14 Right to education in international law

Prof. Nitin Gomber

epgp books

 

 

Introduction

The right to education is a human right that is classified as an economic, social and cultural rights. It was first declared an international human right in Article 26 of the Universal Declaration of Human Rights (1948) and subsequently protected in Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights (1966). The right to education is also protected by a range of other international and regional treaties.

This module will introduce students to the international human rights framework protecting the right to education, including the major international and regional instruments. It will also teach students how the right to education is protected with respect to minority and indigenous groups.

Learning Outcomes:

After completing this module, students should know and understand:

  • The major international treaties protecting the right to education
  • The American, African, and European regional frameworks on the right to education
  • Special protections for education of minority and indigenous groups

1. International Conventions on the Right to Education (RTE)

The right to education first gained recognition as an international human right in 1948. The Universal Declaration of Human Rights (UDHR), adopted by the United Nations (UN) General Assembly on 10 December 1948, included the right to education as one part of an indivisible and interdependent set of rights. Article 26 of the UDHR provides, “Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages.” Article 26 also states that elementary education should be compulsory and that technical and professional education should be made generally available. It also grants parents (not the government) the right to choose the sort of education that children receive.

The right to education became a legally enforceable human right through the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). Today, the ICESCR has 162 state parties. This comprises most of the world’s nation-states, with notable exceptions such as the United States.1 Article 13 of the ICESCR builds on Article 26 of the UDHR to enforce a number of education-related provisions on state parties. It provides that in addition to recognizing the right to education, state parties must take the following measures to ensure the full realization of this right:

  • Primary education shall be compulsory and available free to all;
  • Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
  • Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
  • Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;
  • The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

Article 13(3) requires the state to allow parents to decide the sort of education their children receive. This is similar to Article 18 of the International Covenant on Civil and Political Rights (ICCPR). It requires state parties “to have respect for the liberty of parents, or legal guardians, to ensure the religious and moral education of their children in conformity with their own convictions.” Article 13(4) of the ICECSR further prohibits states from interfering in the right of individuals to establish and direct their own educational institutions.

Article 14 of the ICESCR requires those states that do not provide free primary education when they become parties to the Convention to develop a plan to provide compulsory free education within two years. This must be a detailed plan towards the “progressive realization” of this right in a “reasonable number of years.” Thus, while states have some flexibility in their education policies, they must take concrete steps towards providing free compulsory education for all primary school students.

Several other international instruments recognize and protect the right to education. Article 10 of the Convention on the Elimination of all forms of Discrimination Against Women (1981) requires state parties to take all appropriate measures to eliminate discrimination against women and to ensure that men and women have equal rights in the field of education. Article 28 of the Convention on the Rights of the Child (1989) recognizes the right of children to education. It calls on states to take measures to reduce dropout rates of students and provide financial assistance and other incentives to ensure that all children attend school. The Convention on the Protection of the Rights of All Migrant Workers and Members of their families (1990) protects the right to education of children of migrant workers (Article 30) as well as requiring equal access for migrant workers to the educational institutions and vocational training provided by the state (Article 43). Finally, Article 24 of the Convention on the on the Rights of Persons with Disabilities (2006) requires state parties to recognize the right of persons with disabilities to education and to ensure that persons with disabilities are not excluded from the general education system.

Thus, the right to education enjoys broad recognition and protection under international law. It is important to note, however, that it is generally classified as an economic, social and cultural rights (ESCR) and therefore subject to progressive realization. As Article 2 of the ICESCR makes clear with respect to all ESCRs, state parties are obligated only to “undertake to take steps” to the “maximum of available resources” to progressively realize these rights. The right to education has both “negative” and “positive” aspects. States must refrain from dictating the sort of education children should receive; this is left to parents (or guardians). They are also prohibited from interfering with the right of individuals to establish and direct their own educational institutions. Finally, the state must not discriminate on any basis – including sex, disability or immigration status – in providing educational opportunities. In terms of positive obligations, states must provide compulsory education to primary schoolchildren and must ensure equal access to all educational opportunities, including higher education as well as technical and professional education. As will be discussed in Part III of this module, the state must also respect the rights of religious, cultural and other minorities to have separate educational institutions and curricula.

Regional Frameworks on the Right to Education

The right to education is an internationally recognized human right protected by a range of global multilateral treaties. These instruments are supplemented by various regional treaties and non-binding agreements. This section examines the American, African and European regional frameworks on the right to education and seeks to explain the basic structure of each framework.

The American Framework

Americas was the first region to recognize the right to education. In 1948, prior to the announcement of the UDHR, the Ninth International Conference of American States set forth the American Declaration of the Rights and Duties of Man. Like the UDHR, the American Declaration was not originally a binding statement of rights, but it has come to be interpreted as containing enforceable obligations against the members of the Organization of American States (OAS). All 35 independent countries of the Americas (North, Central and South America) are members of OAS and are therefore bound by the provisions of the American Declaration.3 Article XII of the American Declaration declares that every person has the right to education. This includes a right to free primary education and to equality of opportunity in education.

The 1969 American Convention on Human Rights also contains some protection of the right to education. Unlike the American Declaration, the Convention is a binding instrument that requires ratification before obligations can be imposed on state parties. It has 25 state parties, meaning that several countries, including the United States and Canada, have not ratified it. Article 12 Convention builds on the ICESCR and ICCPR to protect the right of parents to choose the “religious and moral” education of their children in accordance with their own beliefs. Article 26, entitled “Progressive Realization”, requires states to undertake to adopt measures towards the full realization of educational standards set forth in the OAS Charter.

The most comprehensive protection of economic, social and cultural rights in the Inter-American system can be found in the Protocol of San Salvador to the American Convention. It protects a full range of rights including the rights to work, health, food and social security. It has been ratified by 16 states and came into force in 1999.5 Article 13 of the Protocol declares a general right to education and further specifies that state parties must undertake to provide compulsory primary education, to make secondary and higher education generally available and accessible without discrimination, and to put in place special programs to fulfil the educational needs of the physically and mentally disabled.

The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights are the primary enforcement mechanisms in this regional framework.

The African Framework

The African Charter on Human and Peoples’ Rights (1981) is the primary regional human rights instrument covering the African continent. It has been ratified by 53 States, which includes every country on the continent with the exception of South Sudan.7 Article 17(1) of the African Charter declares that every individual shall have the right to education. Interestingly, Articles 17(2) and 17(3) include cultural rights with respect to education, which indicates the importance of regional values in the drafting of the Charter. Article 17(2) protects the right of everyone to freely take part in the cultural life of the community, while Article 17(3) obligates the state to promote and protect the “morals and traditional values” recognized by the community.

The African Charter sets forth a dual enforcement structure, much like the Americas. Part II of the Charter establishes the African Commission on Human and Peoples’ Rights to research and promote human rights issues in Africa. The Protocol to the Charter (2004) establishes the African Court on Human and People’s Rights, which is empowered to issue binding judgments against member states.

The African Charter on Human and Peoples’ Rights is supplemented by a range of other regional instruments. Each of these instruments protects the right to education with respect to specific groups. For instance, Article 11 of the African Charter on the Rights and Welfare of the Child (1990) recognizes the right of every child to free and compulsory education. The African Youth Charter (2006) reaffirms this right to primary education and further calls upon states to make secondary education more widely available and to progressively work towards providing it free of cost. Article 12 of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (2003) requires parties to “take all appropriate measures to guarantee equal opportunity and access in the sphere of education and training to women and eliminate all stereotypes in textbooks, syllabuses and the media that perpetuate discrimination against women.” State parties must also include gender sensitization and human rights education in the curricula at all levels of education. Finally, Article 9.2 (b) of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (2009) requires states to provide internally displaced persons with adequate humanitarian assistance, which includes education.

The European Framework

The principal European regional human rights instrument is the 1950 European Convention on Human Rights (ECHR). However, the ECHR only enumerates civil and political rights and contains no provision recognizing or protecting the right to education. Protocol 1 to the ECHR for the Protection of Human Rights and Fundamental Freedoms attempts to fill this gap. Article 2 of the Protocol provides that no person shall be denied the right to education and requires states to respect the right of parents to educate their children in line with their own religious and philosophical beliefs. The Protocol has been ratified by 45 out of the 47 member states in the Council of Europe; the exceptions are Monaco and Switzerland. Note that the Protocol does not impose any “positive obligations” on member states. There are no provisions, for instance, requiring free primary education or greater availability and access to higher, professional or technical education. The Protocol is enforced by the European Court of Human Rights.

The European Social Charter (adopted in 1961, revised in 1996) goes much further than Protocol 1 to the ECHR in requiring states to adopt a range of measures to fully realize the right to education. It includes states obligations to provide vocational training on the basis of merit (Article 7), enact necessary measures to ensure that disabled persons have access to education and vocational training (Article 15), and to institute free primary and secondary education for all children and young persons (Article 17).

The European Social Charter therefore provides the most robust and comprehensive protection of the right to education of any of the regional instruments discussed. It has been ratified by 43 out of 47 members of the Council of Europe. It is supplemented by the European Union (EU) Charter of Fundamental Rights, which has binding force on all 27 members of the EU. Article 14 of the EU Charter provides that everyone has the right to education as well as vocational and continuing training. This includes the right to free compulsory education. The European Committee of Social Rights enforces the European Social Charter.

Recently, the European Union adopted the EU Charter of Fundamental Rights, which has a binding effect on all member states since 2009. Courts are empowered to strike down any EU or domestic laws that violate this Charter. Article 14 of the Charter establishes a right to education, which unlike Article 2 of the Protocol, places affirmative obligations on European states to provide education to all citizens. For instance, Article 14 (1) states, “Everyone has the right to education and to have access to vocational and continuing training”, while Article 14(2) provides, “This right includes the possibility to receive free compulsory education.”

III. Special Protections for Minorities and Indigenous Groups

Thus far, we have discussed the right to education as an economic and social right. While it undoubtedly has these dimensions – including the capacity for socioeconomic advancement and greater societal integration – it also contains important cultural dimensions. Education is an important means through which to preserve minority languages, traditions and practices. There are therefore several international instruments that provide special protections to minority and indigenous groups with respect to the right to education.

The United Nations Education, Scientific and Cultural Organization (UNESCO) Convention against Discrimination in Education (1960) was the first significant international instrument on this issue. Article 1 of the Convention prohibits member states from depriving any person of access to education as well as limiting any person to inferior standards of education. Article 2, inter alia, allows for the establishment of separate institutions for “religious or linguistic” reasons but ensures that such institutions meet minimum educational standards and that those attending do so only with consent. In addition, private schools are permitted but also must not aim to exclude any group. This Convention is a binding instrument of international law and has 101 state parties.

The Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (1992) is a non-binding instrument adopted by the UN Commission on Human Rights and the UN General Assembly. Article 4 of the declaration requires states to take measures to encourage knowledge of the history, traditions, language and culture of their minority groups. It further provides that states should take appropriate measures to linguistic minorities to learn their mother tongue.

On a regional level, the European Charter for Regional or Minority Languages (1992) and the Framework for the Protection of National Minorities (1995) reinforce many of the provisions in the above two instruments. Article 8 of the 1992 Charter, adopted by Council of Europe, requires state parties to make all levels of education available in regions and for minority groups that do not speak the majority language. Article 12 of the 1995 Framework, also adopted by the Council of Europe, requires parties to undertake the promote equal access to educational opportunities at all levels for national minority groups. Article 13 requires parties to recognize that persons belonging to national minorities have the right to their own educational establishments.

International law also provides special protection for the educational rights of indigenous peoples. International Labor Organization (ILO) Convention No. 169, Concerning Indigenous and Tribal Peoples in Independent Countries (1989), requires member states to take special measures to ensure equal educational opportunities to indigenous peoples. Article 21 grants members of indigenous communities the right to enjoy vocational training opportunities “at least equal” to those of other citizens. Article 26 requires state parties to take measures to ensure that indigenous peoples have the opportunity to receive equal education at all levels, while Article 27 recognizes the right of these people to establish their own educational institutions.

The Declaration on the Rights of Indigenous Peoples (2007), a non-binding instrument adopted by the UN General Assembly, grants indigenous people a substantial degree of independence in their educational pursuits. Article 14 provides that indigenous people have the right to “establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning…States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, to have access to an education in their own culture and language.” Article 21 further provides that indigenous peoples have the right to the improvement of their economic and social conditions, which includes education, vocational training, and retraining.

Summary

The right to education is classified as an economic, social and cultural rights. First recognized in international law by the Universal Declaration of Human Rights, it is now protected by a range of binding international instruments including the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to education has both “negative” and “positive” aspects. States must refrain from discrimination in providing educational and vocational opportunities as well as give parents the discretion to decide the sort of education (public, private, religious, etc.) their children receive. States must also undertake to provide free, universal primary education and to improve access to higher education and vocational training.

On the regional level, the right to education is recognized and protected in the Americas, Africa, and Europe. The European framework is the most comprehensive as Protocol 1 to the European Convention on Human Rights and the European Social Charter have been ratified by most European states and provide robust monitoring and enforcement.

Finally, there are several instruments providing for special minority protections with respect to the right to education. For instance, the UNESCO Convention Against Discrimination in Education and the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities require states to treat minority groups equally in providing educational opportunities and to take affirmative measures to promote knowledge of local history and culture as well as to provide education in the local mother tongue. Meanwhile, other instruments – such as the Declaration on the Rights of Indigenous Peoples – protect the rights of indigenous people to have equal access to educational opportunities and to preserve their own culture and traditions by setting up their own educational institutions.

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  • United Nations Treaty Collection: International Covenant on Economic, Social and Cultural Rights, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en – EndDec.
  • International Covenant on Economic, Social and Cultural Rights, art. 13(2).
  • Organization of American States, Member States, available at: http://www.oas.org/en/about/member_states.asp/.
  • Inter-American Commission on Human Rights, American Convention on Human Rights, available at: https://www.cidh.oas.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm.
  • Organization of American States, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights: Signatories and Ratifications, available at: http://www.oas.org/juridico/english/sigs/a-52.html/
  • African Commission on Human and Peoples’ Rights, African Charter on Human and Peoples’ Rights, available at: http://www.achpr.org/instruments/achpr/#a17.
  • Council of Europe Treaty Office, Protocol to the Convention for the Protection of Human Rights and               Fundamental                Freedoms,               CETS               No.: 009,               available               at: http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=009&CM=8&DF=25/09/2014 &CL=ENG.
  • Council of Europe, Member States of the Council of Europe and the European Social Charter, available at: http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/Overview_en.asp.
  • European Commission, EU Charter of Fundamental Rights, available at: http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm.
  • Official Journal of the European Union, Charter of the Fundamental Rights of the European Union, (2010/C 83/02), 30 March 2010.
  • UNESCO, Convention against Discrimination in Education. Paris, 14 December 1960, available at: http://www.unesco.org/eri/la/convention.asp?KO=12949&language=E.