Updated: Feb 6, 2021
by Nila Freisleben
The right to education has long been recognised mainly in relation to primary and secondary education. In fact, the Universal Declaration of Human Rights (1948) first outlined the right to education, qualifying that “higher education shall be equally accessible to all on the basis of merit”. However, the Universal Declaration is not a binding treaty on nation states.
The right to education, including higher education, is further taken up in the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) and in the Convention on the Rights of the Child (1989). Art 13(2)(c) of the ICESCR, which to date has been ratified by 170 States, asserts:
“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”
The right to education, explicitly including higher education, has also been adopted in regional treaties such as the Additional Protocol to the American Convention on Human Rights (San Salvador Protocol) (1988) and the African Charter on the Rights and Welfare of the Child (1990).
Human rights impose three types of obligations on States: to respect, protect and fulfil. By ratifying the ICESCR, they have consented to be legally bound by the obligation of ensuring that higher education is made equally accessible to all and progressively introducing free education. It is important to note that the right does not require a State to ensure that every individual receives higher education, but that they have equal opportunities to access. Moreover, access should be granted “on the basis of capacity”, the capacity of individuals assessed by reference to all their relevant expertise and experience (see Right to Education: Scope and Implementation for more information).
The higher education sector has grown with world-wide enrolment doubling between the late 1990s and today, but it is still defined by inequalities in access and completion mostly due to the economic standing of students and of respective States. The obligation towards the “progressive introduction of free education” is a controversial aspect of the right to higher education. It should rather be understood as a requirement to reduce apparent economic inequalities between students within a State as well as between developing and developed States.
In a policy paper Six ways to ensure higher education leaves no one behind, IIEP-UNESCO suggests that policies and programmes to support qualified students from disadvantaged backgrounds within a State is key and this includes provisions to ensure equity and affordability of higher education in national legislation.
Due to the difference in the economic standing of States, resources available to ensure the right to higher education also differs. The ICESCR requires States not only to take steps individually to ensure the rights in the Covenant, but also through international assistance and international cooperation. This can range from bilateral to multilateral cooperation, focusing on the higher education system of one State or the harmonisation of higher education on a continental level.
Members of Pan African University Institute of Water and Energy Sciences (and Climate Change) Climate Change and Gender Club. The Pan African University exemplifies increased access to higher education through a Pan-African set-up. Photo courtesy of PAUWES’ Climate Change and Gender Club
An example of continental cooperation is the Pan African University (PAU), which was launched in 2011 by the African Union and implemented in partnership with Member States hosting the PAU Rectorate and its five Institutes, as well as multilateral organisations and non-African States such as Germany and Japan. The Pan African Virtual and E-University was launched in 2019 as a means to address the aspirations of African Union Agenda 2063 by “increasing access to tertiary and continuing education in Africa by capitalising on the digital revolution and global knowledge”.
A paradigm shift
The right to education has suffered tremendously under the COVID-19 pandemic with 90% of students from primary, secondary and tertiary (or higher) education no longer being able to attend classes in person. It has given stakeholders, including policy makers, a better understanding of the short-comings of the education system and the necessity for digital delivery of education services. The transition to online learning has been a challenge for both students and education providers, however the World Economic Forum suggests that COVID-19 may trigger a long-overdue shift towards a new educational paradigm in higher education. Eligible students are presumably in an age group equipped with the soft skills and technological skills required to navigate online learning. States can provide a conducive framework (e.g. internet access – see Paeradigms' post on tackling digital inequalities) and leverage the partnerships established between higher education institutions, online education platforms and tech companies during the pandemic in order to comply with their international legal obligation to ensure access to higher education now and beyond.
Human rights approach
States do not have to bear the responsibility alone but are key in driving the process. Policy on higher education and the associated legislative framework are pertinent in shaping the higher education system, including how it is financed. Higher education can be financed or highly subsidised by the State such as in most of Europe (OECD Education at a Glance 2019: Indicator C5). Moreover, States should engage in international cooperation and with private actors to explore alternative means and innovative ways to provide affordable higher education. An efficient use of available resources will allow for greater and equal access to higher education – which in turn will strengthen the respect for further human rights such as one that has become omnipresent due to the global pandemic: the right to health.
Nila Freisleben is a consultant in Education & Skills Development and LLM Candidate in International Law