A Generation in Peril: The Lives of Tibetan Children Under Chinese Rule
II. Education

A.The International Legal Context: The Right to an Education

Article 28 of the CRC guarantees children the right to an education. Each state party undertakes to '[m]ake primary education compulsory and available free to all' and secondary education 'available and accessible to every child.' Tertiary education (college or professional school) must be accessible based on each child's aptitude. The CRC does not specify the exact content of education. It makes clear, however, that the educational process must be directed to '[t]he development of the child's personality, talents and mental and physical abilities to their fullest potential.' The CRC, in other words, establishes the child's well-being and growth, not the political interests of the state, as the principal goal of education.

Ethnic minorities enjoy enhanced educational rights under international law. This is significant for Tibetan children because China classifies Tibetans as one of its fifty-five so-called 'minority nationalities.' China is thus obligated to ensure that Tibetans enjoy the enhanced protections that 'ethnic, religious or linguistic minorities' receive under certain international treaties, including the CRC, which establishes the right of each 'minority' child 'to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.' UNICEF has noted that the collective implications of other provisions of the CRC (for example, those that prohibit discrimination and ensure respect for a child's cultural background) might appear to render this provision superfluous. Yet 'overwhelming evidence of serious and continuing discrimination against minority and indigenous populations justifies mention of their rights in a separate article.' Similarly, the U.N. Human Rights Committee, the body of experts that oversees implementation of the ICCPR, has commented that article 27 of the ICCPR confers upon individuals belonging to minority groups a right distinct from - and in addition to - rights specified in common for all persons elsewhere in the treaty.

In 1996, the CRC Committee's review of China's compliance led it to express 'deep concern in connection with violations of the human rights of the Tibetan religious minority.' With respect to education in particular, it noted 'that school attendance in minority areas, including the Tibet Autonomous Region, is lagging behind, that the quality of education is inferior and that insufficient efforts have been made to develop a bilingual education system which would include adequate teaching in Chinese. These shortcomings may disadvantage Tibetan and other minority pupils applying to secondary and higher level schools.' At the same time, the Committee suggested that China 'ensure that children in the Tibet Autonomous Region and other minority areas are guaranteed full opportunities to develop knowledge about their own language and culture as well as to learn the Chinese language.'

The right to an education falls within the class of economic, social and cultural rights. Traditionally, these rights have been understood as 'positive,' in the sense that they appear to require affirmative state action (as opposed to 'negative' rights, which generally prohibit state action in certain spheres; for example, restricting speech, barring free association or extracting confessions through torture). Consequently, economic, social and cultural rights are sometimes thought to depend more upon state resources than civil and political rights. But as the ICJ noted in its recent study, state obligations with regard to economic, social and cultural rights involve:

three aspects: (1) the obligation to respect not to violate the right directly by its actions; (2) the obligation to protect to prevent others from violating the right; and (3) the obligation to fulfill to take measures necessary to ensure the right.

A claimed inadequacy of resources may hinder a state's obligation to 'fulfill' the right to an education, but it seldom relieves a state of its obligation to 'respect and protect.' Moreover, if a state does take steps to 'fulfill' a right - for example, by mandating a free primary school education - it must do so on an equal basis, without discrimination of any kind.

B. Access to Education -->