There is an indisputable right to higher education: the International Covenant on Economic, Social and Cultural Rights (ICESC) provides that higher education ‘shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education (Article 13.2.c). If there is no requirement for higher education to be universally accessible, States must ensure that higher education is equally accessible on the basis of ‘capacity’. The Committee on Economic, Social and Cultural Rights (CESCR) explains that the ‘capacity’ of individuals is ‘assessed by reference to all their relevant expertise and experience’ (CESCR, General Comment 13, para. 18).
The right to higher education does not allow for any form of discrimination. However, all countries face challenges guaranteeing equal access to higher education. Issues such as privatisation of higher education and raising tuition fees represent a threat to equal access to higher education, especially in contexts where structural inequalities - such as, for example, class or territorial inequalities - persist. Women and minority groups (such as migrants and disabled) may also have more difficulties in accessing higher education.
UNESCO defines higher education as encompassing 'all types of education (academic, professional, technical, artistic, pedagogical, long distance learning, etc.) provided by universities, technological institutes, teacher training colleges, etc., which are normally intended for students having completed a secondary education, and whose educational objective is the acquisition of a title, a grade, certificate, or diploma of higher education'.
Higher education is sometimes also referred to as tertiary education. However, there is a conceptual distinction. Tertiary education is an umbrella that encompasses all post-secondary education : it includes technical and vocational education and training (TVET) as well as higher education. Therefore, within international human rights law, the term tertiary education is generally not used. Rather, the instruments refer to technical and vocational education and training, and higher education.
States have an immediate obligation to ensure the right to non-discrimination and equality in the access to and enjoyment of the right to higher education. Despite that, indirect and systemic discriminations continue to affect the right to higher education raising inequalities and exclusion, mainly regarding access to higher education. Indeed, people do not have the same opportunities in accessing higher education regardless of their class, gender, ethnicity and/or geographic location. Some privileged groups are overrepresented in higher education systems, while underprivileged groups face numerous discriminations. Consequently, the social mobility that equal opportunities in accessing higher education are supposed to ensure is not fulfilled.
Inequalities in access to higher education are highly related to socio-economic status. Students from wealthy backgrounds are more likely to access higher education institutions than those from poor economic classes. For example, in France, according to the National Observatory of student’s life, in 2016, 32.4% of the enrolled students were children of parents with socially valued positions, while only 2.3% of students had parents from an agricultural profession. This distinction is even more important when looking at prestigious and selective establishments. Moreover, these students from privileged backgrounds have access to more and more qualitative educational resources that further enhance their capacities.
Gender is another variable which impacts access to higher education. Women remain generally underrepresented in the higher education system. In India, for example, women constitute only around 40% of the total student enrollments in higher education (2015). In Cameroon, women represent 23,44% of all academic staff (2018).
Likewise, ethnic, racial and religious minorities are generally underrepresented in higher education compared to their proportion in the population as a whole. For example, in the United States of America, according to the American Council on Higher Education, white students represent 60% of all higher education students, while Hispanic students were 10,2% and American Indian 0,9%.
Disabled people also face many challenges to access higher education. Being recognized as disabled, physically accessing the buildings, obtaining exam arrangements, or accessing information from the library are among the major obstacles faced.
Since 2018, RTE and Sciences Po Law School Clinic have collaborated on an award winning project focused on monitoring inequalities in access to higher education. This project prepares students with the skills and understanding necessary to carry out research and advocacy on higher education from a human rights perspective. Initially focused on territorial inequalities in French higher education, the project has evolved to incorporate an additional focus on the impact of the covid-19 pandemic on territorial inequalities, and the impact of privatisation on inequalities in higher education.
Five cohorts of first year post graduate students have thus far been involved in the initiative, whose impact thus far includes a growing group of young people equipped with knowledge and practical understanding of online and offline advocacy involving states and CSOs; an ability to apply the normative dimensions of the right to education to varied contexts; and strengthened links between academia, civil society, politicians and student groups.
More specifically, the project has led to increased awareness among French civil society organisations and policy makers about the nuanced effect of territorial inequalities on the right to education.
Higher education should be made equally accessible to all by every appropriate means, especially by the progressive introduction of free education. Despite this provision, worldwide public expenditures have declined and private sources account on average for around one-third of expenditure on tertiary educational institutions According to the OECD’s Education at a Glance report (2020), between 2015 and 2017 public expenditure on tertiary education as a share of GDP decreased on average by 5.1% across OECD countries with Chile, the United Kingdom, the United States and Australia representing the countries with most private investments in higher education.
Total expenditure on educational institutions as a percentage of GDP, by source of funds (2017)
Source: OECD, Education at a Glance, 2020.
In the Latin America and the Caribbean region, it is the private sector that has impulsed the rapid expansion of higher education in the 2000’s: the market share of private higher education institutions in the region rose from 43 percent to 50 percent between the early 2000s and 2013; with Brazil, Mexico and Argentina being the countries with the most important raise in numbers of private higher education institutions.
Change in the Number of Public and Private HEIs, Latina America and the Caribbean, Circa 2000-13
Source: World Bank, At a Crossroads : Higher Education in Latin America and the Caribbean, 2017.
Budget allocation to funding higher education is a political decision. Because of increased pressure to reduce taxes and alleviate the cost of public budgets, more and more countries are shifting the burden of higher education costs from the government to students. Higher education is increasingly seen as an investment leading to private and public yields but not necessarily as a social priority. Funding politics are then designed to target sectors of higher education showing the higher rates of return with for example a selective system of scholarship.
Simultaneously, efforts to decentralize the public management of higher education pushed the development of private schools. The Institute For Higher Education Policy has highlighted the fact that privatization pushes institutions to operate in a market-oriented manner to respond to consumer demands, sometimes threatening traditional academic culture and even quality of education. Moreover, privatization of higher education leads to increasing costs while according to international law, it should be progressively free. The cost of higher education varies a lot between countries : while free in 40 countries worldwide such as Germany or Brazil, it can be around several hundred dollars in Belgium, Columbia or France and goes up to thousands of dollars in the United States where the average 2016 college graduate student loan debt amounts to of 37 000$.
Increasing costs of access to higher education forces a rising number of students to rely on loans. The burden of student loan debt is challenging both developed and developing countries. While governments are accumulating unprecedented levels of total federal student loan debt (nearly $1,3 trillion in the US in 2019, nearly $100 billion in the UK in 2017), students carry the cost of debt for years and many default on repayment (US : 14% of the 7 million borrowers are in default). In the US the student debt increased by 107% in a decade.
Visit our webpage on the privatization of education for more information about this issue.
The recognition of diplomas is a major issue concerning higher education, especially because we are living in a globalized world where academic mobility is becoming the norm. The recognition of a foreign diploma refers to the formal acknowledgement by a competent authority of the value of the certificate. This recognition enables the holder of the diploma to enjoy the same rights as nationals who possess a comparable degree. Consequently, the recognition of diplomas is crucial to acknowledge migrants’ rights to access higher education and/or employment.
The diploma recognition legal framework encompasses bilateral agreements and international conventions. On the one hand, through treaties, countries agree to recognize the diplomas of their mutual students. For example, Switzerland has signed different bilateral agreements on the recognition of diplomas with Germany, Austria and Italy. On the other hand, important initiatives have been taken by international organizations to create international conventions on the recognition of diplomas, such as the 2019 UNESCO Global Convention on the Recognition of Qualifications concerning Higher Education, as well as regional ones like the 2011 Asia-Pacific Regional Convention on the Recognition of Qualifications in Higher Education. These conventions facilitate the application for recognition, support student mobility and international cooperation.
Some countries show good practices on the recognition of refugees’ qualifications. However, challenges remain for students to access foreign higher education institutions and obtain the recognition of their diplomas. A primary obstacle is the lack of awareness about the opportunities existing in the country of residence to get qualifications recognised. Indeed, information can be difficult to access for foreigners not used to the national system, or with insufficient language skills. Also, the structure of the recognition system can make it difficult for individuals to access it. According to the OECD, “the often complex process and the many actors involved” are among the reasons why few immigrants get their diplomas recognized. Indeed, procedures for the validation of foreign degrees are strict, made of complicated bureaucratic processes and can last several months. Direct and indirect fees constitute another important economic barrier to recognition for immigrant students. The processing of the application for diploma recognition usually implies costs such as translation and application fees. It might also include the need for complementary studies or training: in Norway, for exemple, immigrants must complete 300 hours of language training at their expenses.
Particular obstacles arise for refugee students who try to access the higher education system of their country of asylum. There is a lack of policies and programs supporting refugees to transit to the workplace. Moreover, refugees might face difficulties in providing the required documentary proof of their qualifications, as they usually leave their country in emergency. It has been shown, for instance, that refugees in Luxembourg have few chances of succeding in getting recognition of their qualifications. Consequently, they end up re-entering the education system or working in occupations for which they are overqualified.
In this case, a resident of Uttar Pradesh state challenged a notification issued by the Karnataka government that permitted private medical colleges to charge higher fees to students who were not allocated 'government seats'. The Supreme Court of India held that the charging of a ‘capitation fee’ by the private educational institutions violated the right to education, as implied from the right to life and human dignity, and the right to equal protection of the law. In the absence of an express constitutional right, the Court interpreted a right to education as a necessary condition for fulfilment of the right to life under Article 21 of the Indian Constitution. In addition, the Court held that private institutions, acting as agents of the State, have a duty to ensure equal access to, and non-discrimination the delivery of, higher education.
In 2019, the French Constitutional Court (Conseil Constitutionnel) was seized by student unions and associations in response to public higher education tuition fees concerning international students from outside of the European Union. The plaintiffs argued that under paragraph 13 of the preamble of the French constitution, public higher education should be equally accessible to all and free. The Constitutional Court found that modest tuition fees in public higher education, where appropriate and depending on the financial capacity of students, do not go against the principle of equal access to education and the principle of free higher education. The right to education should ensure that access to higher education is financially possible for every student. Thus, limited tuition fees can be set by legislators under the control of the judicial system. Therefore, the Court states that the right to education of international students to access French public higher education system was not violated.
In 1995, the parents of an Indian pupil brought a case against University of Natal because her application to medical school was rejected despite the satisfactory results she obtained in her qualifying examinations. They claimed that the admission process was discriminatory because it did not consider all the applications equally, but set higher admission standards for Indian students and lower ones for African students. The parents argued that this is as a violation of ‘equal access to educational institution’ provision of the constitution as well as sections 8(1) and 8 (2) in regard to ‘setting a discriminatory practice’. The Court agreed that while Indian community had been decidedly disadvantaged by the apartheid system, African pupils were even more so. Accordingly, the Court held that a selection system which compensated for this discrepancy does not violate the provisions of sections 8(1) and 8(2) of the Constitution.
Hereafter is an overview of the international human rights framework which reference higher education, or similar terms, explicitly. It includes instruments which are binding on the states which have ratified them, as marked with an asterisk below. It also includes non-binding instruments which are significant for various reasons - for example, a non-binding instrument may constitute authoritative interpretation which provides guidance to states regarding implementation of a binding instrument; indicate evolving practices or emerging consensus on particular issues; and/or they be subject to structured follow up and review processes which provide space for dialogue about rights in practice. For details, see International instruments - the right to higher education.
Universal Declaration of Human Rights, 1948 (Article 26)
International Covenant on Economic, Social and Cultural Rights, 1966* (Article 13, General Comment Nos. 13 and 20)
Convention on the Rights of the Child, 1989* (Article 28)
Convention on the Rights of Persons with Disabilities, 2006* (Article 24)
Convention against Discrimination in Education, 1960* (Article 4)
Global Convention on the Recognition of Qualifications concerning Higher Education, 2019* (Preamble, Section I, II, III, IV, V)
Charter of the Organisation of American States, 1948* (Article 49)
Additional Protocol to the American Convention on Human Rights, Protocol of San Salvador, 1988* (Articles 13 and 16)
African Charter on the Rights and Welfare of the Child, 1990* (Article 11)
African Youth Charter, 2006*, (Article 13)
European Charter for Regional or Minority Languages, 1992* (Article 8)
European Convention on the Legal Status of Migrant Workers, 1977* : (Article 14)
Revised European Social Charter, 1996* (Article 10)
Convention on the Recognition of qualifications concerning higher education in the European Region, 1997* (Preamble, Section I, II, IV, V, VI, VII, VIII, IX, X, XI)
ASEAN Human Rights Declaration, 2012* (Article 31)