Condensed: The principles of availability, accessibility, acceptability and adaptability are essential features of the right to education. Free and compulsory primary education must be accessible to all without discrimination of any kind. Primary education must therefore be: a) Free, which requires the elimination of financial obstacles preventing access to primary education. Financial obstacles include a variety of direct costs, (e.g. registration, admission or enrolment fees, charges for tests or examinations, levies for school building, purchase of school uniforms and teaching materials); b) Compulsory, meaning that neither parents, nor guardians, nor the state are entitled to treat as optional the decision as to whether the child should have access to primary education. States must adopt a detailed plan on the implementation of free and compulsory education for all. Refusal of access to free and compulsory primary education to refugee children and those who are non-nationals may constitute discrimination. While the state may not be the sole provider of education, it cannot completely abstain from any involvement in education. Comprehensive: The right to education, provided in the ICESCR, includes the right to free and compulsory primary education ensured by the state.[1] Similarly the right to free and compulsory education is guaranteed in the CRC.[2] The Committee on Economic Social and Cultural Rights (CESCR) identifies the principles of availability, accessibility, acceptability and adaptability as essential features of this right. Availability refers to the presence of functioning institutions and programmes in sufficient quantity. Free and compulsory primary education is essential to ensuring that education is economically accessible. Accessibility also refers to physical accessibility and non-discrimination in education. Acceptability of education means that the form and substance of education should be relevant, culturally appropriate and of good quality. Adaptability refers to the flexibility of education in order to meet the changing needs of societies and communities as well as the needs of student from differing cultural backgrounds.[3] States have obligations to ensure that there are sufficient educational facilities and resources are available to guarantee that every child attends primary school, and that primary education is available free of charge.[4] This means that education should be free of direct costs at the point of use. The state’s obligation is to remove all financial obstacles in order to enable all children to have access to primary education.[5] This means that the state is required to prioritise education in budgetary allocations, thus providing public funding in order to ensure free and compulsory primary education. Examples of direct charges include registration, admission or enrolment fees, charges for tests or examinations, levies for school building, maintenance, basic amenities, school furniture and supplies, costs for teaching and learning materials, school uniforms, transport, charges for extra-curricular activities, supplementary teaching and/or private tuition etc.[6] Indirect costs are those that are not directly related to instruction but are necessary for children to access education, for example payment for water at the school, which in some countries is subsidised for poor families. The right to education is applicable to all. In the case of primary education for children this means all children, without discrimination of any kind, including street children, children with disabilities, children from minority communities, pregnant girls, children living with HIV/AIDS, internally displaced children, migrant children, regardless of their migratory status - among others. Compulsory education means that ‘neither parents, nor guardians, nor the State are entitled to treat as optional the decision as to whether the child should have access to primary education’.[7] The state has the responsibility to ensure that parental choice does not result in the exclusion of children, for example, the girl child from accessing education. Failure to ensure non-discrimination in the access to primary education constitutes a violation. Compulsory education helps to combat violations of children’s rights such as child labour and child marriage.[8] The duration of compulsory schooling may correspond with the duration of primary education or may exceed that of primary education. While education is often largely provided by the state, private actors are entitled to run private education institutions but the state cannot disassociate itself totally from the provision of education. Imposing charges on previously free education constitutes retrogressive measures. For example, the reintroduction of school fees in Botswana was considered to be a retrogressive measure notwithstanding the good faith justifications and apparent wide consultation involved in the making of that decision.[9] It has been suggested that exclusion of non-nationals and refugees from the free education policy may be considered to be discrimination.[10] Parents have the right to choose for their children schools other than those provided by the state in order to discharge their duty to ensure that children receive primary education.[11] Parents may therefore choose to enrol their children in fee-paying schools. Ensuring free and compulsory primary education for all is a minimum standard and an immediate duty of states. According to article 14 of the ICESCR, state parties which have not been able to secure free primary education so at the time of becoming a party undertake within two years to adopt a detailed plan on the implementation of free and compulsory education for all. Failure to develop this plan or to implement as a matter of priority, free and compulsory primary education constitutes a violation of the right to education.[12]
[2] Art 28(1)(a) CRC; See also art 17 ACHPR; art 11 ACRWC; art 13 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador); art 2 1952 Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms; art 17 European Social Charter.
[4] CESCR General Comment 11 ‘Plans of action for primary education’ E/C.12/1999/4 10 May 1999 para 7.
[5] K Tomasevski Free and compulsory education for all children: The gap between promise and performance Right to education primers No 2 (2001) 20. See also the CRC Committee’s recommendation to the Russian Federation to ‘[t]ake all appropriate measures to ensure that primary education is free, taking into account all direct and indirect costs, such as textbooks, renovations and security arrangements;’ Concluding Observations of the Committee on the Rights of the Child: Russian Federation CRC/C/RUS/CO/3 para 65(b).
[6] K Tomasevski The state of the right to education worldwide: Free or fee 2006 Global Report (2006) 246-7.
[8] K Tomasevski Free and compulsory education for all children: The gap between promise and performance Right to education primers No 2 (2001) 27. See also CRC Committee’s recommendation to Cape Verde to increase the years of compulsory education and to ‘take steps to close gaps between the minimum age for work and the end of compulsory education, so as to ensure children do not end their education prematurely to begin work’ Concluding Observations of the Committee on the Rights of the Child: Cape Verde CRC/C/15/Add.168 7 November 2001 para 25(a) & (b).
[9] Report of Special Rapporteur Vernor Munoz Mission to Botswana E/CN.4/2006/45/Add.1 17 March 2006 paras 44-45.
[11] See Kjeldsen, Busk Madsen and Pedersen v. Denmark application no. 5095/71; 5920/72; 5926/72 (ECtHR 1976) in which parent’s right to choose education affirmed although in respect of ensuring that children are educated according to parents religious and philosophical convictions.
[12] CESCR General Comment 13 ‘The right to education’ E/C.12/1999/10 8 December 1999 para 59.
The principles of availability, accessibility, acceptability and adaptability are essential features of the right to education. Free and compulsory primary education must be accessible to all without discrimination of any kind. Primary education must therefore be: a) Free, which requires the elimination of financial obstacles preventing access to primary education. Financial obstacles include a variety of direct costs, (e.g. registration, admission or enrolment fees, charges for tests or examinations, levies for school building, purchase of school uniforms and teaching materials); b) Compulsory, meaning that neither parents, nor guardians, nor the state are entitled to treat as optional the decision as to whether the child should have access to primary education.
States must adopt a detailed plan on the implementation of free and compulsory education for all. Refusal of access to free and compulsory primary education to refugee children and those who are non-nationals may constitute discrimination. While the state may not be the sole provider of education, it cannot completely abstain from any involvement in education.
Comprehensive:
The right to education, provided in the ICESCR, includes the right to free and compulsory primary education ensured by the state.[1] Similarly the right to free and compulsory education is guaranteed in the CRC.[2] The Committee on Economic Social and Cultural Rights (CESCR) identifies the principles of availability, accessibility, acceptability and adaptability as essential features of this right. Availability refers to the presence of functioning institutions and programmes in sufficient quantity. Free and compulsory primary education is essential to ensuring that education is economically accessible. Accessibility also refers to physical accessibility and non-discrimination in education. Acceptability of education means that the form and substance of education should be relevant, culturally appropriate and of good quality. Adaptability refers to the flexibility of education in order to meet the changing needs of societies and communities as well as the needs of student from differing cultural backgrounds.[3]
States have obligations to ensure that there are sufficient educational facilities and resources are available to guarantee that every child attends primary school, and that primary education is available free of charge.[4] This means that education should be free of direct costs at the point of use. The state’s obligation is to remove all financial obstacles in order to enable all children to have access to primary education.[5] This means that the state is required to prioritise education in budgetary allocations, thus providing public funding in order to ensure free and compulsory primary education.
Examples of direct charges include registration, admission or enrolment fees, charges for tests or examinations, levies for school building, maintenance, basic amenities, school furniture and supplies, costs for teaching and learning materials, school uniforms, transport, charges for extra-curricular activities, supplementary teaching and/or private tuition etc.[6] Indirect costs are those that are not directly related to instruction but are necessary for children to access education, for example payment for water at the school, which in some countries is subsidised for poor families.
The right to education is applicable to all. In the case of primary education for children this means all children, without discrimination of any kind, including street children, children with disabilities, children from minority communities, pregnant girls, children living with HIV/AIDS, internally displaced children, migrant children, regardless of their migratory status - among others.
Compulsory education means that ‘neither parents, nor guardians, nor the State are entitled to treat as optional the decision as to whether the child should have access to primary education’.[7] The state has the responsibility to ensure that parental choice does not result in the exclusion of children, for example, the girl child from accessing education. Failure to ensure non-discrimination in the access to primary education constitutes a violation. Compulsory education helps to combat violations of children’s rights such as child labour and child marriage.[8] The duration of compulsory schooling may correspond with the duration of primary education or may exceed that of primary education. While education is often largely provided by the state, private actors are entitled to run private education institutions but the state cannot disassociate itself totally from the provision of education.
Imposing charges on previously free education constitutes retrogressive measures. For example, the reintroduction of school fees in Botswana was considered to be a retrogressive measure notwithstanding the good faith justifications and apparent wide consultation involved in the making of that decision.[9] It has been suggested that exclusion of non-nationals and refugees from the free education policy may be considered to be discrimination.[10]
Parents have the right to choose for their children schools other than those provided by the state in order to discharge their duty to ensure that children receive primary education.[11] Parents may therefore choose to enrol their children in fee-paying schools.
Ensuring free and compulsory primary education for all is a minimum standard and an immediate duty of states. According to article 14 of the ICESCR, state parties which have not been able to secure free primary education so at the time of becoming a party undertake within two years to adopt a detailed plan on the implementation of free and compulsory education for all. Failure to develop this plan or to implement as a matter of priority, free and compulsory primary education constitutes a violation of the right to education.[12]
[1] Art 13(2(a) ICESCR;
[2] Art 28(1)(a) CRC; See also art 17 ACHPR; art 11 ACRWC; art 13 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador); art 2 1952 Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms; art 17 European Social Charter.
[3] CESCR, General Comment 13, para 6.
[4] CESCR General Comment 11 ‘Plans of action for primary education’ E/C.12/1999/4 10 May 1999 para 7.
[5] K Tomasevski Free and compulsory education for all children: The gap between promise and performance Right to education primers No 2 (2001) 20. See also the CRC Committee’s recommendation to the Russian Federation to ‘[t]ake all appropriate measures to ensure that primary education is free, taking into account all direct and indirect costs, such as textbooks, renovations and security arrangements;’ Concluding Observations of the Committee on the Rights of the Child: Russian Federation CRC/C/RUS/CO/3 para 65(b).
[6] K Tomasevski The state of the right to education worldwide: Free or fee 2006 Global Report (2006) 246-7.
[7] CESCR General Comment 11 para 6.
[8] K Tomasevski Free and compulsory education for all children: The gap between promise and performance Right to education primers No 2 (2001) 27. See also CRC Committee’s recommendation to Cape Verde to increase the years of compulsory education and to ‘take steps to close gaps between the minimum age for work and the end of compulsory education, so as to ensure children do not end their education prematurely to begin work’ Concluding Observations of the Committee on the Rights of the Child: Cape Verde CRC/C/15/Add.168 7 November 2001 para 25(a) & (b).
[9] Report of Special Rapporteur Vernor Munoz Mission to Botswana E/CN.4/2006/45/Add.1 17 March 2006 paras 44-45.
[10] As above.
[11] See K jeldsen, Busk Madsen and Pedersen v. Denmark application no. 5095/71; 5920/72; 5926/72 (ECtHR 1976) in which parent’s right to choose education affirmed although in respect of ensuring that children are educated according to parents religious and philosophical convictions.
[12] CESCR General Comment 13 ‘The right to education’ E/C.12/1999/10 8 December 1999 para 59.