The right to education is recognised as a human right and is understood to establish an entitlement to free, compulsory primary education for all children, an obligation to develop secondary education accessible to all children, as well as equitable access to higher education, and a responsibility to provide basic education for individuals who have not completed primary education. In addition to these access to education provisions the right to education encompasses also the obligation to eliminate discrimination at all levels of the educational system, to set minimum standards and to improve quality.[1]
The right to education is enshrined in Article 26 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Economic, Social and Cultural Rights.[2][3] The right to education has also been reaffirmed in the 1960 UNESCO Convention against Discrimination in Education and the 1981 Convention on the Elimination of All Forms of Discrimination Against Women.[4]
The right to education may also include the right to freedom of education.[citation needed]
Education narrowly refers to formal institutional instructions. Generally, international instruments use the term in this sense and the right to education, as protected by international human rights instruments, refers primarily to education in a narrow sense. The 1960 UNESCO Convention against Discrimination in Education defines education in Article 1(2) as: "all types and levels of education, (including) access to education, the standard and quality of education, and the conditions under which it is given."[5]
In a wider sense education may describe "all activities by which a human group transmits to its descendants a body of knowledge and skills and a moral code which enable the group to subsist".[6] In this sense education refers to the transmission to a subsequent generation of those skills needed to perform tasks of daily living, and further passing on the social, cultural, spiritual and philosophical values of the particular community. The wider meaning of education has been recognised in Article 1(a) of UNESCO's 1974 Recommendation concerning Education for International Understanding, Co-operation and Peace and Education relating to Human Rights and Fundamental Freedoms.[7] The article states that education implies:
"the entire process of social life by means of which individuals and social groups learn to develop consciously within, and for the benefit of, the national and international communities, the whole of their personal capabilities, attitudes, aptitudes and knowledge."[8]
The European Court of Human Rights has defined education in a narrow sense as "teaching or instructions... in particular to the transmission of knowledge and to intellectual development" and in a wider sense as "the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young."[9]
The fulfilment of the right to education can be assessed using the 4 As framework, which asserts that for education to be a meaningful right it must be available, accessible, acceptable and adaptable. The 4 As framework was developed by the former UN Special Rapporteur on the Right to Education, Katarina Tomasevski, but is not necessarily the standard used in every international human rights instrument and hence not a generic guide to how the right to education is treated under national law.[10]
The 4 As framework proposes that governments, as the prime duty-bearer, has to respect, protect and fulfil the right to education by making education available, accessible, acceptable and adaptable. The framework also places duties on other stakeholders in the education process: the child, which as the privileged subject of the right to education has the duty to comply with compulsory education requirements, the parents as the ‘first educators’, and professional educators, namely teachers.[11]
The 4 As have been further elaborated as follows:[12]
In Europe, before the Enlightenment of the eighteenth and nineteenth century, education was the responsibility of parents and the church. With the French and American Revolution education was established also as a public function. It was thought that the state, by assuming a more active role in the sphere of education, could help to make education available and accessible to all. Education had thus far been primarily available to the upper social classes and public education was perceived as a means of realising the egalitarian ideals underlining both revolutions.[17]
However, neither the American Declaration of Independence (1776) nor the French Declaration of the Rights of Man (1789) protected the right to education as the liberal concepts of human rights in the nineteenth century envisaged that parents retained the primary duty for providing education to their children. It was the states obligation to ensure that parents complied with this duty, and many states enacted legislation making school attendance compulsory. Furthermore child labour laws were enacted to limit the number of hours per day children could be employed, to ensure children would attend school. States also became involved in the legal regulation of curricula and established minimum educational standards.[18]
In On Liberty John Stuart Mill wrote that an "education established and controlled by the State should only exist, if it exists at all, as one among many competing experiments, carried on for the purpose of example and stimulus to keep the others up to a certain standard of excellence." Liberal thinkers of the nineteenth century pointed to the dangers to too much state involvement in the sphere of education, but relied on state intervention to reduce the dominance of the church, and to protect the right to education of children against their own parents. In the latter half of the nineteenth century, educational rights were included in domestic bills of rights.[19] The 1849 Paulskirchenverfassung, the constitution of the German Empire, strongly influenced subsequent European constitutions and devoted Article 152 to 158 of its bill of rights to education. The constitution recognised education as a function of the state, independent of the church. Remarkable at the time, the constitution proclaimed the right to free education for the poor, but the constitution did not explicitly require the state to set up educational institutions. Instead the constitution protected the rights of citizens to found and operate schools and to provide home education. The constitution also provided for freedom of science and teaching, and it guaranteed the right of everybody to choose a vocation and train for it.[20]
The nineteenth century also saw the development of socialist theory, which held that the primary task of the state was to ensure the economic and social well-being of the community through government intervention and regulation. Socialist theory recognised that individuals had claims to basic welfare services against the state and education was viewed as one of these welfare entitlements. This was in contrast to liberal theory at the time, which regarded non-state actors as the prime providers of education. Socialist ideals were enshrined in the 1936 Soviet Constitution, which was the first constitution to recognise the right to education with a corresponding obligation of the state to provide such education. The constitution guaranteed free and compulsory education at all levels, a system of state scholarships and vocational training in state enterprises. Subsequently the right to education featured strongly in the constitutions of socialist states.[21]
International law does not protect the right to pre-primary education and international documents generally omit references to education at this level.[22] The Universal Declaration of Human Rights states that "everybody" has the right to education, hence the right accures to all individuals, although children are understood as the main beneficiaries.[23]
The rights to education are separated into three levels:
Both secondary and higher education shall be made accessible "by every appropriate means, and in particular by the progressive introduction of free education".[24] The only country that has declared reservations about introducing free secondary or higher education is Japan.[25]
Today education is considered a important public function and the state is seen as the chief provider of education through the allocation of substancial budgetary resources and regulating the provision of education. The pre-eminent role of the state in fullfilling the right to education is enshrined in the 1966 International Covenant on Economic, Social and Cultural Rights. Traditionaly, education has been the duty of a child's parents, however with the rise of systems of education, the role of parents has diminished.[26] With regards to realising the right to education the World Declaration on Education for All, adopted at the 1990 World Conference on Education for All states that "partnerships between government and non-governmental organisations, the private sector, local communities, religious groups, and families" are necessary.[27]
When someone has a right, someone else (primarily the state, but also the International community, see ICESCR Art.2[28], and CRC Art.4[29]) has a duty to respect, protect and fulfil these rights. Understanding the actors and the relationship between right holder and duty bearer is one of the most important issues in human rights.[30]
DUTY BEARERs
States
As parties to human rights treaties, states have an obligation to respect, protect and fulfil the right to education. In education this may translate into the 4A –scheme which means availability, accessibility, acceptability and adaptability of the right to education. Provision of the right to education should not discriminate; the right to education is the right of each person regardless of gender, of physical or mental ability or of legal status. However, such obligations and guarantees are often not translated into concrete legislation, polices and action on the ground.[31] (For more information see 4A international framework[32])
International Community
The Convention on the Rights of the Child includes the provision of international cooperation (Article 4 and with particular reference to education Article 28(3)). However, despite the growing awareness of the need for gender equality in education, the international community has fallen short of their responsibility. One reason for this is the common perception that education is seen as a service rather than right.[33](For more information please read UNICEF's report Summary of the CRC “What Rights?”[34]).
Parents
The UDHR Article 26 stress the parents’ right to choose the kind of education provided to their child. The CRC, Article 3 and Article 29(1)(c), goes beyond this, stressing the importance of the best interests of the child. Although the rights and duties of parents or legal guardians are respected, it is now understood that the best interests of the child are paramount.[35]
RIGHTS HOLDERs
Citizens are the rights holders. Education is a basic human right and therefore it is necessary to provide school environment where the right to education will be exercised without discrimination of any kind. "Education law has traditionally treated children as objects of education, specifying the rights of parents, teachers and the state. The affirmation of the rights of the child has not yet been accomplished in most countries. There is a welcome move in this direction, which prioritizes the best interests of the child as a step towards child’s rights".[36] According to Jomtien (1990)[37] Every person – child, youth and adult – shall be able to benefit from educational opportunities designed to meet their basic learning needs. Recalling that education is a fundamental right for all people, women and men, or all ages, throughout the world; Meeting basic learning needs constitutes a common and universal human responsibility. It requires international solidarity and equitable and fair economic relations in order to address existing economic disparities.[38]
The realisation of the right to education on a national level may be achieved through compulsory education, or more specifically free compulsory primary education, as stated in both the Universal Declaration of Human Rightsand the International Covenant on Economic, Social and Cultural Rights.[39][40]
Many international conventions call on education to be free and compulsory. Making education compulsory places the obligation squarely on the government; to ensure that a school is there and that all obstacles to children’s attendance are removed. This means that education has to be free at the point of use – as no government can make it compulsory if they charge for the service. The ICESCR (article 14.11) states that all states must have a concrete plan to provide free and compulsory education, within two years of ratifying the covenant. It is understood that the state must create the conditions for education, and when these standards are met parents or guardians have the obligation to ensure their children attend. Unfortunately in some areas parents are forced to send their children to school before these conditions have been met, and have even been fined and punished for their refusal to send their children to school. This is in contravention to the basic principle of free and compulsory education.[41]
Interpretations by the committee to ICESCR also imply that there is a clear obligation on the international community to support free and compulsory education. However, neither the Millennium Development Goals nor the Education for All framework use this language. This has created space for agencies like the World Bank, to push governments into implementing cost- sharing models of education, directly contradicting the provisions in the ICESCR and CRC.[42]