University of Minnesota




Authorities and Precedents in International and Domestic Law for the Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. OEA/Ser.L/V/II.110, Doc. 22 (2001).


 

Article IX. Education

1. Indigenous peoples shall be entitled: a) to establish and set in motion their own educational programs, institutions and facilities; b) to prepare and implement their own educational plans, programs, curricula and materials; c) to train, educate and accredit their teachers and administrators. The states shall endeavor to ensure that such systems guarantee equal educational and teaching opportunities for the entire population and complementarity with national educational systems.

2. When indigenous peoples so decide, educational systems shall be conducted in the indigenous languages and incorporate indigenous content, and they shall also be provided with the necessary training and means for complete mastery of the official language or languages.

3. The states shall ensure that those educational systems are equal in quality, efficiency, accessibility and in all other ways to that provided to the general population.

4. The states shall take measures to guarantee to the members of indigenous peoples the possibility to obtain education at all levels, at least of equal quality with the general population.

5. The states shall include in their general educational systems, content reflecting the pluricultural nature of their societies.

6. The states shall provide financial and any other type of assistance needed for the implementation of the provisions of this article.

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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