Standard 18: Law and Policy Formulation

International human rights law guarantees the right to education, as expressed in key human rights documents such as the UN Universal Declaration of Human Rights and the Convention on the Rights of the Child. The right to education encompasses both rights and entitlements including:

• the right to free and compulsory primary education
• the right to available and accessible secondary education, including TVET (made progressively free)
• the right to equal access to higher education on the basis of capacity (made progressively free)

All individuals have the right to live life and to learn without barriers, to be independent, and to participate fully in the community. Education plays a critical role in learners’ wellbeing and sense of normalcy. The right to education is also addressed in the 1951 Convention Relating to the Status of Refugees and the 2018 Global Compact on Refugees. The Compact emphasizes the need to include refugees in national education systems, and that partner states have an obligation to share the responsibility to protect and assist refugees and support host countries and communities. Education enables learners at all levels to develop their potential and individuality, makes them aware of their rights, teaches them to be respectful of the rights and cultures of others, and teaches them ways to protect the environment.

The Convention of the Rights of the Child states that children have the right to be consulted on decisions that affect them, to be treated with respect and without discrimination, and to know their legal and human rights. Advocacy and information sharing on the right to education are important to strengthen duty bearers’ understanding and recognition of these rights. These key rights, and the right to education during emergencies, are the focus of the 2010 UN General Assembly Resolution 64/290 on the Right to Education in Emergency Situations..

Education authorities should make sure that education reaches all learners in an equitable way, regardless of age, gender, sexuality, religion, ethnicity, language, socioeconomic background, location, displacement status, disability, or other factors. This may require policies and actions that actively address inequalities, disparities, and barriers to education access. Education policies should be responsive to the needs of all learners and prohibit discrimination and exclusion. The Global Compact on Refugees advocates for refugees to have equitable access to all levels of education. 

Under international humanitarian law that governs the conduct of hostilities, civilian learners and teachers and other education personnel are protected from attack, unless and for such time as they directly participate in hostilities. Schools and other learning environments are similarly considered civilian objects and thus protected against attack, unless they become military objectives. Even if they do become military objectives, all feasible precautions must be taken to avoid or at least minimize incidental harm to civilian learners, education personnel, and education facilities. Attacks expected to cause excessive harm to civilians or damage to civilian objects are prohibited. This protection is part of international humanitarian law and is binding on all parties to armed conflict, both government forces and non-state armed groups. UN Security Council Resolution 1612 (2005) outlines the six grave violations committed against children in times of armed conflict, which includes attacks on schools. The resolution is monitored annually through the UN-supported Monitoring and Reporting Mechanism.

National authorities and international stakeholders should support efforts to build this protected status into national law and practice, and to prevent the use of education facilities for military purposes. The Global Coalition to Protect Education from Attack, an inter-agency coalition established in 2010, monitors and profiles attacks made on schools through the Safe Schools Declaration, which was endorsed by well over one hundred states by 2023. It reflects states’ commitment to:

• Ensure that education can continue during violent conflict
• Follow the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict
• Collect data on attacks on education facilities
• Help victims in a non-discriminatory way

The Safe Schools Declaration is “an intergovernmental political commitment to protect learners, teachers, schools, and universities from the worst effects of armed conflict and its implementation is monitored.” In some cases, armed groups may target female teachers, learners, and girls’ schools for attack and sexual harassment. Endorsement and implementation of the Safe Schools Declaration can be a key step towards addressing violence in and around schools and protecting girls and young women and their access to education. Reporting mechanisms, such as the Monitoring and Reporting Mechanism, should systematically disaggregate reports of attacks on education by gender to better understand the gender dimension of these attacks at a global level.

When violence threatens education continuity and learner safety, advocacy to promote education, human rights, and adherence to international humanitarian law is a priority.

Governments should guarantee safe access to education through policies and systems that aim to protect the safety, health, and wellbeing of all learners and ensure continuity of education. This includes ensuring that school grounds are free from weapons and explosives, that routes to and from school are safe, and that buildings are reinforced and protected. Safety measures for learners and teachers on their way to and from the learning environment should consider their different protection needs related to age, gender, and disability, and should reflect the realities of different groups in the community, particularly vulnerable and marginalized groups. It is important to take measures to protect physical infrastructure in the learning environment from hazards and risks. Education stakeholders should ensure that teachers and other education personnel receive training in how to identify, mitigate, and respond to risks. Education authorities and other duty bearers should lead in establishing school safety systems, policies, and plans. Linking local school safety and improvement plans to operational planning at the sub-national and national levels is a key step to ensure that these efforts are sustained and funded (for more guidance, see Comprehensive School Safety Framework).

When choosing locations for schools and education facilities, education authorities and other education stakeholders should consider national, regional, and local knowledge of hazards and risks. Learning environments should be designed and built to be disaster resilient so that learners and teachers and other education personnel are safe. Schools and education facilities should not be used as shelters or evacuation centers. Developing and/or maintaining emergency preparedness plans is a key step to minimizing the use of education facilities as shelters during emergencies. If national authorities are unable to identify temporary solutions for shelters other than schools, then it will be important for them to work with education stakeholders and the community to agree on timeframes, identify alternative locations for learning, and budget the necessary funds to ensure that education facilities are returned in a usable or improved state.

National laws and policies should have action plans and budgets that enable a quick response to emergencies and ensure continuity of education. If there is no national ESP, or none that includes plans for emergencies, including accommodations for refugee and IDP learners, authorities should review other national action plans and find opportunities to create links with them and to source budgets dedicated to emergency response.

Where there is no national plan, education authorities can develop a TEP. It is important that policy-makers gather information and data on the state of the education system before developing a sector plan (see Guidance Note 6 below). Education authorities and partners should identify opportunities for cross-sectoral collaboration with other line ministries and national agencies, where they exist, including when sourcing data and developing the plan. A TEP, or any other emergency education plan, should do the following:

• Consider the status and implementation of existing national laws, standards, and policies, as well as international frameworks and commitments
• Show a commitment to the right to education for all learners
• Respond to the learning needs and rights of people affected by crisis
• Include steps to ensure access to quality education for all, with specific provisions for women, girls, and learners with disabilities
• Recognize refugees’ right to education
• Articulate the right to access lifelong learning opportunities, including ECD and post-secondary and higher education
• Integrate measures to protect the health, safety, and security of all learners
• Reflect the humanitarian-development-peacebuilding nexus, including longer-term measures to strengthen the education system, such as measures to adapt to climate change

Education authorities and partners can develop budgets and action plans in accordance with the TEP. Budgets and action plans should include an operational approach for programs linked to the TEP that outlines proposed activities, roles, responsibilities, costs, anticipated sources of funding, and a results framework. This helps to promote accountability among education authorities and partners in addressing the learning needs of people affected by crisis and meeting agreed-upon priorities.

To ensure that key education services are continued during crises, national authorities should make sure that education is integrated into national disaster preparedness frameworks. National and sub-national authorities from education, disaster management, child protection, finance and other relevant sectors should lead in establishing crisis-sensitive policies and plans, including school safety plans. Advocacy that targets national authorities on the life-saving and life-sustaining role of EiE can help ensure that it is included in national preparedness frameworks and plans (for more guidance, see Creating Change: Advocacy Toolkit for Education in Emergencies; Comprehensive School Safety Framework).

This is supported by the Sendai Framework for Disaster Risk Reduction 2015-2030, which highlights the importance of promoting and protecting all human rights while managing the risk of a disaster. The Sendai Framework recognizes that the state plays a central role in reducing disaster risk but that the responsibility should be shared with other stakeholders. The framework also emphasizes an all-of-society approach to ensure inclusive, accessible, and non-discriminatory participation, with special attention given to people disproportionately affected by disasters, particularly women, girls, and persons with disabilities. Preparedness frameworks should make explicit provisions for the participation of children, young people, and teachers and other education personnel in community response efforts.

Education laws and policies, including a TEP or other emergency education plan, should be based on an analysis of the context. They should reflect a thorough understanding of the social, economic, security, environmental, and political dynamics of the emergency context. This might include the immediate and longer-term effects the crisis will have on education, or the possibility that existing education policies and curricula or the exclusion of marginalized groups could increase tensions and conflict. Context analyses may include assessments of the conflict, human rights, and risk and emergency preparedness.

A context analysis should involve wide consultation with stakeholders at different levels of the education sector, including local and national actors, teachers unions, community leaders, and humanitarian and development partners. Education authorities and other education stakeholders should advocate for a context analysis as part of regular education sector reviews and reform processes.

It is important to develop laws, regulations, and policies based on reliable information. A national EMIS is central to this, as it makes it possible to store, aggregate, and analyze education data at all levels of an education system. The EMIS, which is usually managed by national education authorities, should be linked to information about areas and population groups that are vulnerable to particular types of emergencies, including displacement. An EMIS can be a useful entry point for strengthening the humanitarian-development-peacebuilding nexus and for promoting alignment, collaboration, and long-term planning. An EMIS that can be adapted to crises and risks should have the capability to track trends and collect comparable system-wide data that is useful for emergency preparedness, response, and recovery.

Developing, adapting, or upgrading an EMIS should be a collaborative process between education authorities and partners, including jointly identifying needs and establishing clear roles and responsibilities at each level. This will help build ownership over the long term and make it possible to use the EMIS during planning, decision-making, policy formulation, analysis, monitoring, and management at all levels of the education system. When certain geographic areas are not accessible or EMIS coverage is incomplete, other entities may be able to help, such as a national or regional bureau for statistics or partner agencies. Although it can be difficult to develop, upgrade, or adapt an EMIS during an emergency, doing so may be an opportunity to improve the function of the EMIS and to build back better.

Education provided by UN and non-state actors such as NGOs, civil society, and the private sector, can play an important role in supplementing the provision of education, especially for learners from marginalized and vulnerable groups (see the EiE Glossary for a definition of non-state actors). Support from non-state actors should align with the national ESP, and with other national plans, policies, strategies, and emergency preparedness or contingency plans. The host country is the main duty bearer and should ensure that non-state actors are able to­ set up agreed-to programs and facilities safely and quickly. This may include fast tracking visas or putting special customs arrangements in place for learning resources.

Global humanitarian actors should acknowledge any power imbalances that exist among global, national, and local actors and shift decision-making power to local actors as much as possible to ensure that the education activities are sustainable and locally led. All actors involved in the provision of EiE should coordinate their efforts to harmonize the delivery of programs and activities, and to ensure that access to them is equitable.

Private sector actors should also work within existing systems and be regulated by education or other authorities. As with all partners, the private sector should emphasize:

• The principle of do no harm
• Community participation
• Transparency, equity, and coordination
• Making an ongoing commitment to strengthen public education

The Abidjan Principles outline governments’ human rights obligations to regulate private involvement in education.