Compulsory education free of charge 4/9

17. Equality of opportunity and treatment establishes a positive obligation for States to set up a system of education that is accessible to all. In the relevant international instruments and, in particular, the 1960 UNESCO Convention, the content of this obligation is closely linked to respect for the principle of non-discrimination and to the definition of prohibited discrimination. Thus, while article 1, paragraph 1 (a), defines discrimination, inter alia, as the fact “of depriving any person or group of persons of access to education of any type or at any level”, article 4 (a) requires States “to make primary education free and compulsory; make secondary education in its different forms generally available and accessible to all …”. At least as far as primary education is concerned, non-discrimination in education therefore directly involves the establishment of free and compulsory education for the benefit of all, regardless of race and/or religion.12 There is thus a close correlation between the principle of non-discrimination and the establishment of free and compulsory education, particularly for minorities and ethnic and religious groups.13 In its General Comment No. 11 (1999) on article 14 of the International Covenant on Economic, Social and Cultural Rights, the Committee reports that, “in developing countries, 130 million children of school age are currently estimated to be without access to primary education, of whom about two thirds are girls” and that “the work of the Committee has shown that the lack of educational opportunities for children often reinforces their subjection to various other human rights violations” (E/C.12/1999/4, paras. 3 and 4). Article 3 of the 1960 UNESCO Convention lists the measures that States must take in order to respect this obligation and ensure that it is respected by the entire public and private educational system, regardless of the nationality of pupils. As at the primary level, the State is bound to guarantee respect for the compulsory nature of education, particularly for the benefit of girl children, regardless of the religious or philosophical beliefs of the parents or legal guardians. General Comment No. 11 also states: “The element of compulsion serves to highlight the fact that neither parents, nor guardians, nor the State are entitled to treat as optional the decision as to whether the child should have access to primary education” (E/C.12/1999/4, para. 6).

18. With the exception of the European Convention of Human Rights, all the relevant international instruments establish the same obligation to guarantee free and compulsory education, but in the context of the general obligation inherent in the right to education. The latter is a matter of concern to the present study only as it relates to the problem of racial discrimination and religious intolerance. It should, however, be noted that, in article 13, paragraph 2, of the Covenant, the wording of this obligation warrants attention because it is directly linked to the objectives and content of education as provided for by article 13, paragraph 1 (“2. The States parties to the present Covenant recognize that, with a view to achieving the full realization of this right:”). As one author has stated, international instruments thus have “a core content” which must guarantee absolute minimum entitlements in respect of access to education, but must also provide for minimum entitlements in respect of the content of education and interculturalism.

19. Several studies on the scope of the principle of non-discrimination in the education of minorities and indigenous children have rightly shown that the principle of non-discrimination must be handled with a great deal of care. Differences of result in the educational system are not always attributable to the discrimination to which minority groups might be subject, but to various handicaps which affect both the majority and minorities (family, economic and social situations, etc.).16 As one study rightly concludes, the result is that: “In cases where the majority has no access to quality education, it seems legitimate to give priority to equality and non-discrimination rather than to the respect and promotion of diversity” (E/CN.4/Sub.2/AC.5/2000/WP.4, para. 24).

 General obligations (a) Compulsory education free of charge 

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