One out of two children do not receive pre-school education. This situation has worsened due to the mass closure of preschools education due to the COVID 19 pandemic, affecting more than 155 million pre-school age children. But, in many countries the education response strategy to COVID 19 relatively neglected early childhood care and education (ECCE). The existing normative framework both at the international and national levels do not effectively establish ECCE as a right, prioritising it in times of global health crisis. Under such circumstances, how do we understand the existing normative framework at the international and national level and its guarantees to ECCE? Does the right to education enshrined in international law apply to pre-primary education? What are the key legal challenges to universal access to free and quality ECCE?
These are the key questions discussed by the academics, UN representatives and education activists at the Right to Education Initiative’s panel discussion held at the CIES conference in April 2021.
'The aim of the panel was to reflect on how a human rights framework and legal research can contribute to advocacy and concrete changes towards the full realisation of the right to early education, including free and compulsory pre-primary education', said Delphine Dorsi, RTE’s Director and chair of the panel discussion. This blog provides an overview and summary of the key discussion points emerging from the panel discussion.
A human rights approach to ECCE: an overview on the status of international human rights law
'Everyone has the right to education', states article 26 of the Universal Declaration of Human Rights (UDHR) and it is enshrined in various international treaties, notably in important conventions like Convention on the Rights of the Child, International Convention on Social, Economic and Cultural Rights, UNESCO Convention against Discrimination in Education, and other conventions that addresses discrimination based on gender, race, disability, and migration status. But how does it apply to pre-school education?
'These conventions, which mention primary and secondary education, do not mention pre-primary education. However, they do assert that the right to education should be directed to the full development of the child. For example, article 29 (1) the CRC "States Parties agree that the education of the child shall be directed to: The development of the child's personality, talents and mental and physical abilities to their fullest potential" (Art 29(1)). Given clear evidence that early learning shapes long term development, this strongly suggests that early learning is included in the broad right to education', said Sandra Fredman, Professor of Law, University of Oxford.
Further, the interpretation of law affirms the rights of young children. For instance, the committee on the rights of child in General Comment 7, which defines early childhood as a period below the age of eight, reaffirms young children as rights holders. It reiterates that ‘the Convention on the Rights of the Child is to be applied holistically in early childhood’ and reaffirms pre-primary education as an essential component for children’s right to maximum development.’ The Committee on the Protection of the Rights to All Migrant Workers and Members of their Families (CMW) and the Committee on the Rights of the Child (CRC), in a joint general Comment (CMW/C/GC/4-CRC/C/GC/23) affirm that all migrant children, irrespective of their migration status, should have full access to pre-primary education. ECCE has been further recognised in various other international declarations and importantly the Sustainable development goal (SDGs) target 4.2 explicitly focus on ECCE and pre-primary education.
Despite these developments, there is no explicit recognition in international law to guarantee young children’s universal access to early childhood education. For instance, one year of free and compulsory quality pre-primary education has not been recognized yet as a right under international human rights law, creating binding obligations for states.
On the other hand, the treaty bodies - importantly, the Committee on the Rights of the Child (CCRC) in its concluding observations to different State Parties - calls upon States’ accountability for meeting ECCE related obligations. Professor Fredman presented research conducted by herself and colleagues from the multinational ‘Harnessing Global Data to Advance Young Children’s Learning and Development’ Study, which systematically analysed 264 reports by UN monitoring bodies for the ICESCR, CRC and CRPD from 152 countries from 2015-2020 to assess whether and how international law interprets the right to early childhood education. The research draws together the obligations of States, with the aim of improving States’ accountability for meeting these obligations, including their duties of co-operation and assistance for less well-resourced states. In her presentation, Professor Fredman called on UN monitoring committees to consider issuing a new General Comment which systematizes these obligations as evidenced by the research.
Right to pre-primary education: an overview on the status of national laws
In the absence of an explicit recognition of ECCE in international law, can one rely on national laws for the protection of young children’s right to pre-school education?
'The legal framework in most countries are not adequate enough to implement international rights and goals for universal pre-primary education', said Rolla Moumné, Program Specialist at UNESCO Education Sector, who presented the key findings of UNESCO’s global study on the right to pre-primary education. This global study provides an overview on the status of legal framework at national level for the adoption of free and compulsory pre-primary education. As per the study, among the 193 countries surveyed only 63 countries have adopted free pre-primary education, 51 adopted compulsory pre-primary education and 46 countries have adopted free and compulsory pre-primary education. Some of the countries which adopted free and compulsory ECCE in their national laws seems to be having:
● higher rates of early childhood well-being, as measured by UNICEF’s Early Childhood Development Index (ECDI)
● increased government expenditure on early childhood care and education
● higher enrolment rate in pre-primary education
● specific legal provisions to vulnerable groups
At the same time certain countries do not show an increase in enrolment. In some countries the adoption of free and compulsory provision does not guarantee quality education, equal and inclusive education for all, or adequate human and financial resource allocation.
'Besides, the study shows that the adoption of free and compulsory education could affect the quality of education in some countries due to the level of teacher preparedness, and adequate training could be weakened with the sudden expansion of pre-primary education. Addressing the expanding capacity of teacher training institutes and the recruitment of trained pre-primary teaching personnel is therefore essential', said Rolla Moumné.
While this is the situation in the case of countries that have adopted free ECCE, what would be the status of ECCE in other 130 countries that have no legal provision for free or compulsory pre-primary education? The study, therefore, proposes a set of levers for policymakers to promote the inclusion of early childhood and pre-primary education as a human right within long-term education and development objectives.
Experiences from Latin American and Caribbean countries
Latin America has the highest number of countries to have adopted compulsory and free pre-primary education compared to other regions. Giovanna Mode, Political Coordinator at Campaña Latinoamericana por el Derecho a la Educación (CLADE), highlighted a CLADE study on the legal framework in ECCE in the Latin America and Caribbean region and said, 'the general education laws in most of the Latin American and Caribbean countries recognise education as a human right and are in consonance with the convention on right of the child. It further recognises ECCE as a right and highlights the state responsibilities to exercise right to education from early childhood'. She added, 'despite the progress made in ECCE legislations, it encounters various challenges', and highlighted the following challenges.
● The age definition for ECCE varies between countries and ECCE is mostly recognised from 4 years of age
● There are fragmentation and contradictions in perspectives between the general education laws and other ECCE related laws, thus weakening the rights-based approach and the notion of the right to education at early childhood
● ECCE is also named differently in the legislative frameworks, thus resulting in different ministries taking charge of implementation poses challenges in governance, intersectoral coordination, financing, and access to justiciability process
● Despite progress in ECCE legislations, there are still ambiguities in State diligence, particularly for children less than three years old
● Importantly, ECCE financing is not a priority thus leads to inequalities, and lack of access for vulnerable children. Evidently it affects the infrastructure, quality, and allocation of human resources
'The legal provision and policies aimed at ECCE must be based on rights-based approach, fully available and accessible to all children from birth without discrimination and it should address issues related to financing, quality, human resources, data management and mechanisms for access to justice', said Giovanna.
Implications of weak legal frameworks during the Covid-19 pandemic
The legal framework on ECCE both at the national and International level are not adequate to address the ongoing crisis. Bede Sheppard, Deputy Children's Rights Director at Human Rights Watch who led a project interviewing parents and pre-primary school teachers during the Covid-19 pandemic, commented: 'ECCE is a right in one country, whereas it is not a right in another country. In the absence of an international law that explicitly recognises ECCE as a right, it is more difficult to interpret the lack of access to ECCE as a rights violation. We are constrained by the lack of provisions in international law to call upon states to include ECCE in the Covid-19 response strategies'.
The Covid 19 pandemic has further exposed the need to clearly articulate the right to pre-primary education. In countries like Netherlands or Finland where the right to pre-primary education is guaranteed in domestic law, it gives an opening for an advocacy to prioritise ECCE. But this was not possible in other countries. Given the importance of ECCE, prioritizing the needs of young children and fulfilling their right to ECCE is highly relevant in the context of a global health crisis and hence it should not be neglected in the education response strategy to the Covid-19 pandemic.
Call to Action and recommendationss
UN Special Rapporteur on Right to Education Ms. Koumbou Boly Barry, who provided the concluding remarks, believes that the challenges in legal frameworks and other issues like financing, quality, intersectoral approach can be addressed only through political commitment. 'Lack of political will and commitment to make ECCE a public education is one of the major problems', she noted. Quoting the example of Africa, Ms. Boly Barry highlighted negligence of ECCE in education discourse and practice. She further emphasised:
● The need for a political vision and holistic approach connecting children’s health, environment, safety, and economy
● The importance of ECCE in empowering women
● The situation of migrants, refugees, and people with disabilities for access to ECCE
In the course the discussion the panel also recommended:
● The adoption and strengthening of a normative framework for universal access to ECCE as a first step to guarantee pre-primary education
● The ECCE remarks on the concluding observations to different State parties should be brought together, in the formal amendment to the CRC General comment 7, or as an optional protocol addressing concerns of accessibility, affordability, and non-discrimination
● Aligned and coherent legal frameworks and national policy documents with clear definition of free and compulsory pre- primary education
● Secure governance, financing commitment and adequate technical and human resource allocation to pre-primary education to facilitate sustainable implementation of the rights-based framework
● Ensure equal access, quality, free and compulsory pre-primary education to all children without discrimination. Emphasis should be placed to address concerns of marginalised children including the children with disabilities, minorities, traditionally marginalised and indigenous communities, migrants, refugees, internally displaced communities etc
● Include ECCE in the general national education plan and implementation, especially in education response strategy of Covid 19
The panel also collectively emphasised the global responsibility and the need for a global call to advocate for a legally binding international treaty or an optional protocol that guarantees an explicit right to free, quality and compulsory pre- primary education. This treaty can envisage to integrate other education commitments made as part of the sustainable development goals and the emerging issues in Education. Crucially, the panelists contributions demonstrated the need for a stronger legal framework at national and international level to make universal access to free pre-primary education a reality.
Rajakumari Michaelsamy - Programme Manager (Early Childhood Care and Education)
Rajakumari is a human rights professional with over 15 years of experience in various aspects of human rights including human rights education, research, monitoring, training, intervention and advocacy. Being an ardent advocate of right to education, she has closely worked with children and educators in India from pre-primary to secondary level. She joined RTE in February 2021, and has previously worked with a range of national and international NGOs and organisations, including Pax Romana - IMCS Asia Pacific, People’s Watch-Tamil Nadu, Indian Social Institute, Child Rights and You, and Amnesty International India. She holds a Master’s degree in Human Rights from the University of Essex and a Postgraduate Diploma in International Human Rights Law from the National Law School of India University.
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