Scoring process

For this indicator, only laws are taken into account. When analyzing the existence of legal provision that enshrines the right to education, certain formal deficiencies which could hinder its enforcement were taken into account by the scoring system. To this end, for a full and proper protection of the right to education (Yes, without discrimination based on sex/gender), it is expected that it must be phrased as universal, expansive and immediate (please see the previous indicator). 

• Yes / Partially / No  

Scoring process

Where education systems do not use the primary / secondary classification (but for example “basic”, “preparatory” etc), the research team used the ISCED classification criteria to convert education systems which used levels such as ‘fundamental’ and ‘basic’ education to be scored appropriately. 

For this indicator, only the number of year for compulsory primary and secondary education is taken into account. Therefore, if pre-primary education is compulsory, it does not appear in this indicator but only in the indicator on pre-primary education.  

Example:  

If education is compulsory for 9 years, including 1 year of pre-primary education, 6 years of primary education and 2 years of secondary education the comment for this indicator will only be indicating that primary and secondary education is compulsory for 8 years and the score will be “Partially”.  

• Yes / Partially / No  

Scoring process

When analyzing the existence of legal provision on free education, wordings like “tuition free” were not consider sufficient enough for ”Yes”, as other direct costs could exist apart from tuition fees.  

The ICESCR stated in its General Comment 11 “The right is expressly formulated so as to ensure the availability of … education without charge to the child, parents or guardians.  Fees imposed by the Government, the local authorities or the school, and other direct costs, constitute disincentives to the enjoyment of the right and may jeopardize its realization. …”  

Where education systems do not use the primary / secondary classification, the research team used the ISCED classification criteria to convert education systems which used levels such as ‘fundamental’ and ‘basic’ education to be scored appropriately. 

For this indicator, only the number of years for free primary and secondary education is taken into account. Therefore, if pre-primary education is free, it does not appear in this indicator but only in indicator on pre-primary (below).  

Example:  

If education is free for 12 years, including 1 year of pre-primary education, 6 years of primary education and 5 years of secondary education the comment of indicator 6 will only be indicating that primary and secondary education is free for 11 years and the score will be ”Partially”.  

Limitations

At this stage, potential indirect costs will not be taken into consideration. 

• Yes / Partially / No  

Scoring process

When analyzing the existence of pre-primary education, alternative terms such as kindergarten or preschool were accepted, as were systems which have a clear preparatory level preceding primary education. 

• Yes / Partially / No / It is discriminatory

Scoring process

For score “Yes”, wording such as “open in an equitable manner” or “open to all without discrimination” were considered similarly as to equal access. In order to have a score “Yes”, a country needs to have a legislation that guarantees explicitly equal access to both post-secondary TVET and higher education. If only one is explicitly guaranteed, the score will be ”partially”.   

• Yes / Partially / No  

Limitations

In the interest of consistency, customary law shall not be considered in the review at this stage but will be mentioned. Difference in minimum age of marriage between girls and boys will not be considered at this stage, but will be mentioned.  

• Yes / No  

Limitations

Light work will not be taken into consideration with regard to the minimum age of employment as it should not affect education. For further information: see ILO. 

Hazardous work (which should be fixed at the age of 18 years) will not be considered as it is not directly linked to compulsory education.  

Furthermore, even if the ILO Convention provides for the possibility of initially setting the general minimum age at 14 where the economy and educational facilities are insufficiently developed, it will not be taken into account here, as no list of countries authorized to set a minimum age at 14 exists. In fact, the ILO Convention states that if the minimum age is 14, the State has to include in its reports on the application of the Convention 138 “(a) that its reason for doing so subsists; or (b) that it renounces its right to avail itself of the provisions in question as from a stated date.”  

When there is one year difference between the end of compulsory school age and the legal age of work (≥ 15 years), the score might be of 5, in order to take into account the gap between the academic year and calendar year.  

• Yes / Partially / No / Corporal punishment is allowed  

Scoring process

For score ”yes”, wording similar to “all forms of violence” were considered as covering psychological, physical and sexual violence. "Yes" is assigned if all forms of violence and corporal punishment are explicitly prohibited. If protection against violence is only provided against a particular individual, such as a "teacher", or for a specific type of violence, this is a partial protection against violence, as it does not cover the educational establishment as a whole or all forms of violence. "No" is assigned if there are no terms similar to "school" or "educational establishment", or if no explicit protection has been identified. 

Limitations

At this stage, SRGBV around school shall not be covered. 

Remedial action will not be considered at this stage.  

• Yes explicitly / No, not explicitly / It is infringed upon 

Scoring process

When analyzing legal dispositions on the right to education, if the duty to assure this right was placed on another individual such as the father of the baby or the girl’s parents, it would not achieve score “yes, explicitly” as the fulfilment of the right should be primarily the duty of the State.