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Promoting access to quality, safe, and relevant education for all persons affected by crisis

Regulating private actors in education – also in emergencies!

8 April 2019

by Peter Hyll-Larsen, INEE Advocacy Coordinator

Last month saw the publication of The Abidjan Principles on the human rights obligations of States to provide public education and to regulate private involvement in education. This is certainly a pretty big deal in the realm of international human rights law and education in development, and it should also be a very welcome advancement in the world of international humanitarian law and education in emergencies.

But to be better at regulating private involvement also in our field we have some work ahead of us…

The Abidjan Principles will no doubt become one of the landmark reference points for understanding the right to education and the involvement of private actors. Providing crucial guidance to governments, education providers, human rights practitioners, scholars and other entities involved, the Principles are intended to directly inform education policies and decision makers. They identify and unpack the existing obligations of States under international human rights law to provide quality public education and to regulate private involvement in education.

This is an issue that deservedly is gaining significant attention in international education and human rights circles. Not least due to the tireless work of a some dedicated organisations, including INEE’s partner Right to Education Initiative, as well as Amnesty International and the Global Initiative for Social and Economic Rights, who have all been quite vocal in debates about public and private education, following the significant increase in private schools and PPPs (Public-Private Partnerships in education) that has taken place in the last two decades. And these organisations, plus many more, including INEE, have contributed to the drafting of the Abidjan Principles over the last 3 years and hence to create this rigorous legal framework detailing States’ existing legal and binding obligations.

The education in emergencies community, which simultaneously overlaps and differs significantly with the education in development community, must now take a close look at these Abidjan Principles. We need to be inspired by them in how we initiate and take further our own debate and actions on this issue. And we must identify – and call out if need be! - those private actors who step in, undermine and/or de-facto take over States’ duties and responsibilities, whether in camp settings and amongst the internally displaced, in times when the State is unable to fulfil its role and/or incapable to regulate the private actor - or when the State itself may be the source of violence and conflict.

The Principles clearly acknowledge the issue of emergencies and confirm very clearly in its Article 12 that “the right to education must be guaranteed even in times of public emergency and armed conflict.” And at the end of the document it specifies the nature of obligations pertaining to international organisations, which of course is particularly relevant, as noted above, in times when the State itself cannot or will not – or should not! – take on the duty of providing education: “International organisations should meet the obligations related to the right to education under, inter alia, general international law and international agreements to which they are parties. They should ensure that their conduct is aligned with these Guiding Principles” (article 96). And further: “Specialised agencies of the United Nations, regional organisations, and other development actors are encouraged to support the implementation of these Guiding Principles, in addition to the human rights obligations they may be subject to under international human rights law. Such support may include technical cooperation, financial assistance, institutional capacity development, and knowledge sharing” (article 97).

Thus, such development actors who are active in providing education in emergencies must analyse what their respective obligations and duties are, in order to prevent exploitation of education by privateers, and hence to not create inadvertent harm, now and in the long run for those rights holders who all remain when the rest of us go home.

Why are PPPs alarming, you might ask? What’s so wrong with PPPs? They often look benign and seem like a sensible and logical ‘temporary’ option in a tight spot and in times of dwindling funding and austerity. However, a recent report from Eurodad points to a number of pitfalls and potential dangers: in the long run, public-private partnerships are often more expensive for ministries of education than the direct delivery of public services and in almost all cases the public sector ends up assuming a much higher level of risk than the private sector in PPPs. Furthermore, non-compliance and accountability should be a concern, because whereas ministries and governments are expected to step in if things go wrong, private education actors often tend to walk away with near impunity.

Additionally, many PPPs in education in emergency contexts often suffer from low transparency and limited public scrutiny, which undermines accountability and means that governments are failing in their obligation to respect and protect education rights. Affected populations are not asked and contracts are not made public. Public sector actors are rarely well prepared for the complex negotiations involved in setting up PPPs and often draw on (expensive!) private consultants to advise them or to lead on collecting data - thereby becoming at risk of feeding a vicious circle of self-fulfilment. And lastly, regulating private providers is a core State responsibility, yet it is often unrealistic for developing countries, let alone countries in emergency or crisis, to put effective regulation in place, or to fully enact it – the power dynamics are often too skewed. Ultimately, although most of these private undertakings are proffered as temporary, many education interventions in crisis contexts are tied to ‘a logic of irreversibility’. That is to say that these ‘solutions’ are developed and mobilised not as extraordinary emergency measures but to endure in the long run.

All of these issues around RISK, TRANSPARENCY, REGULATION, COSTS, ACCOUNTABILITY and POWER are very real … and we haven’t even mentioned the QUALITY of education yet. Or that education must be FREE and COMPULSORY.

It is of course true that there are many private actors, foundations, and philanthropies who genuinely want to do good, but it is important that they and their donations (financial or technical) are regulated by the State or the UN, and that public systems do not come to rely on them unduly.

It is also important to acknowledge that private involvement comes in many shapes and forms, and just as some may be more benign and well-intentioned, and not designed to garner profit or to disrupt (and hence not to create new markets), there are also some that are more sneaky and blurry … and here I think primarily of our collective fascination with information technology, which is also making major inroads into education in emergencies. There is much assistance and inspiration to be had from new and innovative solutions, including: web-based curricula, online digital learning platforms and courses, tablet and handset distribution including online curriculum, apps with educational content, vocational training in technology, the development of new operating systems, programming for mobile phones, portable wi-fi hubs for use in schools and remote locations, and gaming technology with educational content, etc., etc. But a screen can never replace a real teacher or a book, as also this study confirms, and sometimes there is no electricity or internet, no-one to repair when the gadgets break down, and sometimes tech companies offer half-baked solutions that reek of free field testing on unsuspecting and needy refugee populations. These tests, of hard- or software, will then later inform new gadgets sold for profit in High Street stores. Are we good enough at spotting and avoiding this? I don’t think we are yet.

It behooves the education in emergencies community as a whole to come together, and to move on this actively. Because in many ways the appearance of unregulated private providers and private supply chains is an even bigger threat to the provision of safe quality education in emergencies. In these circumstances, oversight, transparency, and accountability are less assured, due to needs of expediency and urgent humanitarian action, and because the State is not always there to regulate, and to protect, respect and fulfil.

What will it all mean in practice for the education in emergencies community? First of all, education in emergencies organisations need to formally endorse the principles (see here), actively showing that this is an issue of concern to all of us and that these Principles, though non-binding and only guiding, represent an extremely useful tool for policy formulation and for advocacy.

We then need to come together and on the basis of reliable data and evidence carefully discuss what the major threats (and opportunities as well!) are around private actor’s involvement within education in emergency settings. Such a discussion is likely to reveal a lot of very interesting perspectives, probably very much in line with those issues identified above and to which the Abidjan Principles speak. All of this can then also be used as a crowbar to continue to raise the more general awareness of the framework and legal guidance that surrounds the human right to education in emergencies.

One concrete output of this can be a companion piece to the Guiding Principles, highlighting issues that are of particular concern in emergencies, and unpacking in particular the humanitarian law and refugee law provisions pertaining to education, non-discrimination and the duties of State, armed forces or occupying powers. Another is a close alignment to the INEE Minimum Standards, themselves based on human rights, and other core humanitarian standards, guidelines and principles under which education in emergencies actors operate.

It seems obvious that the initiative for and coordination of this work must come from INEE and the various networking spaces and working groups within INEE, in close collaboration with INEE’s main partners in academia as well as in the Global Education Cluster and the Education Cannot Wait fund.

The views in this blog post are the author’s own. A big thanks to David Archer and Amber Heuvelmans for inspiration and additional suggestions.