SECTION 5 UNDERSTANDING SPECIFIC ESC RIGHTS
THE RIGHT TO EDUCATION
The Purpose of Module 16
The purpose of this module is to clarify the scope of the right to education.
The Contemporary Context
It is among the greatest scourges afflicting humanity at the end of the 20th century. It has left hundreds of millions of adults disadvantaged, vulnerable and impoverished. Each year, it claims millions of new victims from the ranks of the worlds most vulnerable citizens: its children. It is destroying human potential on a vast scale. Most of the victims are poor. The vast majority are young girls and women. The scourge in question is not a disease, but mass illiteracy, caused by exclusion from opportunities.
Failure to act will carry a high price. Universal primary education is an imperative for addressing the single greatest challenge facing humanity at the end of the 20th century: namely, the eradication of poverty. It is also a fundamental requirement for social justice. We are living through an age in which education is becoming an increasingly important determinant of living standards. Countries and individuals without access to the skills and knowledge provided by education will fall further and further behind . . .
Some will object that universal primary education is an impractical and unaffordable goal. In fact, the achievement of universal primary education within a decade in all developing regions would cost only $7-8 billion annually, over and above existing expenditure. This represents: about four days worth of global military spending; seven days worth of currency speculation in international markets; less than half of what North American parents spend on toys for their children each year; and less than the annual amount that Europeans spend on computer games or mineral water.
Crucial as international support is, it would count for little in the absence of national action. Developing countries themselves must do far more. Between them India and Pakistan have 40 million children out of school-over one third of the global total. Education is one of the main driving forces of poverty in both countries. Yet their governments spend more on armaments and on creating a new balance of nuclear terror than on primary education. Sadly their example is widely followed.
The world cannot afford to tolerate the poverty, injustice, and waste associated with the mass violation of the right to education. 
Education as a Human Right
Education has been regarded in all societies and throughout human history both as an end in itself and as a means for the individual and society to grow. Its recognition as a human right is derived from the indispensability of education to the preservation and enhancement of the inherent dignity of the human person. (See Module 1 for more discussion on this point).
Several international, regional and national legal instruments recog-nize the right to education.
The Universal Declaration of Human Rights states, "Everyone has the right to education. In addition, it says that it shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Higher education shall be equally accessible to all on the basis of merit, and technical and professional education shall be made generally available.
The UDHR also stipulates that education should be directed towards the full development of the human personality and strengthen respect for human rights. Finally, it acknowledges that parents have a prior right to choose the kind of education that shall be given to their children.
The International Covenant on Economic, Social and Cultural Rights
Articles 13 and 14 of the ICESCR set out detailed formulations of the right to education. Article 13 contains a general statement that everyone has the right to education and that education should contribute to the full development of the human personality. It also specifically stipulates:
Primary education shall be compulsory and available free to all.
Secondary education, including technical and vocational education, shall be made generally available and accessible to all by every appropriate means, 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, in particular by the progressive introduction of free education.
Fundamental education shall be intensified for those persons who have not received or completed the whole period of their primary education.
Systems of schools shall be established and the material condition of teaching staff shall be continuously improved.
The liberty of parents or guardians to choose for their children schools other than those established by the public authorities which conform to minimum educational standards shall be respected. In addition, article 13 recognizes the liberty of parents or guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Article 14 requires each state party that has not been able to secure compulsory primary education free of charge, to undertake, "within two years, to work out and adopt a detailed plan of action for the progressive implementation . . . of compulsory primary education free of charge for all.
Convention on the Rights of the Child (CRC)
Articles 28 and 29 of the CRC deal with the right of the child to education. Article 28 is similar to the provisions contained in ICESCR. In addition, it states that school discipline should be administered in a manner consistent with a childs human dignity.
Article 29 stipulates that the education of the child shall be directed towards the development of the childs personality, talents, and mental and physical abilities to their fullest potential.
UNESCO Convention against Discrimination in Education
The UNESCO Convention stipulates that states parties must undertake to formulate, develop and apply a national policy which will tend to promote equality of opportunity and treatment, and, in particular, to make primary education free and compulsory. In addition, it recognizes parents right to freely choose their childrens educational institutions and to ensure the religious and moral education of their children in conformity with their own convictions.
The Convention on the Elimination of All Forms of Discrimination against Women
Article 10 of CEDAW also contains provisions dealing with the right to education. It provides, for example, for equal access to career and vocational guidance and to studies at all educational levels; access to the same curricula and examinations; elimination of stereotyping in the roles of women and men; and the same opportunities to benefit from academic scholarships.
The right to education is recognized and guaranteed under several regional human rights instruments. These include the African Charter on Human and Peoples Rights (article 17) and the African Charter on the Rights and Welfare of the Child;2 the American Declaration of the Rights and Duties of Man (article 12) and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador)3 (article 13); the European Convention on the Legal Status of Migrant Workers4 (articles 14 and 15); and the Framework Convention for the Protection of National Minorities5 (articles 13 and14).
The constitutions of several countries include provisions on the right to education. For example, article 56 of El Salvadors Constitution guarantees the right to education, and mandates the provision of basic and special education freely to citizens. Similarly, the South African Constitution safeguards its citizens right to basic formal education, which the state, through reasonable measures, must make progressively available and accessible. South Africans also have a constitutional right to be educated in the language of their choice in public educational institutions, taking into account equity, practicability and the need to redress the results of past racially discriminatory laws and practices. Further, South Africas Constitution provides for the right to establish and maintain private educational institutions that do not discriminate on the basis of race, are registered with the state, and maintain standards comparable to public schools (chap. 2, art. 29).
Content of the Right to Education and State Obligations
Legal standards on the right to education encompass two broad components: enhancement of access of all to education on the basis of equality and nondiscrimination, and freedom to choose the kind (public/private institutions) and content (religious and moral) of education. Both aspects represent the spirit and cardinal essence of the right to education.
The demanding nature of the obligations involved in ensuring the right to education is reflected in the number and variety of reservations, declarations and objections relating to the relevant article in the Convention on the Rights of the Child. However, at least four components of the right to education can be gleaned from various legal provisions on the right to education:
Equal enjoyment of, and equal access to, educational opportunities and facilities
Compulsory and free primary education
Generally available and accessible secondary education, and equally accessible higher education
Freedom of choice in education, and freedom to establish private institutions
The CESCR, in its General Comment 13 (see full text beginning at p. 316), identifies four elements of the states obligations with respect to the right to education. These are (1) availability, (2) accessibility, (3) acceptability and (4) adaptability.
The duty to provide compulsory and free primary education is undoubtedly a prerequisite for the realization of the right to education. The CESCR in its General Comment 11 on article 14 of the ICESCR (see full text beginning at p. 313) considers that states parties have a clear and unequivocal obligation to draw up a plan of action for ensuring compulsory and free primary education. The committee has stated that lack of educational opportunities for children often reinforces their subjection to various other human rights violations.
According to the Special Rapporteur on the Right to Education, "The states obligation to make primary education free of charge is frequently, albeit erroneously, associated with the States provision of primary education. The States obligation to make primary education free is in quite a few countries implemented through subsidies to a diverse range of primary schools.7 She has also stated:
The first State obligation relates to ensuring that primary schools are available for all children, which necessitates a considerable investment. While the State is not the only investor, international human rights law obliges it to be the investor of last resort so as to ensure that primary schools are available for all school-age children. If the intake capacity of primary schools is below the number of primary-school aged children, legal provisions on compulsory education will not be translated into practice and access to education will remain a need rather than being a right.9
The provision of secondary and higher education is also considered an important element of the right to education. The requirement of "progressive introduction of free education does not mean that a state can absolve itself from its obligations.
Finally, the CESCR has stated that a state party cannot escape the unequivocal obligation to adopt a plan of action on the grounds that the necessary resources are not available.
The second state obligation relates to accessibility. At a minimum, governments are obligated to ensure the enjoyment of the right to education through guaranteeing access to existing educational institutions by all on the basis of equality and nondiscrimination.10
The states affirmative obligation to ensure equal access to educational institutions encompasses both physical and constructive access. In the case of elderly persons, for example, the Vienna International Plan of Action on Ageing calls for easier physical access to institutions and constructive access to education through overcoming stereotyped images of older persons suffering from disabilities and/or being incapable of functioning independently.11 Similarly, as provided for in article 10 of the CEDAW, governments are obligated to take all appropriate steps towards the "elimination of any stereotyped concepts of the roles of men and women at all levels and in all forms of education through such means as encouraging "the revision of textbooks and school programs and the adaptation of teaching methods. Under that provision, women and girls also have a right to equal access to specific educational information (including family planning advice) and to sports programs. Migrant workers and members of their families who are officially admitted into host nations are also guaranteed the right to constructive access to education as provided in article 14 and 15 of the European Convention on the Legal Status of Migrant Workers, in so far as the host nation must take action, where practicable, to teach in the migrant workers mother tongues.13
The right to education has been affirmed for disabled persons. Rule 6 of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities provides that "States should recognize the principle of equal primary, secondary, and tertiary educational opportunities for children, youth, and adults with disabilities, in integrated settings.14 To this end, the CESCR directs states parties to "ensure that teachers are trained to educate children with disabilities within regular schools and that the necessary equipment and support are available to bring persons with disabilities up to the same level of education as their non-disabled peers.15 Similarly, children with physical and mental disabilities are guaranteed the right to training towards "achieving the fullest possible social integration, individual development and . . . cultural and moral development under article 13 of the African Charter on the Rights and Welfare of the Child.16
The Special Rapporteur has said that "the State is obliged to ensure that all schools conform to the minimum criteria which it has developed as well as ascertaining that education is acceptable both to parents and to children.17
This element involves the right to choose the type of education received, and the right to establish, maintain, manage and control private educational establishments. It does not, however, require the state to provide the same ancillary benefits to private school pupils that public school pupils may enjoy, such as free transport by bus, free textbooks, or school meals.18 Pupils and parents have a right to be free from indoctrination, and as such, mandatory study of materials that are incongruent with a pupils religious or other beliefs may violate the right to education.19
The right to found private educational institutions has been linked to freedom of expression. In the landmark case of Archbishop Anthony O. Okogie et al. v. The Attorney General of Lagos, for example, the Nigerian Court of Appeals held that the government, in precluding private institutions, was abridging freedom of expression and the right of parents and guardians to "bring up their children and wards and to educate them in the best institutions they can think of and in the best traditions and manners they think such children and wards should be educated.20
Although the freedom of choice and the freedom to establish private institutions are available to all persons, their benefits for cultural, racial, religious and linguistic minorities are particularly significant. To this end, article 5(1)(c) of the 1960 UNESCO Convention against Discrimination in Education recognizes "the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each State, the use or the teaching of their own language. For its part, article 13 of the Framework Convention for the Protection of National Minorities provides that "persons belonging to a national minority have the right to set up and to manage their own private educational and training establishments.21 Article 14 of the same text guarantees minorities the right to learn their own language.
The issue of language of instruction is an area that has spawned controversies. The European Court of Human Rights has affirmed the right of the state to determine official languages of a country which are thus the languages of instruction in public schools, but has denied that there was a right to education in a language of ones choice.22
Another important element of acceptability relates to the child-friendly nature of the schools. Based on the Convention on the Rights of the Child, "it is imperative that education respect the right of the child to be curious, to ask questions and receive answers, to argue and disagree, to test and make mistakes, to know and not know, to create and be spontaneous.23
Normally, what a child learns in school should be determined by his or her future needs as an adult. However, the Convention on the Rights of the Child requires that the best interests of the child be given prominence. Thus, the education system should remain adaptable, taking into account the best interests of the child.
Challenges, Opportunities and Strategies
Measuring a states performance in the implementation of the right to education is an onerous task in the absence of generally accepted criteria, benchmarks and methodology for evaluating the adequacy and effectiveness of steps taken towards its realization. Developing the core competence for measuring implementation is decidedly crucial to tracking what has been termed "the variable or shifting dimension of states parties obligations. As Paul Hunt explains, "Because of the progressive realization and resource availability phrases, the precise content of at least some State obligations is likely to vary from one State to another-and over time in relation to the same State.25 An effective monitoring technique(s) and process may also be useful in the definition of the core content of the right to education.
Each state partys right to education compliance can be measured using quantitative and qualitative indicators. Among other things, quantitative indicators present tangible data on budgets, literacy rates, enrollment rates, and commuting times, dropout and repetition percentages as distributed by gender, social class, age, geographic centers (e.g., by state and region, urban vs. rural areas), religion and ethnicity. In contrast, qualitative indicators assess nontangibles like class interaction, textbook content and pedagogical programs. Assessing the qualitative aspects of education is far more complex than evaluating the quantitative status of education. Such complexity is derived from the web of relationships involved in the right to education (e.g., the relationship between the state, parents and child; the relationship between the state and minorities; the relationship between the state and traditionally disenfranchised persons; and the relationship between the church and the state).
In its General Comment 1, Reporting by state parties, para. 6, the CESCR observes that "it may be useful for States to identify specific benchmarks or goals against which their performance in a given area can be assessed . . . global benchmarks are of limited use, whereas national or other more specific benchmarks can provide an extremely valuable indication of progress. Paul Hunt suggests a three-step process for identifying and utilizing national benchmarks for measuring states performance on the right to education: first, selecting key indicators; second, setting national benchmarks; and third, monitoring the national benchmarks.26 These steps merit further study, adaptation and experimentation. (See Module 19 for further discussion on indicators and benchmarks.)
The importance or role of budget analysis as a tool for human rights work goes beyond the compilation of numeric or statistical data. It involves the interpretation and use of essential information on resource allocation for analysis or evaluation of official policies and priorities. When considering the expenditure dimensions of education, reference may be had to the percentage of the national budget allocated to education versus how much is actually spent per capita and overall at the national, regional, and state levels, as well as in relation to other sectors of the economy.27 Increased budgetary allocation does not always translate to increased enjoyment of the right to education. For example, in Nicaragua, notwithstanding that the central governments single largest budgetary allocation was to the Ministry of Education in 1991 and 1992, the quality of education provided remained substandard with rising levels of illiteracy and with the vast majority of primary school teachers boasting no formal education.28 Budget analysis may provide an important framework to counter states parties claim of lack of resources as justification for noncompliance, as well as to monitor progressive realization of certain aspects of the right as well as to foster mobilization and intersectoral collaboration on the right to education. (See Module 19 on budget analysis.)
There remains the need for increased popularization of the right to education. The levels of ignorance of the existence and nature of this important human right far exceed, and are clearly a factor in, the alarming illiteracy rates among the worlds poorest populations. At the local levels, community-based educational and awareness activities targeting parents, women and school-aged children would help nurture the idea of education as a basic human right.
Activist organizations may reinforce this right through action-oriented research that seeks to identify legal, institutional and other structural obstacles to the implementation of the right to education, and to explore practical solutions. Legal advice and impact litigation may also prove critical to securing remedies as well as spurring important policy or legal reform that conduce to the realization of the right to education.
Author: The author of this module is Felix Morka.
1. Kevin Watkins, Education Now: Break the Cycle of Poverty (Oxford: Oxfam International, 1999), 1-7.
2. African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990) (not yet in force). See in particular article 20 ("States parties . . . shall in accordance with their means and national conditions take all appropriate measures . . . to assist parents and other persons responsible for the child and in case of need provide material assistance and support programmes particularly with regard to . . . education . . . ).
3.Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), OASTS No. 69 (1988) (signed 17 Nov. 1988) reprinted in 28 ILM 156 (1989), corrections at 28 ILM 573 and 1341 (1989), also reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 Doc.6, Rev. 1 at 67 (1992).
4. European Convention on the Legal Status of Migrant Workers, ETS No. 93, adopted 24 Nov. 1977, entered into force 1 May 1983. See the Belgian Linguistic case (European Court of Human Rights Publication Series A, vol. 6 at 31), which defines the right to education as a right of access to educational institutions "existing at a given time.
5. Framework Convention for the Protection of National Minorities, ETS No. 157, entered into force 1 Feb. 1998, reprinted in 34 ILM 351 (1995).
6. Public Report on Basic Education in India (New Delhi: Oxford University Press, 1999), 3.
8. Watkins, op. cit., 198-99.
9. Ibid., paras. 51-52.
10. Equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations. Minority Schools in Albania, Advisory Opinion, P.C.I.J., Series A/B-No.64 (1935).
11. Report of the World Assembly on Ageing, Vienna International Plan of Action on Ageing, Vienna, 26 July-6 August 1982, recommendations 48 and 50 (UN Publication, Sales No. E82. I. 16).
12. Duru Amarachukwu, et al. v. Minister for Education, et al., Federal High Court of Nigeria, Suit No. FHC\L\CS\94897, filed 25 Aug. 1997.
13. European Convention on the Legal Status of Migrant Workers, art. 14, ETS No. 93, adopted 24 Nov. 1977, entered into force 1 May 1983.
14. Standard Rules on the Equalization of Opportunities for Persons with Disabilities, annexed to 48/96 of 20 December 1993, rule 6, UN Doc. A/RES/48/96 (1993).
15. CESCR, General Comment 5, Persons with disabilities (1994), UN Doc. E/C.12/1994/13.
16. African Charter, art. 13. See note 3 above.
17. See note 7 above.
18. See, for example, Blom, Lindgren et al. and Hjord et al. v. Sweden, Communication No. 191/1985, paras. 10.2-10.3; Communications Nos. 298 and 299/1988, paras. 10.2-10.4.
19. See, for example, Hartikan v. Finland, Communication No. 40/1978, para. 10.4, where the UN Human Rights Committee ruled that the mandatory participation of children in the study of the history and religion of ethics must be neutral and objective. See also Asbjørn Eide, Catarina Krause and Allan Rosas, eds., Economic, Social, and Cultural Rights: A Textbook. (Dordrecht: Martinus Nijhoff Publishers, 1995), 206.
20. Archbishop Anthony O. Okogie et al. v. The Attorney General of Lagos State, 2 NCLR 337 (1981).
21. Framework Convention, art. 13. See note 5 above.
22. The Belgian Linguistic Case No. 2 (1968), Series A, No. 6; 1 EHRR 252.
23. Thomas Hammarberg, "A School for Children with Rights, in Innocenti Lectures, (UNICEF International Child Development Centre, Florence, 1997).
24. Watkins, op. cit., 217.
25. CESCR, State obligations, indicators, benchmarks and the right to education, background paper submitted by Paul Hunt, UN Doc. E/C.12/1998/11/at 3 (16 July 1998).
26. Ibid., 6.
27. Kate Halvorsen, "Notes on the Realization of the Human Right to Education, Human Rights Quarterly 12 (1990): 358-61.
28. For a more detailed discussion of Nicaraguas right to education compliance vis-à-vis its budgetary allocations, see Baard-Anders Andreassen and Theresa Swinehart, eds., Human Rights in Developing Countries Yearbook 1991 (Oslo: Nordic Human Rights Publications, 1991), 281.