After World War I, the League of Nations produced the Declaration of Geneva (1924). This first formal instrument relating to the rights of children did not expressly mention a right to education but three of its principles implied such a right. Principle I declared that a child must be given the means for a normal development. Principle II referred to ‘backward’ children who must be helped, and Principle IV stated: ‘The child must be put in a position to earn a livelihood.’316
The United Nations Organisation, formed after World War II, produced the 1948 Universal Declaration of Human Rights (‘UDHR’) 317 which declares a right to education in Article 26(1) in the following terms:
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
Nazism and the experiences of the war had a great influence on the discussion leading up to the formulation of the article. There was consensus on its inclusion.318 As to its wording, the
316
Hodgson (1996) 239; Ben Mathews, ‘Children's Criminal Responsibility in Australia: Some Legal, Psychological and Human Rights Issues’ (2000) 5 Australia & New Zealand Journal of Law & Education 27, 37.
317
G A/RES/217A (III) UN Doc A/810 71 (Adopted by the General Assembly of the United Nations on 10 December 1948). It was preceded by the American Declaration of the Rights and Duties of Man, OAS Res. XXX, (Adopted by the Ninth International Conference of American States in April 1948, Bogota, Columbia) reprinted in Basic Documents Pertaining to Human Rights in the Inter- American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992), which declared in Article XII: ‘Every person has the right to an education … [and] Every person has the right to receive, free, at least a primary education.’
318
Hersch Lauterpacht, ‘The Universal Declaration of Human Rights’ (1948) 25 British Yearbook of International Law 354, 371.
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fear was that, in the absence of an expressed ‘spirit’ or moral behind education, it could once again be used to inculcate totalitarian and racist ideals.319
Such declarations are sometimes referred to as ‘soft law’ or sets of generally accepted principles which do not contain binding legal obligations, compared with the ‘hard law’ of treaties or conventions. The UDHR, for example, declares a right to education320 whereas the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) 1966,321 a juridically binding document, sets out that the state is the main actor in implementing the right.322 However, provisions of declarations can later be incorporated into binding
international agreements. For example, the Declaration of the Rights of the Child of 1959323 was later incorporated into the Convention on the Rights of the Child (‘CROC’) 1989.324
Obligations also arise under customary international law. This has been defined as a general practice accepted as law made up of two elements: consistent state practice (usus) and the state belief that such practice is required, prohibited or allowed as a matter of law (opinion juris sive necessitatis).325 Most human rights obligations contained in the international treaties are also part of customary law.326 It has been argued that because states have constantly invoked the UDHR for example, over more than 50 years, it has become binding as a part of customary international law.327 The right to education contained in Article 26 of
319
Kate Halvorsen, ‘Notes on the Realization of the Human Right to Education’ (1990) 12 Human Rights Quarterly 341, 350-352.
320
Article 26 above; See also the Declaration on Social Progress and Development 1969, A/RES/2542, Proclaimed by General Assembly resolution 2542 (XXIV) of 11 December 1969 in Article 10.
321
opened for signature 16 December 1966, 999 UNTS 3, (entered into force generally 3 January 1976 in accordance with Article 27 which required 35 ratifications before entry into force). Australia ratified on 10 March 1976.
322
Halvorsen (1990) 342.
323
A/RES/1386 (XIV), adopted by UN General Assembly Resolution 1386 (XIV) of 10 December 1959.
324
opened for signature 20 November 1989, 1577 UNTS 3, (entered into force 2 September 1990); See Hodgson, (1996) 246, n 35-36.
325
Statute of the International Court of Justice Article 38 (1) (b).
326
Ian Brownlie, Principles of Public International Law 6th ed (2003) 562.
327
Henry J Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (2nd ed, 2000); One commentator has suggested that the world may have reached a third evolutionary stage of human rights developments: the first stage being the philosophical foundations, the second the adaptation of human rights ideas to political ends, the present stage being the time when human rights statements and claims are being transformed into laws, policies and practices that suit various domestic and international circumstances: see Norberto Bobbio, The Age of Rights (1996) 15-16, cited in David Kinley, ‘Human Rights Fundamentalisms’ (29) (4) (2007) Sydney Law Review 545, 4-5.
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UDHR (itself not a treaty), therefore can be argued to be binding in customary international law.
Articles 31 and 32 of the Vienna Convention on the Law of Treaties (‘VCLT’) set out the international rules for treaty interpretation.328 A convention is a binding treaty. Article 26 of the VCLT provided that: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’ Article 27 provides that a State Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Article 50 of the International Covenant on Civil and Political Rights 1966 (‘ICCPR’)329 and Article 28 of the ICESCR extend human rights protections to all parts of federal states without limitation or exception. Violations of human rights can occur by the actions of the federal government, a State or a Territory. Where a State or Territory has violated human rights its actions are attributed to the State Party: Australia. Therefore all branches of government at federal or State level must observe the human rights contained in the treaties to which Australia is a party.330
The right to education is specifically recognised by four major international instruments: the UDHR, the Convention Against Discrimination in Education (‘CADE’) 1960 (Article 4(a)); the ICESCR 1966 (Articles 13 and 14); and the CROC 1989 (Articles 28 and 29).331
328
opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980; See Minister of Foreign Affairs and Trade v Magno (1992) 37 FCR 298, [303]-[305].
329
opened for signature 16 December 1966, 999 UNTS 171, entered into force 23 March 1976. Australia signed in 1972 and ratified 13 August 1980.
330
Human Rights Committee, General Comment 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted 29 March 2004, 2187th meeting, UN Doc
CCPR/C/21/Rev.1/Add 13 (26 May 2004).
331
International instruments relating to the right to education include: Universal Declaration of Human Rights, 1948 (‘UDHR’); UNESCO Convention against Discrimination in Education, 1960 Adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation 11th sess, Paris 14 December 1960, 429 UNTS 93, (entered into force May 22, 1962)(entry into force for Australia 1 March 1967) (‘CADE’); International Convention on the Elimination of All Forms of Racial Discrimination, 1965 opened for signature 21 December 1965, 660 UNTS 195, entered into force 4 January 1969 (‘CERD’); International Covenant on Economic, Social and Cultural Rights, 1966 (‘ICESCR’); International Covenant on Civil and Political Rights, 1966 (‘ICCPR’); ILO Convention concerning Minimum Age for Admission to Employment, adopted by the 58th ILC sess, Geneva 26 June 1973 (entered into force 19 June 1976); Convention on the Elimination of All Forms of Discrimination against Women, 1979, opened for signature 18 December 1979, 1249 UNTS 13, (entered into force 3 September 1981) (‘CEDAW’); Convention on the Rights of the Child, 1989 (‘CROC’); Convention on Technical and Vocational Education, 1989, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation 25th sess, Paris 10 November 1989, 1649 UNTS (entered into force 29 August 1991); ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries , 1989, Adopted by the 76th ILC sess, Geneva, 27 Jun 1989 (entered into force 5 September 1991); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990, adopted by
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Article 13 of ICESCR provides:
(1) The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. (2) The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
(a) primary education shall be compulsory and available free to all;
(b) secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free
education;
(c) higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
(d) fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;
General Assembly resolution 45/158 of 18 December 1990, 2220 UNTS 31 (entered into force 1 July 2003) (‘AMW’); World Declaration on Education for All (Jomtien, Thailand 5-8 March 1990) (‘World Declaration on Education for All 1990’)
<http://unesdoc.unesco.org/images/0009/000975/097552e.pdf> at 3 November 2012 ;
ILO Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, 1999, 38 ILM 1207 (1999) (entered into force 19 November 2000);
Convention on the Rights of Persons with Disabilities, 2007 (‘CPRD’) Opened for signature 30 March 2007, 993 UNTS 3, (entered into force 3 May 2008) . Other regional instruments include the Charter of the Organization of the American States 1948, adopted 30 April 1948 (entered onto force 13 December 1951) <http://www.unhcr.org/refworld/docid/3ae6b3624.html> at 2 November 2012; Protocol of Amendment to the Charter of the Organization of American States, ‘Protocol of Buenos Aires’, February 27, 1967 OAS. Treaty Series No. 1-A (entered into force March 12 1970); Additional Protocol of the European Convention for the Protection of Human Rights and Fundamental
Freedoms, amended by Protocol No 11 1953, ETS 155 (entered into force 1 November 1998); African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU. Doc.CAB/LEG/67/3 rev. 5, 21 ILM. 58 (1982) (entered into force 21 October 1986); Protocol of San Salvador to the American Convention on Human Rights, 1988; African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), (entered into force November 29 1999); Council of Europe, European Social Charter, Revised (1996) Strasbourg ETS No 163
<http://conventions.coe.int/Treaty/en/Treaties/Html/163.htm> at 3 November 2012.
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(e) the development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such
minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.
4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph 1 of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.332
Article 14 deals specifically with the provision of free primary education. Article 2(1) requires States to take steps, including legislative measures, to achieve the ‘progressive realisation’ of ICESCR rights. This requires that States only demonstrate in good faith the fulfilment of the rights over time within their capacities. However, an immediate obligation of States Parties is to take steps – ‘deliberate, concrete and targeted’ toward realizing the rights.333
Australia is a State Party and has ratified these instruments. Whereas a dozen other States have adopted the ICESCR with reservations,334 Australia has adopted this and other related instruments without reservations.335
The CROC sets out the principle of non-discrimination and access to education with the specific requirements upon education to protect children from abuse or neglect and work that
332
See United Nations Committee on Economic, Social and Cultural Rights, ‘Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No 13 (21st sess, 1999) The right to education (Art 13 of the Covenant)’ Document E/C.12/1999/10, 8 December 1999 (‘General Comment 13 (1999)’).
333
United Nations Committee on Economic, Social and Cultural Rights, General Comment 3, The Nature of States Parties Obligations (5th sess, 1990) UN Doc E/1991/23. annex III at 86 (1991) §2.
334
Katerina Tomaševic, ‘Human rights obligations: Making education available, accessible and adaptable’ Right to Education Primer No 2, (2001) 14.
335
Australia has yet to ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: resolution adopted by the General Assembly, 10 December 2008, A/RES/63/117, opened for signature on 29 September 2009.
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interferes with primary education. It is the most widely ratified human rights instrument with 191 signatory countries.336 Australia ratified the CROC in December 1990.
Article 28 of CROC provides:
1. 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:
(a) make primary education compulsory and available free to all;
(b) encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) make higher education accessible to all …
(d) make educational and vocational information and guidance available… (e) take measures to encourage regular attendance at schools…
2. [T]ake all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity…
3. [P]romote and encourage international cooperation in matters relating to
education, in particular with a view to the elimination of ignorance and illiteracy … and facilitating access to scientific and technical knowledge and modern teaching methods …
Article 1 provides that unless a nation’s legislation otherwise rules, a ‘child’ is under 18 years of age. Article 3 provides that the ‘best interests of the child’ must be a primary consideration in all legislation, administration and court actions. The CROC is a critical document not just in relation to the right to education but also as to the child’s rights in judicial and administrative proceedings.337 For example, Australia’s ratification of this Convention led to the changed terminology and re-conceptualised orders awarding responsibilities in the Family Court. ‘Residence’ and ‘contact’ orders derived from this
336
Mathews (2000) 37.
337
Joy Cumming and Ralph Mawdsley, ‘Student Rights and Parent Rights in Education in Australia’ (2005-2006) 10(2), 11(1) Australia & New Zealand Journal of Law & Education 37, 38.
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framework were contrasted with the parental ownership terms ‘custody’ and ‘access’ previously set out in the Family Law Act 1975 (Cth).338
The agency UNESCO 339 is charged in Article 1(1) of its Constitution ‘to contribute to peace and security by collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights … affirmed …by the Charter of the United Nations’. Article 1(2) states that it is to collaborate with Member States in order to advance the mutual knowledge and understanding of peoples, to develop educational activities and to advance the ideal of equality of educational opportunity.340 UNESCO collaborates with committees charged with monitoring each of the Conventions related to the right to education (CADE, ICESCR, CROC, CEDAW, CERD, AMW).341 It has been noted that Article 13 of the ICESCR was drafted at the suggestion of the Director-General of UNESCO and that it drew on CADE in its terms.342
There is an ‘inherent dualism’ in the right to education.343
According to Article 26 of the UDHR and Article 13 of the ICESCR education is intended to ensure ‘the full development of the human personality’ and it is also directed towards ‘the strengthening of respect for human rights and fundamental freedoms.’ Therefore education is both a human right in itself and an indispensable means of realising other human rights.344
In the lead up to the ICESCR the United Nations General Assembly proposed a single International Covenant on Human Rights. However, concerns were observed about the differing nature of civil and political rights on the one hand and socio-economic rights on the other.345 Two covenants were drafted; the International Covenant for Civil and Political Rights (‘ICCPR’)346 and the ICESCR. The ICCPR covers most of the civil and political
338
See Re: B and B: Family Law Reform Act 1995 [1997] FamCA 33 [9.38] per Nicholson CJ, Fogarty and Lindenmayer JJ.
339
The General Conference of the United Nations Educational, Scientific and Cultural Organization (‘UNESCO’).
340
Hodgson (1996) 240.
341
UNESCO, The Right to Education: Monitoring standard-setting instruments of UNESCO (2008) 20.
342
Ibid 20.
343
Yves Daudet and Kishore Singh, Education Policies and Strategies 2 - The Right to Education: An Analysis of UNESCO’s Standard-setting Instruments (2001) 28.
344
General Comment 13 (1999); See also Katerina Tomaševic, ‘Human rights in education as prerequisite for human rights education’ Right to Education Primer No. 3 (2001).
345
Rebecca Young, ‘Justiciable Socio-Economic Rights? South African Insights into Australia’s Debate’ (2008) Australian International Law Journal 181, 184: Civil and political rights were able to be immediately incorporated in legislation but socio-economic rights were progressive.
346
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rights enshrined in the UDHR such as the right to life, to a fair trial, to freedom from torture and slavery, freedom of expression, freedom from arbitrary arrest and freedom of conscience and religion. It has been pointed out that the right to education straddles the ICCPR and the ICESCR.347 On the one hand government obligations to establish free schools and provide for parental choice between private and public schooling represents the civil and political content of the right. The right to receive an education, on the other hand is a socio-economic right.348 Australia agreed to be bound to the Optional Protocol to the ICCPR 349. This means the United Nations Human Rights Committee is able to hear complaints from those who claim that the Australian Government has violated their civil and political rights. However, the Committee’s findings are not enforceable.
It is clear that the international community has recognised education as an important basic human right for the last 60 years. Despite this, as Paul Hunt, a member of the Committee on Economic, Social and Cultural Rights pointed out in his General Observation concerning Article 13 of the ICESCR:
The Committee is very aware that for millions of people throughout the world, exercising the right to education remains a faraway objective that keeps moving further away.350
In April 2000 at the World Education Forum in Dakar, Senegal delegates of 180 nations, including Australia, adopted a plan of action previously set by the Jomtein Conference in 1990 for 2000.351 That earlier plan was extended until the year 2015 in order to achieve the objective of guaranteeing ‘quality primary education that is compulsory and free for all children’352
. The 2000 collective commitment affirmed that basic education is a fundamental right which is also the key to personal, social and sustainable development. It reaffirmed that
347
Sital Kalantry et al, ‘Enhancing Enforcement of Economic, Social, and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR’ (2010) 32 (2) Human Rights Quarterly