The Abidjan Principles are not an accurate statement of the requirements of international law
The right to education
GSF believes passionately in the right to education. It is the fulfilment of this right that drives us and our members every day. Consistent with international human rights law, we believe that governments should be the guarantors of that right. But international human rights law is also crystal clear that governments should determine the best way to provide education — whether through public provision, private provision or a combination of both. It also specifically protects the liberty of actors to provide education services and the liberty of parents to choose schools other than government schools for their children.
What are the Abidjan Principles?
‘The Abidjan Principles on the human rights obligations of States to provide public education and to regulate private involvement in education’ are a set of principles compiled over 3 years, signed by 57 individuals (not states). The process of compilation and dissemination has been managed by a Secretariat of five organisations – all with active campaigns against ‘education privatisation’ – and has not included representation of private providers nor their membership bodies. Given this, the Abidjan Principles can have limited claims to impartiality.
According to their architects: “The Abidjan Principles promises to be the new reference point for governments, educators and education providers when debating the respective roles and duties of states and private actors in education. They compile and unpack existing legal obligations that States have regarding the delivery of education, and in particular the role and limitations of private actors in the provision of education.” (Abidjan Principles website). They Principles are “…intended to be used at the local, national, regional, and international levels to inform discussion, advocacy, law and policy development, and litigation” (Right to Education website). They claim to interpret human rights law across six domains: (i) general provisions, (ii) state obligations, (iii) private involvement, (iv) financing, (v) accountability, and (vi) implementation and monitoring.
Why are the Abidjan Principles important?
International human rights law governs and shapes international normative agreements, international agency policies and practice, as well as national legislation, policies and practice. While the Abidjan Principles are not new law, they purport to interpret law and therefore have legal force. With enough citations, which they are accumulating at speed, they can arguably become ‘soft law’ or ‘customary law’ with accompanying legal force. They are backed by a large advocacy infrastructure at national, regional and global levels. On current trajectory, they risk being converted into: (i) national legislation and policies that constrain operating space for non-state actors well beyond the parameters of international human rights law, and (ii) international normative agreements (e.g. UN declarations and agreements) and international agency policies that do likewise.
How has GSF engaged with the Abidjan Principles?
In October 2018, GSF commissioned a law firm to review the then ‘Guiding Principles’ which had been circulated for external consultation. We believe that our input resulted in a reconsideration of several key clauses. At the signing of the Abidjan Principles in February 2019, the Secretariat made it known that the detailed legal justification of the Principles would be published, to demonstrate their justification and to enable their scrutiny by legal experts and policy-makers. Almost two years later, this legal basis has not been published. GSF therefore commissioned our own legal opinion on the Abidjan Principles from an international human rights lawyer: Ben Emmerson QC, a former UN Special Rapporteur on Human Rights and Counter-Terrorism and Appeals Chamber Judge of the UN Mechanism for International Criminal Tribunals.
Are the Abidjan Principles an accurate representation of international human rights law?
Mr Emmerson concluded as follows: “The Abidjan Principles are not an accurate statement of the requirements of international law…They enshrine a strong bias against private provision. The document is deeply ideological in content. It is certainly not a legal document, and it would be wrong to view the principles as soft law standards which ought to restrict the funding options of states or international development organisations.” The legal opinion identifies four specific areas in which the Abidjan Principles mis-represent international human rights law. These areas are described below with the corresponding legal opinion from Mr Emmerson’s report in italics.
- The assertion that states must prioritise public provision of education: “Neither the treaties nor the relevant jurisprudence seek to prescribe the means by which a State fulfils the right to education, nor do they require that provision is exclusively via public educational institutions.”
- An insistence on excessive regulatory requirements with no basis in international human rights law, and that may effectively limit education provision:“The Abidjan Principles provide that States are only permitted to fund non-State operators in circumstances where they meet a series of substantive, procedural and operational requirements, including that they match the salaries paid to teachers in public educational institutions and hand over all of their intellectual property and data to the State (Principles 65 to 73 in particular). There is, as far as I am aware, no basis in International Human Rights Law for such an obligation – it is certainly not evident in the relevant treaty provisions nor jurisprudence of the relevant treaty bodies.”
- The assertion that donors must prioritise funding public education: “There is no discernible basis under International Human Rights Law for the position adopted in Abidjan Principle 38 that donor States, whether acting on a bilateral basis or through an international organisation, must prioritise public, as opposed to non-State provision nor the provision of secondary education which is free.”
- The assertion that states have a legal obligation to set education budgets at a particular level: “The second sentence, relating to funding commitments, belongs to the realm of policy, not International Human Rights Law. There is no support for the existence of such a specific obligation in the relevant treaties or jurisprudence.”
What next?
We hosted a webinar to discuss the Abidjan Principles and Mr Emmerson’s legal opinion with GSF members and supporters on 18th November, supported by a presentation. We sent a letter to the Secretariat of the Abidjan Principles on 26th November, including the full legal opinion. Our hope going forward is that that the Abidjan Principles are revised to be an accurate reflection of international human rights law; and that they are not used as part of campaigns to constrain the rights of sovereign states to work with non-state providers of education, including through public-private partnerships.
At GSF, we don’t believe that private education is better than public education. But we do believe that the non-state sector can complement and support government provision of basic education — when invited to do so — and also bring new ideas, funding and energy to the sector. And we believe fiercely in the importance of an accurate and non-partisan representation of international human rights law. Our legal opinion is clear that the Abidjan Principles is neither of these things.