Abstract
This article focuses on the key international legal mechanism used by Non-Governmental Organisations (NGOs) – that of State reporting – to highlight the barriers that Traveller children, Roma children, migrant, refugee and asylum-seeking children, and children with special educational needs and disabilities experience in accessing education in Europe. Drawing on the vast array of documentation submitted to the various United Nations (UN) treaty bodies and the Human Rights Council’s Universal Periodical Review, the article shows that NGOs – through their research, monitoring and reporting – provide a deeper understanding of how education reinforces hierarchies, and that these ‘on-the-ground’ perspectives challenge governments and policy-makers to ensure that quality education is accessible, without discrimination, to all members of European society. The article also demonstrates the crucial role that NGOs play within the UN Human Rights State reporting mechanisms in documenting the relationships between access to education, poverty
Introduction
The right to education is one of the foundational and universal rights in international human rights law. 1 Acknowledged as an international human right in the 1948 Universal Declaration of Human Rights (UDHR), 2 it is recognised as an “accelerator” and a “multiplier” right that is integral to the enjoyment of other human rights. 3 Although various national constitutions 4 and human rights instruments include the right to education, the universality of this right is “crippled by the exclusion and marginalisation that undermines educational opportunities” for vulnerable children. 5 Education ought to be “an arena where secure identities and tolerant attitudes can be fostered for children and young people from diverse ethnic backgrounds and religious beliefs”, 6 but growing inequalities across Europe have repercussions for education systems by “increasing disparities in the accessibility and quality of education”. 7 Using Katarina Tomaševski’s 4-A Scheme and four case studies, 8 this article examines the crucial role that Non-Governmental Organisations (NGOs) play within the United Nations (UN) Human Rights state reporting mechanisms in highlighting the first of these inequalities, i.e., access to education.
The article focuses on the chief international legal mechanism used by NGOs, i.e., state reporting, to highlight the barriers that four groups of disadvantaged learners experience in accessing education in Europe. Two justifications can be offered for this focus. First, while there is a substantial corpus of scholarly writing on the “naming and shaming” role played by NGOs, 9 and their influence in both litigation and drafting international law, 10 their use of state reporting is less frequently examined. Moreover, the recent literature on NGOs and state reporting tends to focus primarily on national case studies. 11 This, of course, is not to suggest that these studies are less valuable, but rather that the current analysis differs in its focus on state reporting with respect to one specific issue – access to education – across the respective European states. Secondly, access to education was selected due to the fact that education is an “empowerment right” that is essential to the furtherance of other human rights. 12 Furthermore, education is the “most prominent children’s rights issue” in the Universal Periodic Review (UPR) and deemed to be a “less controversial” or “safer issue” that is not only “raised the most”, 13 but in respect of which states have shown a greater willingness to accept recommendations. 14 Finally, the article shows that NGOs – through their research, monitoring, reporting, and “on-the-ground” perspectives – challenge governments and policy-makers to ensure that quality education is accessible, without discrimination, to all members of European society and to “transform the right to education from an ideal into a reality”. 15
The article is structured into three parts. In Part 1, we discuss the role of NGOs in the state-reporting systems, both to the Human Rights Council (HRC) via the UPR and to UN human rights treaty monitoring bodies. This is followed by a succinct outline of the methodology adopted in Part 2. Part 3 provides an analysis of the degree to which NGOs provide critical “on the ground” information, and hold governments to account, on the three key elements of educational accessibility –
NGOs and the UN human rights mechanisms
Having set out the rationale for the study, this section provides an account of the evolution of the role of NGOs at the UN, illustrating the increase in their role over time. It sets the foundation for the analysis of the role that European NGOs play in raising awareness of the discriminatory practices faced by four groups of vulnerable children within respective European education systems that follows in Part 3.
The role of NGOs in the UN
NGOs have performed a vital advocacy role in the UN since its inception in 1945 which has led to the amelioration of human rights protection globally for individuals in a variety of spheres. 16 McGaughey comments that “[i]n a largely voluntary system, bereft of enforcement mechanisms, NGOs hold governments to account on their human rights obligations – monitoring “from below”, often using mechanisms of the UN which monitors “from above””. 17 The term “NGO”, adopted for the purpose of this study, 18 has been defined by the Economic and Social Council as:
Any such organization that is not established by a governmental entity or intergovernmental agreement shall be considered a non-governmental organization for the purpose of these arrangements, including organizations that accept members designated by governmental authorities, provided that such membership does not interfere with the free expression of views of the organization. 19
Accordingly, NGOs which have consultative status with the United Nations Economic and Social Council (ECOSOC) can contribute to the UN human rights system. In 1948, just 41 NGOs were afforded such status, 20 but as of December 2022, there are 6,343 NGOs with consultative status. 21
Partly as a result of lobbying by NGOs, human rights provisions were included in the Charter of the UN (the UN Charter) itself.
22
Thus, Article 68 of the UN Charter states that the ECOSOC “shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions”.
23
The impact of NGO lobbying on UDHR negotiations was so significant that Eleanor Roosevelt, chairperson of the UDHR working group, opined that the rights enshrined therein would be documented through a “curious grapevine”, i.e., NGOs.
24
The role of NGOs in the drafting of international human rights treaties continued throughout the negotiations on the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and other treaties, including the Convention on the Rights of the Child (CRC) – all international human rights instruments that refer to the right to education and reinforce its importance as a means to promote other rights.
25
The status of NGOs in the UN system is set out in Article 71 of the UN Charter, which stipulates: The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.
26
Notwithstanding two very notable exceptions – the CRC and the Convention on the Rights of Persons with Disabilities (CRPD) – very few other UN treaties refer to the role of NGOs to elucidate or expand upon Article 71.
27
Although the narrow and restricted role bestowed upon NGOs in the UN Charter has been well documented, these organisations now exert significant influence in the sphere of international human rights law at the UN. The role of NGOs in the UN system is multifaceted, and includes,
Most of the NGOs that engage with the UN bodies do so via the ECOSOC accreditation system. NGO participation at the HRC, by contrast, is dealt with in the Council’s Resolution 60/251, which states that NGOs can participate on the basis of different arrangements, including ECOSOC resolution 1996/31. While ECOSOC accreditation is beneficial for NGOs, by facilitating networking and lobbying opportunities within UN bodies, 35 NGOs without accreditation can still tender written submissions to the UPR and UN treaty bodies. 36 Moreover, they can attend briefings with treaty bodies and pre-session meetings for the UPR via the Department of Global Communications system. 37 It is important that opportunities for NGO participation in UN bodies exist outside of the accreditation process given that criticisms have been levelled at it in respect of bias and politicisation in the past, with some NGOs being expelled for highlighting human rights abuses by powerful states. 38 While acknowledging that both accredited and non-accredited NGOs have played a variety of important roles within the UN system, 39 this article focuses solely on how NGOs in the state-reporting systems (to the HRC via the UPR and to UN human rights treaty monitoring bodies) have highlighted access to education in European education systems as a significant issue of concern for states.
The role of NGOs in treaty body state reporting
Each of the nine core human rights treaties has a monitoring body to which states parties must submit periodic reports on their treaty obligations, and each treaty monitoring body has its own reporting guidelines, which outline the requirements and process of the reporting. 40 State reports should highlight the legislative, judicial, administrative or other measures that states have adopted and any difficulties that they have experienced in implementing each provision of the treaties. The reports are reviewed by the relevant UN treaty monitoring bodies. 41 Along with the state reports, the treaty monitoring bodies also facilitate “shadow reports” / “alternative reports” by NGOs. 42 These shadow reports can highlight issues which states have not raised in their own reports, underscore where the government report may be incomplete or mislead the committee, call for policy change, and shape official recommendations. 43 While the number of NGOs in operation has increased exponentially over time, 44 this consolidated report approach allows for the main issues identified by various NGOs to be highlighted within the UN system. Such reports are also assessed by the treaty monitoring bodies, alongside the reports submitted by states, and thus provide the Committees with a more holistic and realistic view of state practice. Once a state report is submitted, and its review is scheduled by its monitoring body, NGOs are invited to submit their shadow reports. In addition, NGOs have an opportunity to contribute to the treaty monitoring process prior to the submission of a state report, when the monitoring bodies adopt a List of Issues (LOI) or a List of Issues Prior to Reporting (LOIPR), which states should focus on in their report. Moreover, NGOs have the opportunity to submit written reports both prior to the adoption of the LOI or LOIPR outlining suggestions on their content, as well as following their adoption to provide a response to the issues raised. 45 Significantly, NGOs can attend public sessions of the monitoring bodies in Geneva, and participate in formal and informal meetings to provide insights on state practice.
After an initial battle for access and recognition in the UN’s formative decades, 46 NGOs began to contribute information on the domestic implementation of the international human rights framework, including the right to education, in the 1970s. Despite the significant influence exerted by NGOs in the drafting of international human rights treaties, some members of the treaty monitoring bodies were originally quite reluctant to allow NGOs a role in the treaty monitoring system, as they were cognisant of infringing upon state sovereignty. In this context, “NGOs worked on the sidelines of official standard-setting and used unofficial paths to influence the direction and content of human rights mechanisms” in myriad ways. 47 This reluctance to facilitate NGO involvement changed over time, 48 but McGaughey nonetheless highlights that states have, on occasion, unsuccessfully challenged the use of NGO reports by treaty monitoring bodies, 49 illustrating a fear on the part of states that information provided by NGOs could damage their reputation. 50 Gradually, however, individual members of the treaty monitoring bodies “expressed the need for alternative sources of information independent of the government reports” 51 with NGOs’ “ongoing and specialised information-gathering, issue focus, and institutional knowledge of human rights concerns” increasingly rendering them “key actors in human rights protection efforts”. 52 During the 1990s, the role of NGOs in the treaty monitoring system became more formalised, with NGO contributions becoming more common and the Secretariat of the Office of the High Commissioner for Human Rights providing administrative support. 53 The treaty bodies also began to officially acknowledge the contribution of NGOs. The Committee on the Elimination of Racial Discrimination noted, for instance, in its Annual Report to the General Assembly in 1996, that NGO reports “complemented the information available to members and helped improve the quality of the Committee’s examination of those reports”. 54 Subsequently, general guidelines for interacting with NGOs were adopted by the CERD Committee. 55
In more recent times, the initiative to strengthen the treaty monitoring body mechanisms in the UN focused attention on the need to engage effectively with NGOs. 56 This is particularly evidenced from the role granted to NGOs in the monitoring of the CRC and CRPD. 57 Article 45 of the CRC 58 recognises the importance of “other competent bodies” (alongside UN specialised agencies and the UN Children’s Fund) in providing advice on the implementation of the CRC, and they can be invited to submit a report on such. Furthermore, with regard to the CRPD, Article 33 identifies civil society, in the form of disabled persons organizations (DPOs), as having a core role in respect of the Convention, including the responsibility to “be involved and participate fully in the monitoring process”. 59 Equally, Articles 36(5) and 38(a) CRPD further strengthen the integration of NGOs into the monitoring and reporting mechanisms of the UN. Article 36(5) makes provision for the inclusion of “competent bodies” – which the UN have noted includes NGOs – in the transmission of reports from state parties “in order to address a request or indication of a need for technical advice or assistance contained therein”. 60 Moreover, Article 38(a) CRPD calls on these “competent bodies to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates”. In other words, NGOs now contribute to the treaty monitoring process to such an extent that it would be difficult to conduct this “human rights protection regime” without them. 61
The role of NGOs in the UPR
In addition to their role in contributing reliable and independent information in respect of state party behaviour under the UN human rights treaty systems, NGOs have carved out a significant position for themselves in the UN Charter system. This began under the aegis of the now defunct Human Rights Commission, established by ECOSOC in accordance with Article 71 of the UN Charter cited above. However, as with the contribution of NGOs to the treaty body monitoring system, the participation of NGOs in the Commission was met with reluctance by states, who were fearful of these organisations shining a light on their human rights violations. Despite state opposition, 1970 marked a major milestone in the contribution of NGOs to the UN system, particularly the Human Rights Commission, with the adoption of ECOSOC Resolution 1503. 62 This allowed the Commission to hear grievances from NGOs in respect of gross violations of human rights, while they were also allowed to contribute to the Commission’s Annual Sessions. Due to criticisms of politicisation and bias, 63 the Commission was later dismantled and supplanted by a new body, the Human Rights Council (HRC). Unfortunately, similar criticisms have also been levelled at the Council, 64 albeit not to the same extent as the Commission.
The UPR mechanism
The HRC is an inter-governmental body under the auspices of the General Assembly, composed of 47 states, elected according to geographical region, to staggered terms of 3 years. Upon establishment, the Council was given the role of carrying out “a universal periodic review (UPR), based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States”. 65 While states had varying ideas as to the format of the review, in 2007 the HRC adopted an institution-building package, elucidating the UPR’s aims and processes. 66 Essentially, the UPR comprises an appraisal of the human rights policies and practices of each member state of the UN every 4.5 years at the HRC. It is essentially a peer-review, with states presenting a report on their practices evaluated against international human rights standards, and other states providing recommendations on these practices.
Although the UPR has “considerably less ‘teeth’ than NGOs had originally hoped for”, 67 the meaningful participation of NGOs in the review process is crucial in ensuring that the UPR fulfils “its great potential to promote and protect human rights in the darkest corners of the world”. 68 In addition to the report compiled by states themselves, two other reports form part of the review – the first being a “Stakeholder” report, compiled from contributions by organisations such as National Human Rights Institutions and NGOs, and the second being a report compiled by the UN. 69 Collectively, these other reports detail domestic human rights practices and highlight, among myriad other issues, the “accountability deficit” that “leaves minorities and disadvantaged groups most at risk that their right to education will not be realised”. 70 Yet while contributions to “Stakeholder” reports are very valuable as they offer a balance to the reports of states, who may have neglected to include information on specific issues, NGOs have only a 15-page limit to summarise the information provided by all Stakeholders. 71 Additionally, these reports must be submitted 5 months before the submission of the state report. Therefore, NGOs are not afforded an opportunity to react to the content of the state report, 72 nor do they have a “speaking role” 73 during the interactive dialogue stage of the review.
NGOs can, however, contribute in other ways to the UPR process; “accredited stakeholders can attend and observe the session of the UPR Working Group”, and “can also attend and make oral statements during the regular sessions [of the HRC] when the outcomes of the State reviews are considered”.
74
The importance of this contribution was captured by Snowbarger: The presence of local NGOs during the UPR, and indeed all sessions of the Council, is essential to gaining a full understanding of a country’s human rights situation. NGOs often speak for those who have no other voice, and their presence here during reviews allows for a unique exchange of personal stories, collected data, and alternative perspectives, which can shape a more productive dialogue between states.
75
That said, the “lack of expert and NGO involvement is undoubtedly “one of the distinctive features of the UPR””, 76 and thus NGOs still face a number of challenges to their participation in the HRC, including difficulties with accreditation, their contributions being ignored during Council sessions, and state resistance to their participation. 77 Although certain states still remain resistant to the contribution of NGOs in the UPR system, 78 Landolt and Woo have shown that NGO participation is at a higher level than participation at the Human Rights Commission, noting especially the growing contribution of domestic, regional, and Southern NGOs. 79 Furthermore, the importance of the contribution of NGOs for the mechanism’s effective functioning has been noted, with Charlesworth and Larking noting that “[t]he ability of the UPR to transcend ritualism and to function as an empowering regulatory mechanism depends heavily on effective NGO and civil society engagement in the process”. 80 This is perfectly captured by the number of recommendations that have been made to states pertaining to the right to education. In Cycle 1 of the UPR mechanism, for instance, 878 recommendations pertaining to education were made to states, while during Cycle 2 and 3, 2053 and 2059 recommendations were made, respectively, on this issue. 81 Although establishing causation is laden with difficulty, 82 it is clear that many of the official UPR state recommendations align with, and arose from, the contribution of NGOs, and demonstrates their contribution towards “the overall goal of cementing the UPR as an important instrument in the mainstreaming of universal human rights norms into regular state practice”. 83
Methodology
The UN human rights machinery is oft-criticised as a “paper-making factory”, but most European states tend to fulfil (albeit belatedly) their duty to comply with “the unwanted, boring and burdensome task of reporting”. 84 The ineffectiveness of requiring governments to self-report as a means of ensuring compliance with major international human rights treaties has been well documented, 85 but the vast array of submissions by NGOs and states to various treaty bodies and the UPR provided the primary source material for this article. Documentation submitted to the CESCR, Human Rights Committee, Committee on the Elimination of Racial Discrimination against Women (CEDAW), CERD Committee, CRC Committee and the CRPD Committee were examined for each of the European states – as defined by the United Nations Classification and Definition of Regions – who have ratified the respective human rights treaties and conventions, and identified education as an issue of concern in the previous two reporting cycles. These sources were supplemented with documentation pertaining to education from the information gathering phase of the last two completed cycles of the UPR process, including National reports, Stakeholder reports, and UN reports, upon which the UPR review is based. NGO perspectives on access to education vary between and within European countries, and this source material (all available in English) facilitated an analysis of such similarities and differences. 86 It should, however, be acknowledged that the perspectives reported in this study are not representative of NGOs in every European country. Access to education, for instance, was not highlighted by NGOs as a significant concern in every jurisdiction. Accordingly, emphasis is placed in this article on the jurisdictions where four particular groups of disadvantaged learners – Traveller children, Roma children, migrant, refugee and asylum-seeking children, and children with special educational needs and disabilities (SEND) – experienced barriers in accessing education in Europe.
Katarina Tomaševski, 87 a former UN Special Rapporteur on the Right to Education, argued that the 4 As – “Availability”, “Accessibility”, “Acceptability” and “Adaptability” – had to be in place in order for the right to education to be fulfilled. 88 A 2008 report by the Office of the United Nations High Commissioner for Human Rights on the implementation of human rights provides useful tools to “monitor and evaluate States Parties’ adherence” to international human rights law, 89 but Tomaševski’s 4A framework is “best suited to identify state obligations relating to the right to education”. 90 As Tomaševski herself noted in 2005, this conceptualisation has “proved an attractive model and has been followed by the Committee on Economic, Social and Cultural Rights; praised by governmental delegations before the Commission; used by the national human rights institutions; and adapted by NGOs to their own work”. 91 The first “A”, “Availability”, is perhaps the most obvious of the four “A”s, insofar as it refers to the sufficient provision of educational institutions and programmes by a government, with the “necessary facilities to function appropriately”. 92 Interestingly, this requirement comprises a duty on the government to avoid excessive class sizes, which can decrease the quality of education. 93 The “Availability” requirement also encompasses the right for “non-state actors to establish and run educational institutions”. 94
The second “A” in Tomaševski’s framework is that of “Accessibility”. The accessibility requirement is threefold, insofar as education must be physically accessible, economically accessible and accessible without discrimination.
95
Thirdly, there is “Acceptability”, which refers to “the form and substance of education” and its “quality and appropriateness”.
96
Broadly speaking, this imposes an obligation on states to ensure a minimum standard for students and teachers, as well as curricula and building facilities.
97
In addition to these minimum standards, acceptability means that the education available must be “of a quality that has meaning to the individual students, the community, and society at large”.
98
McDougall
99
and Broderick
100
recommend, for instance, that education should consist of quality non-discriminatory subject matter that is apposite to students’ (and in relevant cases parents’) cultural, linguistic and social backgrounds. The fourth and final “A” is “Adaptability”, which refers to the need for education to be sufficiently flexible in order to respond to the “needs of students within their diverse social and cultural settings”.
101
Central to this is the view that schools must “meet the needs of the communities” which they serve.
102
This includes,
Having set out the role that NGOs play in the UN system and the methodology, the next section examines, using four case studies, the extent to which NGOs monitor European state compliance (or report on state violations) with the “Accessibility” requirement of Tomaševski’s 4-A Scheme. Accessibility was chosen as the focus, because it is arguably the most important of the 4As, for there is little point in having an available, acceptable and adaptable education system if certain members of society cannot access it. 105 After all, as Greco argues, “granting access to the right can be seen as part of the duty of the state in fulfilling a particular right”. 106 Moreover, although Tomaševski identified “no less than 32 categories of children who are particularly likely to be excluded from education” the source material revealed that European NGOs focused primarily on raising awareness of the barriers that Traveller children, Roma children, migrant, refugee and asylum-seeking children, and children with SEND experience in accessing education. 107 Accordingly, the analysis that follows will be grounded in the educational experiences of these four specific groups of disadvantaged learners.
Accessibility
The accessibility requirement is threefold insofar as it requires education to be
Physical accessibility
Tomaševski asserts that all individuals should be able to attend school,
110
while UNICEF contend that state parties must ensure “access to primary and secondary education” in order to realise the right to inclusive education under the CRPD.
111
The requirement of accessibility implies that education must be physically accessible to all, including those with physical disabilities. Moreover, Article 9 CRPD – an “innovative provision which articulates, for the first time in a UN human rights treaty, a right to accessibility” – sets out that state parties should “take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment” and “to transportation” to ensure that persons with disabilities “live independently and participate fully in all aspects of life”.
112
These measures include “buildings, transport, playgrounds, hygiene and toilet facilities”
In addition, Tomaševski stated that individuals living in rural areas should be able to attend school.
115
This, as Kalantry et al. point out, may require providing transportation for certain groups and building schools in remote areas.
116
Although this obligation would appear to be more onerous in countries with vast, sparsely inhabited areas, ensuring access to education is proving difficult in certain European countries due to the distance that children in rural regions must travel to educational institutions.
117
The European Roma Rights Centre (2018: 6), for instance, has reported that 30% of French children living in squats and slums have never been enrolled in, or attended school.
118
Lengthy school commutes have also proven to be an obstacle to access for Sámi children in Finland,
119
while NGOs have pointed out that there are considerable differences between schooling opportunities depending on the family’s domicile in Hungary.
120
Subventions for transport, free transport and monthly transportation allowances have been granted in Croatia and Italy in an endeavour to provide access to education for pupils outside of urban centres and to bus Roma children from camps to schools,
121
but certain limitations on these financial supports were captured by a joint submission of Romanian civil society organisations to the UPR: . . . minority children living in poorer settlements are exposed to the problem that local councils cannot provide adequate transportation support. Moreover, due to the upper limit set for travel reimbursements by the Government Decision 29/2013, some minority children commuting to school receive only partial travel reimbursement.
122
But even in jurisdictions where transportation to and from school is provided, the duration of such trips adversely affects the child’s ability to focus on their studies.
123
This is particularly encapsulated in Italy where a variety of NGOs have pointed out that the distance of the “nomad” camps from schools means that special school bus services for Roma children often arrive late to the school and collect the children very early to take them home.
124
It should also be borne in mind, however, that accessibility to education is not solely limited to “physical accessibility”, or indeed people with physical disabilities. Indeed, Article 9 CRPD also states that: States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others . . . to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas.
This is particularly pertinent in respect to education given that the internet and online coursework has been heralded as “potentially transformative” 125 for education across the globe. Therefore, the importance of non-physical access to education is equally as important as that of physical access and should not be overlooked in a modern society.
Economic accessibility
While all European states appear to comply with the requirement that education be available, this does not necessarily equate to a readily accessible education for all.
126
Tomaševski pointed out that international law defines free and mandatory education as a government obligation
Furthermore, there are other considerable economic barriers preventing access to education in Europe. Domestic initiatives 135 and financial assistance from charitable organisations have helped to reduce the gulf between access to education and social disadvantage in certain European states, but the indirect costs associated with primary and secondary school contribute greatly to educational under-attainment and early school leaving. 136 Pimentel maintained that the right to education is becoming progressively more influenced by “purchasing power” and “a creeping privatization of education”. 137 He referenced the “astonishing array of education charges, from direct school fees to indirect costs for books, pencils, uniforms, and transportation” which impact disproportionately on poorer families. 138 While the CESCR General Comment 11 states that indirect costs are not permissible, ICESCR states parties, NGOs and National Human Rights Institutes (NHRIs) 139 have acknowledged that education does incur “hidden” costs. 140 Belgian NGOs, for example, have highlighted that the “cost of education is also a real challenge” whereby educational institutions may require payment “for didactic material, a visit to the theatre, meals, the school bus etc.”, 141 while there is evidence in Ireland that the need to buy schoolbooks and a uniform, to contribute to a book rental scheme or to make a “voluntary” contribution, 142 puts financial strain on families from socially disadvantaged backgrounds. 143 Although direct financial support schemes are important in ensuring equality of access to education for children from marginalised backgrounds, 144 it is imperative that respective European governments continue to facilitate a range of financial interventions, with monitoring and evaluation mechanisms, to address school non-completion, 145 as well as tackling the issue of the increasingly competitive privatisation of education.
Accessible without discrimination
The 4-A framework states that in order for states to be fully compliant with the right to education, education must be accessible without discrimination. Safeguarding that education is accessible to all without discrimination places a particular burden on states to devise strategies and measures to prohibit discrimination,
146
but an array of “exclusionary practices, which to date have been legally permissible, have helped to facilitate the establishment of a
Roma children
Roma are one of the most marginalised populations in Europe, 154 with a population of between approximately ten and 12 million people. 155 They experience discrimination, prejudice, and social and institutional exclusion on a daily basis, impacting on their ability to access education. 156 The Slovak National Centre for Human Rights, for example, has previously stated that “discrimination against Roma is the most serious in education”. 157 Poverty resulting from long-term exclusion is the chief barrier to the realisation of their right to education, 158 with certain stakeholders requesting that “education policies include training for teachers to better engage with children and young people from more disadvantaged backgrounds, with an emphasis on recognising signs of poverty and fostering diversity as a value”. 159
It has been well documented by scholars and NGOs that the high rate of poverty experienced by the Roma people correlates with low participation of Roma children in education. 160 In Bulgaria, for instance, the Ombudsman noted “the difficulty of including Roma children in mainstream schools and recommended the elimination of fees for pre-school education”, 161 while a recent Irish study found that 25% of Roma children had “gone to school hungry”. 162 Although “education systems in Western Europe are advanced, highly developed and complex”, inequalities remain in the provision of Roma education rights. 163 Particular concern has been expressed by civil society organisations at the discriminatory practice of channelling Roma children into “special schools” for children with mental disabilities 164 and ethnic segregation by class (e.g. Roma-only classes), 165 or pupil grouping within classes in mainstream schools. 166 In Croatia, NGOs have highlighted that 20% of Roma children are “in classes that consist only of Roma pupils, which entirely precludes even the lowest level of integration”. 167 Similarly, a Hungarian study found that Roma children are more likely to study in special education settings, meaning that they “need support that would not generally be provided to a child of the same age in a mainstream school”. 168 An analogous Hungarian study also found that Roma children are “three times more likely to study in a special education class or institute than a non-Roma child”, 169 while the European Union Agency for Fundamental Rights (EU-FRA) Roma survey in the Czech Republic indicates that “as many as 23% of surveyed Roma children up to the age of 15” attend a special school and/or classes that are almost exclusively for Roma. 170 Consequently, a Joint Submission of NGOs to the UPR described the “systematic discrimination in education against Roma children in the Czech Republic” as a “dogged failure” that “demands a strong response”. 171
Notably, the European Roma Rights Centre 172 has reported that the reasons behind the existence of segregated schools and segregation within schools are varied including, among others, deeply rooted negative prejudice against the Roma, discrimination during enrolment, the use of flawed or culturally insensitive testing, the reluctance of non-Roma parents to send their children to a school that educates Roma children or transferring their children to “no-Roma” classes. 173 These issues are exacerbated by “family concerns about formal education potentially undermining their way of life, clashes between the Roma community’s cultural norms and formal education requirements; and a preference for acquiring skills and knowledge via the family/community rather than in school”. 174 Roma children experience disadvantage in almost “every aspect of schooling” 175 and even when they are introduced into mainstream classes, evidence has shown that they attend school sporadically, have poor school performance, show high rates of early school leaving 176 and have attainment levels lower than the Organisation for Economic Co-operation and Development (OECD) average. 177 A study conducted by the United Nations International Children’s Emergency Fund (UNICEF) stated that “in Slovakia, Roma children are 30 times more likely to abandon school than the rest of the population and in Bulgaria, most of the 45,000 students who drop out annually are of Roma ethnicity”. 178 Several factors contribute to the high drop-out rate, such as the lack of proficiency in the language of instruction, negative teacher attitudes, bullying and discriminatory violence in classrooms, physical distance from the school, while life in nomadic camps or overcrowded homes may not be conducive to completing homework or ensuring regular school attendance. 179 Although these are crucial factors in pushing Roma children to abandon school, extreme poverty and the indirect costs associated with education are frequently the main reasons documented in stakeholder submissions for early school dropout. 180 The European Union (EU), in recognising the need for improved Roma integration, developed the EU Framework for National Roma Integration Strategies focusing on the seminal areas of education, employment, healthcare and housing. 181 The 2019 assessment of the implementation of these strategies found that 14% of Roma aged 16 years and older had not completed primary education, with 18% completing upper secondary, vocational or post-secondary education. 182 Education has been put forward as “the only viable option for improving the lives of Roma”, 183 but the existing literature and NGO reports suggest that the provision of education for Roma children has actually “worsened over the last two decades”. 184 Consistent NGO monitoring of the issue of education of Roma children over time provides states and international bodies such as the UN with valuable information on state behaviour patterns, which would most likely not be reported by states themselves. It is thus vital for treaty monitoring bodies to provide appropriate recommendations to states in respect of what may be systemic and long-term issues, rather than just furnishing information that deals with short-term or one-off issues.
Traveller children
Members of the Traveller Community encounter multiple obstacles to the realisation of the right to quality and culturally appropriate education.
185
Travellers live primarily in Ireland where they have been recognised as an ethnic minority since 2017, but groups of Travellers are also found in the United Kingdom (UK),
186
the United States, and Australia.
187
This minority group has been subjected to social exclusion, widespread disadvantage and persistent discrimination,
188
all of which impact on the educational experiences of Traveller children. A large survey of 5000 secondary school students in Ireland found that “the levels of reported negativity towards Irish Travellers are disturbing and need to be urgently addressed”.
189
Furthermore, in 2019,
A certain amount of this disconnect can be explained by discriminatory admission policies,
193
problems encountered in the provision of education to Traveller children
194
and the negative experiences of older Travellers in schools
195
– themes powerfully enunciated in the landmark Irish case of
Migrant children
Tomaševski
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emphasised that discrimination against non-citizens in education must be eradicated, but it has been consistently highlighted by NGOs as part of the UPR process that migrant, refugee and asylum-seeking children continue to experience problems accessing education in Europe.
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The importance of effectively integrating young migrant children has been stressed,
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but as demonstrated by the German Institute for Human Rights, “despite some progress, equal opportunities for children with a migrant background have not yet been achieved in the education system”.
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Moreover, a Working Group on the UPR in France reported that unaccompanied migrant children face numerous difficulties enrolling in mainstream schools,
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while the Organization for Aid to Refugees and Forum for Human Rights reported to CEDAW that children with migrant backgrounds are frequently rejected from education facilities in the Czech Republic due to the fact that they do not have permanent residence in the municipality where the school is located.
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Similarly, immigrant children in Ireland have been adversely affected by admission criteria, which permits schools in oversubscribed areas to give the children and grandchildren of past-pupils priority (to a maximum of 25% of available places).
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Such practices have resulted in “ethnic clustering” and there are now schools in certain localities which are almost exclusively non-national.
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These so-called “ghetto”
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schools are not solely an Irish phenomenon, but information collected in advance of the 25th Session of the UPR revealed that “23% of Irish schools educated almost 80% of children of immigrant origin” in the school year 2013-2014.
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Notably, the Irish national report does not explicitly contain any comments on issues such as “ethnic clustering” or “ghettoisation” in respect of education but focused rather on the
Likewise, a working group on the UPR in Denmark has highlighted that children in asylum centres are entitled to education but are not permitted to attend government schools.
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This is compounded by a shortage or absence of school places for refugee children who may arrive during the school year.
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Education ought to help migrant, refugee and asylum-seeking children “develop their confidence and skills to improve their chances in the country of arrival”,
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but as a Maltese working group on the UPR documented, these children frequently lack the financial means to pursue full-time education.
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Similarly, a joint submission of Belgian civil society organisations expressed concern that “children of ethnic and cultural minorities and children from families living in poverty are more heavily represented than children of Belgian origin in special education”.
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Domestic data also indicates that migrant children are more vulnerable to bullying than national children in schools.
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Additionally, civil society actors have expressed concern about the persistent bullying of immigrant children in schools in Sweden and Finland.
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In this regard, a joint submission of Austrian NGOs expressed the following view: Protection against racial discrimination in the education system needs to be greatly improved. The combination of migration background, situations of poverty and language differences continues to lead to serious disadvantages and exclusion.
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Moreover, in the UK, 4590 cases of racial abuse resulted in fixed or permanent exclusion of school students in 2017. 223 However, such extreme forms of “negative interethnic relations” are not just the preserve of students. 224 The prejudice and stereotypes of school management, not to mention the negative attitudes of some parents, are also significant factors. The Organization for Aid to Refugees and Forum for Human Rights reported to the UN CEDAW that the argument of full capacity is used to justify the refusal to accept a migrant child in certain Czech schools, but that “in many cases the true reason is the migrant background of the child”. 225 Notably, civil society organisations in Italy also highlighted that “early school leaving was much more significant among foreign citizens than Italians (33.1% against 12.1%)”. 226
Children with special educational needs and disabilities (SEND)
The World Health Organisation state that “disability can occur at three levels: an impairment in body function or structure” and can result in “a limitation in activity” and “a restriction in participation, such as exclusion from school or work”. 227 As such, “a child or young person is considered to have special educational needs if they have a disability or learning difficulty that means they need special educational provision”. 228 In this regard, and as noted above, special educational provision means “that the child needs support that would not generally be provided to a child of the same age in a mainstream school”. 229 As such, it is vital that children who fall into the category of SEND receive this support in order to have their right to access education vindicated and, importantly, so as not to face discrimination.
The general principle of inclusion underpins educational policy in most European jurisdictions, 230 but these legislative frameworks are not accompanied by effective measures to ensure the inclusive education of pupils with SEND. 231 MEOSZ in Hungary note “the overarching problem of education is that no strategy of action to create the conditions for inclusive education has been adopted”, 232 while civil society organisations in Estonia stated that “mainstream schools have a shortage of skilled teachers, support teachers and support specialists to make inclusive education a reality”. 233 The obstacles to education encountered by learners with additional needs have been well rehearsed in the case law 234 and the academic literature, 235 but as the Bulgarian Helsinki Committee reported to CERD, “some children with complex needs, severe forms of disability, or living in residential community-based services do not attend school at all.” 236 Likewise, the Working Group on the UPR reported that “only 15% of children with disabilities attended school in Greece”. 237 NGOs have highlighted that the practice of schooling children with SEND in segregated educational settings is widespread across Europe. 238 Of an estimated 500,000 school students with disabilities in Germany (2012/13), for instance, the German Institute for Human Rights indicated that 28% attended a mainstream school and 72% attended a special-needs school. 239 Although segregating children on grounds of their perceived or actual disabilities constitutes a violation of binding international human rights law, 240 in practice many children with SEND in Europe cannot claim their right to access high-quality education as schools lack accessibility, qualified staff, adequate textbooks and teaching tools, and the requisite funding to be adapted to their needs. 241
Moreover, and significantly in respect to accessibility and discrimination, the CRPD frames accessibility as a general principle rather than a human right, but it also includes the most robust prohibition on the exclusion of children (and adults) from educational opportunities based on their disability in international law. 242 However, the Belgian Disability Forum note that many children with disabilities in the French and Dutch-speaking regions of Belgium spend over 2 hours, 243 without appropriate support, on public transport every day, while the Croatian Union of Associations of Persons with Disabilities has documented that some rural Croatian families have been compelled to move to a large city so that their child with a disability could attend an accessible and inclusive school (e.g. families with deaf children) thus highlighting the discrimination faced by such children with disabilities. 244 Similarly, many children with special needs in Latvia have no special educational establishments available near where they live or, more broadly, in the administrative territory of their municipality. 245 These children primarily attend special boarding schools, where they reside until the school holidays, because the municipalities are reluctant to provide, or are incapable of providing, transportation to and from the nearest appropriate educational establishment. 246 Conversely, the Bulgarian National Network for Children recognised partial implementation of previous UPR recommendations to increase the quality of education for children, particularly in remote rural areas, but also maintained that “there is still a very large gap in the level of education in big and small schools, in big cities and small settlements”. 247
An inclusive education environment which is designed to ensure that children with SEND can participate fully in education on an equal basis with others must,
Additionally, critics point out that the introduction of inclusive education is significantly impeded in certain jurisdictions by societal resistance. 256 Stakeholders in Finland revealed that many students are transferred to special needs education classes because of ill-treatment by their teachers and peers, and pressure from the parents of other children, 257 while disability activists promoting inclusive education have been attacked in Romania. 258 An Irish study also found that children with SEND “are more likely to be bullied/victimised than children without SEND”, 259 while international research has shown that bullying behaviour is “particularly detrimental to students with additional needs who may already have a difficult learning history and prognosis”. 260 Even in jurisdictions where children with special educational needs are integrated into mainstream schools, parents report that inclusion does not work optimally and that accessible environments do not necessarily translate into enabling environments. 261 Respective Danish and Swedish NGO reports show, for instance, that pupils with SEND are under-performing when compared to pupils in mainstream education but still do not receive the support that they need in school. 262 A human rights approach to the formation and implementation of educational laws, policies and practices is thus crucial in ensuring that “appropriate educational provision is made for those with learning difficulties”. 263
Conclusion
While states were originally reluctant to give NGOs a significant role within the UN system, these organisations have carved out a niche for themselves over time – through their monitoring and reporting activities – in safeguarding and promoting the “less controversial” or “safer issue” of access to education. 264 True, the role and importance of NGOs differs “depending on the national context in which they operate”, 265 but this article has shown that civil society organisations, irrespective of the jurisdiction from which they derive, perform a vital role in highlighting the barriers that disadvantaged learners experience in accessing education in European states, bringing attention to alleged violations of this fundamental facet of the right to education by states, and by putting pressure on respective governments – via state reporting mechanisms such as the UPR and UN treaty monitoring bodies to change laws and policies to ensure equal access to quality education for all children. While it can frequently be difficult to establish the extent to which the official state recommendations reflect NGO perspectives, it appears that states share interests reflected by NGOs with respect to access to education and that NGO input greatly enhances and enriches the state reporting mechanisms. 266 In respect of the treaty monitoring process, for example, the Human Rights Committee has commented that “effective NGO engagement is crucial to maximise the impact and success of the review process. Information provided by NGOs helps the Committee to obtain a more complete picture of the human rights situation in the State under review”. 267 Moreover, research conducted by McMahon has confirmed that “official UPR State Recommendations do in fact reflect perspectives and themes” contained in NGO recommendations. 268 Of course, the impact of NGOs in the sphere of education is not limited to Europe. 269 The Bangladesh Government, for instance, has acknowledged the impact of the NGOs in the field of education, 270 while NGOs have been successful, through strategic engagement with the media, in placing girls’ education on the agenda in Uganda. 271 Put otherwise, NGOs in Europe and beyond have displayed a “genuine commitment to promoting educational issues, influencing education policymakers, encouraging initiatives, and increasing accountability”. 272
Yet despite the efforts of NGOs, there still remains an information deficit on the discriminatory practices and obstacles to high-quality education faced by certain disadvantaged learners in respective European states.
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Although the extensive and critical information furnished by civil society organisations to UN treaty bodies and the UPR facilitates an examination of the similarities and differences between European states, and assists in assessing compliance with the accessibility requirement of Tomasevski’s 4-A Scheme, it only provides part of the “educational picture”.
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In other words, these NGO submissions do not provide data in relation to children who are
Footnotes
Acknowledgements
We are grateful to the Irish Human Rights and Equality Commission (IHREC), Human Rights and Equality Grant Scheme, for funding this research and to Ali O’Connor and Amy Sloane for their research assistance.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: this work was supported by the Irish Human Rights and Equality Commission and Human Rights and Equality Grant Scheme (2018).
