Emory International Law Review

The Human Right to Education: Definition, Research and Annotated Bibliography
Jootaek Lee *Jootaek Lee is an Assistant Professor and Law Librarian at Rutgers Law School. The author would like to thank James Britt, J.D. for his editing as well as Audrey Han and Apurva Arhatia for their research assistance.

The role and function of education cannot be emphasized enough. Education enhances and develops human abilities, consciousness, identity, integrity, potential, and even power. However, no literature or other instrument comprehensively and consistently defines education. This inconsistent approach to the human right to education is more harmful than beneficial. Considering a wide variety of international instruments and literature, this Article will seek to provide a comprehensive and consistent definition of the human right to education. This Article will also provide an annotated bibliography of various sources which can facilitate the research of scholars and practitioners in this field. A list of primary source instruments, including domestic laws of selective countries, is also introduced.

 

Introduction

Until the early twentieth century, education was a privilege only allowed to certain classes of a society. 1 Jost Delbrück, The Right to Education as an International Human Right, 35 Ger. Y.B. Int’l L. 92, 95 (1992). While some countries such as Germany tried to enlighten the general public as well by starting mandatory public education in the eighteenth century, 2Id. this existed formally by law and was not fully implemented. 3Id. To make it worse, states indoctrinate authoritarian ideas through education, 4Id. at 101. This is still true even after the launch of various human rights instruments. See id. a problem which international law could not effectively regulate because it could not pierce sovereigns in human rights issues before the United Nations Charter and 1948 Universal Declaration of Human Rights (UDHR) which specifically provides a human right to education under Article 26. 5 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, art. 26, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) [hereinafter UDHR]. The United States also does not recognize the right to education in its Constitution and federal statutes; rather, U.S. law reserves the power to confer a right to education to the individual states, which makes its protection inconsistent among U.S. states and meaningless. 6See Joshua E. Weishart, Reconstituting the Right to Education, 67 Ala. L. Rev. 915, 917–20 (2016). To have a better understanding of the right to education, there is no choice but to get its definition from international law, especially human rights instruments, which provides a more consistent approach to the right to education among states and better protection to humans around the world. Laws from other foreign countries and their implementation of human rights principles should also be considered in order to understand the right to education.

While the role and function of education to enhance and develop human abilities, consciousness, identity, integrity, potential, and even power cannot be emphasized enough; no literature nor instrument comprehensively and consistently provides a definition of education. 7 Kate Halvorsen, Notes on the Realization of the Human Right to Education, 12 Hum. Rts. Q. 341, 343 (1990). “Without education, the individual could not develop his personality, which was the aim of human life and the most solid foundation of society.” Id. at 341 (quoting U.N. GAOR, 3d Sess., Third Committee, 147th mtg., A/C.3/SR.147, at 597 (Nov. 19, 1948)). Human rights instruments only provide functional and narrow definitions of education and leave room for various interpretations. This inconsistent approach to the human right to education is more harmful than beneficial in terms of application and implementation. Just as the International Bill of Human Rights organizes human rights into two pillars of rights— civil and political rights; and, second, economic, social, and cultural rights — education should also be defined by using two different lenses of positive and negative rights. 8 The term “International Bill of Human Rights” refers collectively to the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social, and Cultural Rights. See U.N. Office of the High Comm’r for Human Rights, International Bill of Human Rights, at xi–34, U.N. Doc. ST/HR/1/Rev.6, U.N. Sales No. E.02.XIV.4 (2002). Further, uniform indoctrination of authoritarian ideas — whether racial, religious, or communistic — should be regulated within the definition of education. The new definition of education should reflect the purpose, function, quantity, quality, access, subjects, and contents which the human right to education attempts to protect, prohibit, and provide.

Numerous international instruments, articles, treatises, and national laws relating to the human right to education have been drafted and published since World War II. International law has been used to pierce state sovereignty to protect a state’s citizens against the abusive use of state powers. Accordingly, research in this field to protect the human right to education has become diversified, complicated, and interdisciplinary. Research has focused on outcomes or contexts of education, applying a wide variety of theories including human capital theories, theories of consciousness-raising, and Neo-Weberian and non-Marxist theories. 9See Halvorsen, supra note 7, at 343–45. Further, international instruments should be considered holistically, including treaties, international custom, general principles of law, cases, and soft law from various intergovernmental and nongovernmental organization reports and documents. Domestic laws, including state law and local ordinances, should also be considered because the legal right to education is applied and implemented differently among different states. 10See generally Klaus D. Beiter, Is the Age of Human Rights Really Over?: The Right to Education in Africa, 49 Geo. J. Int’l L. 9 (2017); Munafrizal Manan, The Implementation of the Right to Education in Indonesia, 5 Indon. L. Rev. 51 (2015); Jai Singh, Expanding Horizons of Human Right to Education: Perspective on Indian and International Vision, 52 J. Indian L. Inst. 34 (2010); Ni Zhen, Rethinking Inclusion: Is There a Right to Inclusive Education?, 11 Frontiers L. China 486 (2016).

Considering a wide variety of international instruments and literature, this Article attempts to provide a comprehensive and consistent definition of the human right to education. It provides an annotated bibliography of journal articles, treatises, reports, and documents available online to facilitate the research of scholars and practitioners in this field. It also includes a list of primary source instruments with domestic laws of selective countries.

I. Definitions of Education in the Context of the Human Right to Education

A. Basic Definitions of Education

Because the right to education has been recognized as a human right and defined in various human rights instruments in various contexts, this right can be asserted against states and their agencies. UDHR Article 26(1) states that “everyone has the right to education.” 11 UDHR, supra note 5, art. 26(1). This implies that every human, not just the young, has the right. Article 18 of the International Covenant on Civil and Political Rights (ICCPR) and Article 12 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC) protect parents’ right to control the religious and moral education of their children. 12 International Covenant on Civil and Political Rights art. 18, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families art. 12, Dec. 18, 1990, 2220 U.N.T.S. 3 [hereinafter MWC]. Under Article 13(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), state parties recognize the right of everyone to education. 13 International Covenant on Economic, Social and Cultural Rights art. 13(1), opened for signature Dec. 19, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR]. Article 28(1) of the Convention on the Rights of the Child (CRC) also recognizes the right of the child to education as a progressive right. 14 Convention on the Rights of the Child art. 28(1), opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC]. The United Nations Educational, Scientific, and Cultural Organization (UNESCO)’s Convention Against Discrimination in Education also prohibits discrimination in terms of access to education, the standard and quality of education, and condition under which education is given. 15 Convention Against Discrimination in Education arts. 1–3, Dec. 14, 1960, 429 U.N.T.S. 93 (entered into force May 22, 1962). Article 5(v) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) urges states not to racially discriminate when their citizens enjoy the right to education and training. 16 International Convention on the Elimination of All Forms of Racial Discrimination art. 5(v), opened for signature Mar. 7, 1966, 660 U.N.T.S. 195 [hereinafter ICERD]. Article 10 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) recognizes women’s equal rights to education. 17 Convention on the Elimination of All Forms of Discrimination Against Women art. 10, opened for signature Mar. 1, 1980, 1249 U.N.T.S. 13 [hereinafter CEDAW]. Article 24 of the Convention on the Rights of Persons with Disabilities (CRPD) recognizes the right of persons with disabilities to education. 18 Convention on the Rights of Persons with Disabilities art. 24, opened for signature Mar. 30, 2007, 2515 U.N.T.S. 3 [hereinafter CRPD]. The MWC recognizes migrant workers’ and their children’s right of access to education. 19 MWC, supra note 12, arts. 30, 43(1)(a). The Convention Relating to the Status of Refugees (1951 Refugee Convention) also recognizes refugees’ equal rights to elementary education and most favored treatment to other educations. 20 Convention Relating to the Status of Refugees art. 22, July 28, 1951, 189 U.N.T.S. 137 [hereinafter 1951 Refugee Convention].

However, all the definitions provided by human rights instruments do not clearly provide what education is. The quantity, quality, and access are not clearly considered. 21 Quantity can include literacy percentages, number of schools and teachers, facilities, and budgets. Quality can also include the contents, pedagogies, class integration and interaction, class interaction, diversity, etc. Access can include equality of opportunities, distance, roads, and transportation to facilities. The meaning of education is enigmatically complicated depending on the context. Education can be the abstract freedom to educate someone or to be educated, which is related to the firstgenerational right to be free from state interference — a negative right. 22 For an overview of the generational development of human rights in international law, see Karel Vasak, A 30-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights, 1977 UNESCO Courier. Equal access to education and prohibition of discrimination negatively prevents states from performing discriminatory activities, 23 ICESCR, supra note 13, art. 13(2)(c); CRC, supra note 14, art. 28(1). which is recognized as international custom. 24See Douglas Hodgson, Education, Right to, International Protection, in Max Planck Encyclopedia of Public International Law (2006); see generally Connie de la Vega, The Right to Equal Education: Merely a Guiding Principle or Customary International Legal Right?, 11 Harv. BlackLetter L.J. 37 (1994). Alternatively, the definition of education can be more concrete and specific, including concepts such as the contents, facilities, and funds required for education, which is related to the secondgenerational social right to ask states to actively provide certain things — a positive right. 25E.g., UDHR, supra note 5, art. 26(1); see Vasak, supra note 22, at 29. Education also can mean a process through which certain outcomes and goals, such as personality, capabilities, and dignity, can be reached through certain institutional instruction, which may be related to both negative and positive rights. 26E.g., UDHR, supra note 5, art. 26(2); see Vasak, supra note 22, at 29.

Not only does international human rights law define education in different ways, but also each national and regional law confusingly uses education in inconsistent ways. The U.S. Supreme Court in Brown v. Board of Education considers education as a means, stating that education is “a principal instrument in awakening the child to cultural values, in preparing him for later professional training, . . . in helping him to adjust normally to his environment,” and in enabling a child to succeed in life. 27 Brown v. Board of Education, 347 U.S. 483, 493 (1954). The United States does not recognize the human and fundamental right to education in its Constitution; however, many state constitutions recognize it. See Heidi R. Gilchrist, Higher Education as a Human Right, 17 Wash. U. Global Stud. L. Rev. 646, 652 (2018). On the contrary, the European Court of Human Rights in its decision Campbell v. United Kingdom broadly defines education as “the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young, whereas teaching or instruction refers in particular to the transmission of knowledge and to intellectual development.” 28 Campbell v. United Kingdom, 4 Eur. H.R. Rep. 293, 303 (1982). In addition to the inconsistent definitions—with one focusing on means and the other focusing on process—both approaches are limited, focusing only on the young and failing to consider specifically what kinds of beliefs and cultural values they are trying to deliver.

Human rights instruments also partly define education as “formal institutional instruction imparted within a national, provincial, or local education system (whether public or private) at the primary, secondary, and tertiary levels.” 29 Hodgson, supra note 24. This interpretation of human rights documents focuses only on the formal instructional part of education and does not consider its contents and ideological purposes, such as the protection of human dignity and fundamental freedoms. The CRC emphasizes the elimination of ignorance, illiteracy, and facilitation of access to scientific and technical knowledge and modern teaching methods. 30 CRC, supra note 14, art. 28(3). This also focuses only on a functional, literal meaning of education and its social utilities and outcomes.

Human rights instruments break education into primary, secondary, and higher education, and impose different obligations onto state parties. 31See e.g., ICESCR, supra note 13, art. 13. Economic accessibility to education was also diverged among primary, secondary, and higher education. 32See e.g., id. UDHR Article 26(1) imposes compulsory elementary education. 33Id. ICESCR Article 13(2)(a) and CRC Article 28(1)(a) also affirm compulsory primary education, which must be available and free to all. 34 ICESCR, supra note 13, art. 13(1); CRC, supra note 14, art. 28(1)(a). The CRC prohibits child labor in part to provide the child with a fullyrealized opportunity to learn. 35 CRC, supra note 14, art. 10(3). Free compulsory primary education is recognized as international custom, so states are bound by it regardless of their ratification status. 36 Hodgson, supra note 24. While the human rights instruments consider secondary and higher education as a human right, 37 ICESCR, supra note 13, art. 13(2)(b); see Gilchrist, supra note 27, at 649–50. secondary and higher education are neither free nor compulsory due to a caveat that higher education should be accessible on the basis of capacity. 38 ICESCR, supra note 13, art. 13(2)(b). Secondary education must be generally available and accessible to all, 39Id.; CRC, supra note 14, art. 28(1)(b). and “higher education shall be made equally accessible to all” on the basis of capacity. 40 ICESCR supra note 13, art. 13(2)(c); UDHR, supra note 5, art. 26(1); CRC, supra note 14, art. 28(1)(c); The European Court of Human Rights imposed further restrictions on the human right to higher education and considered a caveat of “the capacity and resource potential of universities,” including “the availability of technical means and human resources.” 41 Tarantino v. Italy, 2013-II Eur. Ct. H.R. 397, 407. Both secondary and higher education are not free to all, but the progressive introduction of free education as a goal was encouraged. 42 ICESCR, supra note 13, art. 13(2)(b)–(c); CRC, supra note 14, art. 28(1)(b).

Education can also focus on subjects who enjoy the right. Subjects can include adults, 43 “Adult learning and education is a core component of lifelong learning” ensuring “all adults participate in their societies and the world of work” and enriching “their capabilities for living and working.” U.N. Educational, Scientific and Cultural Organization [UNESCO], Recommendation on Adult Learning and Education 2015, ¶ 1, U.N. Doc. ED-2016/WS/29 (2015) [hereinafter UNESCO RALE 2015]. parents, and vulnerable populations such as the young, 44 The young include: girls, children living in rural areas, children belonging to minority groups, indigenous children, migrant children, refugee children, internally displaced children, children affected by armed conflicts, children with disabilities, children affected by infectious diseases, sexually exploited children, children deprived of their liberty, children living in the street, working children and orphaned children. U.N. Comm’n on Human Rights Res. 2005/21, U.N. Doc. E/CN.4/RES/2005/21, ¶ 7 (Apr. 15, 2005). women, persons with disabilities, and minorities such as indigenous people. 45See CEDAW, supra note 17; CRPD, supra note 18; Convention Concerning Indigenous and Tribal Peoples in Independent arts. 26–31, June 27, 1989, 1650 U.N.T.S. 383 [hereinafter ILO Convention No. 169]; see also UNESCO RALE 2015, supra note 43, ¶ 23(c). Human rights instruments assume that every human has a right to education although that right is narrowly applied when a specific group of people is indicated. 46See UDHR, supra note 5, art. 26(1) (stating “everyone has the right to education”); id. art. 26(3) (“Parents have a prior right to choose the kind of education that shall be given to their children.”). Because of this ambiguous, broad designation, a child’s freedom of education was not specifically protected. The young, including children, have been merely the objects receiving the ideological and cultural values imposed by the states and parents. 47 UDHR, supra note 5, art. 26(2)–(3).

B. Human Rights Education

What the young can learn varies. Since the eighteenth century, law has regulated education. 48See, e.g., Jurgen Herbst, Nineteenth-Century Schools Between Community and State: The Cases of Prussia and the United States, 42 Hist. Educ. Q. 317 (2002) (“The capstone of these writings and this legislation was placed in 1794 in Prussia’s General Land Law which declared schools and universities to be ‘institutions [Veranstaltungen] of the state’ which should be established only ‘with prior knowledge and permission of the state’ and were to be ‘subject to the supervision of the state and to its examinations and visitations at all times.’”). After World War II, the new generational social right to education required states to formulate laws to provide education to their populace. 49 ICESCR, supra note 13, art. 14. However, law can be manipulated by politics, and people can be indoctrinated with bad policies and ideas. Politicians or an authoritarian dictator can lead their population in certain directions. Many critics allege that strong government involvement in the education process “might threaten individual freedom and might undermine the very foundations of a free society altogether.” 50 Delbrück, supra note 1, at 93. To prevent this side effect, the UDHR and the ICESCR inserted provisions to protect “the full development of the human personality and the sense of its dignity” and to “strengthen the respect for human rights and fundamental freedoms.” 51 ICESCR, supra note 13, art. 13(1). This is similar to the language in Article 5 of the Convention Against Discrimination in Education, stating: [t]he States [sic] Parties to this Convention agree that: (a) 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. Convention Against Discrimination in Education, supra note 15, art. 5. ICCPR Article 18 also protects parents’ right to religious and moral education of their children. 52 ICCPR, supra note 12, art. 18.

Considering the aims and purposes of education, another definition of education is provided by the UDHR and the ICESCR. UDHR Article 26(2) states that:

[e]ducation 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. 53 UDHR, supra note 5, art. 26(2).

ICESCR Article 13(1) also provides similar purposes and contents of education in detail in the human rights context, providing that education is for “the full development of the human personality and the sense of its dignity” and to “strengthen the respect for human rights and fundamental freedom.” 54 ICESCR, supra note 13, art. 13(1). This is similar to the language in Article 5 of the Convention Against Discrimination. See supra note 51. This education will allow all humans to “participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups . . . .” 55 ICESCR, supra note 13, art. 13(1). The UDHR and ICESCR not only include the social right to education requiring state involvement, but also emphasize core values of the human personality, dignity, and the fundamental freedom of humans. 56 UDHR, supra note 5, pmbl.; ICESCR, supra note 13, pmbl. General Comment 13 is aligned with this idea, defining education as “the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities” and enable humans to “wander freely and widely.” 57 Comm. on Econ. Soc. & Cultural Rights, Rep. on the Implementation of the International Covenant on Economic, Social and Cultural Rights: General Comment No. 13: The Right to Education, ¶ 1, U.N. Doc. E/C.12/1999/10 (Dec. 8, 1999) [hereinafter General Comment 13]. As a result, this emphasis on the fundamental freedom and engagement with communities in education contributes to the fights against terrorism, totalitarian societies, violence, and extremism. 58See Gilchrist, supra note 27, at 673–76.

Furthermore, many other international and regional instruments specify and supplement the aims of education, including the Protocol of San Salvador; 59 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights art. 13(2), Nov. 17, 1988, 69 O.A.S.T.S [hereinafter Protocol of San Salvador]. the Recommendation Concerning Education for International Understanding, Co-Operation, and Peace and Education Relating to Human Rights and Fundamental Freedoms (UNESCO Education Recommendation of 1974); 60See generally UNESCO, General Conference 18 C/Res. 38, 18th Sess., 36th plen. mtg. at 147, Recommendation Concerning Education for International Understanding, Co-Operation and Peace and Education Relating to Human Rights and Fundamental Freedoms, UNESCO Doc. GC(XVIII)/RES/38 (Nov. 19, 1974) [hereinafter UNESCO Education Recommendation of 1974]. the UNESCO Recommendation Concerning the Status of Teachers 1966; 61See generally UNESCO Special Intergovernmental Conference on the Status of Teachers 14 C/Resolution, Recommendation Concerning the Status of Teachers, UNESCO Doc. CFS.67/VII.4/A/F/S/R, Annex (Oct. 5, 1966) [hereinafter ILO/UNESCO Teacher Status Recommendation of 1966]. the Convention Against Discrimination in Education; 62 Convention Against Discrimination in Education, supra note 15, art. 5. the U.N. Declaration on the Promotion Among Youth of the Ideas of Peace, Mutual Respect, and Understanding Between Peoples of 1965; 63 G.A. Res. 2037 (XX), U.N. Doc. A/RES/20/2037, at 40, princs. 3–4 (Dec. 7, 1965) [hereinafter Declaration on the Promotion of Ideals Among Youth]. American Declaration of the Rights and Duties of Man of 1948 (Bogotá Declaration); 64 Organization of American States [OAS], O.A.S. Res. XXX, American Declaration of the Rights and Duties of Man, at 17, OEA/Ser.L.V/II.82 Doc.6 Rev.1 (reprinted 1992), https://www.cidh.oas.org/Basicos/English/Basic2.american%20Declaration.htm [hereinafter Bogotá Declaration]. the Declaration of the Rights of the Child of 1959; 65 G.A. Res. 1386 (XIV), Declaration of the Rights of the Child princ. 10 (Nov. 20, 1959). the CRC; 66 CRC, supra note 14, art. 28(1)(b). and the ICERD. 67 ICERD, supra note 16, art. 7. These aims reflected in various international and regional instruments are recapitulated as “human rights education” in the Plan of Action for the U.N. Decade for Human Rights Education, 1995–2004 68 U.N. Secretary-General, Plan of Action for the United Nations Decade for Human Rights Education, 1995–2004, ¶ 2, U.N. Doc. A/51/506/Add.1 (Dec. 12, 1996) [hereinafter U.N. Plan of Action]. as follows:

(a) The strengthening of respect for human rights and fundamental freedoms; 69Id. ¶ 2(a); U.N. Charter art. 55(c); UDHR, supra note 5, art. 26(2); Convention Against Discrimination in Education, supra note 15, art. 5(1)(a); ICERD, supra note 16, art. 7; Declaration on the Promotion of Ideals Among Youth, supra note 63, at 40; ILO/UNESCO Teacher Status Recommendation of 1966, supra note 61, pt. III, ¶ 3; ICESCR, supra note 13, art. 13(1); UNESCO Education Recommendation of 1974, supra note 60, princs. 7, 18(c); Protocol of San Salvador, supra note 59, art. 13(2); CRC, supra note 14, art. 29(1)(b).
(b) The full development of the human personality and the sense of its dignity; 70U.N. Plan of Action, supra note 68, ¶ 2(b); UDHR, supra note 5, art. 26(2); Convention Against Discrimination in Education, supra note 15, art. 5(1)(a); ICESCR, supra note 13, art. 13(1); ILO/UNESCO Teacher Status Recommendation of 1966, supra note 60, pt. III, ¶ 3; Protocol of San Salvador, supra note 58, art. 13(2); CRC, supra note 14, art. 29(1)(a).
(c) The promotion of understanding, tolerance, gender equality and friendship among all nations, indigenous peoples and racial, national, ethnic, religious and linguistic groups; 71U.N. Plan of Action, supra note 68, ¶ 2(c); UDHR, supra note 5, art. 26(2); Declaration of the Rights of the Child, supra note 64, princ. 10; Convention Against Discrimination in Education, supra note 15, art. 5(1)(a); Declaration on the Promotion of Ideals Among Youth, supra note 63, pmbl.; ICERD, supra note 16, art. 7; ICESCR, supra note 13, art. 13(1); UNESCO Education Recommendation of 1974, supra note 60, princs. 4(b), 6, 7, 17, 18(b); G.A. Res. 36/55, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, art. 5(3) (Nov. 25, 1981); Protocol of San Salvador, supra note 59, art. 13(2); CRC, supra note 14, art. 29(1)(a).
(d) The enabling of all persons to participate effectively in a free society; 72U.N. Plan of Action, supra note 68, ¶ 2(d); Bogotá Declaration, supra note 64, art. XII; Declaration of the Rights of the Child, supra note 65, princ. 7; ICESCR, supra note 13, art. 13(1); CRC, supra note 14, art. 29(1)(d).
(e) The furtherance of the activities of the United Nations for the maintenance of peace. 73U.N. Plan of Action, supra note 68, ¶ 2(e).

In addition to the human right to education, the World Declaration on Education for All specifically suggests the purposes of education should be to meet basic learning needs, share the vision, universalize access and promote equity, focus on learning, broaden the means and scope of basic education, enhance the environment for learning, and strengthen partnerships. 74 World Conference on Education for All Meeting Basic Learning Needs, World Declaration on Education for All and Framework for Action to Meet Basic Learning Needs, arts. 1–7, ED-90/CONF.205 (Mar. 9, 1990) [hereinafter World Declaration on Education for All].

C. Social Right to Receive Education

The second generational social welfare right to receive education positively imposes obligations on states to provide education instead of negatively prohibiting or preventing states from interfering with individuals’ freedom to education. 75 Delbrück, supra note 1, at 101. The provision of free education, including vocational and technological training and higher education, asks states to positively provide those benefits. 76 ICESCR, supra note 13, art. 13(2); CRC, supra note 14, art. 28(1)(b). According to General Comment 13, the social right to receive an education under ICESCR Article 13(2) includes the “interrelated and essential features” of availability, accessibility, acceptability, and adaptability. 77 General Comment 13, supra note 57, ¶ 6. Availability indicates the sufficient quantity of functioning educational institutions and programs, including buildings, sanitation facilities, safe drinking water, trained teachers, teaching materials, a library, computer facilities, and information technology. 78Id. Accessibility includes nondiscrimination, physical accessibility, and economic accessibility. 79Id. Acceptability means that “the form and substance of education, including curricula and teaching method, have to be acceptable . . . .” 80Id. “[T]his is subject to the educational objectives required by [A]rticle 13(1) and such minimum educational standards as may be approved by the State (see art. 13(3) and (4)).” Id. Adaptability means flexibility, reflecting the “needs of changing societies and communities,” and the “needs of students within their diverse social and cultural settings.” 81Id.

These four pillars of the social right to receive education are expressed in a different way as principles of education:

(1) it is conducted in a democratic and fair and non-discriminatory manner by upholding human rights, religious and cultural values, and national pluralism;
(2) it is organized as a systemic entity with an open and multi-sense system;
(3) it is organized as a process of culture and empowerment of learners that lasts for life;
(4) it is organized by giving exemplary, build[ing] willingness, and develop[ing] the creativity of learners in the learning process;
(5) it is organized by developing a culture of reading, writing, and arithmetic for all citizens;
(6) it is organized by empowering all components of society through participation in the implementation and quality control of education services. 82 Ichsan Yasin Limpo, Human Rights Perspective in the Development of National Education System, 69 J.L. Pol’y & Globalization 9, 11 (2018).

The first principle relates to accessibility, the second principle relates to acceptability, the third and fourth principles relate to acceptability, and the fifth and sixth principles relate to adaptability.

D. Criticism and Threats to the Human Right to Education

A definition of education should also reflect its criticism and new threats. The four pillars of the social right to education suggested by General Comment 13—availability, accessibility, acceptability, and adaptability— have been threatened by commercial approaches to the meaning of education, including deregulation, privatization, and reduction of public spending. 83 Caetano Pimentel, The Human Right to Education: Freedom & Empowerment, Multicultural Educ., Summer 2006, at 2, 6, reprinted in Multicultural Educ., Spring 2013, at 29, 32; General Comment 13, supra note 56, ¶ 6. The commercial approaches to education deprive education of its status as a human right and leaves education to the self-regulatory market of capitalism and the consumers’ purchasing power. 84 Pimentel, supra note 83, at 32. Poor families and fundamental human rights cannot be properly protected when students are moving away from the public education system. 85Id. Education should be inclusive and allow people to “participate actively and consciously in the society of which they are part” and “be respectful of every individual’s cultural background . . . .” 86Id. at 35. Commercial and private institutions cannot guarantee these. Lack of funds and following low quality of public education must shake off entire education pillars of availability, accessibility, acceptability, and adaptability.

There is also a threat to the proposition that education should enhance the equality and fundamental freedom of humans. Craig Lauchner argues that human rights efforts, specifically the implementation of the right to education, are ineffective tools against economic inequality in Latin America, especially MERCOSUR. 87 Craig Lauchner, The Human Right to Education: Mercosur Commitment and Economic Inequality, 52 Tex. Int’l L.J. 145, 146 (2017). In reality, implementation of the right to education has resulted in negative consequences and perpetuation of educational and economic inequality. 88Id. This, however, is a matter of implementation, including corrupt governments, and is not the fundamental issue of the right to education and its desirable definition.

It is true that the efforts to protect human rights and the freedom of education through human rights instruments could not be successfully implemented in many countries and have failed to march further to protect vulnerable populations, including the young, women, persons with disabilities, minorities, indigenous groups, and refugees. 89See Cornelia Roux, A Social Justice and Human Rights Education Project, inSafe Spaces: Human Rights Education in Diverse Contexts 29, 30 (Cornelia Roux et al. eds., 2012) [hereinafter 5 Safe Spaces]. The young and women have not been free from religious and cultural restraints imposed by societies and states. 90Id. at 29–30. The states that do not allow freedom of religion or democratic ideas will not provide the young with opportunities to learn different values from other religions and societies; ultimately, the young will fail to understand people from other cultures and religions. 91Id. at 34. Education is not provided in the local language in some countries. 92See Zehlia Babaci-Wilhite, Local Languages as a Human Right in Education: Comparative Cases from Africa 1 (2015). In some Islamic countries, music, dance, and the arts are not allowed to be taught because they are contrary to the Quran. 93See Kristin Izsak, Music Education and Islam: Perspectives on Muslim Participation in Music Education in Ontario, Canadian Music Educator, Spring 2013, at 38, 38–39 (2013). Human rights education is not possible in authoritarian states such as North Korea. Refugees’ right to education is also not properly protected. 94See Elin Martínez, Human Rights Watch, The Education Deficit: Failures to Protect and Fulfill the Right to Education in Global Development Agendas 4–5 (2016). Professor Davis argues that the federal threats to deny legal status to DREAMers and the ongoing campaign to instill fear in immigrant communities create obstacles to immigrant children’s ability to attend school. 95 Martha F. Davis, Immigration Enforcement and Children’s Human Right to Education, 56 Fam. Ct. Rev. 344, 344 (2018). In one typical instance, the U.S. Immigration and Customs Enforcement (ICE) arrested a father taking his child to school in Los Angeles. 96Id. In another instance, 2000 students in Las Cruces, New Mexico stayed home from school because of recent ICE raids. 97Id. These attacks on vulnerable communities are violations of the Equal Protection Clause and basic human rights standards. 98Id. at 345. “Refugees are one of the most prominent groups that risk being excluded from full legal protection . . . .” 99 Kurt Willems & Jonas Vernimmen, The Fundamental Human Right to Education for Refugees: Some Legal Remarks, 17 Eur. Educ. Res. J. 219, 221 (2018). While refugee children have a right of access to education, there are practical difficulties in finding effective enforcement. 100Id. at 224.

It is also interesting to see a philosophical counterargument to the social right to education. Daniel Lechner uses Michel Foucault’s philosophy in Discipline and Punish: The Birth of the Prison as a touchstone for his argument that a potential danger of a state-enforced education system is the secret subversion and abolishment of fundamental rights. 101 Daniel Lechner, The Dangerous Human Right to Education, 20 Stud. Phil. & Educ. 279, 279 (2001) (citing Michael Foucault, Discipline and Punish: The Birth of the Prison (1977)). Lechner briefly asserts that instead of protecting and empowering students to reach their personal potential, the education system disciplines and suppresses students, so they become “enslaved subjects” of society. 102Id. at 280. Students will be turned into “docile bodies” controlled and disciplined by hierarchical observation, “the rather shameful art of surveillance.” 103Julie Allan, Rethinking Inclusive Education: The Philosophers of Difference in Practice 86 (2008). John-Stewart Gordon also suggests that the current legal human right to education is not theoretically and morally supported, even if the human right to education is of great practical value and empowers other human rights. 104See John-Stewart Gordon, Is Inclusive Education a Human Right?, 41 J.L. Med. & Ethics 754, 757 – 59, 765 (2013). Gordon represents a person with learning difficulties who enjoys their freedom of education. Id. at 759.

E. Universal Definition

Consistent with human rights law and admitting criticism and threats to the human right to education, this Article proposes a universal definition of education. Education is:

  • an instrument and process of teaching and learning at an institution — whether elementary, secondary, or tertiary —

  • possessing the interrelated and essential features of availability, accessibility, acceptability, and adaptability,

  • in which a human person or a group of persons develop the knowledge, abilities, and skills with the aims

  • of respect for human rights and fundamental freedoms;

  • to fully develop the human personality;

  • to promote tolerance, gender equality, and friendship among all nations and groups of people; and

  • to enable people to participate effectively in a free society, and to enable the maintenance of peace in a globalized society.

II. International Principles Relating to the Human Right to Education

In Part II, the Article introduces a wide variety of human rights instruments and documents which address the human right to education; it is divided into pre-1990s and post-1990s. Since the collapse of former Soviet Union in 1989, many countries abandoned communism. Thus, scholars in Western countries began to actively research sensitive legal areas that had been ignored previously because of national security concerns due to the Cold War. 105 Christopher N.J. Roberts, Grasping at Origins: Shifting the Conversation in the History of Human Rights, 17 Chi. J. Int’l L. 573, 595 (2017). One of these areas is human rights, specifically economic, social, and cultural rights. These rights had been emphasized in the Eastern bloc states, including the Soviet Union, and in the Global South. Many areas such as health, education, labor and employment, food, water, housing and development, which were traditionally considered benefits provided by states, are now approached from the perspective of human rights.

 

 

A. Traditional International and Regional Human Rights Principles that Apply to the Human Right to Education

1. U.N. Charter (1945)

The United Nations will promote educational cooperation among nations to create stability and well-being. 106 U.N. Charter art. 55. In its preamble, the U.N. Charter states a universal principle of fundamental human rights, the dignity and worth of the human person, and the equal rights of men and women. In order to create the conditions of stability and well-being based on respect for the principle of equal rights and self-determination of peoples, the members of the United Nations will universally respect and observe human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion, 107Id. art. 55(c). for which members of the United Nations committed to take joint and separate action. 108Id. art. 56.

2. American Declaration of the Rights and Duties of Man (1948)

The American Declaration of the Rights and Duties of Man, commonly known as the Bogotá Declaration, adopted by the Ninth International Conference of American States in Bogotá, Columbia, recognized the right to education under Article XII. 109 Bogotá Declaration, supra note 64, art. XII. The right to education should be based on the principles of liberty, morality, and human solidarity. 110Id. art. 7.

3. Universal Declaration of Human Rights (1948) 111 UDHR, supra note 5. Most provisions of the UDHR are considered customary international law. See Henry J. Steiner et al., International Human Rights in Context 161 (2008); Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga. J. Int’l & Comp. L. 287, 353– 54 (1995).

The International Bill of Human Rights is composed of the UDHR, ICESCR, and the ICCPR. 112See supra text accompanying note 8; United Nations, Universal Declaration of Human Rights, United Nations: Dag Hammarskjöld Libr., https://research.un.org/en/docs/humanrights/undhr (last updated May 9, 2019). The UDHR is “a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 . . . .” 113 UDHR, supra note 5. Article 26(1) states that everyone enjoys the right to education. 114 UDHR, supra note 5, art. 26(1).

4. European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (1950) 115 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953), amended by Protocols Nos. 11, 14, supplemented by Protocols Nos. 1, 4, 6, 7, 12, 13, 16.

The newly formed Council of Europe drafted the European Convention on Human Rights in 1950 as an international treaty to protect human rights and political freedoms in Europe. 116Id. at 222. Article 2 of Protocol 1 of 1952 recognizes the right to education as follows: “[T]he State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” 117 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 2, Mar. 20, 1952.

5. 1951 Refugee Convention

Article 22 of the Convention recognizes refugees’ equal rights to elementary education and most favored treatment to other educations. 118 1951 Refugee Convention, supra note 20, art. 22. Article 4 provides refugees with the most favored treatment to freedom to practice their religion and the religious education of their children. 119Id. art. 4.

6. Declaration of the Rights of the Child (1959)

The Declaration of the Rights of the Child is a U.N. General Assembly resolution and “the first major international consensus on the fundamental principles of children’s rights,” expanding the right to education as recognized by the UDHR and the 1924 Geneva Declaration of the Rights of the Child. 120Geneva Declaration of the Rights of the Child, 1959, Humanium, https://www.humanium.org/en/declaration-rights-child-2/ (last visited Feb. 27, 2020); see also UDHR, supra note 5; Geneva Declaration of the Rights of the Child, 1924, Humanium, https://www.humaium.org/en/geneva-declaration (last visited Apr. 8, 2020). In its preamble, the Declaration acknowledges that the child needs special safeguards and care because of his or her physical and mental immaturity. 121 Declaration of the Rights of the Child, supra note 65, pmbl. Principle 5 urges states to provide the physically, mentally, or socially handicapped child with special treatment, education, and care. 122Id. princ. 5. Principle 7 declares children’s right to receive free and compulsory elementary education of which primary responsibility lies in the first place with their parents; education should promote their general culture and enable them to develop their abilities, individual judgment, and sense of moral and social responsibility to become a useful member of society. 123Id. princ. 7. Under Principle 10, children should be protected from discrimination and raised in the spirit of understanding, tolerance, friendship, peace, and universal brotherhood, and their talents and energy should be devoted to the service of their fellow men. 124Id. princ. 10.

7. UNESCO’s Convention Against Discrimination in Education (1960)

This Convention prohibits discrimination in terms of access to education, the standard and quality of education, and condition under which education is given. 125 Convention Against Discrimination in Education, supra note 15, arts. 1–3. Regarding the purpose of education, Article 5(1)(a) provides that:

[e]ducation 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. 126Id. art. 5(1)(a).

The Convention also respects the liberty of parents to choose for their children the institutions and religious and moral education in conformity with their own convictions. 127Id. art. 5(1)(b). It also allows for the minorities’ rights to carry on their own educational activities, including the use or the teaching of their own language. 128Id. art. 5(1)(c).

8. U.N. Declaration on the Promotion Among Youth of the Ideas of Peace, Mutual Respect and Understanding Between Peoples (1965) 129 Declaration on the Promotion of Ideals Among Youth, supra note 63.

This Declaration acknowledges that the education of young people and mutual respect and understanding between peoples can help to improve international relations and to strengthen peace and security. 130Id. pmbl. Principle II provides that the purpose of education is to foster the ideals of peace, humanity, liberty, and international solidarity, and to preserve and maintain peace and promote international understanding and cooperation. 131Id. princ. II. Principle III further provides as a purpose of education for young people to learn the dignity and equality of all men without distinction as to race, color, ethnic origins, or beliefs, and to respect fundamental human rights and people’s self-determination. 132Id. princ. III. Principle VI states “[a] major aim in educati[on] . . . [is] to train [the young] to acquire higher moral qualities, to be deeply attached to be noble ideals of peace, liberty, the dignity and equality of all men, and imbued with respect and love for humanity,” and Principle VI also emphasizes the role of the family. 133Id. princ. VI.

9. International Convention on the Elimination of All Forms of Racial Discrimination (1966)

Based on the U.N. Charter, UDHR, U.N. Declaration on the Elimination of All Forms of Racial Discrimination of 1963, and UNESCO’s Convention Against Discrimination in Education; the ICERD as a first human rights treaty affirms the necessity of speedy elimination of racial discrimination throughout the world. 134 ICERD, supra note 16, pmbl. Under Article 5(v), states should undertake steps to prohibit and eliminate discrimination based on race, color, or national or ethnic origin in the enjoyment of the right to education and training. 135Id. art. 5(v). Article 7 urges states to adopt immediate and effective measures in the fields of teaching, education, culture, and information to fight against prejudices that lead to racial discrimination. 136Id. art. 7.

10. ILO/UNESCO Teacher Status Recommendation of 1966 137 ILO/UNESCO Teacher Status Recommendation of 1966, supra note 61.

Originally adopted to provide the status of teachers to promote the higher quality education, the UNESCO Teacher Recommendation of 1966 states in its First Guiding Principle that:

[e]ducation from the earliest school years should [aim to] . . . develop[] . . . the human personality; . . . to [further] the spiritual, moral, social, cultural and economic progress of the community . . . and [to teach] deep respect for human rights and fundamental freedoms, . . . peace, . . . understanding, tolerance, and friendship among all nations and among racial or religious groups. 138Id. pt. III, ¶ 3.

This Recommendation recognized the importance of implementing previous instruments in providing proper education, including Article 26 of the UDHR; Principles 5, 7, and 10 of the Declaration of the Rights of the Child; and the U.N. Declaration on the Promotion Among Youth of the Ideas of Peace, Mutual Respect and Understanding Between Peoples. 139Id. pmbl.

11. International Covenant on Civil and Political Rights (1966) 140 ICCPR, supra note 12.

The ICCPR is one of the International Bill of Human Rights. 141See supra text accompanying note 8; United Nations: Dag Hammarskjöld Libr., supra note 112. The ICCPR imposes detailed duties on states relating to civil and political rights based on the UDHR, negatively prohibiting states from violating individual’s civil and political rights. Specifically, Article 18 of the ICCPR protects the liberty of parents to ensure the religious and moral education of their children in conformity with their own convictions. 142 ICCPR, supra note 12, art. 18. The ICCPR established a Human Rights Committee which can enforce this treaty. 143Id. arts. 40, 41, 42.

12. International Covenant on Economic, Social and Cultural Rights (1966)

The ICESCR, one of the International Bills of Human Rights, established a comprehensive social right to education. 144 ICESCR, supra note 13, art. 13(1). Article 13(1) recognizes the right to education for everyone. 145Id. It states that education is for “the full development of the human personality and the sense of its dignity” and to “strengthen the respect for human rights and fundamental freedoms.” 146Id. It also states that education will allow all humans to “participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups . . . .” 147Id. Article 13(2) demands that states provide free and compulsory primary education, generally available and accessible secondary education, and equally accessible higher education based on merits. 148Id. art. 13(2). States also undertake to respect the liberty of parents to choose property education for their children under minimum educational standards and to provide the religious and moral education for their children in conformity with their own convictions. 149Id. art. 13(3). The Convention was initially monitored by the U.N. Economic and Social Council until 1985 when the Committee on Economic, Social and Cultural Rights was established under ECOSOC Resolution 1985/17. 150See Committee on Economic, Social and Cultural Rights, U.N. Hum. Rts. Off. High Commissioner, https://www.ohchr.org/en/hrbodies/cescr/pages/cescrindex.aspx (last visited Feb. 27, 2020).

13. American Convention on Human Rights (1969) 151 Organization of American States [OAS], American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123.

This regional convention, sponsored by the OAS, approves broader standards regarding economic, social, and educational rights for incorporation into the OAS Charter. 152Id. pmbl. Article 12 includes the parents’ right to provide for the religious and moral education of their children or wards that is consistent with the parents’ own convictions. 153Id. art. 12(4). The more specific right to education embodied in the ICESCR was later incorporated by the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights in 1988, the so-called Protocol of San Salvador. 154 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 17, 1988, O.A.S.T.S. No. 69. Under Article 13(1) of the Protocol of San Salvador, everyone has the right to education. 155Id. art. 13(1). Article 13(2) of the Protocol states the aims of education are towards the full development of the human personality and human dignity and respect for human rights, ideological pluralism, fundamental freedoms, justice, and peace. 156Id. art. 13(2). Duties for each different type of education are provided under Article 13(3):

Parents also have the right to choose the type of education to be given to their children. 158Id. art. 13(4).

14. UNESCO Education Recommendation of 1974

This Recommendation emphasizes that education should achieve and advance justice, freedom, human rights and peace, noting that there is lack of implementation of educational ideals in actual situations and constitutional practices of each state. 159 UNESCO Education Recommendation of 1974, supra note 60, pmbl. Principles 4(b), 6, 7, 17, and 18 of the UNESCO Education Recommendation of 1974 provide aims of education. 160Id. princs. 4(b), 6, 7, 17, 18. Principle 4(b) states that the aims of education are the “[u]nderstanding and respect for all peoples, their cultures, civilizations, values and ways of life, including domestic ethnic cultures and cultures of other nations.” 161Id. princ. 4(b). Principle 6 prohibits the use of force and all forms of racialism, fascism, and apartheid. 162Id. princ. 6. Principle 7 recommends that states:

[F]ormulate and apply national policies aimed at increasing the efficacy of education in all its forms and strengthening its contribution to international understanding and co-operation, to the maintenance and development of a just peace, to the establishment of social justice, to respect for and application of human rights and fundamental freedoms, and to the eradication of the prejudices, misconceptions, inequalities and all forms of injustice which hinder the achievement of these aims. 163Id. princ. 7.

Principle 17 encourages states to mutually appreciate their different cultures and to allow the teaching of foreign languages, civilizations, and cultural heritage. 164Id. princ. 17. Principle 18 provides specific education goals, including eradication of inequality, injustice, and use of force in international relations, equality of peoples, the right to self-determination, maintenance of peace, protection and implementation of human rights, development, environmental protection, protection of cultural heritage, and the primary role of United Nations to implement these goals. 165Id. princ. 18.

15. Convention on the Elimination of All Forms of Discrimination Against Women (1979) 166 CEDAW, supra note 17.

The CEDAW, adopted in 1979 by the U.N. General Assembly, is often described as an international bill of rights for women. 167 Kelly Fasbinder, International Women’s Human Rights: United States Stalling Progress from CEDAW into CIL, 61 Wayne L. Rev. 691, 696–97 (2016) (“It is considered the ‘international bill of rights’ for women . . . .”). Consisting of a preamble and thirty articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination. 168See generally CEDAW, supra note 17. Article 10 of the CEDAW recognizes women’s equal rights to education. 169Id. art. 10.

16. Indigenous and Tribal Peoples Convention (ILO Convention 169) (1989)

The ILO Convention 169 deals with education in Part VI. 170 ILO Convention No. 169, supra note 45, pt. 6. As of 2019, there are twenty-three parties to this Convention. Ratifications of C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169), Int’l Lab. Org., https://www.ilo.org/dyn/normlex/en/f?p=1000:12001:::NO::: (follow “C169 – Indigenous and Tribal Peoples Convention, 1989 (No. 169)” hyperlink) (last visited Mar. 5, 2020). It urges states to take measures to ensure indigenous people have the opportunity to acquire education at all levels equally with the rest of the national community. 171Id. art. 26. It also requires states to take measures appropriate to the traditions and cultures of the peoples concerned, and to make known to them their rights relating to education. 172Id. art .30.

17. Convention on the Rights of the Child (1989) 173 CRC, supra note 14.

Article 28(1) recognizes the right of the child to education as a progressive right, more specifically as follows:

(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 on the basis of capacity by every appropriate means;
(d) Make educational and vocational information and guidance available and accessible to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates. 174Id. art. 28(1).

Article 29(1) provides the aims of education, including the development of respect for human rights and fundamental freedoms; the development of respect for the child’s parents, his or her own cultural identity, language, and values; the preparation of the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national, and religious groups and indigenous people; and the development of respect for the natural environment. 175Id. art. 29(1). Children are also protected from economic exploitation or any interference with their education. 176Id. art. 32(1). Under the CRC, disabled children are also entitled to effective access to education. 177Id. art. 23(3).

18. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) 178 MWC, supra note 12.

Under Article 12(4), state parties should undertake steps to respect the liberty of parents to teach “the religious and moral education of their children in conformity with their own convictions.” 179Id. art. 12(4). The MWC recognizes migrant workers’ and their children’s right to access to education. 180Id. arts. 30, 43(1)(a).

B. The Contemporary Development of International and Regional Principles that Applies to the Human Right to Education

The contemporary development of international principles relating to the human right to education from the 1990s has continued to be led under the umbrella of the United Nations and its affiliated and subsidiary organizations, such as Commission on Human Rights; subsequent Human Rights Councils; Committee on Economic, Social and Cultural Rights; UNESCO; the International Labor Organization (ILO). The Office of High Commissioner for Human Rights under the U.N. Secretary General has been coordinating all these efforts. 181See Human Rights Education and Training, U.N. Hum. Rts. Off. High Commissioner, https://www.ohchr.org/EN/Issues/Education/Training/Pages/HREducationTrainingIndex.aspx (last visited Mar. 5, 2020); Special Rapporteur on the Right to Education, U.N. Hum. Rts. Off. High Commissioner, https://www.ohchr.org/EN/Issues/Education/SREducation/Pages/SREducationIndex.aspx (last visited Mar. 5, 2020); Human Rights Bodies, U.N. Hum. Rts. Off. High Commissioner, https://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx (last visited Mar. 5, 2020). The implementation of the human right to education with appropriate allocation of resources and cooperation among international organizations has been emphasized, with the Special Rapporteur on the Right to Education operating since 1998. 182 General Comment 13, supra note 57, ¶ 60. At the same time, research into the human right to education is met with obstacles because there are many international organizations involved and many nations incorporated and implemented the human right to education in their constitutions and statutes in different ways. 183 Jody Heymann et al., Constitutional Rights to Education and Their Relationship to National Policy and School Enrollment, 39 Int’l J. Educ. Dev. 121, 123 (2014).

1. World Declaration on Education for All (1990) 184 World Declaration on Education for All, supra note 74.

The World Declaration on Education for All was adopted by 155 governmental delegations in Jomtien, Thailand. 185 Id. This Declaration suggests the purposes of education should be to meet basic learning needs, to share a vision, to universalize access and promote equity, to focus on learning, to broaden the means and scope of basic education, to enhance the environment for learning, and to strengthen partnerships. 186Id. arts. 1–7.

2. Vienna Declaration and Programme of Action (1990) 187 World Conference on Human Rights, Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23 (June 25, 1993).

Vienna Declaration and Programme of Action inherited the human rights tradition established by the U.N. Charter and UDHR and was adopted by the World Conference on Human Rights. The Vienna Declaration and Programme of Action assessed the contemporary human rights issues including the human right to development, rights of indigenous people and migrant workers, the equal status of women, the rights of child, the rights of the disabled person, and encouraged strengthening coordination on human rights within the U.N. system. The Declaration also specifically emphasized education on human rights and implementing programs, admitting that “resource constraints and institutional inadequacies.” 188Id. pt. I, ¶ 33. Human rights education part is separately allocated in the Declaration. 189Id. pt. II.D, ¶¶ 78–82.

3. Plan of Action for the U.N. Decade for Human Rights Education, 1995–2004 (1996)

Pursuant to a suggestion of the World Conference on Human Rights in the Vienna Declaration and Programme of Action, 190Id. pt. I, ¶ 33. the U.N. General Assembly proclaimed the tenyear period beginning on January 1, 1995 as the U.N. Decade for Human Rights Education. 191See generally U.N. Plan of Action, supra note 68. The Plan of Action included training, dissemination of information, knowledge and skills in order to strengthen the goals emphasized in the Vienna Declaration and Programme of Action including the respect for human rights and fundamental freedoms. 192Id. ¶ 2.

4. U.N. Human Rights Resolution 1998/33 (1998)

The mandate of the Special Rapporteur on the Right to Education was originally established by this resolution. 193 Comm’n on Human Rights Res. 1998/33, ¶ 6(a), U.N. Doc. E/CN/4/RES/1998/33 (Apr. 17, 1998). The duties of the Special Rapporteur, serving for a period of three years, include: (i) reporting on the status of the progressive realization of the right to education and the difficulties encountered in the implementation of this right; (ii) promoting assistance to governments in working out and adopting urgent plans of action to secure the progressive implementation of the principle of compulsory primary education; and (iii) gender considerations and the elimination of all forms of discrimination in education. 194Id. ¶ 6(a)(i)–(iii). For other duties of the Special Rapporteur, see id. ¶ 6(a)(iv)–(viii). The Special Rapporteur on the Right to Education produced the first report in 2000. 195 Katarina Tomasevski (Special Rapporteur on the Right to Education), Progress Report, Submitted in Accordance with Commission on Human Rights Resolution 1999/25, U.N. Doc. E/CN.4/2000/6 (Feb. 1, 2000).

5. Implementation of the ICESCR: General Comment No. 13: The Right to Education (General Comment 13) (1999)

General Comment 13, drafted by the Committee on Economic, Social and Cultural Rights, provides interpretations of the specific international standards for states to comply with their duties under the right to education stated under ICESCR Article 13. 196 General Comment 13, supra note 57. The Committee notes that since the General Assembly adopted the Covenant in 1966, other international instruments have further elaborated the objectives to which education should be directed. Accordingly, the Committee takes the view that States [sic] parties are required to ensure that education conforms to the aims and objectives identified in [A]rticle 13 (1), as interpreted in the light of the World Declaration on Education for All (Jomtien, Thailand, 1990) (art. 1), the Convention on the Rights of the Child (art. 29 (1)), the Vienna Declaration and Programme of Action (Part I, para. 33 and Part II, para. 80), and the Plan of Action for the United Nations Decade for Human Rights Education (para. 2). Id. ¶ 5.General Comment 13 emphasizes that education is “an indispensable means of realizing other human rights” as well as a human right itself. 197Id. ¶ 1. This interpretive comment should be considered together with General Comment 11, which deals with plans of action for primary education under ICESCR Article 14. 198Id. ¶ 2.General Comment 13 discusses the normative content of ICESCR Article 13, including the aims and objectives of education; the right to receive an education—the right to primary education, the right to secondary education, technical and vocational education, the right to higher education, the right to fundamental education, and school systems — the right to educational freedom; nondiscrimination and equal treatment; academic freedom and institutional autonomy; discipline in schools; and limitations on Article 13. 199See id. ¶¶ 342. State obligations and violations under ICESCR Article 13 are also specifically interpreted. Applying General Comment 3, General Comment 13 emphasizes that states have some immediate obligations regarding the right to education, such as nondiscrimination, equal treatment, and the obligation to take deliberate, concrete, and targeted steps towards the full realization of Article 13. 200Id. ¶ 43; see also id. at 15 nn.19–20. Finally, General Comment 13 emphasizes the roles of international organizations, including the U.N. Development Assistance Framework, UNESCO, the U.N. Development Programme (UNDP), U.N. Children’s Fund, ILO, the World Bank, the International Monetary Fund, and the regional development banks. 201Id. ¶ 60.

6. U.N. Human Rights Resolution 2005/21 (2005) 202 Comm’n on Human Rights Res. 2005/21, U.N. Doc. E/CN.4/RES/2005/21 (Apr. 15, 2005).

The Commission on Human Rights has continued to consider the right to education in its regular sessions since 2000, until it was replaced by the Human Rights Council in 2006. 203Welcome to the Human Rights Council, U.N. Hum. Rts. Council, https://www.ohchr.org/en/hrbodies/hrc/pages/aboutcouncil.aspx (last visited Sept. 27, 2019) (“The Council was created by the United Nations General Assembly on [March 15, 2006] by [R]esolution 60/251.”). The Commission passed resolutions on the right to education, declaring that everyone shall enjoy the human right to education: Resolution 2001/29, Resolution 2002/23, Resolution 2003/19, Resolution 2004/25, Resolution 2005/21. 204 Comm’n on Human Rights Res. 2005/21, supra note 196. In Resolution 2005/21, the Commission on Human Rights:

[u]rges all States (a) [t]o give full effect to the right to education and to guarantee that this right is recognized and exercised without discrimination of any kind; [and] (b) . . . to eliminate obstacles limiting effective access to education, notably by girls, including pregnant girls, children living in rural areas, children belonging to minority groups, indigenous children, migrant children, refugee children, internally displaced children, children affected by armed conflicts, children with disabilities, children affected by infectious diseases, including HIV/AIDS, sexually exploited children, children deprived of their liberty, children living in the street, working children and orphaned children. 205Id. ¶ 7(a)(b).

It further urges states to improve the quality of education, 206Id. ¶ 7(c). to mainstream human rights education, 207Id. ¶ 7(e). to recognize and promote lifelong learning, 208Id. ¶ 7(g). to submit information on best practices for the elimination of discrimination in access to education, 209Id. ¶ 7(q). and to contribute to efforts to mobilize resources by the international community to assist all states to achieve the goal of education for all children by 2015 per the U.N. Millennium Declaration. 210Id. ¶ 7(s).

7. World Programme for Human Rights Education (2005–Present)

The General Assembly adopted this program as a resolution (Resolution 59/2004) on December 10, 2004 in order to advance the implementation of human rights education programmes in all sectors and to “provide a concrete framework for action and to strengthen partnerships and cooperation from the international level down to the grass roots.” 211World Programme for Human Rights Education (2005–Ongoing), U.N. Hum. Rts. Off. High Commissioner, https://www.ohchr.org/EN/Issues/Education/Training/Pages/Programme.aspx (last visited Mar. 5, 2020). This new program is continuation of the U.N. Decade for Human Rights Education (1995–2004) and now in its third phase (2015–2019). On top of the achievements of the first phase and second phase, which had focused on human rights education in primary, secondary, and higher education, the third phase promotes human rights training for media professionals and journals in addition to the previous trainings for teachers, civil servants, law enforcement officials, and military personnel. 212Id.

8. Convention on the Rights of Persons with Disabilities (CRPD) (2007) 213 CRPD, supra note 15.

Article 24 of the CRPD recognizes the right of persons with disabilities to education, ensuring an inclusive education system at all levels and lifelong learning. 214Id. art. 24(1). The CRPD also provides that the aims of education are “[t]he full development of human potential and sense of dignity and self-worth; . . . the strengthening of respect for human rights, fundamental freedoms, and human diversity; [and] . . . [e]nabling persons with disabilities to participate effectively in a free society.” 215Id. art. 24(1)(a)(c). Persons with disabilities are ensured access to an inclusive, quality, and free primary and secondary education on an equal basis with others; reasonable accommodation of the individual’s requirements; and the support required to facilitate their effective education. 216Id. art. 24(2)(b)(d).

9. U.N. Declaration on the Rights of Indigenous Peoples (2007)

This Declaration recognizes the right of indigenous families and communities to retain shared responsibility for the education of their children, consistent with the rights of the child. 217 G.A. Res. 61/295, annex, Declaration on the Rights of Indigenous Peoples, U.N. Doc. A/RES/61/295, 46 I.L.M. 1013 (Sept. 13, 2007). Under Article 14 of the Declaration, “[i]ndigenous peoples have the right to establish and control their educational systems and institutions, providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.” 218Id. art. 14(1). They will not be discriminated against in education, 219Id. art. 14(2). and states must take effective measures to allow indigenous people access to an education in their own culture and provided in their own language. 220Id. art. 14(3). Furthermore, education must promote the right to the dignity and diversity of their cultures, traditions, histories, and aspirations. 221Id. art. 15(1). Article 17 protects indigenous children from economic exploitation and performing any work that interferes with their education. 222Id. art. 17(2).

10. HRC Resolution 8/4: The Right to Education (2008)

The Human Right Council continued the previous consideration of the human right to education by the U.N. Commission on Human Rights, recalling that everyone shall enjoy the human right to education. 223 Human Rights Council Res. 8/4, U.N. Doc. A/41/16, ¶ 7(e) (June 18, 2008).

11. Transforming Our World: The 2030 Agenda for Sustainable Development (2015)

Continuing the tradition of the Earth Summit and the Millennium Declaration to reduce extreme poverty by 2015, this new agenda adopted the 17 Sustainable Development Goals (SDGs). 224See generally G.A. Res. 70/1, U.N. Doc. A/70/1, ¶¶ 1–3, 10, 16–18, 24 (Oct. 21, 2015). While Goal 2 of Millennium Declaration “ensure[s] . . . [the] complet[ion of] a full course of primary schooling and . . . equal access to all levels of education” by 2015, SDG 4 “[e]nsure[s] inclusive and equitable quality education and promote[s] lifelong learning opportunities for all” by 2030. 225Id. ¶ 14; G.A. Res. 55/2, Millennium Declaration, U.N. Doc. A/55/2, ¶ 19 (Sept. 18, 2000); accord U.N. Dev. Programme [UNDP], The Millennium Development Goals Rep. 2015, at 24–27 (Apr. 17, 2017), https://www.undp.org/content/dam/undp/library/MDG/english/UNDP_MDG_Report_2015.pdf. This new goal emphasizes quality access to all levels of education as well as primary education, “education for sustainable development and sustainable lifestyles, human rights, gender equality, promotion of a culture of peace and non-violence, global citizenship and appreciation of cultural diversity and of culture’s contribution to sustainable development.” 226 G.A. Res. 70/1, supra note 224, at 17, Goal 4.7; see generally id. Goal 4.

12. UNESCO Recommendation on Adult Learning and Education (2015)

This Recommendation reaffirms that “[l]iteracy and adult learning and education contribute to the realization of the right to education that enables adults to exercise other economic, political, social, and cultural rights.” 227 UNESCO RALE 2015, supra note 43, pmbl. The Recommendation emphasizes the importance of lifelong learning in order to enable adults to participate fully in their societies. 228Id. pt. I, ¶ 1.

III. Annotated Bibliography

A. Journal Articles

1. Kate Halvorsen’s Notes on the Realization of the Human Right to Education

This source discusses how education as a basic human right was adopted into the UDHR and ICESCR. 229 Halvorsen, supra note 7, at 34142. The article first establishes that education is essential to fostering national development using two distinct theories: human capital and consciousness-raising. 230Id. at 343. After an examination of the history of the human rights system, the article arrives at its thesis: Education is a right that should be free to all children, without discrimination. 231Id. at 34950. It is the duty of the state to provide and implement this education, but much difficulty comes from balancing the state’s duty to provide an educational system and parental choice over their children’s education. 232Id. at 35354, 356. The article further argues that one standard procedure is not suitable for all nations. 233Id. at 356. The best method for implementing a sustainable education system is to first examine the subject nation’s historical and cultural context. 234Id. at 35758. Second, quantitative measurements — such as literacy rates, school enrollment, and budgets — must be evaluated to determine the best foundation upon which to build an inclusive education system. 235Id. at 35862.

2. Caetano Pimentel’s The Human Right to Education: Freedom & Empowerment

The article begins by providing a brief philosophical and historical examination of the education system as a reflection of society’s changing and growing cultural, political, and religious values. 236 Pimentel, supra note 83 at 34. Pimentel then describes the historical progress of the right to education, tracking various treaties and declarations from the 1600s through the 1900s. 237Id. at 45. While many nations have acknowledged the importance of the right to education, the commercial approach to education is an obstacle to accessible education for all people. 238Id. at 6. The article notes that the expansion of private education leaves public education in very poor condition with few resources and thereby perpetuates religious, racial, and genderbased inequities. 239Id. After briefly discussing gender inequality and the need for inclusive education, the article discusses the drop-out phenomenon. 240Id. at 67. School drop-outs occur for a variety of reasons, including familial pressure, financial pressure, addiction to drugs/alcohol, and discrimination. 241Id. at 7. The article suggests that “educational content, method, and scheduling” should be fine-tuned to suit the needs of nontraditional students and to combat drop-out rates. 242Id. The article endorses UNESCO’s Medium-Term Strategy for 2002–2007 as a new vision for improving the quality of education and promoting experimentation. 243Id. In addition, the education of human rights is essential to empowering individuals and promoting effective participation in a free society. 244Id. at 7–8. The principal point of the article is that the contemporary education system and various human rights issues can be improved with appropriate education. 245Id. at 9.

3. Craig Lauchner’s The Human Right to Education: Mercosur Commitment and Economic Inequality

Lauchner argues that human rights efforts, specifically the implementation of a right to education, are an ineffective tool against economic inequality in Latin America. 246 Lauchner, supra note 87, at 146. In reality, implementation of the right to education has resulted in negative consequences and perpetuation of educational and economic inequality. 247Id. Lauchner further argues that data and research that show improvements in economic inequality — particularly research conducted by International Monetary Fund — are misguided because income inequality does not measure “the full picture of inequality in any region of the world, and much less so in the most unequal of regions.” 248Id. at 149. Additionally, access to education is not the best tool to combat inequality in Latin America largely because the governments misallocate education funds and do not provide proper access for poor students throughout primary, secondary, and tertiary levels of education. 249Id. at 150. The article then examines Mercosur as a real archetype of the above issue. 250Id. at 151. Mercosur is an economic arrangement between Argentina, Brazil, Paraguay, and Uruguay with the primary intent to foster trade and beneficial commerce. 251Id. at 151 n.48. In addition, Mercosur has long held a human rights agenda through education policies and wealth redistribution. 252Id. at 151–52. In 1991, the Ministers of Education from the Mercosur nations signed a Protocol of Intention to develop education programs. 253Id. at 152. This led to Sector Educativo de Mercosur (SEM), which included a three-phase implementation process. 254Id. at 152–53. The article argues that SEM failed to reach its stated goal because “(1) The financial burden of Mercosur coordination falls unfairly on the smallest member states, and (2) Mercosur’s educational initiatives incentivize . . . increase[d] spending on tertiary-level education in which the students who reap the benefits overwhelmingly belong to the highest wealth percentiles in their respective nations.” 255Id. at 153. The article concludes that human rights efforts and economic inequality exist because a ceiling on wealth has not been implemented in any of these frameworks. 256Id. at 159–60.

4. Martha F. Davis’s Immigration Enforcement and Children’s Human Right to Education

This article reviews the outcome in the case of Plyer v. Doe, a landmark U.S. Supreme Court case. 257 Davis, supra note 95, at 344. The article discusses how recent immigration policies and ICE tactics undermine immigrant children’s access to education as first addressed in 1982 by the Supreme Court in Plyler v. Doe258Id. In the surprising decision, the Court declared that while it was not a constitutional right, the denial of education to undocumented children was “an affront to one of the goals of the Equal Protection Clause.” 259Id. The thesis includes the obstacles to immigrant children’s education caused by the denial of legal status to DREAMers and the ongoing campaign to instill fear in immigrant communities. 260Id.

5. Kurt Willems & Jonas Vernimmen’s The Fundamental Human Right to Education for Refugees: Some Legal Remarks

This article aims to describe the human rights obligations a state bears in educational matters, including concerns about the current influx of refugees. 261 Willems & Vernimmen, supra note 99, at 219. The right to education is a fundamental human right, guaranteed by many international treaties. 262Id. The article is divided into two parts. The first discusses various international legal texts and how they apply to refugees. 263Id. at 220. Human rights can generally be divided into two categories: first generational and second generational rights. 264Id. at 221. First generational rights include the freedom of speech and freedom of religion. 265Id. Second generational human rights include social, economic, and cultural rights. 266Id. Education, then, from the authors’ point of view, falls under the latter category. 267Id. Because second generational rights are alienable and thus require implementation by the state with public resources, the right to education is neither quickly actualized nor strictly enforced. 268Id.

This, in turn, poses further complications with regards to refugees. As the article states, refugees are “one of the most prominent groups that risk being excluded from full legal protection.” 269Id. It asks whether “refugees have a legally guaranteed right to education, and to which extent is [that] right enforceable against the [s]tate[.]” 270Id. at 222. The article briefly discusses several European treaties and charters, before positing that these treaties provide ample support to the claim that refugee children have a right of access to education, while acknowledging the practical difficulties of finding effective enforcement. 271Id. at 222–24 (discussing treaties including the European Convention on Human Rights and ICESCR). The second part of the article contemplates three legal questions concerning the right to education:

(i) can higher school fees be asked from pupils without legal documents? (ii) do refugees have a right to be taught in their own native language until they learn to speak the national language? and (iii) can they be placed in special (separate) schools or classes until they can follow the regular curriculum? 272Id. at 220.

The article concludes that a distinction in school fees may only be defendable for higher education, refugees currently do not have a fundamental right to be taught in their native language, and it is not automatically unlawful to place refugees in separate classes or schools; however, safeguards must be in place to ensure that this separation is not discrimination. 273Id. at 230.

6. Jai Singh’s Expanding Horizons of Human Right to Education: Perspective on Indian and International Vision

This article states that international conventions and declarations have made legal provisions not only to recognize the human right to education, but also to develop educational innovations and initiatives. 274 Singh, supra note 10, at 57. UDHR Article 26, ICESCR Article 13, and CRC Articles 28 and 29 have made provisions to recognize the human right to education and to improve quality culture in education. 275Id. at 35–39. The article then directs its attention to the provisions for free and compulsory education in the Constitution of India — specifically, Articles 41, 45, and 46. 276Id. at 39–40. The article then goes into brief descriptions of several legal cases in India which expanded the definition of “the right to life” — Article 21 of the Constitution of India — to include a right to education. 277Id. at 41–42. For example, in the 1992 case Mohini Jain v. State of Karnataka, the Supreme Court of India ruled that the fundamental right of education “cannot be denied to a citizen by charging higher fee known as the capitation fee.” 278Id. at 42–43. The justice declared further that the right to education comes from the right to life, and the State is obligated to provide education facilities of all levels to its citizens. 279Id. at 43–44. The case of Unni Krishnan limited the right to free education to all children fourteen years old and younger. 280Id. at 44–45. The article covers other issues including grant-in-aid to law colleges and infliction of corporal punishment on children. 281Id. at 46, 48. The preceding legal cases and issues have accumulated to result in the Right of Children to Free and Compulsory Education Act of 2009. 282Id. at 53. This act makes it “obligatory for state governments and local bodies to provide free and compulsory education to every child from six to fourteen years.” 283Id. The article continues to elaborate on the specific aims and duties of the Government in successfully implementing the Act. 284Id. at 53–57.

7. Douglas Hodgson’s The International Human Right to Education and Education Concerning Human Rights

The author explains that the fuller realization of the right to education can be achieved by improvements in the reporting and monitoring processes and a greater resolve on the part of state parties to fulfill their reporting requirements and obligations under the international instruments conscientiously and in good faith. 285 Douglas Hodgson, The International Human Right to Education and Education Concerning Human Rights, 4 Int’l J. Child. Rts. 237, 262 (1996). Considering the interdependence of the right to education with other human rights, such as the rights to health, to an adequate standard of living, and to not be arbitrarily discriminated against, it may be expected that improvements to the latter will produce salutary results for the former. 286Id. The article begins with a general overview of the historical development of the right to education, focusing on the global move towards adoption of education rights after World War II. 287Id. at 238–39. The article notes the significance of the United Nations’ and UNESCO’s mission to eliminate illiteracy and discrimination, and promote the education of youth throughout the world. 288Id. at 239–40. The importance of the right to education is solidified in the recognition of said right in the UDHR, the Convention Against Discrimination in Education (1960), and most recently in the CRC. 289Id. at 240. More specific issues within the right to education — such as the rights of refugees, discrimination against women, and the discrimination against mentally disabled — are also discussed. 290Id. at 245, 247–48. International and regional instruments state four basic aims:

(a) the full development of the individual’s personality, talents, and abilities; (b) the strengthening of respect for human rights and fundamental freedoms; (c) the enabling of all persons to participate effectively in a free society; (d) the promotion of understanding, tolerance and friendship among all nations, racial, ethnic or religious groups and the furtherance of the activities of the United Nations for the maintenance of peace. 291Id. at 251–52 (internal citations omitted).

The article further lists the international and regional documents that address education about human rights, the necessity for international cooperation, adult education, minority education, and parental prerogatives. 292Id. at 254–60.

8. Jost Delbrück’s The Right to Education as an International Human Right

A basic or human right to education during the inter-war period between 1919 and 1939 is discussed in this article. 293 Delbrück, supra note 1, at 96. A new generation of human rights (new rights) were created, which aimed at “obliging the state to or government to provide services to the people.” 294Id. at 92. However, many critics allege that strong government involvement in the education process “might threaten individual freedom and might undermine the very foundations of a free society altogether.” 295Id. at 93. This article attempts to address these fears against new rights. 296Id. at 93, 98. The article defines the focal point of the right to education as “the unequivocal commitment to the dignity inherent in every human being and hence to the development of the human personality.” 297Id. at 98. Education is a development of personality of the young, not just a basic skill. 298Id. at 99. The article proceeds to enumerate the various legal instruments that contain these theories. 299Id. at 98–99. The article ultimately argues that the right to education is a social right, but it is anchored in the inherent dignity of every human being. 300Id. at 104. Therefore, there are protections of students against the State’s and educator’s indoctrination. 301Id.

9. John-Stewart Gordon’s Is Inclusive Education a Human Right?

The article presents a philosophical and conceptual argument that states that the right to inclusive education should not be seen as a human right from a moral point of view even if it is a human right from the current legal standpoint. 302 Gordon, supra note 104, at 755. However, the author still admits the practical importance of human rights, and the idea of human rights is valuable independent of an attainable consensus on a theoretical level. 303Id. at 757. The author uses the CRPD as the cornerstone for this article which, among other discussions, set out the legal human right to inclusive education for students with disabilities or impairments. 304Id. at 754. The article begins its preliminary remarks by describing the three most important models of disability--individual, social, and human rights. 305Id. at 755. “There are at least three main approaches in education for students with disabilities at present: inclusive education, integrative education, and segregated education.” 306Id. at 756. The article also posits that human rights can be both positive and negative rights. 307Id. at 758.

10. Munafrizal Manan’s The Implementation of the Right to Education in Indonesia

The article examines the developments and challenges of implementing the right to education in Indonesia over the last sixty years. 308 Manan, supra note 10, at 52. The author begins by discussing the significance and requirements set out by the International Bills of Human Rights. 309Id. The Indonesian Constitution guarantees the right to education and requires the government to allocate at least 20% of its national budget to implement a national system of education. 310Id. at 56. While the Constitution obliges the government to uphold an education system, it placed a heavy burden on the country’s finances. 311Id. at 56–57. Due to 300 years of Dutch rule, 80% of the Indonesian population was illiterate. 312Id. at 57. Prior to the nation’s independence, education was only given to the aristocratic and noble minority of the country. 313Id. The lack of qualified instructors, proper infrastructure, cultural barriers, and a variety of dialects within the language all obstructed the efficient implementation of education. 314Id. at 58.

In 1966, the New Order Government was able to achieve notable progress in decreasing illiteracy. 315Id. at 59. The article claims that a large part of this success is due to pragmatic strategies which strengthened the country’s economy and, in turn, allowed for infrastructural and social development. 316Id. The New Order Government opened more primary schools and reduced the illiteracy rate to 47%. 317Id. However, the government also limited higher education autonomy in order to preserve the security of centralized government. 318Id. at 60. The government following the New Order regime amended the Constitution of 1945 to strengthen the obligation of the government to fulfill the right to education. 319Id. The government granted autonomy to public universities to diminish the power of the centralized government and to decrease the obligation of the State to finance education institutions. 320Id.

The government launched the Nine-Year Compulsory Basic Education Program for every citizen from seven to fifteen years of age. 321Id. at 61. In 2008, the government claimed it achieved its target seven years ahead of schedule. 322Id. This motivated the government to launch the TwelveYear Compulsory Basic Education system, extending the period of obligated public education. 323Id. However, other problems with education still exist in Indonesia. 324Id. Approximately 3.1 million students per year drop out before they reach high school, predominantly because their families can no longer afford the cost of education. 325Id. at 61–62. In response to this problem, the government increased the national budget for education and provided scholarships to poor students. 326Id. at 62.

The article asserts that further efforts to advance progress are frustrated by the lack of will from political elites to fulfill their constitutional obligation, as well as corruption and misappropriation of funds. 327Id. at 63. The article then moves to the development and challenges of providing education to marginalized and indigenous Indonesians. 328Id. One of the issues with infrastructure is the location of universities throughout the country. 329Id. at 63–64. The article notes that over 300 higher education universities are located in Jakarta alone and not accessible to citizens throughout the country. 330Id. at 64. Another issue is that most disabled students are excluded from regular public school and have to attend special schools for disabled students. 331Id. However, there are fewer of these schools than regular schools, and they are more expensive. 332Id. at 64–65. In addition, many schools lack resources, properly trained teachers, textbooks, and school supplies. 333Id. at 58, 65.Indonesia Mengajar is an educational movement aimed at providing qualified elementary school teachers to rural areas of the country. 334Id. at 65. It has sent new graduates into the hinterlands, fostered corporate support, and continued to recruit new and qualified applicants into the program. 335Id. at 65–66.

11. Klaus D. Beiter’s Is the Age of Human Rights Really Over?: The Right to Education in Africa

This article takes a critical look at human rights efforts within Africa and ultimately argues that while human rights goals were underperformed, human rights are still significant. 336 Beiter, supra note 10, at 9. The article begins with an admission of many of the faults with human rights efforts, particularly the political hypocrisy of Western countries and the use of human rights as a new form of colonization. 337Id. at 11. It introduces Article 11 of the African Charter on the Rights of Welfare of the Child (ACRWC) as the most prominent formulation of the right to education at the regional level. 338Id. at 13. The article discusses the viability of three solutions: (1) human rights need to be domesticized; (2) development goal approaches should be debunked; and (3) extraterritorial state obligations under international human rights law must be recognized. 339Id. at 14. The first solution addresses the problem that human rights in non-Western societies are imposed without any effort to conform to each countries’ specific cultural context. 340Id. at 15. The article argues in favor of soft universalism/relativism because it accommodates both the global and particularist perspectives. 341Id. at 17. This approach allows human rights to be domesticized. Domestication of human rights entails the complementary nature of regional norms which should not be conflicting with relevant international norms. 342Id. (internal citations omitted).

The article begins the subsection “The Right to Education Under the African Human Rights System” with a discussion of the African Charter on Human and Peoples’ Rights of 1981 (Banjul Charter). 343Id. at 18. The discussion focuses on Article 17 of the Banjul Charter, which contains statements on the freedom for an individual to participate in education and the obligations that need to be fulfilled by the states. 344Id. The article then discusses the African Commission on Human and Peoples’ Rights’s Concluding Observations and Recommendations, which contain the considerations of a state party and that state party’s comments on progress and failures in implementing the Banjul Charter. 345Id. at 20. The Commission emphasizes a variety of requirements that statements must fulfill when implementing education systems. 346Id. at 20–21. The Commission includes further comments on providing education for disabled and indigenous children, and promotes education for young women as well. 347Id. at 21–22. The ACRWC has been ratified by most African states and contains the essential elements found in the CRC. 348Id. at 22 & n.55. However, the ACRWC contains key deviations from the CRC to address specific issues in Africa. 349Id. at 22. The ACRWC states that education should be aimed at “preservation and strengthening of positive African morals, traditional values, and cultures.” 350Id. at 22–23. It also provides provisions specifically implementing equal access to education for girls and creating more accommodating education systems for pregnant persons. 351Id. The ACRWC explicitly prohibits child marriages. 352Id. at 23. The African Committee of Experts on the Rights and Welfare of the Child is a committee of independent experts which supervises the implementation of the ACRWC. 353Id.

The article suggests “[d]ebunking [p]ure ‘[d]evelopment [g]oal’ [a]pproaches” as a second solution, discussing the lack of commitment and societal attention towards specific and genuine efforts to carry out the human right to education. 354Id. at 34. This section focuses on the neglect of legal commitments; problems with allowing the private sector to implement education systems; the question of who bears the duty of funding education programs and the obligations of the World Bank; and the lack of “human rights language” to sufficiently describe the needs and methods regarding the human right to education. 355Id. at 34–47. The article examines international treaties such as the ICESCR, the U.N. Millennium Declaration of 2000, the 2030 Agenda for Sustainable Development of 2015, and the Incheon Framework for Action. 356Id. at 35. The article enumerates that if human rights law is to be properly implemented and appreciated by people globally, the concept of extraterritorial state obligations under human rights law must be accepted by all governments. 357Id. at 84–85, 87. These obligations must also be set out with sufficient clarity in order to uniformly determine whether a state’s conduct conforms with human rights law. 358Id. at 86.

12. Ni Zhen’s Rethinking Inclusion: Is There a Right to Inclusive Education?

The article examines the limitations to human rights law and education right as applied to persons with disabilities. 359 Ni Zhen, supra note 10, at 487–88. The author asks two research questions: (1) What description should be given to a better education system inclusive of disabled children?; and (2) How to arrive at a consensus over that better system among stakeholders and within the whole society? 360Id. at 488. This article begins with a historical overview of educational theories. 361Id. at 488–89. In the eighteenth and nineteenth centuries, the general belief was that segregation and institutionalization were the best methods for disabled students. 362Id. at 489. In the 1960s, educational integration became a more popular ideology. 363Id. at 489–90. The author uses Michel Foucault’s analysis of power as the lens to view models of educational arrangements—children are “measured with respect to their distance from the fixed norm.” 364Id. at 491. Special education needs to create distance from the norm; thus, children with disabilities are not given the means to assimilate and are excluded. 365Id. Zhen uses China as a case study to demonstrate the challenges to implementing an inclusive education system without a clear description and consensus about what inclusive education is. 366Id. at 492.

Since the 1950s, the Chinese government has promoted institutionalized segregation of disabled persons. 367Id. at 493–95. Special schools were made to provide social education and, under socialist discourse, aimed to transform disabled individuals into people who provided useful labor contributions to society. 368Id. at 494. In 1990, China enacted the Law on the Protection of Disabled Persons and, in 1994, issued the Regulation on the Education of Persons with Disabilities. 369Id. at 495. Under the predominant individual model of disability, there are three themes: (1) how to interpret impairments; (2) what to do with the impairments; and (3) how people value or devalue the consequences of these impairments. 370Id. In 1988, the China Disabled Persons’ Federation was established as a civil society organization but began to operate as a vice-ministry institution. 371Id. at 496. The organization sought to answer three questions: “who and where disabled persons were, and how many.” 372Id. The census revealed that China had a population of 51,860,000 disabled persons. 373Id. Further research revealed that the vast majority of children with disabilities were excluded from any form of education. 374Id. at 497. An experimental solution was “learning in regular class” (LRC), which placed disabled children into local, regular classrooms. 375Id. While this method is still in use today, the education system still lacks proper resources and support. 376Id. at 497–98, 498 n.76. The Chinese government, while making efforts to improve the LRC system, largely maintains a “separate but equal” policy for disabled students. 377Id. at 500.

The author offers a three-layered solution to achieve consensus on the question of how inclusive education should be defined, using John Rawls’s philosophy as a cornerstone. 378Id. at 501–02. The top layer of the author’s solution adopts Rawls’s famous thought experiment: The Original Position, in which a group of rational, equal, and free people — behind the “veil of ignorance” — get together to make decisions about fundamental principles for an education system and reach an “overlapping consensus.” 379Id. at 502–06. The middle layer to the author’s solution concerns basic liberties such as freedom of thought, political liberties, freedom of association, and equality. 380Id. at 505–07. The bottom layer can be summarized as a strong, foundational “informational basis” combined with rational choice theory, self-reflection, and public reason. 381Id. at 507. The article provides the author’s own definition of inclusive education. 382Id. at 512–13. It consists of three dimensions: the remedying dimension, the reflecting dimension, and the human rights dimension. 383Id. at 513. The author argues that this model helps to set up the institutional mechanization for actual realization and addresses the problem of consistent inequalities. 384Id. at 513–14.

13. Ichsan Yasin Limpo’s A Human Rights Perspective in the Development of National Education System

This article begins with an overview of contemporary Indonesia’s education system. 385 Limpo, supra note 82, at 9. National education aims toward developing citizens who actualize optimal levels of potential and humanity dimension. 386Id. There are three aspects to this humanity dimension: (1) faith, piety, noble character; (2) cognitive capacity of mind and intellect; and (3) psychomotor competence. 387Id. The article lists four main causes for the deterioration of education in Indonesia: (1) political intervention in education; (2) no serious effort from the government to improve education; (3) education orientation which focused on service function; and (4) the weakness of human resources of education administration. 388Id. The article submits that the constructivist theory, developed by Piaget and Vygotsky, is best suited as the basis for learning development because it provides instructive notions of how to “develop creativity, independence, responsibility, and exploration.” 389Id. at 10. The article continues to list the principles of education:

The article then suggests that the education system be modeled after the standards listed in the CRC. 391Id. at 12–13.

14. Brice Dickson’s The Right to Education for Humanity

This article asserts as its thesis that international human rights law is stunted in its evolution due to “an undue deference to the diktat of parents in relation to how their children should be educated.” 392 Brice Dickson & Conor McCormick, The Right to Education for Humanity, 67 N. Ir. Legal Q. 409, 409 (2016). It further argues that if international human rights law is to come to full fruition, the goal of education should be to develop “citizens of the world,” allowing people to fully participate in any society regardless of the family or community setting into which they are born. 393Id. The article uses Northern Ireland as its case study. 394Id. at 410. The original goals proclaimed in the UDHR for the right to education were sidelined by two developments: (1) tendency to concentrate on a narrow definition of education, restricting it to schools and colleges; and (2) enhanced focus on parents’ prior rights over the kind of education their children would have. 395Id. As a result, international human rights law effectively suppressed the right of children to be educated in a free, tolerant world and instead allowed religious prejudices to dominate education. 396Id. The article proceeds to examine international human rights instruments that have given legally binding force to the right to education. 397Id. at 411. While UNESCO’s Convention Against Discrimination in Education, ICCPR and ICESR recognized the importance of parents’ liberty to ensure that education of their children was “in conformity of their own convictions,” the author asserts that that clause refers to the child’s own convictions not the parents’ convictions. 398Id. The author further notes that the CRC makes no direct mention of a parent’s right to control his/her child’s education. 399Id. The author argues that global peace can be achieved by broadening the subjects of education to include all nations, races and religions, and encouraging tolerance and friendship among all people. 400Id. at 414.

In examining the role of religion and education in Northern Ireland, the article notes the three dominant categories of education: controlled schools, voluntary schools, and integrated schools. 401Id. at 418. Controlled schools are supposed to provide a nondenominational state education, but there is an obvious lean towards Protestantism. 402Id. Controlled schools are owned, funded, and managed by the Education Authority. 403Id. at 418–19. Voluntary schools are publicly funded but privately owned. 404Id. at 419. Voluntary maintained schools are under the ownership and management of the Catholic Church. 405Id. Integrated schools try to facilitate the education of both Protestant and Catholic students. 406Id. at 420. For all three types of schools, the overseeing boards include religious representatives. 407Id. The article continues to elaborate on the role religion plays in the education curriculum, on the hierarchy of the education system, and the admission selection process, all of which tend to perpetuate religious segregation. 408Id. at 421–31. The article concludes that the right to education should include an understanding of how religious differences perpetuate conflicts throughout the world. 409Id. at 431. Mutual appreciation of alternative points of view is essential for success in a globalized society. 410Id. at 432.

B. Treatises

1. The Protection of the Right to Education by International Law Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social, and Cultural Rights by Klaus Dieter Beiter

This book recognizes threats by the commercialization of education and seeks to affirm education as a human right. 411Klaus Dieter Beiter, The Protection of the Right to Education by International Law Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social, and Cultural Rights (Martinus Nijhoff Publishers, 2006). The book contains principles proclaimed in the U.N. Charter, including recognition of the inherent dignity and of the equal and inalienable rights of all the members of the human family as the foundation of freedom, justice, and peace in world.

2. The Human Right to Education by Douglas Hodgson

This monograph tries to provide a general overview of the content and development of the right to education at the international, regional, and national levels, as well as an examination of various associated topical issues. 412Douglas Hodgson, The Human Right to Education (Ashgate, 1998). The book traces the historical development of the right to education at the national level, considers the recognition of the right to education at the international and regional levels, and describes the emerging and controversial topics of minority and indigenous education. The obligation of states to provide human rights education is examined and the various forms of specialized education and topical issues, such as the education of the disabled and parental involvement in decisions concerning the education of their children, are also explored.

In five sections, this book covers the development of education, particularly in the United States, but also examines the issue on an international level. Chapter 4: “International Recognition of the Right to Education Under Conventional and Customary Law” provides an exploration of “each level or source” of international and regional instruments which acknowledge the right to education. 413Id. at 39. Chapter 5 proceeds to methodically classify the aims of the right to education using international instruments, such as charters, declarations, and national constitutions. 414Id. at 71–82. In Part IV, titled “Specialised Education and Specific Groups and Issues,” the book reviews the rights of marginalized groups like disabled students, women, migrants, and refugees. 415Id. at 153–207.

3. Article 28: The Right to Education by Mieke Verheyde

As part of the series A Commentary on the United Nations Convention on the Rights of the Child, this sixty-nine page think-book provides a commentary on CRC Article 28. 416 Mieke Verheyde, Article 28: The Right to Education, in 28 A Commentary on the United Nations Convention on the Rights of the Child (Alen Durakovic et al. eds., Martinus Nijhoff Publishers, 2005). “For every article, a comparison with related human rights provisions is made, followed by an in-depth exploration of the nature and scope of State obligations deriving from that article.” 417Blurb to Verheyde, supra note 416.

Although the author conducts a detailed examination of the right to education through Article 28, it is not the CRC’s only section that addresses education. 418Id. at 1. The CRC also addresses education in Article 29. CRC, supra note 13, art. 29. The author first compares Article 28 with similar international human rights doctrines. 419 Verheyde, supra note 416, at 7–10 (chapter two). In Chapter 3: “Scope of Article 28,” the authors delve into each subsection of the Article addressing the right to receive education, including free education and the curriculum, the right to equal access and equal opportunities to education, the freedom to choose education, the nature of states parties’ obligations, and the rights of children who participate in the education system. 420Id. at 11–59. The book concludes with the final two sections of the Article: “Article 28(2): The Right to a Human Disciplinary System” and “Article 28(3): The International Cooperation in Education.”

 

4. The Education Deficit: Failures to Protect and Fulfill the Right to Education in Global Development Agendas by Elin Martínez of Human Rights Watch

Human Rights Watch makes efforts to protect people’s human rights worldwide 421Martínez, supra note 94, at ii. and scrupulously investigates abuses, exposes the facts widely, and pressures those with power to respect rights and secure justice. 422Id. This report published by Human Rights Watch examines the causes and effects of a global “educational deficit” that persists in spite of the general progress towards creating accessible education policies in developing countries. 423Id. at 1. The displacement of millions of children from the education system further undermines the fundamental goals of human rights education. 424Id. at 2. This report bases its research on over forty different countries and examines the key barriers and governmental failures which threaten the right to education. 425Id. The report is organized into four parts: (1) “International Standards Followed,” which focuses on elements of cooperation, access, and quality; (2) “Global Education Efforts”; (3) “Violations and Barriers Affecting the Right to Education,” which encompasses such issues as education costs, discrimination, abuse, and economic exploitation; and (4) “Impact of the Global Crises on Children’s Education,” which includes such issues as displacement and hazards. 426Id. at 8, 13, 16, 75.

5. The Universal Right to Education: Justification, Definition, and Guidelines by Joel Spring

In this book, the author suggests that “education can provide citizens with the tools for resisting totalitarian and repressive governments and economic exploitation.” 427Joel Spring, The Universal Right to Education: Justification, Definition, and Guidelines 1 (Lawrence Erlbaum Associates, Inc., 2000). This book provides universal justifications for human and educational rights, considering indigenous and minority cultures, languages, a global culture and economy, and children’s rights. 428Id. at 2–3. It also attempts to provide universal concepts of education, considering human rights education and moral duties, and guidelines for literacy and numeracy instruction. 429Id. at 3.

Chapter 1: “Justifying Human and Education Rights” addresses conflicting ideologies by scholars and philosophers from France, the Soviet Union, China, as well as Hindu philosophy. 430Id. at 1–18. At the end of the chapter, the author agrees with I.L. Kandel’s arguments for what makes an ideal education and which qualities do not embody the right to education. 431 Id. at 18. The author makes a deeper examination of the conflict between culture and human rights doctrine in Chapter 2: “Justifying a Universal Right to Education for Indigenous and Minority Cultures.” 432Id. at 19–37. This chapter examines how colonialism established a global system and undermined thousands of minority and indigenous cultures. 433Id. at 20. The author also addresses how to preserve these cultures and linguistics through human rights. 434Id. at 33. The remaining chapters of the book then address how a global culture and economy impacts the right to education, children’s rights, literacy rates, as well as the moral duties of governments and organizations to promote education. 435Id. at 3.

6. Human Rights in the Field of Comparative Education

This book is a collection of nine critical essays relating to educational rights, which were presented at the Fourteenth World Congress of Comparative Education. 436 Human Rights in the Field of Comparative Education 1 (Heidi Biseth & Halla B. Holmarsdottir eds., Sense Publishers, 2013). Each essay covers a country-specific issue regarding the right to education, covering a wide range of topics from the educational needs of refugee children and the intersection of citizenship issues. Topics include asylum-seeking and refugee children within the neo-liberal state and inclusive schools in the United Kingdom; the protection of children’s rights in Latin America; the right to education in Latin America (2005–2010); tension between national citizenship and human rights; interpreting children’s rights; culturally responsive pedagogy and human rights; Moroccan children’s rights in an educational space; the role of inter-school collaboration in promoting inter-group relations; and refugee education as a gauge of liberal multiculturalism. 437Id. at 4–9.

 

7. Local Languages as a Human Right in Education: Comparative Cases from Africa by Zehlia Babaci-Wilhite

The author suggests that any local curriculum that ignores local languages and cultures risks a loss of learning quality and represents a violation of children’s rights in education. 438 Babaci-Wilhite, supra note 92, at 2. The book provides a paradigm shift from focusing on the issue of schooling access to the very meaning education has for personal and collective identity and affirmation. This book is one in a series that aims to provide the range of methodologies associated with comparative education and international education, which are both exemplified and open for debate. This book is a collection of essays regarding the choice of a “local or foreign language as a language of instruction . . . in schools from elementary to university.” 439Id. at 1. The ultimate thesis champions education in the local language as critical to quality learning, reinforcing the cultural identity of the students, and “indispensable for inclusive development.” 440Id. at 3. African countries are the majority of the focus of this book, particularly Zanzibar. 441Id. at 1. But the book expands to other countries such as Nigeria, Tanzania, and Malaysia. 442Id. It asks the question, why do some systems choose colonial languages for their education system? 443Id. The book is divided into seven chapters and explores the theoretical framework for the study as well as the consequences of using colonial language of study.

8. Safe Spaces: Human Rights Education in Diverse Contexts

This book compiles scholarly articles dealing with issues relating to human rights education in terms of culture, religious, and societal diversity. 444 Cornelia Roux, Preface to 5 Safe Spaces, supra note 88, at vii. The topics include discourse, critique, social justice, the ethical responsibility of curriculum, the irony in safe spaces, identity, identification and sociolinguistic practices, identity premised on equality of difference as fundamental human right, children’s rights, religious diversity in public education, power and privilege, gender discourse, girls’ experiences of religious and cultural practices, interdisciplinary feminist theory, discourses on narratives, plurality in society mirrored in the teacher’s multi-voiced self, and internalized inequality. “The book provides an admirable range of theoretical and empirical perspectives from the impressive range of authors. Each chapter in one way or another resonates with a problem perennial to human rights and human rights education: the transformation of articles of intention to the actualities of implementation and practice.” 445 Liam Gearon, Introduction to 5 Safe Spaces, supra note 89, at 1, 2. 

Collectively focusing on the intersection between religion and gender equality within the context of human rights education, the book is divided into three parts: (1) “Human Rights Education: Philosophical and Policy Perspectives”; (2) “Gender Discourse: Diverse Perspectives”; and (3) “Discourses on Narratives as ‘Safe Spaces.’” In part one, Petro Du Preez’s article discusses the ethical responsibilities of creating a curriculum and addressing the needs of students beyond meeting traditional institutional goals. 446 Petro Du Preez, The Human Right to Education, the Ethical Responsibility of Curriculum, and the Irony in ‘Safe Spaces’, in 5 Safe Spaces, supra note 89, at 51, 51–52.  Johan Botha’s article addresses white male teachers’ power and privilege in the classroom, 447 Johan Botha, Power and Privilege: White Male Teachers’ Experiences of Aggression, in 5 Safe Spaces, supra note 89, at 151, 151–52.  especially their aggressive behavior toward students that can create an unsafe, destructive, and unproductive environment. 448Id.

9. Human Rights and Education

This volume, one in a comparative and international education series, compiles articles by various authors from many countries. 449Human Rights and Education 3 (Norma Bernstein Tarrow ed., Pergamon Press, 1987). The book discusses education as a human right and education about human rights. 450Id. The regions and countries covered include: Sub-Saharan Africa, India, Saudi Arabia, Britain, China, Indonesia, Canada, Israel, Norway, Yugoslavia, Kenya, the United States, Canada, and the Philippines. 451See generally id. at 15. Appendices include human rights documents from the United Nations, UNESCO, and regions. 452See generally id. at 217–18.

This book provides a variety of cultural and national perspectives. As a basis for analysis, the authors examine international human rights doctrines and case-studies. The book is organized into two parts: (1) “Education as a Human Right” and (2) “Education About Human Rights.” 453See id. at 14–15. The first part addresses issues of access and equality of opportunity, rights to universal literacy, and preservation of culture and language. 454Id. at 4. It also considers the rights of children, parents, and teachers within the context of education rights. 455Id. The second part addresses how a curriculum should be designed and which aspects of human rights education should be emphasized so that human rights is incorporated throughout an individual’s career and sense of citizenship. 456Id.

10. Ethics of Human Rights by A. Reis Monteiro

This volume is an extensive study into the ethical significance of human rights, aiming at “contributing to a universal culture of human rights with deep roots and wide horizons.” 457A. Reis Monteiro, Ethics of Human Rights 1 (2014). The book provides an overview of ethical thought on human rights, historical and theoretical backgrounds of human rights, common ethics of human kind, ethics of recognition, human dignity principles, human rights revolution, and the changed and changing legal landscape. 458See generally id. at xi–xiii. This volume mainly focuses on the theories and philosophical concepts of humanism and what it means now in the face of globalization. The purpose, scope, and rationale of human rights are reflected in the three-part structure of the manuscript: (1) “The Ethics of Human Rights,” which examines the origins of human rights ideals; 459Id. at 11. (2) “Human Rights: Common Ethics of Humankind,” which focuses on the human dignity principle and the idea that the ethics of human rights are a recognition of “human worth, dignity, and rights”; 460Id. at 12. and (3) “Human Rights Revolution,” which examines how law and politics influence international human rights law, as well as criticisms against human rights law. 461Id.

11. Human Rights Education for the Twenty-First Century

This book compiles articles from various authors dealing with the following topics: “Theories and Contexts” of human rights education; “Approaches to Teacher-Training, College, and Adult Education”; “Specialized Human Rights Training for Professionals”; “Community-Based and Nonformal Human Rights Education”; and “Resources and Funding.” 462See generally Human Rights Education for the Twenty-First Century, at ix–xii (George J. Andreopoulos & Richard Pierre Claude eds., 1997). The main theories of human rights education focus on education for peace; U.N. peace building; development strategies; empowerment; conflict resolution; education of women as a vehicle for change; “Charter Making and Participatory Research”; and “The Promise of the Third Millennium.” 463See generally id. at ix–x. This book was created and designed as a practical guidebook for a “global audience of educators, scholars, research specialists, nongovernmental GMOs” and other organizations and individuals working to implement human rights education programs. 464Id. at xx.

Part I explores, as the title suggests, the long history of human rights development and the political events and wars which gave rise to new Human Rights Education (HRE) initiatives and theories. 465See id. at 4–5. The section also focuses on social, political, and economic development; equality; and peace as crucial theories that define human rights development. 466See id. Part II is concerned with the best ways to implement HRE within academic institutions. 467See id. at 157–58. In other words, this part addresses the best ways to inform students and citizens about their rights and the obligations which governments have towards their citizens. The articles in this section address such topics as professional training for teachers, evaluation methods, and university-level programs on international justice and conflict resolution. 468See id. at 157–59. Matthew Cowie’s article, Toward a Critical Pedagogy for Adult Education, specifically focuses on the facilitation of the adult learning experience as one which fosters self-development and social learning. 469Id. at 236–51.

Part III highlights the importance of integration of human rights training into professions like law, military and police, health professionals and health practitioners, scientists, and journalists. 470See id. at 256. The articles find participatory experiential learning as an effective method. 471See id. They also address the various difficulties in incorporating HRE in the professional and ethical responsibilities of military and police training, and in culturally sensitive situations. 472Id. at 256, 258. Part IV examines the critical efforts by nongovernmental organizations (NGOs) to promote human rights education, especially in societies in transition. 473See id. at 289. The main focus of these NGOs is “human security” and the following three assumptions: (1) the importance of nongovernmental organizations in promoting and sustaining concerns for human rights education; (2) the importance of a participatory approach to human rights education; and (3) the importance of a strong civil society lending credibility to NGO-sponsored nonformal education. 474Id. at 389–91. Part V is concerned with the institutional, technological, and financial resources essential to the development of HRE. 475See id. at 544. This section also discusses the best ways to utilize these resources. 476See id. at 543–46.

12. Human Rights Education: Theory, Research, Praxis

This book compiles articles from various authors, providing a primer on international human rights education. The book has three broad categories: (1) “Theoretical and Conceptual Foundations of Human Rights Education”; (2) “Global Research in Human Rights Education”; and (3) “Transformative Human Rights Education Praxis,” which “involves an active and reflexive engagement with the tensions inherent in applying and localizing concepts that exist in idealized forms.” 477See generally Human Rights Education: Theory, Research, Praxis (Monisha Bajaj ed., 2017). The book deals with human rights education as emotions, an emergent global institution, a critical pedagogy, an evolution of human rights education models, global research in human rights education, challenges and complexity in human rights education including teachers’ understandings of democratic participation and gender equity in post-conflict Kurdistan, human rights education in postcolonial India, politics, power, protest, a contentious human rights education, justice-oriented teaching, and leveraging diversity to become a global citizen, as well as with human rights education’s role in peacebuilding, . 478See generally id.

13. Globalization, International Law, and Human Rights

This book is a collection of essays that address a variety of human rights issues, particularly within the context of globalization. The book undertakes an examination of complex connections between globalization, international law, and human rights. The essays analyze the patterns of state responses to both traditional and emerging notices of certain categories of the human rights paradigm. 479See Globalization, International Law, and Human Rights, at xv (Jeffrey F. Addicott et al. eds., 2012). It covers important contemporary issues such as the relationship between human rights and globalization, climate change, freedom of religion, unbridled corporate capitalism, global terrorism, and globalization and its impact on trade, investments, and people’s movement. 480See id. at xv–xx.

Particularly, in Chapter 5 “Globalization and Its Effects on the Emerging Jurisprudence on the Right to Education in South Africa and Nigeria,” the essay’s authors examine how globalization has impacted human rights and the right to education within those two countries. 481See Avinash Govindjee & Elijah Adewale Taiwo, Globalization and Its Effects on the Emerging Jurisprudence on the Right to Education in South Africa and Nigeria, in Globalization, International Law, and Human Rights, supra note 477, at 111, 113. The chapter concludes with the observation that globalization and the “free flow of human capital” has resulted in a drain for developing countries, and diminishes the idea of education as an obligation for the government to fulfill for its citizens. 482Id. at 142.

IV. Selective National Law Implementing the Human Right to Education

In Part IV, this Article introduces education laws of six selective countries in Asia, Latin America, and Europe and how they are implementing international human rights principles as appeared in the Universal Periodic Review reports.

A. Brazil

Education is a social right under Article 6 and one of the fundamental rights covered under Title II. 483Constituição Federal [C.F.] [Constitution] art. 6 (Braz.). Under Title VIII, Chapter III: Education, Culture and Sports, Section 1 of the Brazilian Constitution deals with education from Article 205 to Article 214. 484See id. arts. 205–14. Article 205 of the Brazilian Constitution states that “education, which is a right of all and the duty of the State and of the family, [must] be promoted and fostered with the cooperation of society, [seeking the] full development of the person, his preparation for the exercise of citizenship, and qualification for work.” 485Id. art. 205. Article 206 guarantees:

equal conditions for access to school; freedom to learn, teach, research and express thought, art and knowledge; pluralism of pedagogic ideas and conceptions and coexistence of public and private teaching institutions; free public education in official schools, appreciation of teaching professions; democratic administration of public education; and a guarantee of standards of quality. 486Id. art. 206.

Article 208 ensures compulsory and free elementary education; progressive extension of compulsory and free education to secondary school; “specialized schooling for the handicapped”; assistance to children of zero to five years of age in daycare centers and preschools; “access to higher levels of education . . . according to individual capacity”; “provision of regular night courses adequate to the conditions of the student”; assistance to elementary school students by means of supplementary programs providing school material; and transportation, food, and health assistance. 487Id. art. 208.

Under the national report submitted in 2014 per the Universal Periodic Review, Brazil launched the National Education Plan 2014–2024 (PNE) 488See generally Lei No. 13.005, de 25 de Junho de 2014, Diário Oficial da União [D.O.U.] de 26.6.2014 (Braz.). with twenty goals, including guaranteeing quality basic education and reducing inequalities. 489 Human Right Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Brazil, ¶ 135, U.N. Doc. A/HRC/WG.6/27/BRA/1 (Feb. 27, 2017). Modernizing secondary education is one of the Brazilian Government’s priorities. 490Id. ¶ 137. In September 2016, new legislation was proposed to restructure and expand secondary education. 491Id. The illiteracy in young people and adults declined from 14.5 million in 2006 to 13.2 million in 2014. 492See id. ¶ 139. Illiteracy is a more serious problem in rural areas of the country. 493Id. Brazil is committed to human rights education and has been promoting various public policies and programs for that purpose. 494Id. ¶ 142.

B. China

The 1982 Constitution of the People’s Republic of China declares that education is one of the fundamental rights, 495Xianfa [Constitution] art. 34 (1982) (amended 2018) (China). and a citizen has not only the right, but also the obligation to receive an education. 496See id. art. 19. Specifically, Article 46 states that citizens have the duty as well as the right to receive education. 497Id. art. 46. The State promotes the all-round development of children and young people, morally, intellectually, and physically. 498Id. While Article 46 does not explicitly provide for a fair and equal right to education, Article 33 provides for equal protection and human rights, stating that “all citizens are equal before the law” and that “[t]he State respects and preserves human rights.” 499Id. art. 33. China has promulgated several education laws including a national education law and a compulsory education law. 500 Zhonghua Renmin Gongheguo Jiaoyu Fa (中华人民共和国教育法) [Education Law of the People’s Republic of China] (promulgated by Standing Comm. Nat’l People’s Cong., Mar. 18, 1995, rev. Aug. 27, 2009, effective Aug. 27, 2009) 2009 Standing Comm. Nat’l People’s Cong. Gaz. 553, 553; Zhonghua Renmin Gongheguo Yiwu Jiaoyu Fa (中华人民共和国义务教育法) [Compulsory Education Law of the People’s Republic of China] (promulgated by Standing Comm. Nat’l People’s Cong., Apr. 12, 1986, rev. June 29, 2006, amended Apr. 24, 2015, rev. Dec. 29, 2018, effective Dec. 29, 2018) 2019 Standing Comm. Nat’l People’s Cong. Gaz. 66, 66 . Article 9 of the national education law reaffirms that Chinese citizens have the right and duty to be educated. 501 Education Law of the People’s Republic of China, art. 9. Further, the Chinese government must help ethnic minority regions develop educational undertakings according to their characteristics. 502Id. art. 10. In fact, the Constitution and all educational laws guarantee all minority nationalities the right to use and develop their own languages. See id. art. 12 (requiring the State to make an effort to implement bilingual education in predominately ethnic minority schools). China has adopted a nine-year compulsory education system. 503Id. art. 19. China also allows private citizens to establish schools and other educational institutions according to law, but they cannot establish institutions for the purpose of making profit. 504Id. art. 26. Learners must enjoy equal rights in going to school, entering higher education, and employment. 505Id. art. 37. Because China is a socialist country, Article 3 provides that China must uphold Marxism-Leninism, Mao Zedong Thought, and theories constructing socialism with Chinese characteristics. 506Id. art. 3.

According to the national report submitted per the Universal Periodic Review, national fiscal appropriations for education have continued to exceed 4% of GDP since 2012. 507 Human Rights Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: China, ¶ 29, U.N. Doc. A/HRC/WG.6/31/CHN/1* (Aug. 20, 2018). The nineyear compulsory education graduation rate reached 93.8% nationwide. 508Id. The Chinese government continues to make efforts to strengthen the provision of educational resources in remote, rural, and ethnic-minority areas, as well as for the children of rural migrant workers and people with disabilities. 509Id. ¶¶ 30–31.

C. Germany

Article 7 of the German Basic Law, from the country’s constitution, provides that the country’s entire school system is under the supervision of the national government, but parents’ right to decide whether children shall receive religious instruction is guaranteed. 510Grundgesetz für die Bundesrepublik Deutschland [GG] [Basic Law], art. 7(1)–(2), (as amended Mar. 28, 2019) translation at https://www.gesetze-im-internet.de/englisch_gg.html#p0047. The right to establish private schools is guaranteed except for primary elementary schools, which must be approved only if there are special needs. 511Id. art. 7(2), (4)–(5). Article 1 of the German Basic Law, which provides that human dignity must be inviolable and all state authorities have to respect and protect it, applies to the educational field. 512Id. art. 1(1); Human Rights Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Germany, ¶ 22, U.N. Doc. A/HRC/WG.6/30/DEU/1 (Feb. 26, 2018) [hereinafter National Report: Germany]. Therefore, Germany acknowledges inviolable and inalienable human rights. 513Grundgesetz für die Bundesrepublik Deutschland [GG] [Basic Law], art. 1(2), (as amended Mar. 28, 2019) translation at https://www.gesetze-im-internet.de/englisch_gg.html#p0047. Article 3 — providing equal protection and prohibiting discrimination based on sex, parentage, race, language, homeland and origin, faith, or religious or political opinion — also applies to education. 514Id. art. 3(3); National Report: Germany, supra note 512, ¶ 22.

According to the national report submitted per the Universal Periodic Review, individual states (Länder) implements human rights education in their school legislation. 515National Report: Germany, supra note 512, ¶ 22. States in Germany are working to establish complaint and prevention mechanisms in the mission statements of their universities. 516Id. ¶ 24. All higher education institutions have guidelines regarding their approach to diversity. 517Id.

D. India

The Constitution (Eighty-Sixth Amendment) Act, 2002, inserted Article 21A into the Constitution of India to provide free and compulsory education to all children ages six to fourteen as a fundamental right included under Part III of the Constitution, in such a manner as the State may, by law, determine. 518India Const. art. 21A, amended by The Constitution (One Hundred and First Amendment) Act, 2016. The Right of Children to Free and Compulsory Education Act, which represents the consequential legislation envisaged under Article 21A, states that every child has a right to full-time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards. 519 The Right of Children to Free and Compulsory Education Act, 2009, No. 35, Acts of Parliament, 2009 (India). General prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth also applies to education. 520India Const. arts. 15(5), 29(2). The Constitution of India prohibits religious instruction at state-funded institutions, in which no person shall be required to take part in any religious instruction. 521Id. art. 28. In India, all minorities have the right to establish and administer educational institutions of their choice. 522Id. art. 30. Under Article 41, the Government of India must provide education to adults in cases of unemployment, old age, sickness, and disablement within the limits of its economic capacity. 523Id. art. 41. Other relevant education acts include the Central University Act of 2009 and the English and Foreign Languages University Act of 2006. 524 Central University Act, 2009, No. 25, Acts of Parliament, 2009 (India); English and Foreign Languages University Act, 2006, No. 7, Acts of Parliament, 2007 (India).

According to the national report submitted per the Universal Periodic Review, realizing that poverty eradication is a key element of India’s development goals and that education is a fundamental pillar of development, India is making great efforts to promote education. 525 Human Rights Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: India, ¶¶ 88, 115, U.N. Doc. A/HRC/WG.6/27/IND/1 (Feb. 23, 2017). India also promotes health education through community based intervention programs, such as the Rashtriya Kishor Swasthya Karyakaram. 526Id. ¶ 110. Generally, India promotes children’s right to education, guaranteeing quality education to all children without discrimination. 527Id. ¶ 114. India also emphasizes access to quality education by marginalized groups such as women, Scheduled Castes, and Scheduled Tribes, providing various scholarships. 528Id. ¶¶ 118–19.

E. Japan

Article 26 of the Japanese Constitution of 1946 guarantees that all people have the right to receive an equal education correspondent to their ability. 529Nihonkoku Kenpō [Kenpō] [Constitution], art. 26(1) (Japan), translated in Ministry of Education, Culture, Sports, Science and Technology online database, http://www.mext.go.jp/en/policy/education/lawandplan/title01/detail01/1373798.htm. Freedom of religious education is protected. 530Id. art. 20. There must not be any discrimination in political, economic, or social relations due to race, creed, sex, social status, or family origin. 531Id. art. 14(1). Parents have a duty to make all boys and girls under their protection receive ordinary education as provided for by law, and such compulsory education shall be free. 532Id. art. 26(2). To guarantee the opportunity for such compulsory education and ensure adequate standards, the Basic Act on Education states that the national and local governments are responsible for implementing compulsory education through appropriate role sharing and mutual cooperation. 533 Kyōiku kihonhō [Basic Act on Education], Law No. 120 of 2006, art. 5(3) (Japan). Overall administration of the various levels of education, including universities, private schools, education within the family, social education, and religious education, must be carried out in a fair and proper manner through appropriate role sharing and cooperation between the national and local governments. 534Id. art. 16(1). In its preamble, the Basic Act on Education ensures that the Japanese people will implement education that values the dignity of the individual and cultivate a people rich in humanity. 535Id. pmbl. The basic aim of education is to cultivate a people who make up a peaceful and democratic nation and society. 536Id. art. 1. The public schools must refrain from political education in favor of or against any specific political party, and from other political activities. 537Id. art. 14(2).

According to the national report submitted per the Universal Periodic Review, the Government of Japan provides human rights training for public servants, applying the principles of international human rights treaties. 538 Human Rights Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Japan, ¶ 12, U.N. Doc. A/HRC/WG.6/28/JPN/1 (Aug. 31, 2017). Japan’s public compulsory education schools are open to foreign children, including immigrants, at no cost. 539Id. ¶ 59. Under the Fourth Basic Plan for Gender Equality, the Japanese government makes efforts to address cases in which women face additional difficulties in order to promote education on human rights and access to quality education by women. 540Id. ¶¶ 77, 97.

F. South Korea

Article 31 of the Korean Constitution urges governments to provide compulsory education to all citizens of South Korea free of charge. 541Daehanminkuk Hunbeob [Hunbeob][Constitution] art. 31 (S. Kor.). All citizens must have an equal right to receive an education corresponding to their abilities. 542Id. art. 31(1). Parents have a duty to support at least their children’s elementary education. 543Id. art. 31(2). Governments will guarantee the “[i]ndependence, professionalism, and political impartiality of education.” 544Id. art. 31(4). The Government of Korea must “promote lifelong education.” 545Id. art. 31(5). Under Article 11, “[a]ll citizens shall be equal before the law, and there shall be no discrimination in political, economic, social, or cultural life on account of sex, religion, or social status.” 546Id. art. 11(1) (mentioning neither nationality nor race). The Framework Act on Education provides a principle of education, stating that education must aim at enabling every citizen to lead a life worthy of humankind and to contribute to the development of a democratic state and the realization of an idea of human coprosperity. 547 GyoyukGibonBup [Framework Act on Education], Act No. 14061, June 22, 2008, amended by Act No. 15950, Dec. 18, 2018, art. 2 (S. Kor.), translated in Korea Legislation Research Institute online database, http://elaw.klri.re.kr/eng_service/lawView.do?lang=ENG&hseq=42697. Compulsory education must last nine years, including elementary and secondary education. 548Id. art. 8. Like other civil law countries, statutes regulate a wide variety of aspects of education. 549 Topics include learning ethics, cultivation of healthy gender consciousness, prevention of safety-related accidents, peaceful pursuit of reunification, special education, education for gifted children, early childhood education, vocational education, science and technology education, physical education at schools, information-oriented education, computerization of administration of schools and educational organizations, principles of student information protection, promotion of science and culture, fostering private schools, globalized education, and scholarships.

According to the national report submitted per the Universal Periodic Review, the new administration (launched on May 9, 2017) made human rights protection a centerpiece of the state affairs, with specific policy tasks which include cementing the right to education and contributing to the human rights protection in the world. 550 Human Right Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Republic of Korea, ¶ 2, U.N. Doc. A/HRC/WG.6/28KOR/1 (Sept. 4, 2017) [hereinafter National Report: South Korea]. To combat racial discrimination, the Government of Korea is actively pursuing policies to prohibit discriminatory practices against foreigners by means of education. 551Id. ¶ 17 (stating that the Government enacted the Act on the Treatment of Foreigners in Korea and the Protection and the Promotion of the Diversity of Cultural Expressions Act in 2014 were for this purpose). As of 2016, enrollment for preschool reached 50.7%, elementary school 98.1%, middle school 94.9%, high school 94.1%, and tertiary institutions 68.5%. 552Id. ¶ 40. The Government amended the Higher Education Act, placed an upper limit on the increase of college tuition, and established the Enrollment Fee Deliberation Committee to make college tuition affordable. 553 Higher Education Act, Act No. 9356, Jan. 30, 2009, amended by Act No. 11043, Sept. 15, 2011, art. 11 (S. Kor.), translated in Korea Law Translation Center online database, https://elaw.klri.re.kr/eng_service/lawView.do?hseq=42696&lang=ENG. In 2012, the Government launched the state scholarship scheme. 554National Report: South Korea, supra note 550, ¶ 41.

Conclusion

Once again, education is:

As such, researching the human right to education is a daunting task because the definition of education is complicatedly clustered, and because research in this field to protect the human right to education became diversified, complicated, and interdisciplinary. There are many different small segments of education researchers should consider depending on the context of research. For example, whether education is considered as a first or second generational right will create a different meaning of education. The purpose, function, quantity, quality, access, subjects, and contents of education should be considered.

Research difficulty also originates from the fact that numerous international instruments, articles, treatises, and national laws relating to the human right to education have been drafted and published; they are not organized in one place in a consistent way. International law has been used to pierce state sovereignty to protect a state’s citizens against the abusive use of state powers. International instruments should be considered all together, including treaties, international custom, general principles of law, cases, and soft law from various intergovernmental and nongovernmental organization reports and documents. Domestic laws and local state laws should also be considered.

 

Footnotes

*Jootaek Lee is an Assistant Professor and Law Librarian at Rutgers Law School. The author would like to thank James Britt, J.D. for his editing as well as Audrey Han and Apurva Arhatia for their research assistance.

1 Jost Delbrück, The Right to Education as an International Human Right, 35 Ger. Y.B. Int’l L. 92, 95 (1992).

2Id.

3Id.

4Id. at 101. This is still true even after the launch of various human rights instruments. See id.

5 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, art. 26, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) [hereinafter UDHR].

6See Joshua E. Weishart, Reconstituting the Right to Education, 67 Ala. L. Rev. 915, 917–20 (2016).

7 Kate Halvorsen, Notes on the Realization of the Human Right to Education, 12 Hum. Rts. Q. 341, 343 (1990). “Without education, the individual could not develop his personality, which was the aim of human life and the most solid foundation of society.” Id. at 341 (quoting U.N. GAOR, 3d Sess., Third Committee, 147th mtg., A/C.3/SR.147, at 597 (Nov. 19, 1948)).

8 The term “International Bill of Human Rights” refers collectively to the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social, and Cultural Rights. See U.N. Office of the High Comm’r for Human Rights, International Bill of Human Rights, at xi–34, U.N. Doc. ST/HR/1/Rev.6, U.N. Sales No. E.02.XIV.4 (2002).

9See Halvorsen, supra note 7, at 343–45.

10See generally Klaus D. Beiter, Is the Age of Human Rights Really Over?: The Right to Education in Africa, 49 Geo. J. Int’l L. 9 (2017); Munafrizal Manan, The Implementation of the Right to Education in Indonesia, 5 Indon. L. Rev. 51 (2015); Jai Singh, Expanding Horizons of Human Right to Education: Perspective on Indian and International Vision, 52 J. Indian L. Inst. 34 (2010); Ni Zhen, Rethinking Inclusion: Is There a Right to Inclusive Education?, 11 Frontiers L. China 486 (2016).

11 UDHR, supra note 5, art. 26(1).

12 International Covenant on Civil and Political Rights art. 18, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families art. 12, Dec. 18, 1990, 2220 U.N.T.S. 3 [hereinafter MWC].

13 International Covenant on Economic, Social and Cultural Rights art. 13(1), opened for signature Dec. 19, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].

14 Convention on the Rights of the Child art. 28(1), opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].

15 Convention Against Discrimination in Education arts. 1–3, Dec. 14, 1960, 429 U.N.T.S. 93 (entered into force May 22, 1962).

16 International Convention on the Elimination of All Forms of Racial Discrimination art. 5(v), opened for signature Mar. 7, 1966, 660 U.N.T.S. 195 [hereinafter ICERD].

17 Convention on the Elimination of All Forms of Discrimination Against Women art. 10, opened for signature Mar. 1, 1980, 1249 U.N.T.S. 13 [hereinafter CEDAW].

18 Convention on the Rights of Persons with Disabilities art. 24, opened for signature Mar. 30, 2007, 2515 U.N.T.S. 3 [hereinafter CRPD].

19 MWC, supra note 12, arts. 30, 43(1)(a).

20 Convention Relating to the Status of Refugees art. 22, July 28, 1951, 189 U.N.T.S. 137 [hereinafter 1951 Refugee Convention].

21 Quantity can include literacy percentages, number of schools and teachers, facilities, and budgets. Quality can also include the contents, pedagogies, class integration and interaction, class interaction, diversity, etc. Access can include equality of opportunities, distance, roads, and transportation to facilities.

22 For an overview of the generational development of human rights in international law, see Karel Vasak, A 30-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights, 1977 UNESCO Courier.

23 ICESCR, supra note 13, art. 13(2)(c); CRC, supra note 14, art. 28(1).

24See Douglas Hodgson, Education, Right to, International Protection, in Max Planck Encyclopedia of Public International Law (2006); see generally Connie de la Vega, The Right to Equal Education: Merely a Guiding Principle or Customary International Legal Right?, 11 Harv. BlackLetter L.J. 37 (1994).

25E.g., UDHR, supra note 5, art. 26(1); see Vasak, supra note 22, at 29.

26E.g., UDHR, supra note 5, art. 26(2); see Vasak, supra note 22, at 29.

27 Brown v. Board of Education, 347 U.S. 483, 493 (1954). The United States does not recognize the human and fundamental right to education in its Constitution; however, many state constitutions recognize it. See Heidi R. Gilchrist, Higher Education as a Human Right, 17 Wash. U. Global Stud. L. Rev. 646, 652 (2018).

28 Campbell v. United Kingdom, 4 Eur. H.R. Rep. 293, 303 (1982).

29 Hodgson, supra note 24.

30 CRC, supra note 14, art. 28(3).

31See e.g., ICESCR, supra note 13, art. 13.

32See e.g., id.

33Id.

34 ICESCR, supra note 13, art. 13(1); CRC, supra note 14, art. 28(1)(a).

35 CRC, supra note 14, art. 10(3).

36 Hodgson, supra note 24.

37 ICESCR, supra note 13, art. 13(2)(b); see Gilchrist, supra note 27, at 649–50.

38 ICESCR, supra note 13, art. 13(2)(b).

39Id.; CRC, supra note 14, art. 28(1)(b).

40 ICESCR supra note 13, art. 13(2)(c); UDHR, supra note 5, art. 26(1); CRC, supra note 14, art. 28(1)(c);

41 Tarantino v. Italy, 2013-II Eur. Ct. H.R. 397, 407.

42 ICESCR, supra note 13, art. 13(2)(b)–(c); CRC, supra note 14, art. 28(1)(b).

43 “Adult learning and education is a core component of lifelong learning” ensuring “all adults participate in their societies and the world of work” and enriching “their capabilities for living and working.” U.N. Educational, Scientific and Cultural Organization [UNESCO], Recommendation on Adult Learning and Education 2015, ¶ 1, U.N. Doc. ED-2016/WS/29 (2015) [hereinafter UNESCO RALE 2015].

44 The young include: girls, children living in rural areas, children belonging to minority groups, indigenous children, migrant children, refugee children, internally displaced children, children affected by armed conflicts, children with disabilities, children affected by infectious diseases, sexually exploited children, children deprived of their liberty, children living in the street, working children and orphaned children. U.N. Comm’n on Human Rights Res. 2005/21, U.N. Doc. E/CN.4/RES/2005/21, ¶ 7 (Apr. 15, 2005).

45See CEDAW, supra note 17; CRPD, supra note 18; Convention Concerning Indigenous and Tribal Peoples in Independent arts. 26–31, June 27, 1989, 1650 U.N.T.S. 383 [hereinafter ILO Convention No. 169]; see also UNESCO RALE 2015, supra note 43, ¶ 23(c).

46See UDHR, supra note 5, art. 26(1) (stating “everyone has the right to education”); id. art. 26(3) (“Parents have a prior right to choose the kind of education that shall be given to their children.”).

47 UDHR, supra note 5, art. 26(2)–(3).

48See, e.g., Jurgen Herbst, Nineteenth-Century Schools Between Community and State: The Cases of Prussia and the United States, 42 Hist. Educ. Q. 317 (2002) (“The capstone of these writings and this legislation was placed in 1794 in Prussia’s General Land Law which declared schools and universities to be ‘institutions [Veranstaltungen] of the state’ which should be established only ‘with prior knowledge and permission of the state’ and were to be ‘subject to the supervision of the state and to its examinations and visitations at all times.’”).

49 ICESCR, supra note 13, art. 14.

50 Delbrück, supra note 1, at 93.

51 ICESCR, supra note 13, art. 13(1). This is similar to the language in Article 5 of the Convention Against Discrimination in Education, stating: [t]he States [sic] Parties to this Convention agree that: (a) 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. Convention Against Discrimination in Education, supra note 15, art. 5.

52 ICCPR, supra note 12, art. 18.

53 UDHR, supra note 5, art. 26(2).

54 ICESCR, supra note 13, art. 13(1). This is similar to the language in Article 5 of the Convention Against Discrimination. See supra note 51.

55 ICESCR, supra note 13, art. 13(1).

56 UDHR, supra note 5, pmbl.; ICESCR, supra note 13, pmbl.

57 Comm. on Econ. Soc. & Cultural Rights, Rep. on the Implementation of the International Covenant on Economic, Social and Cultural Rights: General Comment No. 13: The Right to Education, ¶ 1, U.N. Doc. E/C.12/1999/10 (Dec. 8, 1999) [hereinafter General Comment 13].

58See Gilchrist, supra note 27, at 673–76.

59 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights art. 13(2), Nov. 17, 1988, 69 O.A.S.T.S [hereinafter Protocol of San Salvador].

60See generally UNESCO, General Conference 18 C/Res. 38, 18th Sess., 36th plen. mtg. at 147, Recommendation Concerning Education for International Understanding, Co-Operation and Peace and Education Relating to Human Rights and Fundamental Freedoms, UNESCO Doc. GC(XVIII)/RES/38 (Nov. 19, 1974) [hereinafter UNESCO Education Recommendation of 1974].

61See generally UNESCO Special Intergovernmental Conference on the Status of Teachers 14 C/Resolution, Recommendation Concerning the Status of Teachers, UNESCO Doc. CFS.67/VII.4/A/F/S/R, Annex (Oct. 5, 1966) [hereinafter ILO/UNESCO Teacher Status Recommendation of 1966].

62 Convention Against Discrimination in Education, supra note 15, art. 5.

63 G.A. Res. 2037 (XX), U.N. Doc. A/RES/20/2037, at 40, princs. 3–4 (Dec. 7, 1965) [hereinafter Declaration on the Promotion of Ideals Among Youth].

64 Organization of American States [OAS], O.A.S. Res. XXX, American Declaration of the Rights and Duties of Man, at 17, OEA/Ser.L.V/II.82 Doc.6 Rev.1 (reprinted 1992), https://www.cidh.oas.org/Basicos/English/Basic2.american%20Declaration.htm [hereinafter Bogotá Declaration].

65 G.A. Res. 1386 (XIV), Declaration of the Rights of the Child princ. 10 (Nov. 20, 1959).

66 CRC, supra note 14, art. 28(1)(b).

67 ICERD, supra note 16, art. 7.

68 U.N. Secretary-General, Plan of Action for the United Nations Decade for Human Rights Education, 1995–2004, ¶ 2, U.N. Doc. A/51/506/Add.1 (Dec. 12, 1996) [hereinafter U.N. Plan of Action].

69Id. ¶ 2(a); U.N. Charter art. 55(c); UDHR, supra note 5, art. 26(2); Convention Against Discrimination in Education, supra note 15, art. 5(1)(a); ICERD, supra note 16, art. 7; Declaration on the Promotion of Ideals Among Youth, supra note 63, at 40; ILO/UNESCO Teacher Status Recommendation of 1966, supra note 61, pt. III, ¶ 3; ICESCR, supra note 13, art. 13(1); UNESCO Education Recommendation of 1974, supra note 60, princs. 7, 18(c); Protocol of San Salvador, supra note 59, art. 13(2); CRC, supra note 14, art. 29(1)(b).

70U.N. Plan of Action, supra note 68, ¶ 2(b); UDHR, supra note 5, art. 26(2); Convention Against Discrimination in Education, supra note 15, art. 5(1)(a); ICESCR, supra note 13, art. 13(1); ILO/UNESCO Teacher Status Recommendation of 1966, supra note 60, pt. III, ¶ 3; Protocol of San Salvador, supra note 58, art. 13(2); CRC, supra note 14, art. 29(1)(a).

71U.N. Plan of Action, supra note 68, ¶ 2(c); UDHR, supra note 5, art. 26(2); Declaration of the Rights of the Child, supra note 64, princ. 10; Convention Against Discrimination in Education, supra note 15, art. 5(1)(a); Declaration on the Promotion of Ideals Among Youth, supra note 63, pmbl.; ICERD, supra note 16, art. 7; ICESCR, supra note 13, art. 13(1); UNESCO Education Recommendation of 1974, supra note 60, princs. 4(b), 6, 7, 17, 18(b); G.A. Res. 36/55, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, art. 5(3) (Nov. 25, 1981); Protocol of San Salvador, supra note 59, art. 13(2); CRC, supra note 14, art. 29(1)(a).

72U.N. Plan of Action, supra note 68, ¶ 2(d); Bogotá Declaration, supra note 64, art. XII; Declaration of the Rights of the Child, supra note 65, princ. 7; ICESCR, supra note 13, art. 13(1); CRC, supra note 14, art. 29(1)(d).

73U.N. Plan of Action, supra note 68, ¶ 2(e).

74 World Conference on Education for All Meeting Basic Learning Needs, World Declaration on Education for All and Framework for Action to Meet Basic Learning Needs, arts. 1–7, ED-90/CONF.205 (Mar. 9, 1990) [hereinafter World Declaration on Education for All].

75 Delbrück, supra note 1, at 101.

76 ICESCR, supra note 13, art. 13(2); CRC, supra note 14, art. 28(1)(b).

77 General Comment 13, supra note 57, ¶ 6.

78Id.

79Id.

80Id. “[T]his is subject to the educational objectives required by [A]rticle 13(1) and such minimum educational standards as may be approved by the State (see art. 13(3) and (4)).” Id.

81Id.

82 Ichsan Yasin Limpo, Human Rights Perspective in the Development of National Education System, 69 J.L. Pol’y & Globalization 9, 11 (2018).

83 Caetano Pimentel, The Human Right to Education: Freedom & Empowerment, Multicultural Educ., Summer 2006, at 2, 6, reprinted in Multicultural Educ., Spring 2013, at 29, 32; General Comment 13, supra note 56, ¶ 6.

84 Pimentel, supra note 83, at 32.

85Id.

86Id. at 35.

87 Craig Lauchner, The Human Right to Education: Mercosur Commitment and Economic Inequality, 52 Tex. Int’l L.J. 145, 146 (2017).

88Id.

89See Cornelia Roux, A Social Justice and Human Rights Education Project, inSafe Spaces: Human Rights Education in Diverse Contexts 29, 30 (Cornelia Roux et al. eds., 2012) [hereinafter 5 Safe Spaces].

90Id. at 29–30.

91Id. at 34.

92See Zehlia Babaci-Wilhite, Local Languages as a Human Right in Education: Comparative Cases from Africa 1 (2015).

93See Kristin Izsak, Music Education and Islam: Perspectives on Muslim Participation in Music Education in Ontario, Canadian Music Educator, Spring 2013, at 38, 38–39 (2013).

94See Elin Martínez, Human Rights Watch, The Education Deficit: Failures to Protect and Fulfill the Right to Education in Global Development Agendas 4–5 (2016).

95 Martha F. Davis, Immigration Enforcement and Children’s Human Right to Education, 56 Fam. Ct. Rev. 344, 344 (2018).

96Id.

97Id.

98Id. at 345.

99 Kurt Willems & Jonas Vernimmen, The Fundamental Human Right to Education for Refugees: Some Legal Remarks, 17 Eur. Educ. Res. J. 219, 221 (2018).

100Id. at 224.

101 Daniel Lechner, The Dangerous Human Right to Education, 20 Stud. Phil. & Educ. 279, 279 (2001) (citing Michael Foucault, Discipline and Punish: The Birth of the Prison (1977)).

102Id. at 280.

103Julie Allan, Rethinking Inclusive Education: The Philosophers of Difference in Practice 86 (2008).

104See John-Stewart Gordon, Is Inclusive Education a Human Right?, 41 J.L. Med. & Ethics 754, 757 – 59, 765 (2013). Gordon represents a person with learning difficulties who enjoys their freedom of education. Id. at 759.

105 Christopher N.J. Roberts, Grasping at Origins: Shifting the Conversation in the History of Human Rights, 17 Chi. J. Int’l L. 573, 595 (2017).

106 U.N. Charter art. 55.

107Id. art. 55(c).

108Id. art. 56.

109 Bogotá Declaration, supra note 64, art. XII.

110Id. art. 7.

111 UDHR, supra note 5. Most provisions of the UDHR are considered customary international law. See Henry J. Steiner et al., International Human Rights in Context 161 (2008); Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga. J. Int’l & Comp. L. 287, 353– 54 (1995).

112See supra text accompanying note 8; United Nations, Universal Declaration of Human Rights, United Nations: Dag Hammarskjöld Libr., https://research.un.org/en/docs/humanrights/undhr (last updated May 9, 2019).

113 UDHR, supra note 5.

114 UDHR, supra note 5, art. 26(1).

115 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953), amended by Protocols Nos. 11, 14, supplemented by Protocols Nos. 1, 4, 6, 7, 12, 13, 16.

116Id. at 222.

117 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 2, Mar. 20, 1952.

118 1951 Refugee Convention, supra note 20, art. 22.

119Id. art. 4.

120Geneva Declaration of the Rights of the Child, 1959, Humanium, https://www.humanium.org/en/declaration-rights-child-2/ (last visited Feb. 27, 2020); see also UDHR, supra note 5; Geneva Declaration of the Rights of the Child, 1924, Humanium, https://www.humaium.org/en/geneva-declaration (last visited Apr. 8, 2020).

121 Declaration of the Rights of the Child, supra note 65, pmbl.

122Id. princ. 5.

123Id. princ. 7.

124Id. princ. 10.

125 Convention Against Discrimination in Education, supra note 15, arts. 1–3.

126Id. art. 5(1)(a).

127Id. art. 5(1)(b).

128Id. art. 5(1)(c).

129 Declaration on the Promotion of Ideals Among Youth, supra note 63.

130Id. pmbl.

131Id. princ. II.

132Id. princ. III.

133Id. princ. VI.

134 ICERD, supra note 16, pmbl.

135Id. art. 5(v).

136Id. art. 7.

137 ILO/UNESCO Teacher Status Recommendation of 1966, supra note 61.

138Id. pt. III, ¶ 3.

139Id. pmbl.

140 ICCPR, supra note 12.

141See supra text accompanying note 8; United Nations: Dag Hammarskjöld Libr., supra note 112.

142 ICCPR, supra note 12, art. 18.

143Id. arts. 40, 41, 42.

144 ICESCR, supra note 13, art. 13(1).

145Id.

146Id.

147Id.

148Id. art. 13(2).

149Id. art. 13(3).

150See Committee on Economic, Social and Cultural Rights, U.N. Hum. Rts. Off. High Commissioner, https://www.ohchr.org/en/hrbodies/cescr/pages/cescrindex.aspx (last visited Feb. 27, 2020).

151 Organization of American States [OAS], American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123.

152Id. pmbl.

153Id. art. 12(4).

154 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 17, 1988, O.A.S.T.S. No. 69.

155Id. art. 13(1).

156Id. art. 13(2).

157Id. art. 13(3).

158Id. art. 13(4).

159 UNESCO Education Recommendation of 1974, supra note 60, pmbl.

160Id. princs. 4(b), 6, 7, 17, 18.

161Id. princ. 4(b).

162Id. princ. 6.

163Id. princ. 7.

164Id. princ. 17.

165Id. princ. 18.

166 CEDAW, supra note 17.

167 Kelly Fasbinder, International Women’s Human Rights: United States Stalling Progress from CEDAW into CIL, 61 Wayne L. Rev. 691, 696–97 (2016) (“It is considered the ‘international bill of rights’ for women . . . .”).

168See generally CEDAW, supra note 17.

169Id. art. 10.

170 ILO Convention No. 169, supra note 45, pt. 6. As of 2019, there are twenty-three parties to this Convention. Ratifications of C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169), Int’l Lab. Org., https://www.ilo.org/dyn/normlex/en/f?p=1000:12001:::NO::: (follow “C169 – Indigenous and Tribal Peoples Convention, 1989 (No. 169)” hyperlink) (last visited Mar. 5, 2020).

171Id. art. 26.

172Id. art .30.

173 CRC, supra note 14.

174Id. art. 28(1).

175Id. art. 29(1).

176Id. art. 32(1).

177Id. art. 23(3).

178 MWC, supra note 12.

179Id. art. 12(4).

180Id. arts. 30, 43(1)(a).

181See Human Rights Education and Training, U.N. Hum. Rts. Off. High Commissioner, https://www.ohchr.org/EN/Issues/Education/Training/Pages/HREducationTrainingIndex.aspx (last visited Mar. 5, 2020); Special Rapporteur on the Right to Education, U.N. Hum. Rts. Off. High Commissioner, https://www.ohchr.org/EN/Issues/Education/SREducation/Pages/SREducationIndex.aspx (last visited Mar. 5, 2020); Human Rights Bodies, U.N. Hum. Rts. Off. High Commissioner, https://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx (last visited Mar. 5, 2020).

182 General Comment 13, supra note 57, ¶ 60.

183 Jody Heymann et al., Constitutional Rights to Education and Their Relationship to National Policy and School Enrollment, 39 Int’l J. Educ. Dev. 121, 123 (2014).

184 World Declaration on Education for All, supra note 74.

185 Id.

186Id. arts. 1–7.

187 World Conference on Human Rights, Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23 (June 25, 1993).

188Id. pt. I, ¶ 33.

189Id. pt. II.D, ¶¶ 78–82.

190Id. pt. I, ¶ 33.

191See generally U.N. Plan of Action, supra note 68.

192Id. ¶ 2.

193 Comm’n on Human Rights Res. 1998/33, ¶ 6(a), U.N. Doc. E/CN/4/RES/1998/33 (Apr. 17, 1998).

194Id. ¶ 6(a)(i)–(iii). For other duties of the Special Rapporteur, see id. ¶ 6(a)(iv)–(viii).

195 Katarina Tomasevski (Special Rapporteur on the Right to Education), Progress Report, Submitted in Accordance with Commission on Human Rights Resolution 1999/25, U.N. Doc. E/CN.4/2000/6 (Feb. 1, 2000).

196 General Comment 13, supra note 57. The Committee notes that since the General Assembly adopted the Covenant in 1966, other international instruments have further elaborated the objectives to which education should be directed. Accordingly, the Committee takes the view that States [sic] parties are required to ensure that education conforms to the aims and objectives identified in [A]rticle 13 (1), as interpreted in the light of the World Declaration on Education for All (Jomtien, Thailand, 1990) (art. 1), the Convention on the Rights of the Child (art. 29 (1)), the Vienna Declaration and Programme of Action (Part I, para. 33 and Part II, para. 80), and the Plan of Action for the United Nations Decade for Human Rights Education (para. 2). Id. ¶ 5.

197Id. ¶ 1.

198Id. ¶ 2.

199See id. ¶¶ 342.

200Id. ¶ 43; see also id. at 15 nn.19–20.

201Id. ¶ 60.

202 Comm’n on Human Rights Res. 2005/21, U.N. Doc. E/CN.4/RES/2005/21 (Apr. 15, 2005).

203Welcome to the Human Rights Council, U.N. Hum. Rts. Council, https://www.ohchr.org/en/hrbodies/hrc/pages/aboutcouncil.aspx (last visited Sept. 27, 2019) (“The Council was created by the United Nations General Assembly on [March 15, 2006] by [R]esolution 60/251.”).

204 Comm’n on Human Rights Res. 2005/21, supra note 196.

205Id. ¶ 7(a)(b).

206Id. ¶ 7(c).

207Id. ¶ 7(e).

208Id. ¶ 7(g).

209Id. ¶ 7(q).

210Id. ¶ 7(s).

211World Programme for Human Rights Education (2005–Ongoing), U.N. Hum. Rts. Off. High Commissioner, https://www.ohchr.org/EN/Issues/Education/Training/Pages/Programme.aspx (last visited Mar. 5, 2020).

212Id.

213 CRPD, supra note 15.

214Id. art. 24(1).

215Id. art. 24(1)(a)(c).

216Id. art. 24(2)(b)(d).

217 G.A. Res. 61/295, annex, Declaration on the Rights of Indigenous Peoples, U.N. Doc. A/RES/61/295, 46 I.L.M. 1013 (Sept. 13, 2007).

218Id. art. 14(1).

219Id. art. 14(2).

220Id. art. 14(3).

221Id. art. 15(1).

222Id. art. 17(2).

223 Human Rights Council Res. 8/4, U.N. Doc. A/41/16, ¶ 7(e) (June 18, 2008).

224See generally G.A. Res. 70/1, U.N. Doc. A/70/1, ¶¶ 1–3, 10, 16–18, 24 (Oct. 21, 2015).

225Id. ¶ 14; G.A. Res. 55/2, Millennium Declaration, U.N. Doc. A/55/2, ¶ 19 (Sept. 18, 2000); accord U.N. Dev. Programme [UNDP], The Millennium Development Goals Rep. 2015, at 24–27 (Apr. 17, 2017), https://www.undp.org/content/dam/undp/library/MDG/english/UNDP_MDG_Report_2015.pdf.

226 G.A. Res. 70/1, supra note 224, at 17, Goal 4.7; see generally id. Goal 4.

227 UNESCO RALE 2015, supra note 43, pmbl.

228Id. pt. I, ¶ 1.

229 Halvorsen, supra note 7, at 34142.

230Id. at 343.

231Id. at 34950.

232Id. at 35354, 356.

233Id. at 356.

234Id. at 35758.

235Id. at 35862.

236 Pimentel, supra note 83 at 34.

237Id. at 45.

238Id. at 6.

239Id.

240Id. at 67.

241Id. at 7.

242Id.

243Id.

244Id. at 7–8.

245Id. at 9.

246 Lauchner, supra note 87, at 146.

247Id.

248Id. at 149.

249Id. at 150.

250Id. at 151.

251Id. at 151 n.48.

252Id. at 151–52.

253Id. at 152.

254Id. at 152–53.

255Id. at 153.

256Id. at 159–60.

257 Davis, supra note 95, at 344.

258Id.

259Id.

260Id.

261 Willems & Vernimmen, supra note 99, at 219.

262Id.

263Id. at 220.

264Id. at 221.

265Id.

266Id.

267Id.

268Id.

269Id.

270Id. at 222.

271Id. at 222–24 (discussing treaties including the European Convention on Human Rights and ICESCR).

272Id. at 220.

273Id. at 230.

274 Singh, supra note 10, at 57.

275Id. at 35–39.

276Id. at 39–40.

277Id. at 41–42.

278Id. at 42–43.

279Id. at 43–44.

280Id. at 44–45.

281Id. at 46, 48.

282Id. at 53.

283Id.

284Id. at 53–57.

285 Douglas Hodgson, The International Human Right to Education and Education Concerning Human Rights, 4 Int’l J. Child. Rts. 237, 262 (1996).

286Id.

287Id. at 238–39.

288Id. at 239–40.

289Id. at 240.

290Id. at 245, 247–48.

291Id. at 251–52 (internal citations omitted).

292Id. at 254–60.

293 Delbrück, supra note 1, at 96.

294Id. at 92.

295Id. at 93.

296Id. at 93, 98.

297Id. at 98.

298Id. at 99.

299Id. at 98–99.

300Id. at 104.

301Id.

302 Gordon, supra note 104, at 755.

303Id. at 757.

304Id. at 754.

305Id. at 755.

306Id. at 756.

307Id. at 758.

308 Manan, supra note 10, at 52.

309Id.

310Id. at 56.

311Id. at 56–57.

312Id. at 57.

313Id.

314Id. at 58.

315Id. at 59.

316Id.

317Id.

318Id. at 60.

319Id.

320Id.

321Id. at 61.

322Id.

323Id.

324Id.

325Id. at 61–62.

326Id. at 62.

327Id. at 63.

328Id.

329Id. at 63–64.

330Id. at 64.

331Id.

332Id. at 64–65.

333Id. at 58, 65.

334Id. at 65.

335Id. at 65–66.

336 Beiter, supra note 10, at 9.

337Id. at 11.

338Id. at 13.

339Id. at 14.

340Id. at 15.

341Id. at 17.

342Id. (internal citations omitted).

343Id. at 18.

344Id.

345Id. at 20.

346Id. at 20–21.

347Id. at 21–22.

348Id. at 22 & n.55.

349Id. at 22.

350Id. at 22–23.

351Id.

352Id. at 23.

353Id.

354Id. at 34.

355Id. at 34–47.

356Id. at 35.

357Id. at 84–85, 87.

358Id. at 86.

359 Ni Zhen, supra note 10, at 487–88.

360Id. at 488.

361Id. at 488–89.

362Id. at 489.

363Id. at 489–90.

364Id. at 491.

365Id.

366Id. at 492.

367Id. at 493–95.

368Id. at 494.

369Id. at 495.

370Id.

371Id. at 496.

372Id.

373Id.

374Id. at 497.

375Id.

376Id. at 497–98, 498 n.76.

377Id. at 500.

378Id. at 501–02.

379Id. at 502–06.

380Id. at 505–07.

381Id. at 507.

382Id. at 512–13.

383Id. at 513.

384Id. at 513–14.

385 Limpo, supra note 82, at 9.

386Id.

387Id.

388Id.

389Id. at 10.

390Id. at 11.

391Id. at 12–13.

392 Brice Dickson & Conor McCormick, The Right to Education for Humanity, 67 N. Ir. Legal Q. 409, 409 (2016).

393Id.

394Id. at 410.

395Id.

396Id.

397Id. at 411.

398Id.

399Id.

400Id. at 414.

401Id. at 418.

402Id.

403Id. at 418–19.

404Id. at 419.

405Id.

406Id. at 420.

407Id.

408Id. at 421–31.

409Id. at 431.

410Id. at 432.

411Klaus Dieter Beiter, The Protection of the Right to Education by International Law Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social, and Cultural Rights (Martinus Nijhoff Publishers, 2006).

412Douglas Hodgson, The Human Right to Education (Ashgate, 1998).

413Id. at 39.

414Id. at 71–82.

415Id. at 153–207.

416 Mieke Verheyde, Article 28: The Right to Education, in 28 A Commentary on the United Nations Convention on the Rights of the Child (Alen Durakovic et al. eds., Martinus Nijhoff Publishers, 2005).

417Blurb to Verheyde, supra note 416.

418Id. at 1. The CRC also addresses education in Article 29. CRC, supra note 13, art. 29.

419 Verheyde, supra note 416, at 7–10 (chapter two).

420Id. at 11–59.

421Martínez, supra note 94, at ii.

422Id.

423Id. at 1.

424Id. at 2.

425Id.

426Id. at 8, 13, 16, 75.

427Joel Spring, The Universal Right to Education: Justification, Definition, and Guidelines 1 (Lawrence Erlbaum Associates, Inc., 2000).

428Id. at 2–3.

429Id. at 3.

430Id. at 1–18.

431 Id. at 18.

432Id. at 19–37.

433Id. at 20.

434Id. at 33.

435Id. at 3.

436 Human Rights in the Field of Comparative Education 1 (Heidi Biseth & Halla B. Holmarsdottir eds., Sense Publishers, 2013).

437Id. at 4–9.

438 Babaci-Wilhite, supra note 92, at 2.

439Id. at 1.

440Id. at 3.

441Id. at 1.

442Id.

443Id.

444 Cornelia Roux, Preface to 5 Safe Spaces, supra note 88, at vii. The topics include discourse, critique, social justice, the ethical responsibility of curriculum, the irony in safe spaces, identity, identification and sociolinguistic practices, identity premised on equality of difference as fundamental human right, children’s rights, religious diversity in public education, power and privilege, gender discourse, girls’ experiences of religious and cultural practices, interdisciplinary feminist theory, discourses on narratives, plurality in society mirrored in the teacher’s multi-voiced self, and internalized inequality.

445 Liam Gearon, Introduction to 5 Safe Spaces, supra note 89, at 1, 2. 

446 Petro Du Preez, The Human Right to Education, the Ethical Responsibility of Curriculum, and the Irony in ‘Safe Spaces’, in 5 Safe Spaces, supra note 89, at 51, 51–52. 

447 Johan Botha, Power and Privilege: White Male Teachers’ Experiences of Aggression, in 5 Safe Spaces, supra note 89, at 151, 151–52. 

448Id.

449Human Rights and Education 3 (Norma Bernstein Tarrow ed., Pergamon Press, 1987).

450Id.

451See generally id. at 15.

452See generally id. at 217–18.

453See id. at 14–15.

454Id. at 4.

455Id.

456Id.

457A. Reis Monteiro, Ethics of Human Rights 1 (2014).

458See generally id. at xi–xiii.

459Id. at 11.

460Id. at 12.

461Id.

462See generally Human Rights Education for the Twenty-First Century, at ix–xii (George J. Andreopoulos & Richard Pierre Claude eds., 1997).

463See generally id. at ix–x.

464Id. at xx.

465See id. at 4–5.

466See id.

467See id. at 157–58.

468See id. at 157–59.

469Id. at 236–51.

470See id. at 256.

471See id.

472Id. at 256, 258.

473See id. at 289.

474Id. at 389–91.

475See id. at 544.

476See id. at 543–46.

477See generally Human Rights Education: Theory, Research, Praxis (Monisha Bajaj ed., 2017).

478See generally id.

479See Globalization, International Law, and Human Rights, at xv (Jeffrey F. Addicott et al. eds., 2012).

480See id. at xv–xx.

481See Avinash Govindjee & Elijah Adewale Taiwo, Globalization and Its Effects on the Emerging Jurisprudence on the Right to Education in South Africa and Nigeria, in Globalization, International Law, and Human Rights, supra note 477, at 111, 113.

482Id. at 142.

483Constituição Federal [C.F.] [Constitution] art. 6 (Braz.).

484See id. arts. 205–14.

485Id. art. 205.

486Id. art. 206.

487Id. art. 208.

488See generally Lei No. 13.005, de 25 de Junho de 2014, Diário Oficial da União [D.O.U.] de 26.6.2014 (Braz.).

489 Human Right Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Brazil, ¶ 135, U.N. Doc. A/HRC/WG.6/27/BRA/1 (Feb. 27, 2017).

490Id. ¶ 137.

491Id.

492See id. ¶ 139.

493Id.

494Id. ¶ 142.

495Xianfa [Constitution] art. 34 (1982) (amended 2018) (China).

496See id. art. 19.

497Id. art. 46.

498Id.

499Id. art. 33.

500 Zhonghua Renmin Gongheguo Jiaoyu Fa (中华人民共和国教育法) [Education Law of the People’s Republic of China] (promulgated by Standing Comm. Nat’l People’s Cong., Mar. 18, 1995, rev. Aug. 27, 2009, effective Aug. 27, 2009) 2009 Standing Comm. Nat’l People’s Cong. Gaz. 553, 553; Zhonghua Renmin Gongheguo Yiwu Jiaoyu Fa (中华人民共和国义务教育法) [Compulsory Education Law of the People’s Republic of China] (promulgated by Standing Comm. Nat’l People’s Cong., Apr. 12, 1986, rev. June 29, 2006, amended Apr. 24, 2015, rev. Dec. 29, 2018, effective Dec. 29, 2018) 2019 Standing Comm. Nat’l People’s Cong. Gaz. 66, 66 .

501 Education Law of the People’s Republic of China, art. 9.

502Id. art. 10. In fact, the Constitution and all educational laws guarantee all minority nationalities the right to use and develop their own languages. See id. art. 12 (requiring the State to make an effort to implement bilingual education in predominately ethnic minority schools).

503Id. art. 19.

504Id. art. 26.

505Id. art. 37.

506Id. art. 3.

507 Human Rights Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: China, ¶ 29, U.N. Doc. A/HRC/WG.6/31/CHN/1* (Aug. 20, 2018).

508Id.

509Id. ¶¶ 30–31.

510Grundgesetz für die Bundesrepublik Deutschland [GG] [Basic Law], art. 7(1)–(2), (as amended Mar. 28, 2019) translation at https://www.gesetze-im-internet.de/englisch_gg.html#p0047.

511Id. art. 7(2), (4)–(5).

512Id. art. 1(1); Human Rights Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Germany, ¶ 22, U.N. Doc. A/HRC/WG.6/30/DEU/1 (Feb. 26, 2018) [hereinafter National Report: Germany].

513Grundgesetz für die Bundesrepublik Deutschland [GG] [Basic Law], art. 1(2), (as amended Mar. 28, 2019) translation at https://www.gesetze-im-internet.de/englisch_gg.html#p0047.

514Id. art. 3(3); National Report: Germany, supra note 512, ¶ 22.

515National Report: Germany, supra note 512, ¶ 22.

516Id. ¶ 24.

517Id.

518India Const. art. 21A, amended by The Constitution (One Hundred and First Amendment) Act, 2016.

519 The Right of Children to Free and Compulsory Education Act, 2009, No. 35, Acts of Parliament, 2009 (India).

520India Const. arts. 15(5), 29(2).

521Id. art. 28.

522Id. art. 30.

523Id. art. 41.

524 Central University Act, 2009, No. 25, Acts of Parliament, 2009 (India); English and Foreign Languages University Act, 2006, No. 7, Acts of Parliament, 2007 (India).

525 Human Rights Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: India, ¶¶ 88, 115, U.N. Doc. A/HRC/WG.6/27/IND/1 (Feb. 23, 2017).

526Id. ¶ 110.

527Id. ¶ 114.

528Id. ¶¶ 118–19.

529Nihonkoku Kenpō [Kenpō] [Constitution], art. 26(1) (Japan), translated in Ministry of Education, Culture, Sports, Science and Technology online database, http://www.mext.go.jp/en/policy/education/lawandplan/title01/detail01/1373798.htm.

530Id. art. 20.

531Id. art. 14(1).

532Id. art. 26(2).

533 Kyōiku kihonhō [Basic Act on Education], Law No. 120 of 2006, art. 5(3) (Japan).

534Id. art. 16(1).

535Id. pmbl.

536Id. art. 1.

537Id. art. 14(2).

538 Human Rights Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Japan, ¶ 12, U.N. Doc. A/HRC/WG.6/28/JPN/1 (Aug. 31, 2017).

539Id. ¶ 59.

540Id. ¶¶ 77, 97.

541Daehanminkuk Hunbeob [Hunbeob][Constitution] art. 31 (S. Kor.).

542Id. art. 31(1).

543Id. art. 31(2).

544Id. art. 31(4).

545Id. art. 31(5).

546Id. art. 11(1) (mentioning neither nationality nor race).

547 GyoyukGibonBup [Framework Act on Education], Act No. 14061, June 22, 2008, amended by Act No. 15950, Dec. 18, 2018, art. 2 (S. Kor.), translated in Korea Legislation Research Institute online database, http://elaw.klri.re.kr/eng_service/lawView.do?lang=ENG&hseq=42697.

548Id. art. 8.

549 Topics include learning ethics, cultivation of healthy gender consciousness, prevention of safety-related accidents, peaceful pursuit of reunification, special education, education for gifted children, early childhood education, vocational education, science and technology education, physical education at schools, information-oriented education, computerization of administration of schools and educational organizations, principles of student information protection, promotion of science and culture, fostering private schools, globalized education, and scholarships.

550 Human Right Council Working Grp. on the Universal Periodic Review, National Rep. Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Republic of Korea, ¶ 2, U.N. Doc. A/HRC/WG.6/28KOR/1 (Sept. 4, 2017) [hereinafter National Report: South Korea].

551Id. ¶ 17 (stating that the Government enacted the Act on the Treatment of Foreigners in Korea and the Protection and the Promotion of the Diversity of Cultural Expressions Act in 2014 were for this purpose).

552Id. ¶ 40.

553 Higher Education Act, Act No. 9356, Jan. 30, 2009, amended by Act No. 11043, Sept. 15, 2011, art. 11 (S. Kor.), translated in Korea Law Translation Center online database, https://elaw.klri.re.kr/eng_service/lawView.do?hseq=42696&lang=ENG.

554National Report: South Korea, supra note 550, ¶ 41.