The International Bill of Human Rights (1949) (IBHR) is the universal document which governs the human rights made up of the Universal Declaration of Human Rights (UDHR) (1948), the International Covenant on Civil, Political Rights (1976) and the International Covenant on Economic, Social and Cultural Rights (1996) (Callaway and Harrell-Stephens 2007:6). The right to education for all was first enshrined in 1948 in
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Article 26 of the UDHR (UDHR 1948). Access to education is crucial since a nation’s legitimacy is weighted against its effectiveness in upholding the human rights of its citizens (Donnelly 2003:35). Education should be available in everyone’s official language of choice and should meet the specified aims of access to education. Since the adoption of the UDHR in 1948, South Africa has mandated itself to provide education to all its citizens. This includes women, men and children of all ages and backgrounds, regardless of whether they are migrants, refugees, asylum-seekers, stateless, returnees or internally displaced people (United Nations Special Report on Right to Education 2010:15). The Centre for Education Rights and Transformation (2012:8) argues that, despite the increase in States’ response to the rights of migrant children in particular, there is a general persistent lack of specific implementation and focus into the educational rights of children on the African continent. However, the UDHR (1949) does not specify the applicability of legal frameworks to the children without identity documents. Hence, Article 2 of the United Nations Convention on the Rights of the Child (UNCRC) (1989) indicated that the UDHR (1949) was inadequate for children without identity documents. Access to services and protection as a result of their lack of identity documents such as birth certificates, should not be denied to children. It is critical to note that the UNDHR (1969) and the UNCRC (1989) do not specifically mention migrant children.
Article 22 of the United Nations Convention relating to the Status of Refugees (1951) obliges contracting States to accord to refugees “the same treatment as is accorded to nationals with respect to elementary education, public relief and assistance”.
Furthermore, in an attempt to provide education for refugee children, States should make provisions for documentations such as passports. Not only that, States are encouraged to make education accessible through “the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships” (Chapter 2 of Article 22). However, this legal instrument was criticised for being out dated. Further, the policy does not mention refugees rights of education unless they are only in States that have signed to abide to the United Nations Convention relating to the Status of Refugees (1951) specifications.
In 1960, the UNESCO Convention against Discrimination in Education reinforced the right to a free and compulsory quality education as enshrined in the 1948 declaration.
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The UNESCO Convention, Article 1 states that any discrimination based on race, colour, social origin, language, religion or sex in accessing education is a violation of human rights. All nations are obliged to ensure and facilitate access to education for all including migrant children in their countries through minimising economic, social and cultural barriers that may hinder access.
Further to the UNESCO Convention, a human rights approach in governing migrant children also considers State obligations relational to the International Covenant on Civil and Political Rights (ICCPR) of 1966. The ICCPR provides that “…The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions” (Article 18(4)). The United Nations Human Rights Committee UNHRC) clarifies this right adding to the “free education at least in the elementary and fundamental stages” while technical and professional education should be made available on a merit basis (see UNHRC Article 26). Both the ICCPR and the UNHRC do not specifically refer to children possessing foreign status.
Further, the UNCRC (1989) reinforced the rights to education of children and stipulates that rich countries should assist poorer countries to realise this right. Article 41 of the UNCRC affirms that all nations that have adopted this Convention should promote provisions allied to the realisation of children’s rights. The UNCRC (1989) prohibits non-discrimination by obliging States to take measures in accommodating children who might have special needs and should facilitate opportunities for the most vulnerable groups of children in their access to education. According to the legal instruments, vulnerable groups of children constitute those exposed to criminal activities (e.g. violence at home), those staying in poverty-stricken households, illiterate children, those without parental care or suffering from personality disorders (UNCRC 1989). Nonetheless, this legal instrument does not mention effects of migration as a source of vulnerability in children.
Wenxin (2013:48) argues that implementation of right to education is advantageous for a nation’s economic and social development hence, is should not be restricted by the availability of resources, meaning that nations ought not to use “insufficient financial resources” as an excuse for not providing the right to education for all. If this
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excuse is due to lack of resources among other reasons, every nation is obligated to prove its effort by taking steps to obtain international support in trying to provide access to education to children (Nowak 2009). Article 9 of the ICESCR (1966) stipulates everyone’s right to social security and social insurance. Not only that, the United Nations Committee (No 4, 12, 15, 28, 29) on ICESCR has emphasised children’s enjoyment of specific rights, such as right to an adequate standard of living (including adequate housing, adequate food and access to clean water) and the right to access education. Article 10(1) of the ICESCR (1966), explains that in an attempt to endorse the rights of children, “widest possible protection and assistance should be accorded to the family” as well as making comprehensive provisions for nations to take “special measures of protection and assistance on behalf of children and young persons without any discrimination of parentage reasons or other conditions” (Article 10(3)).
Thus, children living in nations recognising the UNCRC of 1989 and ICESCR of 1966 are eligible to access free primary education. Primary education should be “inspiring, child friendly and motivating to the children while maximising their ability and opportunity to be responsible and free participants in their societies”. However, it is critical to understand that in 1999, the UNCRC (1989) was legally and politically criticised for its under-representation of Africans and for neglecting most concerns of African children such as internal conflicts leading to displacements of children (Viljoen 2009:335). The UNCRC (1989) did not specifically address the needs and situation of children in Africa. As a result, the ACRWC (1999) was designed to cater for the African region, amended the UNCRC (1989) misrepresentation of the African Child in all spectrums of social, economic, civil, political and cultural rights.
Adding to the international instruments governing the right to education, since South Africa’s independence in 1994, the government ratified the United Nations conventions and policies that guide its response to migrant children’s access to education. In particular, in 1999, South Africa ratified the International Labour Organisation Convention (ILOC) 182 on Child Labour focuses on access to education as an effective tool of eliminating child labour, such as prostitution, slavery or child trafficking.
Child labour is largely influence by factors of poverty and social exclusions in societies which intensify the vulnerability of children. Transitional education, a form of informal type of education has played a role in rehabilitating former child labourers. Number 138 of the ILO – Minimum Age Convention of 1973 and the ILO Worst Forms of Child
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Labour Convention (Number 182 of 1999) are also imperative in this study. Article 2.(3) of the Minimum Age Convention (1973) advocates on the abolition of child labour as well as the establishing of progressively rising minimum age that “shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years”. The Worst Forms of Child Labour Convention calls for the use of free basic education and vocational training as measures of alleviating poverty and doing away with child labour (Article 7). To add, access to education “Brings many longer-term benefits to the child concerned and to society at large. It would … lead to the ultimate eradication of all forms of child labour” (Article 1).
Further, the United Nations Millennium Declaration put forward the Millennium Development Goals (MDGs) in 2000. One of the goals of the MDGs stipulates that by 2015 all nations should ensure that all children despite their gender differences are able to complete a full course of primary schooling. South African can be argued to have made significant progress in this regard as evidenced by the continuous increase in basic education coupled with expansion of no fee schools of more than 20 68 by the end of 2012. Furthermore, there was the realisation of high enrolment rates and increase in percentages of qualified teachers and enhancements in learner to educator ratios, thus consequently improving quality of education.
However, the timeframe for this declaration has since lapsed and been replaced by the Sustainable Development Goals (SDGs) adopted in September 2015. The SDGs is a set of 17 goals that aim to eradicate extreme poverty and embrace sustainable development by 2030. In particular, goal number four of the SDGs targets the achievement of affordable inclusive and quality primary and secondary education, which promotes lifelong learning opportunities for children (United Nations 2015:2).
The goal of these SDGs has no direct inclusion of migrant children’s access to education.
The above section provided broad international legal frameworks aimed towards children’s access to education. The extent to which these frameworks are implemented for migrant children in rural areas is debatable. This is because, among other reasons, the majority of rural migrant children face structural barriers that hinder their access to education (Polzer 2004 and Dympna 2013). Rural migrant children
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encounter difficulties in choosing a language of communication for learning purposes due to the lack of qualified language educators.