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VIII. Legal Standards

The right to education is proclaimed in the Universal Declaration of Human Rights and guaranteed in international and regional human rights treaties.  Primary education must be “compulsory and available free to all.”  Secondary education, including vocational education, must be “accessible and available to every child.”114

The right to education is a right of progressive implementation, meaning that implementation may take place over a period of time, subject to limits on available resources.  A state that has ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), for example, agrees both individually and through international assistance and cooperation “to take steps . . . to the maximum of its available resources” to the full realization of the right to education, including the progressive introduction of free secondary education.115  That is, states have a degree of flexibility in implementing the right to education, in recognition of the economic realities they face, but this flexibility does not mean that these rights are meaningless.  As the Committee on Economic, Social and Cultural Rights, the U.N. body responsible for monitoring the implementation of the ICESCR, observes, “Progressive realization means that States parties have a specific and continuing obligation ‘to move as expeditiously and effectively as possible’ towards the full realization” of the right to education.116

In the committee’s view, the right to education includes requirements that educational institutions must be both available in sufficient quantity and physically accessible—that is, “within safe physical reach, either by attendance at some reasonably convenient geographic location (e.g., a neighbourhood school) or via modern technology (e.g., access to a ‘distance learning’ programme).”117

Although the right to education is a right of progressive implementation, the prohibition on discrimination is not.  The committee has stated:  “The prohibition against discrimination enshrined in Article 2(2) of the [ICESCR] is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination.”118

Thus, regardless of its resources, the state must provide education “on the basis of equal opportunity, . . .… without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”119  In addition, the guarantees of equality before the law and the equal protection of law prevent a government from arbitrarily making distinctions among classes of persons in promulgating and enforcing its laws.  A state violates the prohibition on discrimination in education both with direct action, such as introducing or failing to repeal discriminatory laws, as well as when it fails to take measures “which address de facto educational discrimination.”120  States must ensure that their domestic legal systems provide “appropriate means of redress, or remedies, . . . to any aggrieved individual or groups,” including judicial remedies.121

These provisions should be read together with the Convention against Discrimination in Education, a treaty adopted in 1960 by the General Conference of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) and ratified by ninety-one countries.  The convention defines discrimination as “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 and in particular . . . [o]f limiting any person or group of persons to education of an inferior standard.”122  The Committee on Economic, Social and Cultural Rights has interpreted the prohibition on discrimination and the rights to education in Articles 2(2) and 13 of the ICESCR in accord with the Convention against Discrimination in Education.123 

The Convention against Discrimination in Education and other treaties establish that a state may not provide education in a discriminatory manner.124  States may make distinctions among children, but only to the extent that those distinctions are based on reasonable and objective criteria.  The principle of nondiscrimination means that a state may not arbitrarily deny an education to particular groups of children.  Denying an education on the basis of race is, for example, unquestionably arbitrary.125  Restricting noncitizens’ access to education is also recognized as unfairly discriminatory; the Committee on Economic, Social and Cultural Rights has specified with regard to education that "the principle of non-discrimination extends to all persons of school age residing in the territory of a State party, including non-nationals, and irrespective of their legal status.”126  It similarly follows that detention status is not a permissible basis for the denial of education to children.  As reaffirmed in the U.N. Rules for the Protection of Juveniles, children do not lose their right to an education when they are confined:  “Every juvenile of compulsory school age” who is deprived of his or her liberty “has the right to education suited to his or her needs and abilities,” education which should be “designed to prepare him or her for return to society.”127  The U.N. Standard Minimum Rules for the Administration of Juvenile Justice call upon government officials to ensure that children deprived of their liberty “do not leave the institution at an educational disadvantage.”128   International law also explicitly guarantees the right to education without discrimination for disabled children.129

The right of children to protection from violence is another right that applies fully and immediately and is not subject to progressive realization or the availability of resources.  The Convention on the Rights of the Child, a treaty that reflects almost universal consensus on children’s human rights, recognizes that children are entitled to special care and assistance and that the best interest of the child must be a primary consideration in all actions concerning children.  The convention establishes that children have the right to protection from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”130  This provision protects children from private acts of violence and harassment, including violent acts or threats of violence by students against other students, as well as such acts committed by state agents, including teachers and school administrators.131

Education is often presented as a solution to child labor.  The Worst Forms of Child Labour Convention, for example, highlights “the importance of education in eliminating child labour” and calls on states to to ensure access to free basic education for all children  removed from the worst forms of child labor.132  In fact, international law linked education and child labor long before the adoption in 1999 of the Worst Forms of Child Labour Convention.  Katarina Tomaševski, former U.N. special rapporteur on the right to education, has observed that the linkage “constitutes one of the oldest parts of human rights law and emerged therein because of its sound economic rationale.”133

Education is also a critical mechanism for guaranteeing children their right to “seek, receive and impart information of all kinds,” including information about health.134  Convention on the Rights of the Child requires states to “ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health.”135 The Committee on the Rights of the Child, the U.N. body responsible for monitoring the implementation of the Convention on the Rights of the Child, states in its general comment on HIV/AIDS that children have the right to obtain adequate information related to HIV/AIDS prevention.   The committee has emphasized that:

Effective HIV/AIDS prevention requires States to refrain from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information, and that, consistent with their obligations to ensure the right to life, survival and development of the child (art. 6),  States parties must ensure that children have the ability to acquire the knowledge and skills to protect themselves and others as they begin to express their sexuality.136

Access to health information is also essential to realizing the human right to the highest attainable standard of health and, ultimately, the right to life.137 Article 12 of the International Covenant on Economic, Social and Cultural Rights specifically obliges governments to take all necessary steps for the “prevention, treatment and control of epidemic . . . diseases,” such as HIV/AIDS.138 The Committee on Economic, Social and Cultural Rights has interpreted article 12 as requiring “the establishment of prevention and education programmes for behaviour-related health concerns such as sexually transmitted diseases, in particular HIV/AIDS.”139



[114] International Covenant on Economic, Social and Cultural Rights, art. 13.  See also Convention on the Rights of the Child, art. 28.

[115] International Covenant on Economic, Social and Cultural Rights, arts. 2(1), 13.

[116] Committee on Economic, Social and Cultural Rights, General Comment 13:  The Right to Education, ¶ 44.

[117] Ibid., ¶ 6.

[118] Ibid., ¶ 31.  See also General Comment 11, Plans of Action for Primary Education, U.N. ESCOR Comm. on Econ., Soc. and Cultural Rts., 20th Sess., ¶ 10, U.N. Doc. E/C.12/1999/4 (1999); General Comment 3, ¶ 1 (stating that the obligation to guarantee the exercise of rights in the ICESCR without discrimination is “of immediate effect”).

[119] Convention on the Rights of the Child, arts. 28(1), 2(1).

[120] General Comment 13, ¶ 59.

[121] General Comment 9, The Domestic Application of the Covenant, U.N. ESCOR Comm. on Econ., Soc. and Cultural Rts., 19th Sess., ¶¶ 2, 9, U.N. Doc. E/C.12/1998/24 (1998).  See also General Comment 3, ¶ 5.

[122] Convention against Discrimination in Education, art. 1.

[123] General Comment 13, ¶¶ 31, 33, 34.

[124] See, for example, ICCPR, art. 26.

[125] See Convention against Discrimination in Education, art. 1. See generally Human Rights Watch, Second Class: Discrimination against Palestinian Arab Children in Israel’s Schools (New York: Human Rights Watch, 2001), pp. 162-64

[126] General Comment 13, ¶ 34.  See also Convention against Discrimination in Education, art. 3. Article 3 provides, in relevant part: “In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake . . . [t]o give foreign nationals resident within their territory the same access to education as that given to their own nationals.”

[127] U.N. Rules for the Protection of Juveniles, art. 38.

[128] U.N. Standard Minimum Rules for the Administration of Juvenile Justice, art. 26.6.

[129] See Convention on the Rights of the Child, arts. 2(1), 23(3), at 167, 169; Declaration on the Rights of Disabled Persons, G.A. Res. 3447 (XXX), 30 U.N. GAOR, 30th Sess., Supp. No. 34, ¶¶ 2, 6, 10, U.N. Doc. A/10034 (1975).

[130] Convention on the Rights of the Child, art. 19.

[131] See Human Rights Watch, Hatred in the Hallways, pp. 128-131.

[132] Worst Forms of Child Labour Convention, art. 7(2)(c).

[133] Katarina Tomaševski, Education Denied:  Costs and Remedies (London and New York:  Zed Books, 2003), p. 24.

[134] See ICCPR, art. 19; Convention on the Rights of the Child, art. 13.

[135] Convention on the Rights of the Child, art. 24(2)(e).

[136] Committee on the Rights of the Child, General Comment No. 3 (2003) HIV/AIDS and the rights of the child, 32d sess. (2003), ¶ 16.

[137] Committee on Economic and Social Rights, General Comment 14: The Right to the Highest Attainable Standard of Health, 22d sess. (2000), ¶ 12(b), note 8.

[138] ICESCR, art. 12.

[139] General Comment 14, ¶ 16.


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