From: Douglas Hodgson, Faculty of Law, University of Western Australia
THE HUMAN RIGHT TO EDUCATION (Ashgate, Dartmouth (1998))

 Chapter 4  International Recognition of the Right to Education under Conventional and Customary Law

Everything begins with education, for neither nature nor society can be made to serve their useful purpose without it. This is the reason for the priority which it is universally accorded. [1]

Introduction

The human right to education features prominently in the hierarchy of human rights in so far as it has been recognised in international and regional instruments and by customary law. Each level or source of recognition will be examined in turn in this chapter.

Recognition of the Right to Education by International Instruments

The right to education has been specifically recognised and reaffirmed in some detail by four major international human rights instruments – the Universal Declaration of Human Rights of 1948, the UNESCO Convention against Discrimination in Education of 1960, the International Covenant on Economic, Social and Cultural Rights of 1966 and the Convention on the Rights of the Child of 1989. The right to education has also been recognised in numerous other instruments dealing with particular groups or subject matter. These instruments will be catalogued in this section.

Mainstream Recognition

The Charter of the United Nations was adopted by the United Nations Conference on International Organization held at San Francisco and entered into force on 24 October 1945. The Charter is an international treaty establishing the organisational structure and guiding principles of the United Nations. Its provisions have the force of positive international law and create duties toat all Member States must fulfil in good faith. [2] Article 55(5) of the Charter requires the United Nations to promote "international cultural and educational co-operation" in order to create conditions of stability and well-being which are necessary for peaceful relations among nations. Article 73 imposes on those members of the United Nations which ha assumed responsibility for the administration of non-self government trust territories an obligation to promote the well-being of the inhabitants of these territories by, inter alia, ensuring their ‘educational advancement". Although the U.N. Charter does not in itself guarantee a right to education, it does provide a basis for its future development by conventional and customary law.

A general right to education was directly and specifically articulated for the first time in the Universal Declaration of Human Rights in 1948. Article 26(1) states:

Article 26(1) must be read in conjunction with Article 2 of the Universal Declaration which states that "(e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status".

The Universal Declaration was unanimously adopted by the United Nations General Assembly on 10 December 1948 to give content to the human rights provisions of Article 55 of the U. N. Charter and to provide, in its own words, "a common standard of achievement for all peoples and all nations". The inclusion of the right to education in Article 26(1) was not a source of contention and the debate was, therefore, brief. In terms of the wording of Article 26(1), there would appear to be no clear distinction between elementary and fundamental education. Elementary education would arguably include elements of fundamental education such as literacy, numeracy and tuition in the basic knowledge and skills essential for functioning in society. As these elements may differ from society to society, the concept of fundamental education is probably best left to be defined by the individual nations themselves.[4] Higher education is to be available to all on the basis of merit rather than wealth or station. The obligation to supply free education to children implies that each nation should establish a free public education system in order to place education within the reach of the great majority of children.[5]

Compulsory elementary education appears to be based on the notion that every person has an irrevocable entitlement to a period of education at public expense. The apparent inconsistency between the right to education and the compulsory nature of elementary education can be accommodated if the term ‘compulsory’ is intended to imply that no person or body can prevent children from receiving a basic education. This imposes an obligation on the State to ensure that children receive at least an elementary education in circumstances of parental neglect or ignorance, for example.[6]

Bearing in mind the non-binding, aspirational nature of the Universal Declaration at the time of its adoption, it is still rather remarkable that these desiderata were articulated when relatively few nations possessed adequate secondary and higher education systems.[7] It would appear, however, that the Declaration’s limitation of free education to elementary education now falls short of the practice of many countries where secondary and even higher education are free.[8] The term ‘free’ must be understood to mean that the delivery of elementary education itself would be free of charge but it is not as certain that other expenses of the student such as transportation costs, books and school uniforms would be covered. The position in terms of the constitutional jurisprudence of the United States appears to be that charges related to the central educational mission of the school are unconstitutional under state constitution education clauses, but incidental charges are allowed.[9]

The educational provisions of the Universal Declaration have been reaffirmed, amplified and made more detailed by later United Nations instruments including the International Covenant on Economic. Social and Cultural Rights (hereinafter referred to as the "ICESCR.") which was adopted by the United Nations General Assembly on 16 December 1966. Unlike the Universal Declaration, the ICESCR is an international agreement, which imposes legally binding obligations on those nations, which ratify or accede to it. A number of provisions of the ICESCR refer to education. Article 6(2) obliges States Parties to devise and implement "technical and vocational guidance and training programmes" to achieve the fuller realisation of the right to work. Article 10(1) proclaims that the widest possible protection and assistance should be accorded to the family while it is responsible for the care and education of dependent children. Article 14 concerns developing countries and provides:

Article 14 would also apply to countries, which originally introduced free primary education but have reverted to the imposition of school fees prior to becoming a party to the ICESCR. [10] Working in the climate of the 1960s "Development Decade", the drafters of Article 14 were aware of the link between free and compulsory primary education and economic development.

Article 13 of the ICESCR expands upon the content attributed to the right to education by Article 26(1) of the Universal Declaration. Article 13 is exclusively devoted to the right to education and, in its day, contained the most extensive and detailed provisions on this subject to be incorporated in an international legal instrument. This was due largely to the fact that UNESCO, with which the drafters consulted, favoured detailed provisions on the right to education.[11] As a whole, Article 13 seeks to promote inexpensive, egalitarian and comprehensive education for all.

In line with Article 26(1) of the Universal Declaration, Article 13(1) proclaims that the "States Parties … recognize the right of everyone to education" while Article 13(2)(a) requires compulsory primary education available free to all. As such, Article 13 implicitly endorses the concept of equality of educational opportunity, which is reinforced by the non-discrimination language contained in Article 2(2) of the ICESCR. As one commentator has observed, the right to education is the only human right for which international law stipulates a corresponding duty in the form of compulsory education until the end of primary education.[12] Compulsory education is an important means by which the State protects children from their parents and economic exploitation.[13] As we saw in Chapter 3, the prohibition of child labour through a fixed minimum age for admission to employment is a complementary standard to that of compulsory primary education.

Unlike Article 26(1), Article 13 makes specific reference to secondary education. Article 13(2)(b) reads:

It would appear that secondary education is not required to be compulsory. Article 13(2)(c) essentially repeats the provisions of Article 26(1) of the Universal Declaration concerning higher education but does go further in one respect by calling for the "progressive introduction of free education" at this level as well. Article 13(2)(e) constitutes a new provision in calling for the active pursuit of the development of a system of schools at all levels, the establishment of an adequate fellowship system and the continuous improvement of the material conditions of teaching staff.

Implementation of the right to education as contained in Article 13 is progressive in nature and requires positive State action, as States Parties to the ICESCR are obligated to improve the existing conditions concerning education to the maximum of their available resources. This is made clear by Article 2(1) of the ICESCR which provides that "[e]ach State Party . . . undertakes to take steps, individually and through international assistance and co-operation . . . to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means … ". The U.N. Committee on Economic, Social and Cultural Rights has rejected the notion that the implementation of these rights may be deferred indefinitely. The Committee has insisted that the obligation to "take steps" is serious and that the poverty of States is not a valid reason for inaction since diligent governments should solicit resources from the international community.[14] The Committee has stated:

The interpretative guidelines of The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights 16 specifically relating to Article 2(1) of the ICESCR are also informative in terms of the implementation of the obligation assumed by States Parties under Article 13. Principle 21 states:

Principles 23 and 25 of the Limburg Principles offer little comfort to developing States. Principle 23 provides that "(t]he obligation of progressive achievement exists independently of the increase in resources; it requires effective use of resources available". Principle 25 acknowledges that "States parties are obligated, regardless of the level of economic development, to ensure respect for minimum subsistence rights for all". It is arguable that fundamental education – literacy, numeracy and basic life skills – would be considered a minimum subsistence right and, as such, must be given sufficient priority in terms of the governmental allocation of scarce resources.

The Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989, contains a number of provisions concerning education. Article 23(3) refers to the obligation of States Parties to ensure that the disabled child has effective access to education and training. Article 40(4) concerns the availability of guidance, education and vocational training programmes as alternatives to institutional care in the juvenile justice context. Article 32(1) recognises the right of the child to be protected from performing any work that is likely to be hazardous or to interfere with the child’s education. Article 28, together with Article 29 concerning the aims of education which will be dealt with in Chapter 5, represents the most comprehensive formulation of the right to education at the international level. Article 28(1) provides:

States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

Neither the Convention on the Rights of the Child nor the ICESCR makes any reference to pre-school education. This is a rather disappointing omission as the opportunity to participate in pre-school education has been recognised by UNESCO as important because children’s attitudes on such matters as race are often formed in the pre-school years.[17] During the technical review of the Draft Convention on the Rights of the Child, UNESCO expressed concern that Article 28(1)(a) made no mention of early childhood care and education.[18] During the second reading of the Convention, UNESCO sought to amend what is now Article 28 by incorporating a legal duty on States Parties to "facilitate the provision of early childhood care and education, using all possible means, in particular for the disadvantaged child, in order to contribute to the young child’s growth, development and to enhance his or her later success at other levels of education".[19] UNESCO’s proposed amendment failed due to the opposition of many States to increasing their educational expenditure and, consequently, international law does not impose on States any duty to provide any type of pre-school education.[20] Nevertheless, references to pre-school education may be found in both legally binding and non-binding international instruments. Consider Article 10 of the Central American Convention on the Unification of the Fundamental Norms of Education of 1962, Article l0(a) of the Convention on the Elimination of All Forms of Discrimination against Women of 1979, Article 1 of the UNESCO International Charter of Physical Education and Sport of 1978 and Paragraph B.3 of the Charter of the Rights of the Arab Child adopted by the League of Arab States. Paragraph 24 of the UNESCO Recommendation Concerning Education for International Understanding, Co-operation and Peace and Education Relating to Human Rights and Fundamental Freedoms 1974 urges Member States to encourage, as part of pre-school education, activities which correspond to the purposes of the Recommendation.

The use of the term ‘progressively’ in the introductory part of Article 28(1) must be read in conjunction with Article 4 which obliges States Parties to undertake measures to implement the economic, social and cultural rights recognised by the Convention to the maximum extent of their available resources. During the drafting of the Convention, a number of delegations, including those from China and Bangladesh, expressed concern about the different levels of economic development amongst States and their impact on the ability to provide free education.[21] Although Article 28(1)(a) repeats the wording of Article l3(2)(a) of the ICESCR, the obligation imposed is arguably weaker than that imposed by the latter instrument. This is due to the absence in the Convention of an equivalent provision to Article l4 of the ICESCR which obliges States Parties who have not already implemented free and compulsory primary education to adopt within two years a detailed plan of action for the implementation of such system. The Convention fails to specify any time-frame.

Article 28(1)(b) is based on the wording of Article 13(2)(b) of the ICESCR Article 28(1)(b) is weaker than its counterpart, however, in two respects. First, States Parties to the Convention are merely required to "encourage the development of different forms of secondary education" whereas under the ICESCR "(s]econdary education in its different forms … shall be made generally available …"[22] Secondly, the introduction of free secondary education is accorded a lower priority in the Convention than it is under the ICESCR presumably because many States still cannot afford to offer it free. The Japanese delegation was only prepared to accept the wording of Article 28(1)(b) on the understanding that it would not impose any legal obligation on the States Parties to implement a system of free secondary education.[23]

Article 28(1)(c) also appears to be a step backwards from existing standards concerning higher education in its failure to include the phrase "the progressive introduction of free education" as it appears in Article 13(2)(c) of the ICESCR. Despite the urging of UNESCO and the United Nations Secretariat that the wording of Article 28(1)(c) should also include a reference to "the progressive introduction of free education" for the sake of consistency with Article 13(2)(c) of the ICESCR[24]. the wording remained unchanged in order to accommodate the concerns of various delegations whose nations’ policies only went so far as providing financial assistance for students pursuing higher education.[25] Regrettably, then, much of Article 28 appears to derogate from the international standards previously embodied in the various formulations of the right to education. Article 28(1)(d) and Article 28(1)(e) are, however, new provisions. In terms of Article 28(1)(e) concerning the encouragement of regular school attendance and the reduction of drop-out rates, it would appear from the travaux preparatoires that these aims are intended to be achieved by positive rather than punitive measures.[26) It was estimated at about the time the Convention on the Rights of the Child was adopted by the U.N. General Assembly in 1989 that of the 100 million six-year-olds who would begin school in 1990, over 40 million would drop out before completing primary education.[27]

International Instruments Concerning Particular Groups and Topics

Apart from mainstream recognition canvassed in the previous sub-section, the right to education has also been recognised by international instruments which seek to regulate specific topics of international concern. The various instruments adopted by the General Conference of UNESCO will be examined in the initial part of this sub-section.

The Convention against Discrimination in Education, adopted by the General Conference of UNESCO on 14 December 1960, [28] is the first international instrument to prescribe comprehensive international standards for public education. The Convention seeks particularly to eliminate discrimination and ensure equal treatment and equality of opportunity to education at all levels. Discrimination in education had been investigated as one of a number of studies of discrimination in various fields by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities under the authorisation of the Commission on Human Rights. Special Rapporteur Charles Ammoun’s 1957 report entitled Study of Discrimination in Education[29] proposed the drafting of an international convention on the elimination of discrimination in education and set out the fundamental principles on which such a convention would be based. These principles were incorporated and expanded in the Convention against Discrimination in Education.[30] To accommodate concerns expressed by several UNESCO Member States with federal systems of government concerning their competence to ratify a convention which covered a matter within the jurisdiction of their states or provinces, the UNESCO General Conference adopted at the same time as the Convention a non-binding Recommendation against Discrimination in Education. The content of the Recommendation, which applies to all UNESCO Member States which have not become a party to the Convention, is virtually identical to that of the Convention.[31]

It is clear from the preambular paragraphs of the Convention that it is based on Articles 2 and 26 of the Universal Declaration of Human Rights which deal respectively with the principle of non-discrimination and the right of every person to education and which, when read together, prohibit discrimination in education. The Preamble of the Convention also adverts to Article 1.2.(b) of UNESCO’s Constitution which charges UNESCO with the task of "instituting collaboration among the nations to advance the ideal of equality of educational opportunity … ". At the time of the adoption of the Convention in 1960, young women and members of minority groups were denied access to universities in many countries.[32] and racially segregated school systems existed in countries such as South Africa and the United States.[33]

For the purposes of the Convention, the term ‘education’ refers to all types and levels of education including access to education, the quality of education, and the conditions under which it is delivered. The democratisation of education is achieved by three critical operative provisions. Article 1(1) broadly defines the term ‘discrimination’ for the purpose of the Convention in such a way as to catch both direct and indirect discrimination. “Discrimination’ includes "any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education … " . .[34] Article 1(1) also explicitly considers as discriminatory the deprivation of any person or group of persons of access to education, the subjection of any person or group to education of an inferior standard and, subject to certain exceptions to be discussed in later chapters, the creation and maintenance of separate educational systems.[35] Article 3 of the Convention obliges States Parties to eliminate and prevent discrimination in education in law and in fact. In particular, Article 3 obliges States Parties to abrogate any laws or administrative practices which involve educational discrimination, to ensure that there is no discrimination in the admission of pupils to educational institutions, and not to allow any differences of treatment by the public authorities between nationals, except on the basis of merit or need, in the setting of school fees and the granting of financial assistance to pupils. Article 3 also proscribes discrimination, based solely on the ground that pupils belong to a particular group, in the granting of assistance by the public authorities to educational institutions.

Article 4 states in part:

The States Parties … undertake furthermore to formulate, develop and apply a national policy which, by methods appropriate to the circumstances and to national usage, will tend to promote equality of opportunity and of treatment in the matter of education and in particular:

The clause "by methods appropriate to the circumstances and to national usage" appearing in the chapeau of Article 4 is an acknowledgment, according to one commentator, of the fact that many States view the measures required to ensure equality of opportunity as complex and involving implementation of a broad range of policies necessitating considerable expenditure over a prolonged period.[36] Article 4(a) essentially reaffirms the provisions of Article 26(1) of the Universal Declaration of Human Rights but does add a reference to secondary education.

On 10 December 1962, after considerable debate amongst member States, the General Conference of UNESCO adopted the Protocol Instituting a Conciliation and Good Offices Commission to be Responsible for Seeking a Settlement of any Disputes which may arise between States Parties to the Convention against Discrimination in Education 1962. [37] The Protocol facilitates the implementation of the Convention against Discrimination in Education by setting up an inter-State complaints procedure. Articles 1 and 2 of the Protocol create a permanent eleven-member Conciliation and Good Offices Commission to be responsible for seeking the amicable settlement of disputes between States Parties to the Convention concerning the application or interpretation of the latter instrument. Pursuant to Article 12 of the Protocol, if a State Party to the Protocol considers that another State Party is not giving effect to a provision of the Convention, it may bring the matter to the attention of that State. Within three months of receiving the complaint, the respondent State must afford the complainant State a written explanation concerning the matter including any remedies pursued. If the matter is not satisfactorily adjusted within six months of the receipt of the complaint, either State Party may refer the matter to the Commission which, under Article 17, is required to ascertain the facts and make available its good offices to the States concerned with a view to reaching an amicable solution on the basis of respect for the Convention.

Apart from the Convention against Discrimination in Education the General Conference of UNESCO has addressed discrimination issues in the field of education in various non-binding recommendations and declarations. UNESCO has been particularly concerned about racism based on its constitutional mandate contained in Article 1 of its Constitution and a 1948 request by the United Nations Economic and Social Council that it "consider the desirability of initiating and recommending the adoption of a programme of disseminating scientific facts designed to remove what is commonly known as racial prejudice"[38] On 19 November 1974, the General Conference of UNESCO adopted the Recommendation Concerning Education for International Understanding, Co-operation and Peace and Education Relating to Human Rights and Fundamental Freedoms 1974. Paragraph 7 recommends that each Member State of UNESCO formulate and apply national policies aimed at strengthening the contribution of education, inter alia, "to the establishment of social justice, to respect for and application of human rights and fundamental freedoms, and to the eradication of the prejudices, misconceptions, inequalities and all forms of injustice which hinder the achievement of these aims". Principle 11 urges Member States to take steps to ensure that the principles of the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 become an integral part of the educational curriculum at all levels. Member States are also invited by Principle 39 to "ensure that educational aids, especially textbooks. are free from elements liable to give rise to misunderstanding, mistrust, racialist reactions, contempt or hatred with regard to other groups or peoples". To achieve the purposes of Principle 39, UNESCO has facilitated the international exchange and critical examination of history and geography textbooks with a view to the elimination of any references to racism or ethnocentrism.[39] In its Declaration on Race and Racial Prejudice adopted by the UNESCO General Conference on 27 November 1978, the Conference proclaimed that "States … as well as … the entire teaching profession, have a responsibility to see that the educational resources of all countries are used to combat racism … ".[40]

The significant role of the mass media in the education of young people in a spirit of mutual respect and understanding has been acknowledged by Article IV of the Declaration on Fundamental Principles Concerning the Contribution of the Mass Media to the Strengthening of Peace and International Understanding, to the Promotion of Human Rights and the Countering of Racialism, Apartheid and Incitement to War adopted by the UNESCO General Conference on 28 November 1978. The General Conference of UNESCO has also adopted the Second Medium-Term Plan (1984-1989) Education for All which includes comprehensive and co-ordinated scientific research on racial discrimination. This initiative builds upon the Programme of Action for the Second Decade to Combat Racism and Racial Discrimination, in which UNESCO is requested to continue "its work … on the factors of influence in the maintenance, transmission and alteration of prejudices and on the causes and effects of the various forms of racism and racial and ethnic discrimination … ".[41] The Second Medium-Term Plan also addresses issues concerning the democratisation of education, equality of educational opportunity for girls and women and educational obstacles confronted by the disabled, refugees and migrant workers.

Another important UNESCO instrument is the Recommendation concerning the Status of Teachers of 1966. This recommendation was adopted by a special inter-governmental conference convened jointly by the ILO and UNESCO. It will be recalled that Article 13(2)(e) of the International Covenant on Economic, Social and Cultural Rights refers to the continuous improvement of the material conditions of teaching staff. Amongst other things, the Recommendation concerning the Status of Teachers seeks to establish minimal working conditions, prohibits any form of discrimination in the preparation and employment of teachers and recognises the role to be played by teachers’ organisations in the determination of educational policy. A Joint ILO/UNESCO Committee has been set up to consider the implementation of the Recommendation. Article 7 of the World Declaration on Education for All adopted by the World Conference on Education for All states in part that "the terms and conditions of service of teachers and their status, which constitute a determining factor in the implementation of education for all, must be urgently improved in all countries in line with the joint ILO/UNESCO Recommendation Concerning the Status of Teachers (1966)".

The right to education has been mentioned in various international instruments regulating the treatment of stateless and refugee persons and the victims of armed conflict. Article 22 of the Convention relating to the Status of Refugees of 1951 and Article 22 of the Convention relating to the Status of Stateless Persons of 1954 respectively provide that the Contracting States shall accord to refugees and stateless persons "the same treatment as is accorded to nationals with respect to elementary education" and, in respect of all other types and levels of education, "treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances". The human rights of those persons caught up in armed conflict are protected by a branch of international law known as international humanitarian law. The Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 contains a number of provisions which refer to education. Article 24 provides that the Parties to the conflict shall take the necessary measures to ensure that the education of children under fifteen, who are orphaned or are separated from their families as a result of the war, is facilitated in all circumstances and entrusted to persons of a similar cultural tradition. Article 94 provides in part:

In 1977, the international community agreed to adopt two new instruments of humanitarian law – the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) and the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). Article 78(2) of the former instrument, which deals with international armed conflicts, provides that the education of each evacuated child, including religious and moral education according to parental preference, shall be provided with the greatest possible continuity. Article 4(3)(a) of the latter instrument, which deals with internal armed conflicts, similarly provides that children shall receive an education, including religious and moral education, in keeping with the wishes of their parents.

It will be recalled that Article 1(1) of the Convention against Discrimination in Education of 1960 defines the term ‘discrimination’ to include, inter alia, "any distinction … based on race". Pursuant to Article 5(e)(v) of the International Convention on the Elimination of All Forms of Racial Discrimination, adopted by the United Nations General Assembly in Resolution 2106 A (XX) of 21 December 1965, States Parties "undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone … to equality before the law, notably in the enjoyment of . . . the right to education and training".

Article 7 reinforces Article 5(e)(v) by requiring States Parties "to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination … ". Article 3(1) of the non-binding Declaration on the Elimination of All Forms of Racial Discrimination, proclaimed by the United Nations General Assembly in Resolution 1904 (XVIII) of 20 November 1963, had previously urged United Nations Member States to undertake particular efforts "to prevent discrimination based on race, colour or ethnic origin, especially in the fields of … education, religion, employment, occupation and housing".

The right to education and its importance to social progress and development have been mentioned in a number of non-binding instruments adopted by the United Nations. In the Declaration on Social Progress and Development, proclaimed by the General Assembly in Resolution 2542 (XXIV) of 11 December 1969, the eradication of illiteracy and the guarantee of the right to free compulsory education at the elementary level as well as the right to free education at all levels are mentioned in Article 10(e) as goals to be attained in the raising of the standards of living of all members of society. Similarly, Article 7 of the Programme of Action of the World Conference on Agrarian Reform and Rural Development hosted by the United Nations Food and Agriculture Organization in Rome in July, 1979, recommends that governments give high priority to the achievement of universal literacy and numeracy and free primary education for all children including those in rural areas. More recently, Article 8(1) of the Declaration on the Right to Development adopted by the General Assembly in Resolution 41/128 of 4 December 1986 provides that "States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to … education … ".

The right to education has been included in various declarations concerning religious and belief minorities. Article XXI of the Universal Islamic Declaration of Human Rights adopted on 19 September 1981 provides that "[e]very person is entitled to receive education in accordance with his [or her] natural capabilities". Article 5 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by the United Nations General Assembly in Resolution 36/55 of 25 November 1981, canvasses the respective rights of parents and their children in the context of religious and moral education.

Many of the international instruments which seek to protect or recognise the rights (including the right to education) of specific groups take the form of a declaration. A declaration is a species of international instruments commonly referred to as "soft law"; by contrast, "hard law" comprises conventions which are legally, as opposed to merely morally, binding. Typically, a declaration proclaims a set of principles, ideals or standards generally accepted by the international community which are intended to inform national policies. Initially, however, a declaration does not contain binding legal obligations. The operative provisions of a declaration can eventually crystallise into customary law as did certain provisions of the Universal Declaration of Human Rights. Alternatively, these provisions can be incorporated later into a legally binding international agreement. This occurred with certain provisions of the Declaration of the Rights of the Child which were later embodied in the Convention on the Rights of the Child.

Educational rights have been recognised in two United Nations declarations concerning disabled persons. Principle 2 of the Declaration on the Rights of Mentally Retarded Persons proclaimed by the General Assembly in Resolution 2856 (XXVI) of 20 December 1971 states that "(t]he mentally retarded person has a right to … such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential". Similarly, Principle 6 of the Declaration on the Rights of Disabled Persons proclaimed by the General Assembly in Resolution 3447 (XXX) of 9 December] 975 affirms the right of disabled persons to "education, vocational training and rehabilitation … and other services which will enable them to develop their capabilities and skills to the maximum".

The right to education features prominently in three United Nations declarations concerning children and youth. Principle 5 of the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 [42] states that the physically or mentally handicapped child shall be given the special treatment, education and care required by his or her particular condition. Principle 9, a forerunner of Article 32(1) of the Convention on the Rights of the Child, forbids the employment of a child in any occupation which would prejudice his or her health or education. The most important operative provision of the Declaration of the Rights of the Child concerning education is Principle 7. Consistently with Article 26(1) of the Universal Declaration of Human Rights and Article 13(2)(a) of the International Covenant on Economic, Social and Cultural Rights, Principle 7 provides in part that "(t]he child is entitled to receive education, which shall be free and compulsory, at least in the elementary stages". As such, Principle 7 represents the first specific global reference to the right of the child to receive education.[43] The words "free and compulsory" imply the establishment and maintenance of a public education system and a State responsibility to ensure primary school attendance in circumstances, for example, of parental neglect. Although free education at all levels was a goal to strive for, many States were unable to achieve it at that time. Reference to the ‘fundamental’ stage of education which appears in Article 26(1) of the Universal Declaration was omitted in Principle 7 because fundamental education usually refers to adult education.

On 7 December 1965, the United Nations General Assembly proclaimed in Resolution 2037 (XX) the Declaration on the Promotion among Youth of the Ideals of Peace, Mutual Respect and Understanding between Peoples. Principle II thereof urges that "(a]ll means of education… should foster among [the young] the ideals of peace. humanity, liberty and international solidarity and all other ideals which help to bring peoples closer together … ". High on the agenda of the heads of State and Government who attended the World Summit for Children held at United Nations headquarters in New York on 30 September 1990 were the necessity to reduce illiteracy and to improve equality of educational opportunity. At the conclusion of the Summit, the World Declaration on the Survival, Protection and Development of the Child was adopted, Principle 20(6) of which reads:

The World Summit for Children also adopted a non-binding Plan of Action for Implementing the World Declaration on the Survival, Protection and Development of the Child which, inter alia, sets as two of its goals access to, and complction of, basic education for 80% of school-age children, and the reduction of adult illiteracy by one-half.[44]

The right to education has also been recognised by instruments seeking to address human rights issues concerning women. Article 9 of the Declaration on the Elimination of Discrimination Against Women proclaimed by the United Nations General Assembly in Resolution 2263 (XXII) of 7 November 1967 enjoins that "[a]ll appropriate measures shall be taken to ensure to girls and women, married or unmarried, equal rights with men in education at all levels". Article 9 particularly insists on equal conditions of access to, and study in, all types of educational institutions as well as the same choice of curricula, teaching staff with qualifications of the same standard and school premises and equipment of the same quality. Similarly, an entire provision of the Convention on the Elimination of All Forms of Discrimination Against Women. which was adopted by the United Nations General Assembly in Resolution 34/180 of 18 December 1979, is devoted to the right to education. Article 10 essentially reaffirms Article 9 of the Declaration and adds some new provisions such as the necessity to reduce female student drop-out rates. Thus, what was only a programmatic statement of principle in Article 9 of the Declaration has been converted into a binding legal obligation in Article 10 of the Convention.

Recognition of the Right to Education by Regional Human Rights Instruments

There have also been significant efforts made at the regional level to recognise and secure the right to education, most notably in Europe, Africa and Latin America. Each region will be considered in turn.

Europe

Although the original text of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950[45] contained no provision concerning the right to education, Article 2 of the First Protocol [46] to the European Convention adopted by the Council of Europe on 20 March 1952 states that "(n]o person shall be denied the right to education". The First Protocol is the first internationally binding instrument after the Universal Declaration of Human Rights to explicitly refer to a right to education. Article 2 is unique in the sense that it is the only regional or international human rights provision to adopt a negative formulation of the right to education. This was due to the fact that in 1952 all the Member States of the Council of Europe had a general education system and thus it was regarded as unnecessary to require them to establish such a system.[47] Indeed, the text was also changed from its original form – "Every person has the right to education" – to its present form to avoid what some States anticipated might be excessively burdensome positive obligation [48] Article 2 extends to all forms of education provided or permitted by the State, although its primary focus is on elementary education.[49] Although the term ‘education’ includes higher education, it does not extend to vocational training.[50]

The European Commission of Human Rights and the European Court of Human Rights have been called on from time to time to interpret the meaning and content of the right to education as contained in Article 2 of the First Protocol. According to the European Court in the Belgian Linguistic Case,[51] the rights protected by Article 2 include a right of access to existing educational institutions, a right to an effective education and a right to the official recognition of the studies a student has successfully completed. The Court also held in the same case that States Parties to the First Protocol are not required by Article 2 to establish at their own expense, or to subsidise, education of any particular type or at any particular level. Refusal of a subsidy to pupils at a private school has been held, therefore, not to breach Article 2.[52] Therefore, unlike most other international and regional provisions on the right to education which generally impose a positive obligation on States, Article 2 merely imposes a negative obligation on a State Party not to take steps to interfere with the right.

The right to education is not explicitly referred to in the European Social Charter signed by the members of the Council of Europe at Turin on 18 October 1961. The Charter focuses instead on the right to vocational guidance and training which can be considered a minor, albeit important, aspect of the right to education. The Contracting Parties are obliged under Article 9 to provide a free vocational guidance service to school children, young persons and adults alike. Article 10 requires the Parties to provide a system of apprenticeship and technical and vocational training and "to grant facilities for access to higher technical and university education, based solely on individual aptitude". Pursuant to Article 7(3), a provision reminiscent of Article 32(1) of the Convention on the Rights of the Child, the Contracting Parties undertake "to provide that persons who are still subject to compulsory education shall not be employed in such work as would deprive them of the full benefit of their education".

The European Court of Justice has recently expanded Community law into the educational field through the use of the combined effect of Articles 7 and 128 of the Treaty of Rome of 25 March 1957[53] establishing the European Economic Community. Article 7 of the Treaty of Rome prohibits discrimination on the ground of nationality while Article 128 provides in part that "(t]he Council [of Europe] shall … establish general principles for the implementation of a common policy of occupational training capable of contributing to the harmonious development both of national economies and of the Common Market". Those general principles are to be found in Council Decision 63/266.[54] A general right under Community law to non-discrimination in the conditions of access to vocational training has been found in the conjunction of Articles 7 and 128.[55] Community law thus has the potential to have a direct influence on the execution of national educational policy in the vocational training field.[56] The European Court of Justice has, for example, ruled on the financing of education in Belgium.[57] Greater respect for the discretionary competence of Member States in the educational field may be forthcoming as a result of the Treaty on European Union and Economic and Monetary Union (otherwise known as the Maastricht Treaty) signed on 7 February 1992.[58] Some of the main innovations introduced by the Maastricht Treaty include the development of quality education, language teaching, vocational training policy and greater mobility for students and teachers. The Treaty also acknowledges respect for the responsibility of Member States for the content of teaching and the organisation of educational systems and for their cultural and linguistic diversity. Consequently, no harmonisation of laws and regulations of Member States in these areas is required.

The right to education has been formulated in more positive terms vis-a-vis Article 2 of the First Protocol by a number of non-binding resolutions and declarations adopted by the European Parliament during the 1980s. In its "Freedom of Education in the European Community" Resolution of 14 March 1984, the European Parliament called for recognition within the European Community of the principle that "(e]very child and young person shall have the right to education and teaching without any discrimination based on sex, race, philosophical or religious beliefs, nationality, social class or economic standing". Similarly, Article 16 of the Declaration of the European Parliament of Fundamental Rights and Freedoms, adopted by the European Parliament on 12 April 1989, proclaims that "(e]veryone shall have the right to education and vocational training appropriate to their abilities".

Africa

The Charter of the Organization of African Unity (otherwise known as the Charter of Addis Ababa) was adopted by a conference of African Heads of States and Governments in Addis Ababa, Ethiopia, on 25 May 1963. Article 1 (1) thereof established the Organization of African Unity while Article 2(2)(c), contrary to the more recent European experience reflected in the Maastricht Treaty of 1992, stressed the need for Member States to co-ordinate and harmonise their general policies in the field of educational and cultural co-operation to help achieve the basic aims of the O.A.U. The latter provision has been reaffirmed recently by the Treaty Establishing the African Economic Community adopted by the O.A.U. on 3 June 1991, Article 68(1) of which provides that "Member States shall strengthen co-operation among themselves in the field of education and training and co-ordinate and harmonize their policies in this field".

It was not until 1981, however, that the O.A.U. explicitly recognised the right to education within a human rights instrument. Article 17(1) of the African Charter on Human and Peoples’ Rights,[59] which was adopted by the O.A.U. in Nairobi, Kenya on 27 June 1981, provides simply that "[e]very individual shall have the right to education". The most comprehensive formulation of the right to education in a regional African human rights instrument is to be found in the African Charter on the Rights and Welfare of the Child [60] which was adopted by the O.A.U. on 11 July 1990. The Children’s Charter imposes legally binding obligations on those African States which ratify it and also creates the Committee on the Rights and Welfare of the Child to monitor its implementation. Article 11(1) thereof states that "(e]very child shall have the right to education". Article 11(3)(a)(b) and (c) essentially replicate Article 28(1)(a)(b) and (c) of the Convention on the Rights of the Child in calling for the provision of free and compulsory basic education, the development of universal secondary education in its different forms and universal accessibility to higher education on the basis of capacity. Unlike the Convention, however, no mention is made of the right to vocational guidance and training.

The right to education has also been mentioned in various non-binding declarations adopted by the League of Arab States and the Organization of the Islamic Conference. Article XXI of the Universal Islamic Declaration of Human Rights adopted at Paris on 19 September 1981 states that "[e]very person is entitled to receive education in accordance with his [or her] natural capabilities". Article 9(b) of the Cairo Declaration on Human Rights in Islam adopted by the Organization of the Islamic Conference on 5 August 1990 provides in part that "[e]very human being has the right to receive both religious and worldly education from the various institutions of education and guidance, including the family, the school, the university, the media … ". The League of Arab States has "confirmed and guaranteed" in Article B.3. of the Charter of the Rights of the Arab Child "the child’s right for free education both in the pre-schooling, the basic and compulsory education periods … ".

Latin America

The right to education is most comprehensively dealt with by the Latin American regional human rights system. The right to education features prominently in the Charter of the Organization of American States of 1948 as amended by the Protocol of Buenos Aires of 1967.[61] Article 31 (h) of the Charter identifies as basic’ the goal of "rapid eradication of illiteracy and expansion of educational opportunities for all" in order to accelerate the economic and social development of Member States. Article 48 reinforces Article 31(h) in providing that "Member States will give special attention to the eradication of illiteracy … ". The most important pronouncements on the right to education in the Charter, however, are to be found in Article 47 which states:

Article 47(a) of the O. A. S. Charter essentially repeats the prescription of free and compulsory elementary education contained in Article 26(l) of the Universal Declaration of Human Rights of 1948. Chapter XIV of the Charter is devoted to the lnter-American Council for Education, Science, and Culture whose purpose, according to Article 99, is "to promote friendly relations and mutual understanding between the peoples of the Americas through educational, scientific and cultural cooperation and exchange between Member States … ". To accomplish this purpose, the Inter-American Council is charged by Article 100(c) to support efforts of the Member States to improve and extend education at all levels.

At the same Ninth International Conference of American States which adopted the O.A.S. Charter, the American Declaration of the Rights and Duties of Man was proclaimed on 2 May 1948.[62] The American Declaration, similar in design and purpose to the Universal Declaration of Human Rights, appears in the Final Act of the Conference held in Bogota, Colombia in April-May, 1948. Article XII of the American Declaration elaborates upon the educational provisions of the O.A.S. Charter. Article XII recognises that "(e]very person has the right to an education [which] includes the right to equality of opportunity in every case …. Article XII also guarantees the right of every person to a free primary education, although the issue of its compulsory nature is not addressed.[63]

In terms of Latin American conventional recognition of the right to education, Article 1 of the Central American Convention on the Unification of the Fundamental Norms of Education [64] (hereinafter referred to as the "Central American Convention") adopted by the O.A.S. on 22 June 1962 proclaims that "[a]ll persons in Central America have the right to the benefits of education". The adoption of the Central American Convention followed the Conference on Education and Economic and Social Development in the Latin American Countries held at Santiago, Chile in March 1962. The American Convention on Human Rights[65] (otherwise known as the Pact of San Jose) was adopted by the O.A.S. on 22 November 1969 at the conclusion of the Inter-American Specialized Conference on Human Rights held at San Jose, Costa Rica. The American Convention does not attempt to deal with economic. social and cultural rights and thus no mention is made of the right to education.[66] Article 26 does, however, require States Parties to "adopt measures … with a view to achieving progressively … the full realization of the rights implicit in the economic, social. educational, scientific, and cultural standards set forth in the Charter of the Organization of American States … " (emphasis supplied).

The recent Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights [67] (otherwise known as the "Protocol of San Salvador" ), adopted by the O.A.S. at San Salvador, El Salvador on 14 November 1988, does contain an explicit recognition of the right to education. Article 13 closely resembles Article 13 of the International Covenant on Economic. Social and Cultural Rights. Article 13(1) recognises that "(e]veryone has the right to education" while Article 13(3)(a), consistently with the international instruments, guarantees to the child the right to free compulsory elementary education. The provisions concerning secondary and higher education contained respectively in Article 13(3)(b) and (c) mirror closely Article 13(2)(b) and (c) of the International Covenant. Pursuant to Article 19 of the Protocol of San Salvador, the Inter-American Council for Education, Science, and Culture (created under Chapter XIV of the O.A.S. Charter) is responsible for vetting periodic reports submitted by the States Parties on the measures which they have taken to progressively implement the right to education within their respective jurisdictions.

Recognition of the Right to Education Under Customary Law

Considering the widespread recognition of the right to education by both international and regional human rights treaties, it is pertinent to consider whether the right has become a binding rule of customary international law.

Customary international law develops from generally accepted practices which nations follow out of a sense of legal obligation.[68] Article 38(1)(b) of the Statute of the International Court of Justice instructs the Court to apply "international custom, as evidence of a general practice accepted as law" in the resolution of disputes submitted to it. The two critical elements for the existence of a customary norm of international law are a uniform practice adhered to generally by States and their belief that the practice is required by international law (the so-called opinio juris requirement). Unlike treaties and conventions, a rule of customary law binds even those States which have never formally recognised it.[69] National and international courts have relied on international treaties and declarations as well as national constitutions and laws to assist them in determining whether a practice has crystallised into a customary norm. The International Court of Justice has, for example, relied directly upon United Nations instruments to establish the existence of a customary rule of international law in its Western Sahara Advisory Opinion.[70]

Certain aspects of the right to education including the right to free public primary education and the right to equality of educational opportunity have arguably joined the corpus of customary international law. Widely ratified and adopted human rights conventions and declarations, both international and regional, together with national laws concerning the right to education support this conclusion. It will be recalled from earlier in this chapter that the content of the right to education is most comprehensively and universally dealt with by the following provisions:

• Article 26     Universal Declaration of Human Rights
• Articles 1, 3 and 4         Convention against Discrimination in Education
• Article 13     International Covenant on Economic, Social and Cultural Rights
• Article 28      Convention on the Rights of the Child

Those Member States of the United Nations which adopted the Universal Declaration of Human Rights in 1948 understood the instrument to contain non-binding aspirational principles to guide them in the formulation of national laws and policies.[72] They viewed it as a preliminary stage leading ultimately to a comprehensive and legally binding International Bill of Rights in the form of a multilateral convention. Nearly fifty years on, a strong argument can be made that the Universal Declaration represents binding customary rules of international law. The drafting history of the Universal Declaration reveals a high degree of agreement in the discussion of the right to education.[73] The continual adherence to the provisions of the Declaration by States which joined the United Nations after 1948 and the incorporation of its principles into the constitutions of numerous States have prompted courts and prominent scholars to conclude that they now represent customary norms.[74]

As of 1995, 84 States had become a party to the Convention against Discrimination in Education. [75] The International Covenant on Economic, Social and Cultural Rights has been ratified or acceded to by 131 States.[76] As of 1996, the Convention on the Rights of the Child had been ratified or acceded to by 185 States.[77] The rapid acceptance of the Children’s Convention by almost all of the nations in just six years provides cogent evidence of the general acceptance amongst States of the right to education.[78] The customary status of the right to education is reinforced by its recognition at the regional level in the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 2 of Protocol I thereof), the African Charter on Human and Peoples’ Rights (Article 17(1)) and the Additional Protocol to the American Convention on Human Rights in the Area of Economic. Social and Cultural Rights (Article 13). The constitutional laws of States, as reflective of State practice, also provide compelling evidence that the right to education has evolved into a customary norm. The right to education is recognised in the Constitutions of some 52 States while many more recognise it in their ordinary legislation.[79]

It can be asserted with confidence that at least two educational principles have now acquired the status of customary norms – the right to free public primary education and the right to equality of educational opportunity. The following instruments all prescribe free public elementary/primary education:

• Article 26(1) Universal Declaration of Human Rights
• Article 4(a) Convention against Discrimination in Education
• Article l3(2) International Covenant on Economic, Social and Cultural Rights
• Article 28(1)(a) Convention on the Rights of the Child
• Article 47(a)  O. A. S. Charter
• Article l3(3)(a) Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights

Considering the widespread uniformity of language of these international and regional instruments, customary international law would now appear to require access for all children to a free elementary education.[80]

The right to equality of educational opportunity or the right to gain access to and enjoy educational programmes without discrimination has also featured prominently in international and regional instruments. Article 28(1) of the Convention on the Rights of the Child, for example, provides that "States Parties recognize the right of the child to education … on the basis of equal opportunity … ". The Convention against Discrimination in Education reaffirms the commitment of the Universal Declaration of Human Rights to the principle of non-discrimination in the educational sphere. The following international and regional instruments also seek to guarantee the right to equality of educational opportunity through a combination of provisions relating to a general right to non-discrimination and specifically to the right education:

• Articles 2 and 26: Universal Declaration of Human Rights
• Articles 2(2) and 13: International Covenant on Economic, Social and Cultural Rights
• Articles 2 and 17: African Charter on Human and Peoples’ Rights
• Article 14: European Convention for the Protection of Human Rights and Fundamental Freedoms (combined with Article 2 of Protocol I thereof)
• Articles 3 and 13: Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights

Apart from the above-mentioned international instruments, the national laws of many States specifically mention equality of opportunity in the exercise of the right to education. [81]
 

 

Notes

1.    Rene Maheu (former Director-General of UNESCO) as quoted in M. EI Fasi "The Right to Education and Culture" (1968) 9 Journal of the International Commission of Jurists 33, 38.
2.    L. Sohn "The Human Rights Law of the Charter" (1977) 12 Texas International Law Journal 129, 131.
3.    K. Halvorsen ,"Notes on the Realization of the Human Right to Education" (1990) 12 Human Rights Quarterly 341, 350.
4.    P. Arajarvi "Article 26" in A. Eide (ed.) The Universal Declaration of Human Rights: A Commentary (1992) 405, 408-9.
5.    F. Yolio "The Child’s Right to Education: A Survey" in G. Mialaret The Child’s Right to Education (1979) 19,25.
6.    Id.23.
7.    D. Ray and N. Tarrow Human Rights and Education (1987) 10.
8.    M. EI Fasi "The Right to Education and Culture" (1968) 9 Journal of the International Commission of Jurists 33, 34.
9.    M. Yudof "Articles 13 and 14 – Right to Education" in H. Hannum and D. Fischer (eds) U.S. Ratification of the International Covenants on Human Rights (1993) 235,242.
10.    G. Yan Bueren The International Law on the Rights of the Child (1995) 235.
11.    U.N. Annotations 112, para. 36.
12.    M. Nowak "The Right to Education" in A. Eide (ed.) Economic, Social and Cultural Rights (1995) 189,204.
13.    Id.205.
14.    P. Thornberry, "International Standards" in Education Rights and Minorities (1994) (Minority Rights Group Report)
15.    Paragraph 2 of General Comment 3 (1990): The nature of States parties’ obligations, reproduced in Manual on Human Rights Reporting, HRJPUB/91/1, UN Sales No. E.9I.XIV.I, 43-7.
16.    U.N. Doc. E/CNA1I987/17, Annex.
17.    See Paragraph 24 of the UNESCO Recommendation Concerning Education for International Understanding, Co-operation and Peace and Education Relating to Human Rights and Fundamental Freedoms 1974.
18.    Commission on Human Rights Technical Review of the Text of the Draft Convention on the Rights of the Child E/CNAI1989/WG.I/CRP.1 (15 October 1988) p. 33.
19.    Commission on Human Rights Report of the Working Group on a Draft Convention on the Rights of the Child E/CNA/I989/48 (2 March 1989) p. 80, para. 459. A Venezuelan proposal had also sought to make reference to the "overall care for the child of pre-school age": see id. p. 79, para. 458.
20.    G. Van Bueren "Education: Whose Right is it Anyway?" in L. Heffernan (ed.) Flu man Rights: A European Perspective (/994) 340, 341.
21    Commission on Human Rights Report of the Working Group on a Draft Convention on the Rights of the Child E/CNA/1985164 (3 April 1985) p. 11, para. 58; Commission on Human Rights Report of the Working Group on a Draft Convention on the Rights of the Child E/CNA/1986/39 (13 March 1986) Annex IV, p. 3 (Paper submitted by the Permanent Representative of Bangladesh).
22.    The obligation in this respect is also weaker than that imposed by Article 4(a) of the Convention against Discrimination in Education. See Technical Review, op. cit., p. 33 for the critical comment by UNESCO in this regard. See also Commission on Human Rights Report of the Working Group on a Draft Convention on the Rights of the Child E/CNA/1989/48 (2 March 1989) p. 82, para. 463 (UNESCO suggestion that the words "encourage the development of? be deleted so as not to derogate from existing standards).
23.    Commission on Human Rights Report of the Working Group on a Draft Convention on the Rights of the Child E/CNA/1985164 (3 April 1985) p. 13, para. 74; Commission on Human Rights Report of the Working Group on a Draft Convention on the Rights of the Child E/CNA/1989/48 (2 March 1989) p. 82, para. 464.
24.    Commission on Human Rights Technical Review of the Text of the Draft Convention on the Rights of the Child: Additional Comments and Clarifications by the Secretariat E/CNA/1989/WG./ICRP./IAdd.1 (14 November 1988) p. 9, para. 35; Commission on Human Rights Report of the Working Group on a Draft Convention on the Rights of the Child E/CNA/1989/48 (2 March 1989) pp. 79-80, para. 459.
25.    Commission on Human Rights Report of the Working Group on a Draft Convention on the Rights of the Child E/CNA/1989/48 (2 March 1989) p. 82, paras. 465-6 (see particularly the comments of the representatives of the United Kingdom, the Netherlands and Finland).
26.    Commission on Human Rights Report of the Working Group on a Draft Convellfion on the Rights of the Child E/CNAI1989/48 (2 March 1989) p. 82, para. 467.
27.    UNICEF The World Summit for Children (1990) 32.
28.    429 U.NTS. 93 (entry into force 22 May 1962). As of 1995, 84 States had become parties to the Convention: "International Instruments Relating to Human Rights" (1995) 16 Human Rights Law Journal 75, 88.
29    United Nations publication, Sales No. E.57.XIV.3.
30.    H. Cullen "Education Rights or Minority Rights?" (1993) 7 International Journal of Law and the Family 143,148.
31.    United Nations United Nations Action in the Field of Human Rights (1988) p. 167, para. 32.
32.    Consider, for example, the former Japanese policy of denying financial assistance to students of the Korean minority wishing to pursue university studies: Y. Iwasawa "Legal treatment of Koreans in Japan: The Impact of Intcrnational Human Rights Law on Japanese Law" (1986) 8 Human Rights Quarterly 131, 175.
33.    Nowak, op. cit., 202.
34.    Emphasis supplied by author.
35.    Article 2(a) of the Convention provides that separate educational institutions for pupils of the two sexes shall not be deemed discriminatory under the Convention provided certain conditions are met.
36.    G. Van Bueren The International Law on the Rights of the Child (1995) 246.
37.    Entry into force 24 October 1968.
38.    United Nations United Nations Action in the Field of Human Rights (1988) p. 80, para. 45.
39.    United Nations United Nations Action in the Field of Human Rights (1980) p. 199
40.    Article 5(2).
41.    United Nations United Nations Action in the Field of Human Rights (1988) p. 80, para. 46.
42.    General Assembly Resolution 1386, U.N. GAOR, 14th Sess., Supp. No. 16, at 19, U.N. Doc. N4354 (1959).
43.    Article 26(1) of the Universal Declaration of Rights, it will be recalled, stated that "Everyone has the right to education" (emphasis supplied).
44.    See Principle 20 of the Plan of Action.
45.    Signed in Rome, Italy by the Council of Europe on 4 November 1950;  entry into force 3 September 1953.
46.    Entry into force 18 May 1954.
47.    G. Van Bueren "Education: Whose Right is it Anyway?" in L. Heffernan (ed.) Human Rights: A European Perspective (1994) 339,341. /18 The HUll/an Right to Education
48.    A. Robertson "The European Convention on Human Rights: Recent Developments" (195 I) 28 British Yearbook of International Law 359, 362.
49.    X v UK No 5962/72,2 DR 50 (1975).
50.     X v. UK No 8844/80,23 DR 228 (1980).
51.     Belgian Linguistic Case (No. 1), Judgment of 9 February 1967, Series A, No.5, (1979-80) 1 EHRR 241; Belgian Linguistic Case (No.2), Judgment of 23 July 1968, Series A, No.6; (1979-80) I EHRR 252.
52.    App