The right to education has been recognised in a number of international and regional legal instruments: treaties (conventions, covenants, charters) and also in soft law, such as: general comments, recommendations, declarations, and frameworks for action.
Treaties provide the strongest guarantee
Treaties are binding and create legal obligations whereas soft law only creates moral obligations for states. However, to be legally bound by a treaty, a state has to ratify it - its signature is not sufficient. The difference between ratification/accession and becoming a signatory is akin to the difference between soft law and hard law, by ratifying a treaty a state is consenting to being legally bound by a treaty and by signing, a state is signalling its intention to ratify, thus politically and morally obligating a state to comply. In addition, most multilateral treaties will require a certain number of states to ratify it before it enters into force. Once this threshold is met, the treaty is legally binding on all States parties. It is also important to note that states may lodge reservations or declarations, which can change the nature of the obligations on the state.
Since the adoption of the Universal Declaration of Human Rights, the right to education has been reaffirmed in numerous treaties at international and regional level
The Universal Declaration of Human Rights (UDHR), adopted in 1948, states in Article 26: 'Everyone has the right to education'. Since then, the right to education has been reaffirmed in various international treaties including:
- UNESCO Convention against Discrimination in Education (1960)
- International Covenant on the Elimination of All Forms of Racial Discrimination (1965)
- International Covenant on Economic Social and Cultural Rights (1966)
- Convention on the Elimination of All Forms of Discrimination against Women (1979)
- Convention on the Rights of the Child (1989)
- International Convention on the Protection of the Rights of All Migrant Workers and Members of their families (1990)
- Convention on the Rights of Persons with Disabilities (2006).
The right to education has also been recognised in ILO Conventions and international humanitarian law, as well as in regional treaties.
Some treaties guarantee the right to education generally, others apply to specific groups or contexts
UNESCO Convention against Discrimination in Education and the International Covenant on Economic, Social and Cultural Rights guarantee the right to education generally, that is, for all people. Other treaties apply to specific groups (children, women, persons with disabilities, refugees and migrant) or in specific contexts (for example, education in armed conflicts and education and child labour).
Human rights mechanisms monitor and protect the right to education as enshrined in treaties
Most of the time, human rights bodies attached to these treaties monitor its implementation through reporting mechanisms and complaint mechanisms in cases of violations. They are also responsible for providing authoritative interpretations – and so better understanding – of treaties’ provisions through the adoption of General Comments, Recommendations to States, and decisions.
The following subsections provide details on the core international and regional legal instruments recognising the right to education. For a more complete overview, see International Instruments - The Right to Education.