By Sandra Fredman, Director of the Oxford Human Rights Hub, Rhodes Professor of the Laws of the British Commonwealth and the United States, University of Oxford
Education is at the heart of the global struggle to alleviate poverty and reduce inequality. It has been demonstrated that one extra year of education is associated with a reduction in inequality (as measured by the Gini coefficient) of 1.4 percentage points. Yet its achievement remains stubbornly out of reach. Although the Millennium Development Goals promised universal primary education by 2015, there were still as many as 61 million out-of-school children of primary school age at the end of that period. Many of these will never enter a classroom. In September 2015, the world committed itself to an even more ambitious agenda (SDG4): to ensure inclusive and equitable quality education for all by 2030. How can we be sure that we do not, once again, fall short of our promises?
It is here that a human rights approach to education can make a real difference. Human rights differ from development goals in several crucial respects. Human rights are not hand-outs or charity. They are entitlements. They are not policy commitments, which can change with the vagaries of time. Human rights are legally enforceable duties. Under a human rights approach, it is not good enough to say that 90% of children are in school. Every child out of school has had her right to education violated. That is 61 million rights to education breached.
The right to education is multi-faceted. It is a social right, a freedom right and an equality right. As a social right, it entitles individuals to free and compulsory education provided by the State. As a freedom right, it protects individuals against interference by the State with their freedom of speech, religion, language and political. In particular, it prevents the State from using education to promote state propaganda or to impose the dominant culture, language or religion. Education is also an equality right, as demonstrated by the famous US Supreme Court desegregation case, Brown v Board of Education. All these components should be considered simultaneously.
Education is a multiplier right. Without education, other rights and freedoms cannot be fully enjoyed. Freedom of speech, rights to democratic participation, and rights to employment and social security are enhanced by the right to education. Education is also an accelerator right: it equips people to enter the labour force, to participate in public life and to be productive members of society. However, education is more than an instrumental right. It is popular nowadays to talk of education in terms of developing ‘human capital’, or as an investment in the human resources to promote economic prosperity. But, to see education only in instrumental terms risks depriving individuals of the right to education if they are not able to achieve these ends. Or education, seen instrumentally, may be deliberately formulated to prevent individuals from ‘rising above their station’, as in colonial India, or apartheid South Africa. Thus, education should primarily be regarded as an intrinsic right, valuable in its own terms. Education must be ‘directed to the full development of the human personality,’ and ‘promote understanding, tolerance and friendship among all nations, racial or religious groups.’
Education has been recognized as a fundamental human right at least since 1948, when the Universal Declaration of Human Rights stated that everyone had the right to free and compulsory education. The right to education in the International Covenant on Economic, Social and Cultural Rights (ICESCR) has been ratified by 164 countries in the world, with a further 6 who have signed but not ratified. It has also been recognised in the domestic law of numerous countries.
A human rights approach to education can have real traction. Litigators all round the world are testing the efficacy of going to court to achieve quality education. For example, the Legal Resources Centre, the foremost public interest law firm in South Africa, has been arguing for over ten years that the right to education includes safe buildings, desks and chairs, textbooks and teachers. They have had some huge successes, although there is still a way to go. In States all over America, litigators have been bringing cases arguing for adequate educational budgets in disadvantaged inner city schools. In Brazil, litigators have achieved the right to pre-school education, and in Colombia, an application to Court achieved free compulsory education.
This inspired us to create a documentary sharing best practice on public interest litigation for the right to education. Our new online resource, Learning Lessons from Litigators: Realising a Right to Education Through Public Interest Lawyering features the experience of lawyers from four different countries with vast experience in bringing legal claims for the right to education. By sharing best practice we can vastly improve it. Together, we can empower people all over the world to demand their right to education.