The human right to education in Arab countries : an international law perspective

Abstract

Until the formulation of international human rights law, which followed the grave violations and genocidal policies committed during World War II, ‘education’ was recognized only as a duty of parents. Initially, the 1945 Charter of the United Nations did not recognize the right to education as such. Subsequently, major international legal instruments recognized and affirmed the right to education. Article 26 of the UN Declaration of Human Rights (UNDHR) of 1948 recognized that “Everyone has the right to education.” According to Hodgson, setting elementary and fundamental education as a compulsory obligation on state members through Article 26 “appears to be based on the notion that every person has an irrevocable entitlement to a period of education at public expense.” Hodgson further argues that “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”, thus imposing a minimum obligation on the state to ensure that children receive elementary education in circumstances of parental neglect or ignorance. Nevertheless, Article 26 lacks full recognition of the state’s obligation to all components of the right to education. As such, it stipulates that elementary and fundamental education should be compulsory. Secondary and tertiary education were not mentioned explicitly, nor were they recognized by Article 26. However, the latter did recognize that technical and professional education should be generally available, but not necessarily compulsory, and higher education should be equally accessible to all. The UNESCO Convention against Discrimination in Education of 1960 was the first international instrument after the UNDHR to detail the international standards for public education. Nevertheless, its major aim was to eliminate discrimination and ensure equality of opportunities of public education at all levels and for all. This is also the case in the International Convention on the Elimination of All Kinds of Discrimination Against Women (CEDAW) in which Article 10 stipulates that States “shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education …”.

The scope of the right to education was further detailed in 1966, when the International Convention on Economic, Social and Cultural Rights (ICESCR) was adopted. In its Article 13 the scope of the right to education reaffirms that everyone has the right to education for the “full development of the human personality and the sense of dignity”, in ways that “strengthen the respect for human rights and fundamental freedoms.” In addition, this article defines the scope of the right to education to include primary education as compulsory and free for all; secondary education in its different forms “shall be made generally available and accessible to all”; higher education “shall be equally accessible to all” and basic education “shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole periods of their primary education.” Thus, Article 13 expands the scope of the right to education addressed in Article 26 of the UNDHR. It is considered as the most detailed provision of the right to education enshrined in international legal instruments. It not only expands the scope of elementary public education to include compulsory education but it also calls for the progressive introduction of free education, and recognizes secondary education as well. According to Article 2 of the ICESCR, the implementation of the right to education contained in Article 13 imposes positive action on state members to take steps in order to implement the right to education. Article 13 is even stronger and wider than the scope of the right to education as addressed in the Convention on the Rights of the Child (CRC). Whereas Article 13 of the ICESCR sets a State’s obligation to provide compulsory and free primary education, Article 28 of the CRC asserts that States should “make primary education compulsory and available free to all”. It hence enables States to provide primary education progressively and not immediately. In addition, the CRC provides a weaker frame for State obligation regarding secondary education. While according to the ICESCR States should make secondary education available in its different forms, the CRC provides that States must encourage the development of different forms of secondary education. In addition the CRC does not mandate the progressive introduction of free secondary and higher education, as is the case with the ICESCR. Failure to fulfill the right to education will be considered as a violation of the ICESCR by the State party. The 1986 Limburg Principles on the Implementation of the ICESCR defined as a “violation” of the Covenant a “failure by State party to comply with an obligation contained in the Covenant,” either by commission or omission. Later on, the Maastricht Guidelines, adopted in 1997 to elaborate on the Limburg Principles, have defined violations of ICESCR in relation to the obligations of states as failure of the member State to “respect, protect and fulfill” the rights set out in the ICESCR.