The Right To Free Secondary Education: is it the right time?

A Convention on the Rights of Children Optional Protocol to Include the Right to Free Secondary Education: is it the right time?

Author: Karmela Mirriam A. Ebreo

The right to education is a recognised human right. According to the Committee on Economic, Social and Cultural Rights (1999), it is an indispensable means to achieving other human rights, hence, it is an empowerment right. As such, education is a tool geared towards full realisation not only of oneself but also of communities. (Committee on Economic, Social and Cultural Rights (CESCR), 1999, para. 1) It has been codified in one of the core human rights instruments of the world, the International Covenant on Economic, Social and Cultural Rights (ICESCR). Since its adoption in 1966, state parties to the covenant have been taking measures to achieve its full realisation, in particular the progressive introduction of the right to free secondary education. Today, it is part of the 2030 Agenda for Sustainable Development, also known as Sustainable Development Goals (SDGs), as Goal 4.1.1 From this goal alone, it is apparent that rights of children to education is emphasised. This protection has long been accepted and acknowledged because of their inherent vulnerability.2 (Smith, 2013) The Convention on the Rights of the Child (CRC) also codifies children’s right to education and, shares the same view as the ICESCR that such rights are to be achieved progressively.3 The problem lies, however, on the absence of any official legally binding document which specifically defines the metes and bounds of the ‘progressive’ approach to determine with certainty that a child’s right to free secondary education is achieved.

Understanding the Right to Education as a Human Right: Historical development of the right to education

The right to education, as all other fundamental human rights, was not instantly recognised. The concept of education itself has its own evolutionary story. Browning, Nakosteen, and Chambliss (2023), described the concept of education during the early age of the world as the process of enculturation. Education, then, guided children on their path to growth, survival, and becoming good members of their tribe or band. As societies emerged and civilisations organised, the context of education developed. In the age of enlightenment, the emancipation of the individual from the Church inspired education as it is known today. It became a prerequisite for human beings to understand society, thus, leading to people’s awareness of the notions of distinct personality and dignity. This further developed to the realisation that education was a matter of public concern. It was then when states began to take it as a public responsibility. In 1717, the State of Prussia introduced the concept of mandatory education in schools. The social divide prevailing at that time led to the shift of perspective from mandatory schools of the privileged to the demand for equal access to education, and finally to the notion of the right to education. (Browning, Nakosteen, and Chambliss, 2023)

International statutes on the right to education

The first international codification of the right to education happened in 1919, after World War I, when the Allied Powers reestablished Poland as a state. The Declaration of Geneva in 1924 gave birth to the concept of best interest of the child. Its signatories recognised that: ‘mankind owes to the Child the best it has to give’. 24 years after, the landmark document that housed the most fundamental of human rights, was declared. The Universal Declaration on Human Rights (UDHR) introduced the concept of progressive measures in achieving fundamental human rights including the right to education.

The world is not replete with resources, codifications, and resolutions upholding children’s right to education. The two most relevant treaties for the progressive realisation of the right to free secondary education are: the ICESCR and the CRC.

Contextualising the Right To Education Based On State Obligations

There are two sets of human rights. First, civil and political rights which protect a person’s freedom and civil liberties. The International Covenant on Civil and Political Rights (ICCPR) protects these rights and demands their immediate fulfilment. Second are economic, social, and cultural rights which are essential for a person’s welfare. These are protected by the ICESCR which mandates that their realisation be progressive in nature. Notwithstanding their codification in separate instruments, they remain indivisible, interdependent, and interrelated. (Lawrence, 2012)

The concept of progressive realisation of rights is found under Article 2 of the ICESCR which states, thus:

Article 2: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. [emphasis supplied]

The nature of state obligations under ICESCR can be viewed in two (2) ways. First, the duty of states in terms of performance or what they must do in pursuit of the right. This refers to the obligation to respect, protect, and fulfil human rights. As Lawrence (2012) explained, states have a duty to respect, protect and fulfil the rights under both ICCPR and ICESCR. Second, state obligations in terms of phase or what they can do now to protect the right with the goal of providing complete protection at a later time. Hence, the concept of minimum core obligations. (CESCR, General Comment (GC) 3, 1990)

Right to education as a core obligation

Core obligations refer to a set of obligations which denotes minimum essential levels of rights. The satisfaction of core obligations also amounts to compliance of the statutes protecting said rights. (Lawrence, 2012) Applying the principle of progressive realisation vis-à-vis Article 13 of ICESCR reveals the core obligations of children’s right to education. The UN CESCR laid out these core obligations under General Comment No. 13:

the right of access to education without discrimination;

ensure that education conforms to the objectives set out in article 13 (1);

the right to free primary education for all;

adopt and implement a national educational strategy which includes provision for secondary, higher and fundamental education; and

right to free choice of education without interference from the State or third parties, subject to conformity with “minimum educational standards”. (para. 57)

To further guarantee that state parties are guided in fulfilling these core obligations, the CESCR likewise advanced the 4As of the right to quality education. These 4As, once adapted by states in their respective means of protection, will help them deliver quality education to children. The interrelated and essential features called 4As are: (1) availability, (2) accessibility, (3) acceptability, and (4) adaptability. (CESCR GC No. 13, 1999)

Quite notably, the right to free secondary education is not among the core obligations set above. A cursory reading of ICESCR shows that the right to free secondary education is in Article 13 paragraph 2(a), after the phrase “with a view to achieving the full realization of this right”. This does not signify that the right is trivial. Rather, it contemplates a situation wherein states may, considering their economic capacities, move towards the full realisation of the right progressively. (Lawrence, 2012)

The provision on free secondary education under the CRC shares the same plight. Article 28 of the CRC provides:

Article 28: 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;…” [emphasis supplied]

Hence, based on the foregoing, the right to free secondary education is also a core obligation of the state but the provision of which is subject to the progressive realisation framework. Thus, as long as efforts for the availability secondary education is undertaken by the state, it will be noted as compliance and fulfilment of the core obligation.

Right to education as an immediate obligation

Although the ICESCR mandates progressive realisation of certain rights, it also directs state parties to fulfil some obligations immediately. These immediate obligations, as regards the right to education, include: the right to access education sans discrimination, and the obligation “to take steps”8 towards the full realisation of Article 13.

Taking this understanding of Article 13 of ICESCR in consonance with Article 28 of the CRC, emphasizing the right to secondary education, states have the following immediate obligations:

to encourage the development of the various forms of secondary education such as general, technical, and vocational,

to make secondary education available and accessible to all, and

to take deliberate, concrete, and targeted steps, in the form of comprehensive national action plan, in progressively introducing free secondary education.

Taking this understanding of Article 13 of ICESCR in consonance with Article 28 of the CRC, emphasizing the right to secondary education, states have the following immediate obligations:

to encourage the development of the various forms of secondary education such as general, technical, and vocational,

to make secondary education available and accessible to all, and

to take deliberate, concrete, and targeted steps, in the form of comprehensive national action plan, in progressively introducing free secondary education.

Expanding the right to education to encompass the right to free secondary education as a core obligation – Factual bases in expanding the core obligation of the right to education

According to Claude (2005), ‘education is intrinsically valuable as humankind’s most effective tool for personal empowerment. Recent reports and studies show that secondary education, in whatever form it was obtained, has a positive impact on the child and his or her society.

Benefits of free secondary education

In 2018, the Special Rapporteur on the right to education, Koumbou Boly Barry, reviewed the situation of refugees, and reported that girls with secondary education had life-changing experiences and it produced potential gains for host states. (UNGA Report, 2018)

Additionally, Sheppard (2022), found that children with pre-primary to secondary education experienced improved health, job prospects, and earnings as adults, and experience less vulnerability to exploitation and abuse.

Even in Boucle du Mouhoun, the poorest region in Burkina Faso, a recent study revealed that individuals with secondary education now enjoy more economic returns and higher life expectancy. It concluded that there is sufficient evidence that secondary education is essential in the full development of the child and the concomitant promotion of social progress. (Werner, et. al., 2022) Another extensive evaluation was conducted by the National Bureau of Economic Research, (Duflo, E., Dupas, P., & Kremer, M., 2021) as to the impact of free secondary education in Ghana. This 12-year experimental study showed that free secondary education leads to substantial learning gains, knowledge and skills, and healthier behaviours coupled with reduction of female fertility and marriage.

State Compliance with the Core Obligation ‘to take measures’

As early as 2003, the Committee called out on states for the possibility of offering secondary education free for all children. In response, the state of Romania, under its National Reform Program, (2022) granted educational support to pupils in primary and secondary levels. In 2016, the Committee likewise encouraged states to ‘introduce widely available secondary education for all as a matter of urgency’. (UNCRC GC No. 20, 2016). In 2020, just two years after Qatar acceded to the ICESCR, it was already encouraged to ‘progressively but rapidly extend free access to secondary education’, and that free access to universities be extended equally to both Qatari and non-Qatari students. (UNGA, 2020) Today, secondary education in public schools remain free for Qataris. (Ministry of Education and Higher Education Sector, 2020) These actions from state parties and the Committee depict the fact that the former indeed complied with the core obligation of taking deliberate, concrete, and targeted steps for the fulfilment of the right to free secondary education. Moreover, in as much as there are states which are already offering secondary levels sans cost, the progressive realisation of this right is well underway.

Right to free secondary education is necessary to achieve a child’s full potential

More than 30 years after the adoption of the CRC, the same core obligation as to the right to free secondary education remains.

Indicators of progressive realisation of the right to free secondary education

As more and more states comply with their core and immediate obligations under the right to education, data points toward the notion that, indeed, the right to free secondary education is progressively being achieved.

The UN Secretary General reported the status of Goal 4.1 and it showed that from 2015-2021 there was an increase in school completion rates in both lower and upper secondary levels. Although there is an increase in numbers, it is slower than the progress required, hence, it is as if there is no progress. (UN General Assembly Economic and Social Council, 2023) As UNICEF (2022) noted, challenges remain in reducing regional disparities and inequalities at the secondary level of education.

The Committee on the Elimination of Discrimination against Women (2017), in interpreting the rights of women to education, recommended that states must take all measures to provide a universal, free and compulsory education from preschool to secondary level. In 2021, Special Rapporteur on the right to education, reported to the General Assembly that Article 17 of the European Social Charter, as revised, requires state parties therein to provide free primary and secondary education. (UN General Assembly, 2021) Additionally, another Special Rapporteur noted in her recent report that proposals for an international instrument to expressly state a right to free education at the pre-primary and secondary levels of education are submitted.(UN Human Rights Council, 2023)

Conclusion

There is no doubt that free secondary education for children comes with benefits for the state. The actions of Romania and Qatar exhibited the compliance of states to the covenant’s mandate, and satisfaction of the core obligation to take deliberate, concrete, and targeted measures to push the right closer to its full realisation. That the tenor of recent reports, showing growth of the right to free secondary education in the past years, is almost insignificant even strengthens the need for a legally binding treaty. An Optional Protocol to the CRC will expand children’s right to education. Moreover, it will help in precisely defining a new set of parameters to constantly ensure the progressive, if not yet the full, realisation of this human right.

Time is of the essence. For a right as fundamental as the right to free secondary education, states need to act in unison not for this generation alone but for the next as well. Children’s right to free secondary education has been in the limbo of progressive realisation for more than 30 years. It is ripe for codification.

List of References

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Sheppard, B. (2022, December 7). Toward Free Education for All Children – Momentum Building to Expand the Right to Millions. Inter Press Service News Agency. Retrieved from https://www.ipsnews.net/2022/12/toward-free-education-children/