1. 1.

    States Parties recognize the right of the child to education and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

    1. (a)

      Make primary education compulsory and available free to all;

    2. (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;

    3. (c)

      Make higher education accessible to all on the basis of capacity by every appropriate means;

    4. (d)

      Make educational and vocational information and guidance available and accessible to all children;

    5. (e)

      Take measures to encourage regular attendance at schools and the reduction of drop-out rates.

  2. 2.

    States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.

  3. 3.

    States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.

FormalPara What Did Children Say?

‘I would tell him to fix the lower income places where these schools are … because some of the schools the cafeteria do not serve proper food for the children at lunch time and stuff.’ (Latin America/Caribbean)

‘Public call should be announced for students to give their views and proposal what should they learn in particular educational programmes or educational profiles.’ (Eastern Europe)

‘Inspections should be more frequent and spontaneous (unannounced). When inspectors announce the inspection, then teachers know in advance and they instruct students what are they going to teach, which questions will they ask students and what should students say.’ (Eastern Europe)

Overview

Article 28 echoes the International Covenant on Economic and Social Rights, Article 13, in enshrining the right to education for all (Pinheiro, 2006; UN Secretary General, 2020, paras. 41–48). It has been described as a ‘multiplier right,’ epitomising the indivisibility of rights as it contributes to the realisation of many other rights (Courtis and Tobin, 2019, p. 1058; Tomaševski, 2006, p. 7). However, Article 28 differs from Article 13 in several significant ways. It expands the scope of the right to education to include obligations on States Parties to encourage school attendance and reduce drop-out rates, to ensure that school discipline is administered in a manner consistent with the child’s dignity, and to promote and encourage international cooperation in matters relating to education. It lacks any reference to the right of parents to choose an education for their children in conformity with their moral or religious convictions, although this issue is addressed in Article 29, the aims of education.

The provision of education for all has significant resource implications and, accordingly, Article 28 is subject to progressive realisation. The text affirms that States Parties must, with a view to achieving the right progressively, make primary education compulsory and free to all. The obligations on secondary education are lower, requiring that States Parties encourage its development, and accessibility and availability to all, including through provision of free education and financial support. Higher education must be made available by every appropriate means, and education and vocational guidance available to all children. However, the Committee on Economic, Social and Cultural Rights has proposed that minimum core requirements must be introduced irrespective of available resources. These include non-discrimination in access to education, consistency of the curricula with international human rights standards, and compulsory and free primary education to all (1999, para. 57).

Non-discrimination and free and compulsory primary education for all have also been re-affirmed as core obligations by the Committee on the Rights of Persons with Disabilities (2016, para. 41). The Committee on the Rights of the Child has not explicitly articulated any core obligations. However, it consistently recommends that States Parties endorse these measures as an immediate core obligation, not subject to progressive realisation, particularly in respect of its demands that budget allocations are sufficiently directed to the implementation of the right to education (UN Committee on the Rights of the Child, 2000a, para. 18, 2003, para. 60 (a), 2005a, para. 59, 2010a, para. 59).

The Convention does not define the word education. However, the Committee makes clear that education extends ‘beyond formal schooling to embrace the broad range of life experiences and learning processes which enable children … to develop their personalities, talents and abilities and to live a full and satisfying life within society’ (2001, para. 2). Accordingly, education is not confined to those levels elaborated in Article 28. It is interpreted as beginning at birth, and extends to the provision of preschool education (UN Committee on the Rights of the Child, 2006a, para. 28). Although silent on ages for starting or finishing school, the Committee has asked States Parties to establish minimum and maximum ages for compulsory education (Verheyde, 2005), encouraged the inclusion of early childhood education and care (UN Committee on the Rights of the Child, 2004a, 2006a, 2016a, para. 69 (g)), and suggested that the end of compulsory education should coincide with the minimum age for employment (1995a, b, 1996). Furthermore, the Committee has interpreted the article to apply to regular and non-formal education (2000b, para. 90) and has recommended non-formal education for children who have difficulty attending schools (2002a, para. 306, 2004b, para. 58).

General Principles

Article 2

Article 28 requires that education be provided on the basis of equal opportunity to all children. The obligation to ensure non-discrimination in respect of the right to education is an immediate obligation and applies to all aspects of education (UN Committee on Economic, Social and Cultural Rights, 1999, para. 13). No child can be discriminated against in respect of their right to education on any of the prohibited grounds elaborated in Article 2. The Committee has repeatedly highlighted many groups of children who are vulnerable to discrimination in education and demanded that States Parties take action to secure their equal right to education. These groups include, among many others, children with disabilities (2004c, para. 48), girls (2005b, para. 75), indigenous children (2005c, para. 59), Roma children (2002b, para. 42 (a)), children in detention (2005d, para. 53), rural, immigrant, refugee and asylum-seeking children, children affected by armed combat, working children, children in conflict with the law, and those living with HIV/AIDs (UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and UN Committee on the Rights of the Child, 2017, paras. 59–63; UN Committee on the Rights of the Child, 2007a, paras. 62–72, 2007b, para. 89, 2009a, paras. 56–63, 2017a, para. 19; Verheyde, 2005).

Article 3

Education is the individual right of every child and it is in their best interests that they receive a quality education. In developing an education system, States Parties must ensure that the best interests of the child are its primary focus, and that it is not subordinated to broader economic or instrumental societal goals, such as conformity with specific religious or political views (Courtis and Tobin, 2019, p. 1062).

Article 6

The realisation of the right to education is an integral dimension in contributing towards the child’s optimum development. The breadth of the education curriculum, as well as the means through which is it delivered, must be designed to promote children’s optimum development.

Article 12

The right of the child to be heard is fundamental to the right to education. The Committee have affirmed that children should be listened to and engaged through a participatory pedagogy within the classroom, and schools should adopt a culture of respect for the right of the child to be heard (2009b, para. 107). In addition, States Parties must ensure that children have opportunities to influence decisions from their individual education to the way their school is run, through class and school councils, and representation on school boards, and also in the development of broader education legislation and policy (UN Committee on the Rights of the Child, 2009b, paras. 109–111). Finally, children must have the opportunity to be heard in any disciplinary proceedings (UN Committee on the Rights of the Child, 2009b, para. 113).

Articles Related or Linked to Article 28

Article 4 obliges States Parties to take all appropriate measures to implement education as described in Article 28 (1), and to assist those with inadequate resources to do so.

Articles 13–17 contain provisions on access to information and participation the two essential pillars of education.

Article 19 (1) provides protection to the child from maltreatment from teachers and others.

Article 23 (3) ensures that children with disabilities have access to education.

Article 24 (e) requires children receive health education.

Article 29 describes the appropriate content and aims of education.

Article 30 requires provision of conditions for children of indigenous or minority groups to be educated on and enjoy their own culture, religion, and use their own language.

Article 31, consistent with current knowledge of the important role of art-based and play-based learning, also requires that rest, play, leisure, and recreation are provided for in education.

Article 32 obliges States Parties to ensure labour does not compromise the child’s enjoyment of their right to education (Verheyde, 2005).

Relevant Instruments

UN Universal Declaration of Human Rights (1948), Article 26

UN Declaration of the Rights of the Child (1959), Principle 7

UN Convention Against Discrimination in Education (1960)

International Covenant on Economic, Social and Cultural Rights (1966), Article 13

UN Convention on Technical and Vocational Education (1989)

Treaties which address the education rights of vulnerable groups:

  • UN Convention Relating to the Status of Refugees (1951), Article 22

  • International Convention on the Elimination of All Forms of Racial Discrimination (1966), Article 5

  • UN Declaration on the Rights of Disabled Persons (1975), Principle 6

  • UN Convention on the Elimination of All Forms of Discrimination against Women (1979), Article 10

  • International Convention on the Protection of the Rights of all Migrant Workers and their Families (1990), Article 30

  • UN Declaration on the Rights of Persons Belonging to National or Ethnic Religious and Linguistic Minorities (1992), Article 4 (3)

  • UN Convention on the Rights of Persons with Disabilities (2006), Articles 7 and 24.

Attributes

Attribute One: Access to Primary, Secondary, and Higher Education

States Parties must make primary education compulsory and available free to all. Although no age range is prescribed, it would typically be for 6 years up to the age of 12 (UNESCO Institute for Statistics, 2012, para. 122). The compulsory provision exists in recognition of essential nature of primary education for development of the child and their effective functioning in society. It is intended to ensure that neither the state nor the parent (or indeed the child) can prioritise other options potentially harmful for the child’s development (Courtis and Tobin, 2019, p. 1083).

The Committee has consistently demanded of States Parties that they provide sufficient funding to ensure free compulsory primary education, including by abolishing fees (2010b, para. 72 (a), (b)). The Committee is also highly critical of the imposition of indirect costs such as obligatory school uniforms, textbooks and other materials, meals, transport, fees for participation in certain activities, or exam fees, and has recommended their abolition.Footnote 1

States Parties must also encourage the development of secondary education, which is commonly between the ages of 12 and 17 years, and must be provided in different forms to allow flexible curricula and systems to accommodate both academic and vocational opportunities. Notably, Article 28 does not impose the requirements that it is either free or compulsory. However, the Committee has welcomed the introduction of measures by States Parties to extend mandatory education to secondary level (2012c, para. 63). It also recommends measures to render secondary education free to every child (2011, para. 62 (b)). Finally, States Parties must make higher education accessible to all on the basis of capacity. Although the Committee has afforded minimal attention to this provision, it has drawn attention to potential discrimination in access and recommended that States Parties take action to ensure equal opportunities for higher education for marginalised groups of children (2012d, para. 63 (b)).

The overarching requirements in implementing the right to education have been conceptualised as the 4As: education must be available, accessible, acceptable, and adaptable (Tomaševski, 1999). Availability requires that the requisite resources have been allocated to enable sufficient school places, trained teachers, equipment, books, and other materials, as well as, for example, adequate sanitation facilities, to enable every child to attend school. Accessibility necessitates that no barriers to education exist for any child whether as a consequence of discrimination, physical access, or affordability (UN Committee on Economic, Social and Cultural Rights, 1999, para. 69 (b)). Acceptability demands that education is relevant, culturally appropriate, and of good quality (UN Committee on Economic, Social and Cultural Rights, 1999, para. 69 (c)). Finally, adaptability requires a flexible education system that is capable of responding to the needs of a diverse range of students in a variety of different and potentially changing contexts (UN Committee on Economic, Social and Cultural Rights, 1999, para. 69 (d)).

States Parties are encouraged to adopt a range of measures to achieve these objectives. They must ensure the ongoing collection of adequate disaggregated data to identify gaps, needs, and violations of education rights, and plan future or remedial action. Data should include, for example, primary enrolment rates and ratios by target groups, drop-out rates (including reasons for drop-out), proportion of children who are covered under publicly supported programmes and those required to pay fees, and proportion of children who attend preschool (United Nations OHCHR, 2012, p. 93),Footnote 2 the share of household expenditure on education at the secondary or tertiary level, and the proportion of fully qualified teachers (United Nations OHCHR, 2012, p. 93). In addition, States Parties are advised to formulate and implement national plans of action that address all elements of Article 28 and establish goals, timetables, and benchmarks. Plans should include appropriate legislative and administrative measures, for example, establishing the right to compulsory education, ensuring school leaving age consistent with the minimum age of employment (Verheyde, 2005), and complaints mechanisms to address, for example, school exclusions, corporal punishment, and violence in schools.

Attribute Two: Education on the Basis of Equality of Opportunity

The principle of non-discrimination and equal opportunity relating to the right to education is well-established in international human rights law and is affirmed in Article 28 of the Convention. States Parties must ensure that no child is discriminated against directly or indirectly in either the public or private sphere of education on any of the prohibited grounds elaborated in Article 2 (UN Committee on Economic, Social and Cultural Rights, 2009). However, it is not only permitted but also required that States Parties adopt special measures to ensure equality of access to groups of children vulnerable to unequal access to and opportunity in education (Courtis and Tobin, 2019, p. 1077). Such measures must not result in unequal standards for different groups or continue after the objectives for which they were established have been achieved. The Committee on the Rights of Persons with Disabilities has insisted that the right to non-discrimination and education on the basis of equality includes the right not to be segregated and to be provided with reasonable accommodation and accessible learning environments (2016, para. 13). The Committee on the Rights of the Child has consistently affirmed this approach (2019, para. 43 (c)).

In order to monitor compliance with this obligation, States Parties must monitor relevant policies, institutions, programmes, and spending patterns to identify evidence of discrimination (UN Committee on Economic, Social and Cultural Rights, 1999, para. 37). Data should be collected to identify any differences in access to primary or secondary education on the basis of race, colour, sex, language, religion, national, ethnic or social origin, disability, birth or other analogous status including parental circumstances, maltreatment, and cultural resistance (UN Committee on the Rights of the Child, 2006b, para. 77 (g), 2013a, para. 52 (d), 53 (f); Verheyde, 2005).

Where discrimination is identified, measures are required to combat the problem and prevent recurrence. Article 28 demands measures to address inequalities leading to poor attendance and early drop-out rates among some groups of children, including those in nomadic and migrant families, as a consequence of poverty, or those supporting the family through paid work or taking care of siblings and household chores (UN Committee on the Rights of the Child, 2012e). The Committee has suggested a range of potential measures to be adopted by States Parties to promote greater equality of access and improved attendance, including:

  • scholarships

  • financial subsidies

  • flexible educational arrangements

  • enhanced provision in rural areas

  • affirmative action programmes

  • provision of free early childhood education (2013b)Footnote 3

  • transportation, health and nutrition services, to facilitate attendance for children living in poverty (Verheyde, 2005)Footnote 4

  • alternative education programmes for children having difficulty in regular systems (including those living in remote communities) (Verheyde, 2005)

  • providing educational and vocational information and guidance (Verheyde, 2005).

Attribute Three: School Discipline Consistent with Human Dignity

Article 28, paragraph 2, constitutes an important innovation in respect of the right to education. It demands that any school discipline must be administered in a manner consistent with the child’s dignity and in conformity with all other rights in the Convention. This requires that discipline must never violate the child’s best interests, the right to non-discrimination, or the right to be heard. Furthermore, it must not violate, for example, the right to protection from all forms of violence or cruel, inhuman, degrading treatment, or, indeed, the rights to play and recreation, to health, cultural expression or freedom of religion.

The Committee has elaborated some specific forms of punishment that can never be justified as legitimate. These include any form of corporal punishment in which ‘physical force is used and intended to cause some degree of pain or discomfort’ (UN Committee on the Rights of the Child, 2007c, para. 11). The Committee has also been uncompromising on the suggestion that some forms of corporal punishment can be tolerated if ‘reasonable’ or ‘moderate,’ asserting that such practices can never be justified as they conflict with the child’s dignity and right to physical integrity (2007c, para. 26). In addition, the Committee insists that punishments that serve to humiliate, denigrate, frighten or ridicule the child must never be used (2007c, para. 11).

Paragraph 2, which requires that States Parties take all appropriate measures, demands immediate and comprehensive action to address school discipline. The Committee has emphasised that States Parties must undertake legislative, administrative, social, and educational measures to eliminate degrading forms of punishment in both public and private schools. Furthermore, it has stressed that this is an immediate and unqualified obligation, not subject to progressive realisation (2007c, para. 22). It has suggested a range of practical measures to support positive discipline in schools including awareness raising campaigns, training of teachers, and the participation of children in the design and development of school discipline policies.Footnote 5

Attribute Four: International Cooperation

Paragraph 3 of Article 28 recognises the positive value of cooperation and information sharing between States Parties. Although Article 4 imposes a general obligation with respect to international cooperation, its inclusion in Article 28 highlights its specific importance in the context of education, a priority also reflected in the Jomtien Declaration on Education for All (Courtis and Tobin, 2019, p. 1110; World Conference on Education for All, 1990, para. 10 (1) (2)).

No specific form of assistance is mandated by paragraph 3. The obligation is to promote and encourage cooperation, which implies that all reasonable efforts are undertaken within the scope of available resources (Tobin, 2012, pp. 330–331). It is assumed that developed states must carry a greater burden in seeking global implementation of children’s right to education (UN Committee on Economic, Social and Cultural Rights, 1991 General Comment no. 3, pp. 83-87). However, the Committee on the Rights of the Child has emphasised that states that are recipients of international aid also have an obligation to use such support effectively and efficiently (2002d, paras. 15–16, 2003, para. 60 (b)).

The focus of aid elaborated in paragraph 3 is to eliminate ignorance and illiteracy and to facilitate access to scientific and technical knowledge and modern teaching methods. However, in any programme of assistance, it is imperative that account is taken of the ‘needs of developing countries’ and to ensure that it is developed in consultation with and is sensitive to social and cultural characteristics or context of any given state (Courtis and Tobin, 2019, p. 1114). For example, children affected by emergencies including natural disasters and conflicts, commonly experience disrupted access to education, or no education at all (UN Committee on the Rights of the Child, 2007d). When needed, States Parties must request and be provided with assistance from wealthier countries to ensure the right to education (UN Committee on the Rights of the Child, 2016b). Its provision should be seen as a humanitarian relief measure with sufficient resources allocated to assure that education continues for children in such emergency situations (UN Committee on the Rights of the Child, 2007d).