The Right to Education in the COE JAMR27, 28 November 2013 Guest Professor Ida Elisabeth Koch

1. The Right to Education in the COEJAMR27, 28 November 2013Guest Professor Ida Elisabeth Koch

2. The right to education as a cross-cutting issue When asking why a holistic approach to human rights in general is necessary, the right to education might be one of the best illustrations. Not only is the right to education a human right in itself. The right to education also has an important role to play as a linkage and as a key to the unlocking of other human rights – economic, social and cultural as well as civil and political ones. Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

3. The right to education as a cross-cutting issue Free and compulsory education until a certain age functions as a protective measure against economic exploitation of children either by parents or by employers. Hence, a fixed minimum age for admission to employment corresponding to the age for the completion of compulsory education is likely to support other endeavours to protect children against child labour and trafficking. Not only does education protect children from entering the labour market at too early an age. An increasing number of jobs require skills and knowledge, and education increases the opportunities of obtaining a well-paid job, this again having a number of consequences e.g. for social security and old-age security.

4. The right to education as a cross-cutting issue The link between education and health has likewise been emphasised on several occasions. Article 24(2)(e) of the Convention on the Rights of the Child (CRC) lists education as an appropriate measure to ensure the popularisation of existing knowledge on nutrition, advantages of breast-feeding, hygiene, environmental sanitation and prevention of accidents. The impact of education is not only on economic, social and cultural rights but reaches into the sphere of civil and political rights. Most conspicuous is the impact of education on participation rights in general. Education has an impact on the full enjoyment of the right to vote and for political representation and is therefore of vital importance for the development and for the functioning of democracy. Illiterate persons are rarely – if ever – elected to political bodies, and the elected representatives often belong to the best-educated part of the population. Furthermore, a minimum level of education including literacy is necessary for the seeking and receiving of information and for the freedom of expression, assembly and association. These rights have little substance andmeaning for the illiterate. Finally, illiterate persons and persons without basic education make up a regrettably large percentage of the prison population thereby proving the intimate link between the right to education and the right to personal liberty.

5. Protocol No. 1 to the ECHRArticle 2 – Right to education 1. No person shall be denied the right to education. 2. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. Italics by Ida

6. Protocol No. 1 to the ECHRArticle 2 – Right to education The article seems to presuppose the existence of an educational system, cf. the term assumes. Whatever the States assume is most uncertain. However they must assume something.

7. European Social Charter No right to education, only a right to vocational guidance and training, cf. Articles 9 and 10

8. Revised European Social CharterArticle 17 – The right of children and young persons to social, legal and economic protection With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-operation with public and private organisations, to take all appropriate and necessary measures designed: • to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose; • to protect children and young persons against negligence, violence or exploitation; • to provide protection and special aid from the state for children and young persons temporarily or definitively deprived of their family's support; to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools. Italics by Ida

9. Appendix to the Revised European Social Charter, cf. Article 17 74. It follows from the appendix that this paragraph [Article 17] does not imply an obligation to provide compulsory education up to the age of 18 years. The reason that there is no mention of compulsory education in the paragraph itself is that in some states only primary education is compulsory, whereas in others secondary education is also compulsory.

10. ECHR Article 2 of the First Protocol Article 2 of the First Protocol contains a primary right to education and a secondary right to education. However, as the ECtHR has pointed out on a number of occasions ”Article 2 [....] constitutes a whole that is dominated by its first sentence. ”The right set out in the second sentence of Article 2 [....] is an adjunct of this fundamental right to education.””Cf. Kjeld, Busk Madsen and Pedersen v. Denmark, Judgment of 7 December 1976, para.52 The Court goes on to state that the two sentences should be read not only in the light of each other, ”but also in particular of Articles 8, 9 and 10 [....] which proclaim the right of everyone including parents and children to ’respect for his private and family life’ to ’freedom of thought, conscience and religion’ and to ’freedom [....] to receive and impart information and ideas’. Ibid. Cf. also Article 5 (1)(e) and Article 14

11. Article 2 of the First Protocol 1) Is the right to education considered compulsory? 2) Is it free of charge? 3) Is there a minimum core right to education? If read together with RESC and ICESCR, the answer is yes to all three questions. What does the State assume, cf. Protocol 1(2)?

12. Timishev v. Russia, Judgment of 13 December 2005 The applicant was a Russian national of Chechen ethnic origin. Since 1996 he lived in Nalchik, in the Kabardino-Balkaria Republic of Russia, as a forced migrant. He complained about the domestic authorities’ refusal to secure his children’s right to education on the ground that he had no registered residence in Nalchik and did not have a migrant’s card. The Court held as follows on the right to education: This right is also to be found in similar terms in other international instruments such as the Universal Declaration of Human Rights (Article 26), the International Covenant on Economic, Social and Cultural Rights (Article 13), the International Convention on the Elimination of All Forms of Racial Discrimination (Article 5(e)(v) ), and the Convention on the Rights of the Child (Article 28). There is no doubt that the right to education guarantees access to elementary education which is of primordial importance for a child’s development. The statement is interesting as it seems as if the Court recognises that the legal content of Article 2 of Protocol No. 1 is similar to e.g. Article 13 of the CESCR, and it is not surprising that the Court concluded that the applicant’s children’s exclusion from school was incompatible with the requirements of Article 2 of Protocol No. 1 (para. 64). Italics by Ida

13. The Travaux Préparatoire to Article 2 of Protocol No. 1 The interest of the parents (the father) rather than the child: ”The right to give education, moral and intellectual training to a child [....] rests with none other than its father. This is a matter of natural right.” Draft 1: Every person has the right to education Draft 2: No person shall be denied the right to education Article 2 (1) protects the right of the child Article 2 (2) protects the right of the parents

14. Belgian Linguistic Case, Judgment of 23 July 1963 The Court has held from the outset that Article 2 of Protocol No. 1 has a ‘positive’ content, without, however, defining this content in great detail. In the Belgian Linguistic case the Court referred to the travaux préparatoires in the following way: The negative formulation indicates, as is confirmed by the “preparatory work” [.…] that the Contracting Parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level. However, it cannot be concluded from this that the State has no positive obligation to ensure respect for such a right as is protected by Article 2 of the Protocol [.…][italics by Ida], cf The Belgian Linguistic Case, Judgment of 23 July 1963, Interpretation adopted by the Court, para. 3. The Court did not find that Protocol No. 1 requires of States that they should respect parents’ linguistic preferences, but only their religious and philosophical preferences

15. Cyprus v. Turkey, Judgment of 10 May 2001 The case is about the right of Greek speaking children to receive secondary education in the Northern Turkish part of Cyprus. The children were not denied the right to receive education The Court held that the authorities must without doubt have been aware that it was the wish of Greek-Cypriot parents that the schooling of their children be completed through the medium of the Greek language. Having assumed responsibility for the provision of Greek-language primary schooling, the failure of the Turkish-Cypriot authorities to make continuing provision for it at the secondary-school level had to be considered in effect to be a denial of the substance of the right at issue. Accordingly, the Court concluded that there had been a violation of Article 2 of Protocol No. 1 in respect of Greek-Cypriots living in northern Cyprus in so far as no appropriate secondary-school facilities were available to them. OBS!! No reference to travaux préparatoire

16. Belgian Linguistic Case, Judgment of 23 July 1963 Cyprus v. Turkey, Judgment of 10 May 2001 33 years in between Two different stages in the evolution of case law?

17. Article 2 (2) of the First Protocol Religious and philosophical convictions: Kjeld, Busk Madsen and Pedersen v. Denmark, Judgment of 7 December 1976 . Sex education. No violation Campbell and Cosans v. the United Kingdom, Judgment of 25 February 1982. Corporal punishment. Violation Lautsi and Others v. Italy, Judgment of 18 March 2011. Religious symbol in class-room. No violation

18. Lautsi and Others v. Italy, Judgment of 18 March 2011 The Grand Chamber judgment in The Grand Chamber judgment dealt with the sensitive subject of religion in State schools. The Court found that the decision whether crucifixes should be present in classrooms was, in principle, a matter falling within the State’s margin of appreciation, particularly in the absence of any European consensus. However, this margin of appreciation went hand in hand with supervision by the Court, whose task was to ensure that the presence of crucifixes did not amount to a form of indoctrination. In the Court’s view, while a crucifix was above all a religious symbol, there was no evidence that the display of such a symbol on classroom walls might have an influence on pupils. It was understandable that individuals might see in the display of crucifixes in the classrooms of the State school attended by theirchildren a lack of respect on the State’s part for their right to ensure the children’s education and teaching in conformity with their own philosophical convictions. Nevertheless, that subjective perception was not sufficient to establish a breach of Article 2 of Protocol No. 1.children a lack of respect on the State’s part for their right to ensure the children’s education and teaching in conformity with their own philosophical convictions. Nevertheless, that subjective perception was not sufficient to establish a breach of Article 2 of Protocol No. 1.

19. Roma cases D. H. and Others v. The Chech Republic, Grand Chamber Judgment of 13 November 2007 Violation of Protocol 1, Article 2 in conjunction with Article 14 (decision based on statistics) Sampanis and Others v. Greece, Judgment of 6 June 2006 (violation) Orsus and Others v. Croatia, Judgment of 16 March 2010 (violation)

20. Future Prospects The right to education under the ECHR was born essentially as a parental right with strong ‘negative’ components, and it might be too soon to tell whether it is undergoing a transformation into something more ‘positive’ than was originally intended. The same applies to the question of whether the interest of the child is gradually coming into focus. Case law reveals some very cautious indications of such tendencies; however, too few to draw firm conclusions. Most importantly, the questions I pose have not been addressed directly by the Court or the Commission. The answers to some of them might have more academic than practical interest, since the educational set-up in most of the COE Member States probably complies with the requirements deriving from the conventions on economic, social and cultural rights. Moreover, some of the issues I have discussed concern discrimination, and there is hardly any doubt that these issues “fall within the ambit” of the ECHR provisions on educational matters. They can accordingly be dealt with under Article 14 in conjunction with the article in question.

21. Future prospects I will restrict myself to suggesting that it might be possible to build up a legal argumentation in favour of a more ‘positive’ interpretation of the ECHR. Such argumentation would take into consideration the fact that the conception of the rights of children vis-à-vis the rights of parents has changed dramatically since the adoption of the Convention, and that the natural right of the father – which was invoked during the drafting of Protocol No. 1 – is no longer in focus. The adoption and ratification of the CRC by all COE Member States has undoubtedly had an impact on human rights interpretation in general, and also on the interpretation of the Court. Moreover, the Court has in fact repeatedly held that Article 2 of Protocol No. 1 is dominated by its first sentence, and it would presumably be possible to give more substance to this conception if or when the occasion arises. Moreover, even though the RESC has entered into force, many COE Member States have not yet ratified this convention, and children in these countries would not enjoy a regional protection of their rights as regards education, if some minimum core rights could not be read into the ECHR. It would in many ways be absurd if the relatively more affluent COE Member States were not to protect their citizens at a level equal to that of the global treaties covering a variety of countries – some of which are indeed poorer than even the least developed COE countries.