1. Human Rights Law: Education (notes)
The Right to Education

The right to education has been included in many constitutions and
international treaties. Countries have agreed (in theory) that illiteracy must be
eliminated and that all children internationally must attend school and earn an
education.

However there is a big gap between theory and reality. Worldwide there are
still (estimate) 100 million children of primary school age who do not have
access to education. The right to education is crucial for a person’s sense of
self-fulfilment and to establish abilities which will earn them independence to
work. In addition they develop society as a whole. Education leads to work,
work earns all individuals a living, they in turn pay taxes for the betterment of
society.

Article 26 of the Universal Declarations of human rights (UDHR) provides
three basic characteristics of the right to education, namely the recognition of
the right to receive an education, a guarantee for the exercise of parental rights
in matters of education and a reference to the aims of education.

The International Covenant on Economic, Social and Cultural Rights
(ICESCR) Article 13: Education is a universal right granted to every person
regardless of age, language, social or ethnic origin or other status.

Other relevant universal instruments include UN Educational, Scientific and
Cultural Organisation (UESCO) Convention against Discrimination in
Education adopted in 1960: which aims to eliminate discrimination and
promote equality of opportunity and treatment.
Features
The right to an education has been explained by the Committee on Economic, Social
and Cultural Rights and the UN Special Rapporteur on the right to education to
include four interlinked features.
1. Availability: functioning educational institutions and programmes have to be
available in sufficient numbers, through a public educational systems and
allowing private parties to establish non-public schools.
2. Accessibility: educational institutions and programmes have to be accessible
to everyone, without discrimination on any ground, also implying physical and
economic accessibility.
3. Acceptability: the form and substance of education, including curricula and
teaching methods have to be relevant, culturally appropriate, of good quality
and in accordance of the best interest of the child; this includes a safe and
healthy school environment.

2. 4. Adaptability: education has to be flexible, so that it can adapt to the needs of
changing societies and communities and respond to the needs of students
within their specific social and cultural context, including evolving capacities
of the child.
This 4 “A” scheme is a useful device to analyse the content of the right to receive an
education and the obligations of states parties resulting from it as well as to measure
the level of its realisation.
The Aims of Education

Article 26 (UDHR) states education should contribute to avoiding conflicts
between the nations, groups and people by promoting understanding, tolerance
and friendship and maintenance of peace regardless of class, race, gender,
language, religion, social economic status.

In addition, education must be directed to the full development of the human
personality and to strengthening respect for human rights. By emphasising the
individual’s sense of dignity and ability to participate in a free society. It is
clear that the interests of the individual should be central to education.
Components

On the basis of treaty law, general comments of the (ICESCR) and case law,
following the four key components of the right to education can be identified.
1. Access to education on a non-discriminatory basis: The essence of the right
to education is the right to access available educational facilities. In more
concrete terms, this means the right of access to existing public educational
institutions on a non-discriminatory basis. This right is violated, for example
if people belonging to a specific ethnic, linguistic, or religious group have
restricted access to existing public educational institutions. In addition
education provided by each country should be equal to all groups. Girls
should not be given an inferior quality of education compared to boys.
2. The right to enjoy free and compulsory education: A second key
component of the right to education is the right to enjoy primary education in
one form or another, not necessarily in the form of traditional classroom
teaching. Primary education is so fundamental for the development of person’s
abilities that it can be rightfully defined as a minimum claim. The right to free
and compulsory primary education also implies that no one, for example
parents or employers, can withhold a child from attending primary education.
Article 13 (2)(a) (ICESCR) stipulates primary education shall be free. The
rationale behind this entitlement is children will not have to pay for their
schooling or remain deprived of it when they can not afford the cost.
3. Free choice of education: Another key component of the right to education is
free choice of education without interference by a country or third person, in
particular, yet not exclusively with regard to religious or philosophical
convictions. There is no obligation under human rights law for countries to

3. provide financial support to private educational institutions.
however, they must do so in a non-discriminatory way.
If they do,
4. The right to be education in the language of ones own choice: A more
controversial question is whether the right to be educated in the language of
ones own choice is a key component of the right to education. A state must
respect the freedom of individuals to teach. For instance, a minority language
in schools established and directed by members of the minority. This does not
imply how ever that countries must allow the use of this language as the only
medium of instruction; this would be dependent on the educational policy of
the country. Minorities do have the right to establish their own educational
institutions and to teach in their language.
Summary
The rights to education through it’s links and other rights, accentuates, the unity,
indivisibility, and interdependence of all human rights. It is related to civil and
political rights by its freedom dimension and the obligations of countries to abstain
from interference with that freedom. It is also linked to other economic, social and
cultural rights through its social dimension which calls for action to make the right to
receive an education effective.
Rupinder K Gill