What does the General Comment n° 21 has to tell us concerning education as a cultural right?

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In 1966, through Article 15 of the Covenant on Economic, Social and Cultural Rights, the International Community recognized Cultural rights as follows:

The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life”

Years later, the Committee on Economic, Social and Cultural Rights decided to draft a General Comment in order to provide for better accountability and defence of this right. Finally, in 2009, the Committee on Economic, Social and Cultural Rights (CESCR) released the General Comment no° 21.

Alfred Fernandez, former director of OIDEL, used to say that education is primarily a cultural right, but which role does education play within the framework of cultural rights according to the CESCR? To clarify this point, let us observe how the Committee has assessed this right.

It is first of all important to recall that according to the CESCR “the right of everyone to take part in cultural life is also intrinsically linked to the right to education, through which individuals and communities pass on their values, religion, customs, language and other cultural references” (par. 2).  In this regard, it must be emphasised that these rights play a crucial role in the protection of persons belonging to minorities and indigenous people (par. 3), however they apply to each “person as an individual, in association with others or within a community or group” (par. 9).

When considering the relation between the right to education and cultural rights, it is important to highlight that the latter present two dimensions. The first one is a freedom approach that concerns the non-interference of the state in the realization of this right. The second one encompasses positive actions that the state has to undertake to ensure the enjoyment, the participation and the promotion of these rights (par. 6). This second sphere ought to include financial measures (par. 52). These two dimensions should not be perceived as separated but rather as interdependent.

Among the three interrelated components of the right “to take part in cultural life”, there are two that relate specifically to the right to education, namely participation and access. “Participation” is understood as “choosing his or her own identity” and “to engage in one’s own cultural practice” (par. 15.a). “Access”, on the other hand, “covers the right of everyone to know and understand his or her own culture and that of others through education and to receive quality education training with due regard for cultural identity” (par.15.b). It is hard to imagine the accomplishment of these two dimensions without a proper realisation of the right to education.

Moreover, cultural rights share and the right to education share four of the five necessary conditions for the full realisation of the latter: availability, accessibility, acceptability and adaptability (par. 16). With regard to education, it is crucial that the State provides citizens who do not belong to the mainstream culture with the chance to enjoy their cultural rights, extending such opportunities to the following generations as well and promoting the acceptability and adaptability of these rights. In this respect, the General Comment no° 21 recalls Habermas, who encouraged to guarantee « to all citizens to have equal access to cultural contexts, interpersonal relationships and traditions to the extent that it is necessary for their development and the strengthening of personal identity» (J. Habermas, 2003, p. 12)[1]

It is also interesting to observe what the comment has to say about children. “Children play a fundamental role as the bearers and transmitters of cultural values from generation to generation”. In this regard, the General Comment reminds the States that “the fundamental aim of educational development is the transmission and enrichment of common cultural and moral values in which the individual and society find their identity and worth”. In this respect, culturally appropriate education must include human rights and has to “enable children to develop their personality and cultural identity and to learn and understand the cultural values and practices of the communities to which they belong” (par.26).

In addition to this, the document also mentions and clarifies the different obligations that non-state actors and international organisations have within the domain o education.

To conclude, states’ duties in the field of education can be summarized in two core obligations. First of all, to ensure that public educational systems are respectful and non-discriminatory towards the different cultures. Secondly, “to respect and protect the right of everyone to engage in their own cultural practices, while respecting human rights which entails (…) freedom to choose and set up education establishments” (par. 55.c).

Ignasi Grau

[1] J. Habermas (2003) De la tolerancia religiosa a los derechos culturales, in Claves de la Razón Práctica, n. 129, Madrid.

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