Globalizing What: Education as a Human Right or as a Traded Service?

Introduction

Globalization tends to be described as an extralegal phenomenon.¹ This image does not apply to education for which there is international law, albeit composed of two parallel and disconnected legal regimes. International human rights law defines education as a human right; international trade law defines it as a service. ² International human rights law is older than the law on trade in services, and domestic educational laws tend to be even older.³ Most of these define education as compulsory and also as a right.⁴ Accordingly, they specify the corresponding governmental obligations. Large budgetary allocations for education reflect the legally defined extensive role of the state in education,⁵ and teachers are often the largest segments of the civil service.⁶ Against that role of the state in providing and/or financing education, globalization (defined as interaction across national borders unmediated by the state) fosters disengagement from education. The key facet of globalization, liberalization, is predicated on increasing the privatization of education,⁷ which demands decreased involvement of the state. In the 1990s, this facet was built into the international law on trade in services, resulting in two conflicting legal regimes for education. International human rights law mandates state intervention, requiring it to ensure, at least, free and compulsory education for all children. International law on trade in services legitimates the sale and purchase of education, excluding those who are unable to purchase it, thereby jeopardizing the key human rights requirements that at least primary education should be free and compulsory.

This article examines the practice of states in accommodating this legal duality of education. It focuses on the developing regions and countries in transition⁸ because the poverty of families, communities, and countries precludes access to education for many, if not most, unless education is free, namely provided or financed by the state. Its point of departure is international human rights law, which defines human rights—including the right to education—as universal. Its translation into reality would entail a minimum entitlement to education throughout the world, to be secured through international cooperation. Thereby governments would collectively comply with their human rights obligations. Consequently, globalization of education would be guided by a universal human rights obligation to ensure that education is free and compulsory for all school-age children in the world. However, the creation of international human rights law during the Cold War divided human rights into civil and political on the one hand, and economic, social, and cultural, on the other hand. Although education belongs in both categories, it also has been categorized as an economic, social, and cultural right. Its civil and political dimensions require respect of freedom; its social and economic dimensions mandate state provision and/or financing of education, while education as a cultural right often necessitates its affirmation as a collective right.⁹

For the majority of countries in the world that recognize economic, social, and cultural rights,¹⁰ the corresponding human rights obligations presuppose governments' willingness and ability to raise revenue and devote the maximum available resources to human rights. An important aim is to ensure that education is free at the point of use, at least for compulsory education. Therein originates the conflict of laws. While international human rights law recognizes every child's entitlement to free education, international trade law makes access to education dependent on the ability to pay.¹¹ Free trade does not have safeguards for the rights of the poor, least of all, for poor children. Hence, state intervention to safeguard free education for the millions of poor children necessitates corrective steps for the free market in education, facilitated by international cooperation. However, global development finance policies work in the opposite direction, as does trade in educational services.¹² These counterpoised pressures, especially upon the governments of poor, impoverished, or indebted countries, result in an increasing incidence of for-fee rather than free education. The phenomenon is not new; it was marked memorably by the United Nations International Children's Emergency Fund's (UNICEF) "Adjustment with a Human...