democr acy & education, vol 21, no- 1 feature article 1 Education as a Human Right in the 21st Century Sharon E. Lee Abstract According to the United Nations, education is a right to which all human beings are entitled. Since 2000, the UN has been promoting the Millennium Development Goal to achieve free universal pri- mary education for all, regardless of gender, by 2015. If the UN is correct to suggest that education is both a human right in itself and an indispensable means of realizing other human rights, then there is an important need to question the role that governments should play to support the institutional reforms necessary to achieve basic primary education for all. Moreover, there is an important need to question the role all individuals should play to ensure that the institutional structure dedicated to the provision of basic primary education is set up not only to provide children with access to a vague notion of education but to a notion of basic education that can provide children with the freedom to do something with that education once they have obtained it. Read a response to this article Tarc, P. (2013). Mobilizations of “Education as a Human Right in the 21st Century”: What Larger Conditions and Logic Are in Play? Democracy & Education, 21(1). Article 9. Available online at http://democracyeducationjournal.org/home/vol21/iss1/9. Submit your own response to this article Submit online at democracyeducationjournal.org/home Human rights advo cates claim that every child has a right to education. This claim is based primarily on two premises. First, rights advocates endorse the right to education because they believe that if children receive basic primary education, they will likely be literate and numerate and will have the basic social and life skills necessary to secure a job, to be an active member of a peaceful community, and to have a fulfilling life. Second, rights advocates recognize that, despite this recognition of education as a right by the Universal Declaration of Human Rights (UDHR), for example, many children fail to benefit from even basic primary education. This gap between the positive recognition of the right to education and the negative reality facing many children has led rights advocates to conclude that education must be considered a human rights issue on par with the right to food or the right to freedom. And as such, the Millennium Development Goal (MDG) to achieve universal primary education by 2015 was established to fight for the right for all children everywhere, regardless of gender, to a complete course of basic primary schooling. This is a goal that the 2010 Education for All report clearly indicates has achieved some progress (Watkins, 2010). According to this report, the number of children out of school has dropped by 33 million worldwide since 1999, the gender gap is narrowing in many countries, and the adult literacy rate has increased (UNESCO Ins.

1. democr acy & education, vol 21, no- 1 feature article 1
Education as a Human
Right in the 21st Century
Sharon E. Lee
Abstract
According to the United Nations, education is a right to which
all human beings are entitled. Since
2000, the UN has been promoting the Millennium Development
Goal to achieve free universal pri-
mary education for all, regardless of gender, by 2015. If the UN
is correct to suggest that education is
both a human right in itself and an indispensable means of
realizing other human rights, then there is
an important need to question the role that governments should
play to support the institutional
reforms necessary to achieve basic primary education for all.
Moreover, there is an important need to
question the role all individuals should play to ensure that the
institutional structure dedicated to the
provision of basic primary education is set up not only to
provide children with access to a vague
notion of education but to a notion of basic education that can
provide children with the freedom to
do something with that education once they have obtained it.
Read a response to this article
Tarc, P. (2013). Mobilizations of “Education as a Human Right
in the 21st Century”: What Larger
Conditions and Logic Are in Play? Democracy & Education,

2. 21(1). Article 9. Available online at
http://democracyeducationjournal.org/home/vol21/iss1/9.
Submit your own response to this article
Submit online at democracyeducationjournal.org/home
Human rights advo cates claim that every child has a right to
education. This claim is based primarily on two premises. First,
rights advocates
endorse the right to education because they believe that if
children
receive basic primary education, they will likely be literate and
numerate and will have the basic social and life skills necessary
to
secure a job, to be an active member of a peaceful community,
and
to have a fulfilling life. Second, rights advocates recognize that,
despite this recognition of education as a right by the Universal
Declaration of Human Rights (UDHR), for example, many
children fail to benefit from even basic primary education. This
gap
between the positive recognition of the right to education and
the
negative reality facing many children has led rights advocates to
conclude that education must be considered a human rights
issue
on par with the right to food or the right to freedom. And as
such,
the Millennium Development Goal (MDG) to achieve universal
primary education by 2015 was established to fight for the right
for
all children everywhere, regardless of gender, to a complete
course
of basic primary schooling. This is a goal that the 2010
Education
for All report clearly indicates has achieved some progress

3. (Watkins, 2010). According to this report, the number of
children
out of school has dropped by 33 million worldwide since 1999,
the
gender gap is narrowing in many countries, and the adult
literacy
rate has increased (UNESCO Institute for Statistics, 2012).
Nevertheless, in 2009 a total of 67 million children of primary
school age still do not (or cannot) attend school (Naidoo,
Saihjee, &
Motivans, 2011; UNESCO Institute for Statistics, 2005;
Watkins,
2010). The EFA team projects this number to remain
unacceptably
high at around 56 million by 2015 if the current status quo is
maintained. Moreover, there are many who would suggest that
while education is certainly important for children, it is not
something that should necessarily be free, compulsory, public,
or
perhaps even a justified entitlement (e.g., Farson, 1974; Holt,
1964,
1967, 1974; Narveson, 2001, 2002; Purdy, 1992; O’Neill, 1988).
This
Sharon E. Lee is a lecturer in the department of political science
and contemporary studies at Wilfrid Laurier University. She
teaches courses in social and political theory, social foundations
of
education, children’s rights, and theories of justice. Her
research
focuses on moral, social, and political philosophy especially as
it
relates to social institutions like education and to theories of
justice
and agency. She holds a PhD in philosophy from the University

4. of
Waterloo.
democr acy & education, vol 21, no- 1 feature article 2
leads one to question, as representatives of organizations such
as
the UN (Tomasevski, 2005) and UNESCO (Report, 2002) have
posed: What does having a right to education mean?
The standard definition of a right is “a justified claim on
someone, or on some institution, for something which one is
owed” (Orend, 2002, p. 17). For someone to claim a right to
education, on this definition, suggests that there is a reason for
that
individual to claim entitlement and, similarly, there is a reason
for
someone else to honor this claim. So, what reason exists for the
claim that an individual is entitled to an education and that
others
are responsible for honoring this claim? In the case of pure
contractual arrangements, it is easy to provide reasons for such
entitlements. I, as a customer, have paid for the services of a
tutor,
and the tutor, as a provider of teaching services, is obliged to
tutor
me. If either party fails to fulfill the obligations, there are
estab-
lished legal and social conventions for protection. Similarly, if I
am
a citizen of a country (a democratic one, at least), whose
constitu-
tional arrangements include the provision of basic schooling,
the

5. government, whose duty it is to carry out the constitutional
provisions, is obliged to provide me with that service. The
sugges-
tion that a right to education is a human right, however, stakes a
stronger claim on moral grounds, not purely conventional ones
and, as such, elevates the right to education to what Orend
referred
to as, “a high- priority claim or authoritative entitlement,
justified
by sufficient reasons, to a set of objects that are owed to each
human person as a matter of minimally decent treatment”
(Orend,
2002, p. 34). To accept that the right to education is such a
human
right requires the need to establish what qualifies education as
an
object in the set of vitally needed material goods, personal free-
doms, and secure protections that rights advocates claim each
individual is owed.
Defending every child’s right to education is one way to
advance every child’s chance to get at least a minimal level of
protection and support as that child develops. It is an inert
claim,
however, to state that a child has a right to education if there
are no
means for that child to realize this claim. And as Orend recom-
mended, “We do not know the full scope of our human rights
until
we know that the duties correlative to them can be performed at
a
reasonable cost” (Orend, 2002, p. 139). Providing children with
educational opportunities can be expensive and, clearly,
children
(particularly young children) do not have the means to provide
such resources for themselves. As a result, not only must

6. consider-
ation be given to what qualifies an object like education as a
high- priority claim or human right, consideration must also be
given to the social context necessary to acknowledge this claim
and
to accept the social cost to implement it (Orend, 2006). With
this
in mind, this paper first qualifies education as a human right.
Second, it qualifies the kind of social context required to ensure
that every child’s right to basic primary education is both
meaning-
ful and manageable. And finally, this paper offers policy
implica-
tions regarding the implementation of education as a human
right
in the 21st century.
Education Qualified as a Human Right
Education is an institution that typically is established through
a
collective social desire to have civil and supportive societies.
And if
one considers the social dynamic found in many countries
around
the world, there is the suggestion that usually the more
education
people have, the better off they can be. With this in mind, many
societies traditionally view education (at least primary and
secondary education) as a genuine public good that adults and
educators provide for children until such time that they outgrow
their childhood vulnerabilities and inexperience to become
contributing members of society themselves. Many existing
international laws and UN documents have been created to
promote and to protect this notion of education like the UDHR,
the International Covenant on Economic, Social and Cultural
Rights (ICESCR), and the Convention on the Rights of the

7. Child
(CRC).1 These documents have helped to establish viable legal
mechanisms from which nation- states can and have
implemented,
supported, and assessed effective social structures necessary to
provide for appropriate educational opportunities. Consider for
example, Article 13 (1) of the ICESCR, which stipulates:
The States Parties to the present Covenant recognize the right of
everyone to education. They agree that education shall be
directed to
the full development of the human personality and the sense of
its
dignity, and shall strengthen the respect for human rights and
fundamental freedoms. They further agree that education shall
enable
all persons to participate effectively in a free society, promote
understanding, tolerance and friendship among all nations and
all
racial, ethnic or religious groups, and further the activities of
the
United Nations for the maintenance of peace.
This stipulation highlights the need to recognize, beyond a
loose symbolic suggestion, not only the fundamental nature of
having a right to education but also the instrumental and
intrinsic
value of this right. Consider also Article 28 (1) of the CRC,
which
builds upon the ICESCR by stipulating:
States Parties recognize the right of the child to education, and
with a
view to achieving this right progressively and on the basis of
equal
opportunity, they shall in particular:

8. • Make Primary education compulsory and
available free to all;
• Encourage the development of different
forms of secondary
education, including general and vocational
education, make them
available and accessible to every child, and take
appropriate
measures such as the introduction of free education and offering
financial assistance in case of need;
• Make higher education accessible to all on
the basisof capacity by
every appropriate means;
• Make educational and vocational
information and guidance
available and accessible to all children;
• Take measures to encourage regular
attendance at schools and the
reduction of drop- out rates.
democr acy & education, vol 21, no- 1 feature article 3
Further, Article 29 of the CRC stipulates the need to recognize
both the human dignity and the inalienable rights of each child
and
the need to establish appropriate educational environments
capable
of promoting and modeling this as well. By focusing on the
need to

9. develop the diverse, evolving abilities of each child, these
articles
stipulate the importance of promoting and protecting an educa-
tional environment that strives to balance the child’s ability
with
the child’s familial and cultural identity and to be directly
relevant
to the child’s socioeconomic circumstances.
While Articles 28 and 29 are dedicated most directly to
education, four other articles in the CRC round out the need to
establish an educational environment that is both rights
respecting
and child friendly. Article 2, for example, specifies the
importance
of respecting and ensuring the rights of all children regardless
of
background, ability, sex, or any other factor that might
distinguish
one child from the next. This is a stipulation that is particularly
important when it comes to the education of girls in the
developing
world (e.g., UNESCO, 2009), and the education of racial and
ethnic
minorities in the developed world (e.g., Dickinson, 2004;
Miller,
1987, 1996; O’Connor, 2000). Article 3 stipulates the best
interests of
the child should be the primary concern of all actions and
decisions
that may affect that child’s life. To ensure that educational
decisions
are made in the best interests of the child, however, it is
necessary
for the child to be a participant in that decision- making
process,

10. not necessarily as an equal participant but as an age-
appropriate
contributor. Article 5 addresses the need to consider the
significant
role parental guidance can play in influencing the development
of
the child. The family, both the immediate and the extended
community family, can and should be allowed to contribute
positively to the evolving capacities of children, a condition
that
complements Article 6 and its stipulation that the child has an
inherent right to life and to healthy development. These four
articles, in conjunction with Articles 28 and 29, suggest that to
realize the full rights a child is entitled to as a member of the
human
family, a holistic approach must be taken that recognizes the
interconnected nature of this convention and, above all, the
objects
it specifies as necessary for a child to live a minimally decent
life.
To complement the need to establish an educational environ-
ment that is child friendly, additional articles support the
child’s
right to an educational environment that is also empowering.
Article 12, for example, stresses the rights of those children
capable
of forming their own views to express those views when they
are
relevant to decisions that affect them directly. In accordance
with
appropriate consideration of the child’s age and maturity, adults
should give children the opportunity to participate in school
life,
including involvement in the creation of student councils, peer-
mentoring programs, and the creation of curriculum materials

11. that
are both meaningful and relevant to their interests and
experiences.
The CRC also recognizes that having a voice is a meaningless
entitlement if there is not a corresponding entitlement for
children
to access information freely. Article 17, for example, highlights
both
the importance of access to information, as well as the
importance
of access to information that remains open and flexible. Article
17
(a), in particular, highlights the value to be gained by
encouraging
the mass media to disseminate information and material of
social
and cultural benefit to the child and in accordance with the
spirit of
Article 29. Article 17 (b) maintains the desire to advance
intercul-
tural understanding and education through international
coopera-
tion in the production, exchange and dissemination of such
information and material from a diversity of cultural, national
and
international sources. Finally, Article 17 (e) reinforces the
impor-
tance of recognizing that any rights granted to children must
also
account for the role parents play in the upbringing and develop-
ment of their own children and the role public authorities, as
stipulated in their laws, play in the protection and promotion of
public order and national security. That is, the CRC recognizes
the
role the state must play in enabling children/families to develop

12. their own cultural identities freely and fully while, at the same
time,
recognizing the role children/families play in the establishment
of a
peaceful and stable society. To do this is to recognize, as the
UN
does, that a right to education “goes beyond formal schooling to
embrace the broad range of life experiences and learning
processes
which enable children, individually and collectively, to develop
their personalities, talents and abilities and to live a full and
satisfying life within society” (UN, 2001, “Appendix,” p. 2). To
uphold these goals of the CRC is to make a commitment to
prepare
children to live an individual life in society in the spirit of the
ideals
found in the UDHR and to provide children with a child-
centered,
child- friendly, and empowering educational environment.
While many countries (160 parties, as of December 10, 2012)
have agreed to the principles embodied in the ICESCR (UN
General Assembly, 1966), and most UN- recognized countries
(193
parties, as of December 10, 2012) have agreed to the principles
embodied in the CRC (UN General Assembly, 1989), the
demand-
ing nature of these stipulations has left doubt in the minds of
many
about the feasibility— the actual attainability— of a universal
human right to free and compulsory basic primary education.
One
notable case in point is the United States, which has signed the
CRC
but has yet to ratify this treaty. To further qualify education as
a

13. human right outside of these codified national and international
legal documents, it would be important to shift the existing
robust
worldwide commitment from the idea that children require
special
consideration of their right to have an education to a robust
worldwide commitment to public action, which supports and
sustains this right.
One of the most famous and influential articulations on the
concept of social institutions and the need for a basic structure
of
society comes from John Rawls’s magnum opus Theory of
Justice
(Rawls, 1971) and his later work Political Liberalism (Rawls,
1996).
According to Rawls, the basic structure of society can be
defined as
“the way in which the major social institutions fit together into
one
system, and how they assign fundamental rights and duties and
shape the division of advantages that arise through social
coopera-
tion” (Rawls, 1996, p. 258). Rawls posited that, if people were
given
the blanket protection of a rational, mutually- disinterested
persona
(a veil of ignorance), they would be able to design a social
structure
in which all could live at least a minimally decent life once the
veil is
lifted (Rawls, 1971). From this state of ignorance, Rawls
contended,
rational individuals will choose two foundational principles
necessary to shape a just society. First is the liberty principle,
which

14. democr acy & education, vol 21, no- 1 feature article 4
states: “Each person has the same indefeasible claim to a fully
adequate scheme of equal basic liberties, which scheme is
compat-
ible with the same scheme of liberties for all.” Second is the
difference principle, which states: “Social and economic
inequali-
ties are to satisfy two conditions: first they are to be attached to
offices and positions open to all under conditions of fair
equality of
opportunity; and second, they are to be to the greatest benefit of
the least- advantaged members of society” (Rawls, 2001, pp.
42– 43).2 He suggested that these two principles of justice will
be
selected because when biasing information is not available,
rational agents will opt for a risk- averse distribution of fair and
equitable treatment. He asserted this because he believed that
reasonable individuals will not be willing to risk themselves not
having at least a basic minimum set of social essentials or
primary
goods from which to pursue freely the things in life they wish to
pursue (Orend, 2002, pp. 82– 87). Although education is not the
primary focus of Rawls’s work, education is one of the primary
social institutions that he includes as an essential component in
a
just society. Moreover, given that children represent a large
majority of those who are within the group of the least
advantaged
members of society, it would seem that defending a child’s right
to
education is both reasonable and rational.

15. Of course, while this Rawlsian understanding of the role of
education in society provides a justifying framework for
establish-
ing education as a public good within a particular society, it
fails to
provide a satisfying justification for why society in general
should
actively support education as a human right as stipulated in
documents like the ICESCR or the CRC, or why it is important
to
support the MDG to achieve free and universal basic primary
education for all by 2015. To address this, we should consider
another influential voice on the design of just social
institutions:
Thomas Pogge. Pogge reiterated Rawls’s belief that it is the
design
of social institutions that determine whether people get the
objects
of their vital needs (Pogge, 2002, especially ch. 2). Like Rawls,
Pogge is interested in analyzing social institutions and in
establish-
ing how such an analysis can be used to justify the need for
reform
when these institutions are demonstrably unjust. Pogge recom-
mended that it would be more beneficial to adapt Rawls’s theory
of
justice to the complexities of the real world, however, which is
interconnected and global in scope (Pogge, 1988). Thus, Pogge
importantly expanded upon the Rawlsian framework to recom-
mend that it is no longer possible to limit ourselves to well-
ordered
ideal societies and to the provision of primary goods through
well- organized social institutions as defended by Rawls. Pogge
argued instead that given our interconnectedness it is vital that
we
broaden this notion to embrace the more global concept of

16. human
rights. Moreover, he favored a concept of human rights that is
not
bound by the historically arbitrary national boarders or govern-
mental bodies found in the Rawlsian Law of Peoples— for
Pogge,
human rights belong to humanity (Pogge, 1994). As such, the
force
of human rights comes not from legal or political compulsion
but
from moral compulsion— only if the legal lines up with the
moral,
so to speak. While acknowledging legal rights and enforceable
obligations are important advancements in our understanding of
natural law and natural rights, he argued that even “human
rights
lawyers can acknowledge that the legal rights and obligations
they
draft and interpret are meant to give effect to pre- existing
moral
rights” (Pogge, 2002, p. 53).
This is a significant qualification because, as Pogge explained,
human rights claims should be viewed as ethical guidelines for
the
actions of all members of a society to monitor the design of the
basic social structure in which all members participate. For
Pogge,
human rights are not about fairness of treatment and
consideration
exclusively, nor are they about designing a specific way of life
for all
of humanity. Pogge’s realistically utopian approach to human
rights
represents a dynamic plan for the establishment of a “single,

17. universal criterion of justice which all persons and peoples can
accept as the basis for moral judgements about the global order
and
about other social institutions with substantial causal effects”
(Pogge, 2002, p. 33). It is important to note that Pogge was
most
interested in how to achieve another MDG (Pogge, 2004), one
which focuses on the important and worthwhile task of cutting
the
world’s extreme poverty in half by 2015. It is possible,
however, to
extrapolate the essence of his claim onto the MDG for universal
primary education for all. On this account then, to qualify
educa-
tion as a human rights claim, it must be a vital concern relevant
to
humans, to all and only humans, and must be sufficient to
outweigh
other concerns that may also require action. Basic primary
educa-
tion is clearly a vital concern relevant to all humans, and it is a
claim that can be made regardless of economic or social status.
The
external attachments, group memberships, or social conventions
to which a child belongs should have no bearing on the ability
of
that child to benefit from claiming a right to basic primary
education. And yet, clearly there are many instances where
these
attachments, group memberships, and social conventions do
affect
one’s ability to realize one’s right to basic education.
The need to elevate basic primary education to the status of a
human right rests on the idea that we stand in a certain moral
relationship to each other— a relation that is outside of any

18. societal
structure in which we may find ourselves and that makes the
claim
to basic primary education unique and universal. The CRC
provides a sufficient set of guidelines to assist us in
understanding
this indivisible relationship between one’s education and one’s
ability to interact socially. By establishing careful limits to the
scope of a child’s claim to education, we can conclude not only
that
education should clearly be considered a right from which all
children can benefit but that education is a human right that is
both
intrinsically reasonable and socially indispensible, a conclusion
that supports the UN challenge to the world to participate in an
education revolution that would see every child learning and
participating in a child- centered environment designed to meet
the individual’s unique needs. Defenders of this global action
plan
suggest that, by embracing such a rights- respecting agenda,
individual countries will be able to coordinate and improve
international and national efforts to provide children with the
skills and knowledge necessary to maximize their personal and
intellectual development, which, in turn, will maximize each
individual country’s social and economic returns. Moreover,
these
defenders also suggest that, by embracing the language of
rights, as
outlined in the CRC, it is possible to apply rights to children in
an
democr acy & education, vol 21, no- 1 feature article 5
appropriate way. According to defenders of the CRC, it makes

19. no
sense to talk about civil and political rights children have,
because
they do not have the same direct relationship with their govern-
ment as adults do. Also, it makes no sense to limit children’s
rights
to only those concerned with welfare obligations, because
children
do have a unique status outside of dependency— an
individuality,
an emerging autonomous personhood— that also needs to be
considered.3
To realize the MDG to achieve free and compulsory basic
primary education for all, it has been suggested that at least two
things need to occur. First, the right itself needs to be acknowl-
edged as a right worthy of recognizing and supporting. That is,
all
rights have associated costs (even if they are minimal) that must
be
met for their realization. If a right is real, then the individuals
who
have to bear the burden of the right must be morally compelled
to
act in such a way as to enable the claimant to realize the claim.
Second, for the right to be meaningful for the claimant, there
needs
to be a social context in which the claimant can do something
with
the right once it has been obtained.
As it has already been suggested, Rawls and Pogge argued that
everyone has both the capacity for a sense of justice and a
capacity
for a conception of the good. If a society treats all individuals
as free

20. and equal citizens, and establishes a basic structure built upon
the
principles of justice as fairness, citizens can use these
capacities for
mutual advantage to create a social infrastructure that can
produce
social benefits for everyone and manage those benefits in a fair
and
equitable way. Rawls and Pogge both took this to be the most
reasonable model for the basic structure of society because not
only
can such a model provide individuals with great opportunities
for a
meaningful life but such a model can provide societies with
greater
opportunities for ongoing prosperity and permanence as well.
And
Pogge introduced the further need to consider human rights as
ethical guidelines for the actions of all members of a society to
monitor the design of the basic social structure in which all
members participate to ensure that this structure is not
arbitrarily
unjust. To this end, children must be seen as citizens in
training,
and their education must reflect and encourage these ideals of
social justice. An acceptance of a universal right to education
can
lead to the obvious benefits of economic efficiency and
improve-
ments in social welfare. More important, however, an
acceptance of
a universal right to education can enable a person to enjoy and
to
participate in the culture of her society as well. Ultimately,
however,
an acceptance of a universal right to education can lead to the

21. main
benefit that Rawls and Pogge suggest can be derived from
partici-
pating in a public system of education: the ability to coordinate
with others for mutual social advantage.
This conclusion provides a comprehensive explication for the
need to reflect on both social institutions in general and on the
specific causal effects that we bring to bear upon those social
institutions in particular. This also provides a morally
compelling
justification for why we should make every effort to participate
in,
and to maintain, just social institutions and what effect this kind
of
active justice- seeking participation can have on achieving more
equitable and just societies. Moreover, this conception of global
social justice suitably addresses the concern often associated
with
the notion that while it is important to understand the
obligations
we have toward others, such an understanding will only be
applicable to all individuals if there is also an understanding of
why
we have these obligations in the first place— namely an
understand-
ing of moral human rights. But one thing that seems to be
missing
to any adequate degree is an account of how individuals, even
influential ones, develop the capabilities to act on this
knowledge.
The Social Context for Education for All Qualified
Advocates of Education for All (Colclough, 2002; UNICEF,
2009;

22. Watkins, 2010) recommend, first, the obvious need to secure the
political will to bring about such reforms, like securing full
ratification of the CRC (including from the United States). They
also recommend that citizens should be included as active,
participating agents in these reforms. Such an approach requires
a
model for institutional reform that not only compels us to
reflect
upon the design of social institutions but also compels us to
reflect
on the capabilities that individuals actually have to contribute
to
just institutions. Amartya Sen is a prominent voice in this
regard.
Sen, like Pogge, is keenly interested in how to eradicate unjust
inequities and to champion human rights, but he approaches this
goal from the perspective of what individuals can do with the
rights
and resources that are available to them. With this in mind, he
contended that, while it is correct to have concern for how
certain
institutional structures can deprive individuals of their basic
rights,
it is equally important to look to achieving certain levels of
basic
capabilities, below which people count as “scandalously
deprived”
(Sen, 1993, p. 41). To this end, it is necessary to examine the
role
institutions play in securing the child’s right to education, and
consideration needs to be given to a concept of human develop-
ment through education as well (e.g., Alkire, 2002, 2005;
Berges,
2007; Robeyns, 2006; Saito, 2003). According to Sen, having a
right
is only significant if that right enables you to do something

23. which
you value (Sen, 1993). By focusing on Sen’s notion of freedom
or
capability as the proper content of rights in this regard, it is
possible
to deepen our understanding, in particular, of education as a
human right because Sen develops an important understanding
of
human capabilities and translates this understanding into a
capability- sensitive educational framework— a framework that,
according to Sen (2003b), embraces an old Bengali suggestion:
Knowledge is a very special commodity: the more you give
away, the
more you have left. Imparting education not only enlightens the
receiver, but also broadens the giver— the teachers, the parents,
the
friends. Schooling not only benefits the person being schooled,
but also
others who are close to those who are being schooled. Basic
education
is a truly social good, which people can share and from which
they can
jointly benefit, without having to snatch it from others. (p. 21)
Sen recommended, “One of the characteristics of human
agency is the ability to scrutinize and re- examine our values
and
priorities in light of fresh information and new understanding.
The
process of institutional reform depends on such scrutiny and
critique” (Sen & Anand, 1996, p. 25). Where many place the
burden
of institutional reform on the obligation of some to achieve
secure

24. democr acy & education, vol 21, no- 1 feature article 6
access for all to a universal set of fundamental rights, Sen
recom-
mended the additional stipulation that, while having these rights
is
essential to our well- being, they will only be effective in
influencing
our standard of living if individuals themselves are in a position
to
do something with those rights. Thus, Sen’s focus is more on
individual empowerment, as opposed to being a strategic plea to
the powers- that- be.
For Sen, one’s level of empowerment can be identified in
more than one way— most obviously through the assessment of
one’s ability to secure basic necessities or rights. Most
important,
though, is the assessment of one’s ability to convert these
necessi-
ties into meaningful action. The value of this approach comes
from looking beyond the question of whether or not we have
fulfilled our duty not to interfere with the choices of others to
considering whether the choices that people make are genuine
choices— that is, choices that enable them to achieve what they
value. Sen (1992) claimed that “a right gives a person a certain
opportunity” (p. 141). Importantly, he added to this a caution
that
we also need to understand what capabilities are necessary to
convert these rights into something meaningful and enabling.
On
this account, if we have real opportunities, we can achieve
certain
“functionings” (Dreze & Sen, 1995, p. 10), or beings and

25. doings,
that we value (like being nourished, being educated, or being
confident to participate actively in our own social environment).
Sen defined capability, then, as “the alternative combinations of
functionings from which a person can choose. Thus the notion
of
capability is essentially one of freedom— the range of options a
person has in deciding what kind of life to lead” (Dreze & Sen,
1995, pp. 10– 11; see also Sen, 1984).
An emphasis on capabilities, or open- ended freedoms, in this
way is important because not only do they enable individuals to
be
able to achieve a certain level of well- being, they distinguish
having
a certain standard of living from the value that can be gained
from
achieving that standard. For example, Sen suggested that, if you
consider two people with identical functionings in a certain
respect— they are both starving, say— the correct thing to do,
if you
are able, is to offer them some food. If you discover that one
person
is starving because that person lives in a country that is
experienc-
ing a famine, and the other is fasting to make a political
statement,
how you respond to this additional information is significant
(Sen,
1985). Education ought to be accessible to every child. Having
a
right to education, however, does not mean having a right to the
same education for all; it means having the same right for all to
an
education. The inclusion of the element of compulsion is
necessary,

26. not to penalize directly those countries that are incapable of
fulfilling this goal but to highlight the nonoptional
interdependent
nature of basic primary education and the need to increase the
level of awareness with regard to “international assistance and
cooperation” (Committee on Economic, Social and Cultural
Rights, 1999, pt. 9) to achieve this end. Similarly, the inclusion
of
the child’s right to access a high- quality education within a
framework that is flexible to meet each child’s unique needs is
not
to burden educational systems inappropriately. The inclusion of
this right to access is to highlight the nonoptional nature of the
child’s right to education. Even in countries that have
well- established educational programs, many children cannot
realize their right to education because they are members of a
group that is marginalized within its own society. To achieve
the
UN goal of education for all, however, consideration must be
given
to all children, including those children who have traditionally
been hard to reach. This includes (but is not limited to): girls,
especially in predominately patriarchal societies; rural children,
who might not have the means to get themselves to school;
ethnic
minorities or indigenous groups who do not speak the common
language taught at school; children with disabilities; children
who
do not officially belong to a school district because they are
without
a permanent address; and children caught in armed conflict.
In light of this, it is important to consider Sen’s belief that the
unfreedoms that an individual may suffer arise from two
sources:

27. inadequate processes and inadequate opportunities. While it is
essential to analyze the social processes that we engage in, we
must
also develop fully the two- way relationship between processes
and
opportunities, a relationship which Sen argued is necessary for
effective human agency and development. According to Sen,
people often have adapted preferences, which might indicate
that
they are experiencing an improvement in their standard of living
but that, in reality, reflect false improvements because these
improvements bear no meaning on their actual situation or
circumstances. A good example of this is the case of the right to
education for Canadian aboriginal children, who seemed to
experience an improvement in their standard of living based on
the
Canadian government’s standards but, in reality experienced a
false increase because they lost so much of the things which
were of
real value to their community. A situation such as this
highlights
the impact that aggregative measurements of a society’s general
well- being may hide or mask about the true reality of the
individu-
als within that society. Moreover, blanket statements of the
rights
that individuals have can also hide or mask the reality of the
opportunities that an individual has to act on those rights. At
the
very least, the rights talk only begs the further question of how
to
make rights real, and it is here that Sen’s capability theory can
add
importantly to the debate. To determine whether an individual is
actually experiencing an improvement in her standard of living
requires a general sense of societal well- being, an

28. understanding of
the norms to which the society aspires, and the additional
informa-
tion to be gained from assessing the real opportunities or
freedoms
that an individual has.
What this capability approach allows is the possibility to move
beyond the Rawlsian concept of equal liberties for all to a more
robust concept of freedom that takes the “freedom of
individuals as
the basic building blocks of development” (Sen, 1999, p.
18)— building blocks that should integrate into a functioning
whole the personal concerns that an individual has regarding
life
with the general concerns of society. Moreover, on Sen’s
recom-
mendation, it is essential that the contingent personal and social
circumstances, or “parametric variations” (Sen, 1999, p. 88)
that are
unique to individuals, need to be accounted for, and addressed,
within public policy like that governing education. In a speech
that
Sen delivered to the 2003 Commonwealth education conference
in
Edinburgh, he asked the following question: “Why is it so
democr acy & education, vol 21, no- 1 feature article 7
important to close the educational gaps, and to remove the
enormous disparities in educational access, inclusion and
achieve-
ment” (Sen, 2003a, para. 20)? To this question, Sen responded
by

29. providing six potent reasons why formal public education is
both
intrinsically and instrumentally important and why the public
should be interested in supporting it by closing the educational
gaps that currently exist around the world.
First, Sen highlighted the connection between education and
security. Human insecurity is related to the obvious insecurities
that result from the potential physical harms that others can
inflict
upon us, through things like terrorism and violence. But
insecurity
is multidimensional in nature. Not having the basic skills of
being
able to read, write, and calculate imposes insecurities upon
individuals who are, at the least, equally significant, in that
they
also cause lifelong, inescapable capability deprivations. Not
everyone is directly affected by terrorism, but all illiterate
individu-
als are directly and constantly affected— and negatively so—
by
their lack of skill in this regard. If a country is willing to
support the
military and policing initiatives to protect the physical security
of a
society, then that country should be willing also to support the
educational initiatives to protect the knowledge- based security
of
that society. Second, Sen highlighted the obvious potential for
economic empowerment that comes from being literate and
numerate. Related to this potential for job- skill development,
Sen
suggested further that with literacy comes understanding— a
notion of understanding that goes beyond the factual
information

30. typically associated with schooling (like improvements in one’s
level of social, historical, or geographical awareness) to the
understanding of the social information typically associated
with
human rights and the concurrent obligations to those rights,
which
should be fulfilled. Fourth, Sen suggested that being able to
read is
essential to being able to participate in political decision-
making.
Fifth, Sen suggested that not only is formal education important
for
political participation, it is essential for accessing a wide
variety of
public services. For example, according to Sen, being educated
can
translate into being able to use, more extensively and more
knowl-
edgeably, the available public health services. While providing
free
public education is a significant public burden, maintaining a
society’s general health and well- being is an equally significant
encumbrance. If the observable correlation between level of
education and level of general physical well- being is
recognized,
the indispensable influence that educational opportunities
(especially those directed toward women) can have on
preventative
health care can go a long way to achieving general sustainable
social
well- being and to alleviating a significant portion of the public
health burden. And finally, he highlighted the significance of
recognizing the benefits to be gained from demanding that
women
receive the same educational opportunities as men. While it is
true

31. that having an education is highly relevant to men, because
often
men take on the role of economic provider for the family, this
reality does not diminish the need to recognize the relevance of
having an education to women. It is the women, after all, who
often
carry the burden of being the prime role model and mentor to
children, especially in the formative years. If the education of
women is not taken to be of equal significance to that of men,
then
the potential for all children (male and female) to benefit from a
comprehensive set of capabilities is diminished.
Conclusion
The claim that a right to education is a human right is an impor-
tant claim. It is an important claim because there is a
responsibil-
ity to enable children to develop an acquired set of capabilities
to
lead their own lives in a meaningful and fulfilling way.
UNESCO’s
aim to construct a 21st- century learning society by promoting
the
MDG to achieve free universal basic primary public education
for
all by 2015 is both an important and a worthwhile objective.
Currently almost 70 million children of primary school age do
not, or cannot, attend school— a staggering statistic that
suggests
that the establishment of a right to education is a high- priority
claim in today’s world.
The establishment and maintenance of a stable society
depends on social norms and institutions that all members can
accept as reasonable without unnecessarily distorting their own

32. sense of justice in the process. This understanding of the basic
structure of society is important because it can achieve two
things.
First, it can deepen our understanding of the role institutions
should play in the creation, and maintenance, of a mutually
beneficial, rights- respecting social infrastructure. Second, it
can
deepen our understanding of why we should be morally
motivated
to recognize and support these institutions.
Typically, the institutions that are deemed to be essential to a
society are institutions that govern property, security, politics,
and
the economy, but I have argued that education is an essential
institution as well. Education plays a large role in achieving
just
societies because education can develop a child’s sense of self,
sense
of community, and sense of citizenship. While it is true that the
provision of education is costly and multifaceted, a public
institu-
tion of education needs to be in place to manage the kinds of
educational opportunities that are available and to secure the
kinds
of resources that are necessary. A human- rights approach
stipulates
that there is a duty on the part of all governments, especially
wealthy governments, to influence and support the institutional
reforms necessary to achieve at least the provision of free basic
primary education for all children— an important claim but one
that cannot stand alone. It cannot stand alone because it fails to
address adequately those cases where children are said to have a
right to education but are unable to act on that right.
To address this concern requires the insight to be gained from

33. the capability approach, which accounts for the further
responsibil-
ity on the part of all individuals to ensure that the kinds of
educa-
tional reforms that governments undertake can provide children
with the freedom to act on their rights. Thus, to achieve the
MDG
of free compulsory basic primary education for all requires the
active involvement both of official channels as represented by
advocates of human rights and of civil society as represented by
the
actions of interested and involved individuals. So, while it is
important to secure and protect a right to education, it is equally
important to be able to convert this right into meaningful
action.
Having rights is only effective in influencing an individual’s
standard of living if that individual can do something with that
democr acy & education, vol 21, no- 1 feature article 8
right as well. Thus, to implement fully a global human right to
education, we must have an unyielding commitment to
capabilities
as the proper content of children’s rights and be encouraged to
look
beyond securing rights to determine whether an individual is
actually experiencing an improvement in standard of living.
That
is, we must seek out a deeper understanding of the norms to
which
a society aspires. Also, we must seek out a richer measure of
existing states of affairs.4 Finally, a commitment to capabilities
encourages us to seek functional solutions that can assist
children

34. in achieving a level of well- being that is of value to them
because it
enables them to act on the rights that they have within the
societies
in which they exist.
Of course, the desire to make basic primary public education
free to all is a demanding goal economically, socially, and
cultur-
ally. A simple suggestion is to forcefully restate the need to
ratify
fully the CRC. Although this suggestion is largely symbolic, it
is
worthwhile because the United States is one of the remaining
two
countries who have yet to sign (the other being Somalia). Given
that the United States is as powerful and influential as it is, its
endorsement is significant. With regard to its own domestic
responsibilities to the establishment of a stable and supportive
system of education for its children, the significance of full
ratification may have a limited effect. With regard to the
responsi-
bilities to the MDG to achieve free and universal basic primary
education for all children, however, the significance of full
ratifica-
tion is noteworthy for a variety of reasons. Full ratification
would
represent: a universal acknowledgement of children’s rights; a
universal acknowledgement of the need for greater awareness of
and accountability to the plight of all children; greater
opportuni-
ties for resource sharing; and most important, a universal
endorse-
ment of the key role that education plays in the development of
children and societies.

35. A more complex suggestion is to look beyond the symbolic
act of full ratification of the CRC toward individual public
actions.
To answer the question “How should public action be directed
to
respond to the UN claim that education is a fundamental human
right to which all children are entitled?” it is essential to
recognize
that basic primary education is a fundamental right that is of
equal
significance to the traditionally accepted rights to security and
political freedom. This is so, because education is necessary for
both individual initiative and social effectiveness. Further, I
have
argued that to realize this right to education for all in a
meaningful
and manageable way requires a model of institutional reform
that
motivates us to reflect upon the design of social institutions and
upon the capabilities individuals have to contribute to those
social
institutions. The challenge for the 21st century is to establish a
new
human rights perspective from outside of the bowels of interna-
tional law and governance— a perspective that takes education
to
be a vital human rights object that is as significant to an
individual
as is food or freedom but that is also significant to society as an
indispensable means of realizing sustainable development,
prosperity, and permanence. It is not enough simply to defend
the
child’s right to access education— one must defend the child’s
right
to an education, which is focused on the need to develop the
child’s

36. own autonomy and potential for independence and individual
action both within the immediate society to which the child
belongs and within the global society in which the child will
interact.
Notes
1. In conjunction with other documents like Article 26 of the
Universal Declaration of Human Rights (1948), Principle 7 of
the
Universal Declaration of the Rights of the Child (1959),
Articles 7
and 10 of the European Social Charter (1961) (and 17 in the
revised
ESCR), Articles 10 and 11 of the UN Declaration Regarding
Social
Progress and Development (1969), and Articles 17 and 25 of the
African Charter on Human and People’s Rights (1981).
2. This is a revised statement of the principles of justice found
in
Rawls (1971), 52– 78.
3. This is an important and complex topic worthy of another
paper as it is beyond the scope of the current topic at hand.
4. Like the Human Development Index (HDI), United Nations
Development Programme, Defining and Measuring Human
Development. (New York: Oxford University Press 1990). See
also
UNDP website at http://hdr.undp.org/en
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19PART TWO: Meaningful access to basic education
I
n South Africa, the right to education is guaranteed by
section 29 of the Bill of Rights in the Constitution.
Broader constitutional values and principles also support
rights within and rights through education. Government is
obliged to pass laws, develop policies and establish pro-
grammes that “protect, respect, promote and fulfil” the right
to education. The right to education is thus justiciable and

43. government can be challenged in court if it fails to meet its
constitutional obligations.
Claims about human rights also extend beyond legislation
and jurisprudence. International declarations, national legis-
lation and policies do not necessarily translate into actual
rights on the ground, and many children struggle to realise
their right to education both within and outside the classroom.
In this context, human rights play an essential role as moral
imperatives and political resources that can enable people to
stand up for their rights and hold the State accountable.
This essay focuses on:
� What is meant by the right to basic education?
� What is the relationship between children’s right to
education and their other rights?
� What are the State’s obligations regarding children’s right
to basic education?
� Why is ongoing public debate about rights important?
What is meant by the right to basic education?

44. Education is a human right. This means that there is a universal
moral imperative for all people, irrespective of citizenship or
national legislation, to have opportunities for formal education.
This moral conception of human rights underpins interna-
tional conventions such as the UN Declaration of Human
Rights (1948), which recognises the right to education, together
with other rights, as essential in promoting world peace and
democracy.
Human rights are universal and all human beings are equal
as rights-holders. The moral significance of human rights
does not vary with local legislation or according to whose
rights are at stake. Where a government or any of its agencies
or agents violates or disregards the moral rights of the people
it governs, it is what Thomas Pogge calls “official disrespect”.
In South Africa, education is also a justiciable constitutional
right. The Bill of Rights binds all three arms of government to
give effect to the right to education. Government can thus be
held accountable through the courts for failing to meet its

45. obligations regarding education.
The constitutional right to education
Section 29(1)(a) of the Bill of Rights in the Constitution estab-
lishes the right to basic education — for both adults and
children — as an immediate right unqualified by any limitation
related to progressive realisation. Fulfillment of the right
places both positive and negative obligations on the State. The
positive obligation requires government to take active steps to
ensure that every child has access to educational facilities and
enjoys the right to education. The negative obligation means
that government and its agencies (such as public schools)
should not impede children’s access to education.
In addition, section 29(1)(b) establishes the right to further
education, which the State must “through reasonable
measures” make “progressively available and accessible”.
This essay focuses on children’s rights to, in and through
basic education (see figure 1 on p. 21). Currently, basic edu-
cation for children in South Africa comprises compulsory
school

46. enrolment for the full General Education and Training (GET)
band from grade R to grade 9, or from 7 to 15 years of age,
whichever is reached first. While the reception year (grade R)
is not yet compulsory, the Department of Education aims to
make grade R available to all five-year-olds by 2010.
Language rights go hand-in-hand with the right to educa-
tion. Section 29(2) of the Bill of Rights states that everyone
who attends a public school also has a constitutional right to
receive education in the official language or languages of their
choice, where this is “reasonably practicable”. This recognises
South Africa’s linguistic diversity and aims to redress historical
discriminatory practices, but it does not affirm an unqualified
right to first language instruction.
In keeping with the constitutional rights to freedom of
association, belief, culture and religion, section 29(3) assures
the right for everyone to establish independent educational
Children’s right
to basic education

47. Lori Lake and Shirley Pendlebury (Children’s Institute)
20 SOUTH AFRICAN CHILD GAUGE 2 0 0 8 / 2 0 0 9
institutions, provided that they do not discriminate on the
basis of race; are registered with the Department of
Education; and maintain appropriate standards.
The Constitution does not specify the content of the right,
but section 39 states the requirements for interpreting consti-
tutional rights, including the right to education. The interpre-
tation must “promote the values that underlie an open and
democratic society based on human dignity, equality and
freedom” and must consider international law.
International law
Most international conventions offer similar definitions of the
right to education and commonly recognise two main aspects
of the right: the purpose and process of education.
For example, the International Covenant on Economic and
Social Rights (1966) requires education to “be directed to the

48. full development of the human personality and its sense of
dignity; strengthen respect for human rights and fundamental
freedoms; enable all persons to participate effectively in a free
society; promote understanding, tolerance and friendship
among all nations and all racial, ethnic and religious groups;
and further the activities of the United Nations for the mainte-
nance of peace”.
A similar broad purpose statement appears in article 29 of
the UN Convention of the Rights of the Child (1989), and is
elaborated in General Comment No. 1 of the UN Committee
on the Rights of the Child. The Dakar Framework for Action:
Education for All (2000) is more specific. Goal Six is to
improve
every aspect of the quality of education so that “recognised
and measurable learning outcomes are achieved by all,
especially in literacy, numeracy and essential life skills”.
International conventions also outline a number of common
elements in terms of process, including: non-discriminatory

49. access to public educational institutions and programmes;
compulsory, free primary education for all; free choice of
education; minimum standards and a transparent, effective
monitoring system.
The 1999 UN Committee on Economic, Social and Cultural
Rights (CESCR) General Comment No. 13 provides further
guidelines for interpreting the right to education and calls for
basic education to be available, accessible, acceptable and
adaptable (see the box on the right ).
What is the relationship between the right to
education and other rights?
Rights are interdependent and the right to education should
therefore be interpreted in the context of the full Bill of Rights.
The rights to equality (section 9) and human dignity (section
10) set the ethical standards for a democratic system of
education in which every child — regardless of race, gender,
culture, language, religion, ability or disability — is equally
entitled to learn, under conditions that respect, protect and

50. promote the inherent human dignity of each child.
The right to education is part of a compendium of socio-
economic rights, including rights to access to adequate
housing, health-care services, sufficient food and water, and
social security. Although children’s right to basic education is
not subject to progressive realisation, the CESCR and the South
African Human Rights Commission regard it as dependent on
the progressive realisation of other socio-economic rights. For
example, children who are sick or hungry will struggle to learn.
Arguably, socio-economic rights are necessary conditions
for people to exercise their civil and political rights. The rights
to freedom and security of the person; freedom of religion,
belief and opinion; and freedom of expression are pertinent to
Education and the 4 As
Availability
Educational institutions and programmes must be
available in sufficient quantity to meet local needs.
This includes a range of resources, eg buildings, water
and sanitation, trained teachers receiving domestically
competitive salaries, teaching materials, libraries,
computer facilities and information technology.

51. Accessibility
Education must be accessible to all. There should be
no discrimination on the basis of race, class and
gender, and vulnerable groups must be catered for
(such as refugee children or children with disabilities).
Schools must be physically accessible (eg it must be
safe and easy for children to travel to school). Schools
must be economically accessible and affordable.
Primary education should be free to all.
Acceptability
Education programmes, including curricula and
teaching methods, must be acceptable to students.
Education should be relevant, culturally appropriate
and of good quality. It should also respect the rights of
learners (eg school discipline and language of
instruction).
Adaptability
The education system needs to be flexible so it can
adapt to the needs of changing societies and commu-
nities, and respond to the needs of students in diverse
social and cultural settings (such as children with
disabilities or children living in child-headed house-
holds).
Sources: Adapted from the United Nations Committee on
Economic, Social and
Cultural Rights (1999) General Comment No. 13: The Right to
Education (Art. 13 of
the Covenant), 8 December 1999. E/C.12/1999/10; Tomas̆ evski
K (2001) Right to

52. Education Primer No. 3 Human rights obligations: making
education available,
accessible, acceptable and adaptable. Gothenburg: Novum
Grafiska.
21PART TWO: Meaningful access to basic education
both rights in education and rights through education. For
example, schools must provide a safe learning environment
and create opportunities for learners to participate in
decision-making.
Section 28 of the Bill of Rights safeguards children’s rights
to care and protection, and recognises that the best interests
of the child are of paramount importance in all matters
concerning the child, including education.
Just administrative action (section 33) grants everyone the
right to administrative action that is lawful, reasonable and fair.
This includes the administration of school admissions,
children’s
educational achievement records and disciplinary hearings.
Education is not only a right in itself, it also empowers

53. people to claim and realise their other rights. According to the
South African Human Rights Commission, the right to basic
education is a central facilitative right in South Africa’s consti-
tutional democracy. Through basic education, people are better
able to appreciate and exercise the full range of their human
rights. For example, the Education for All — Global Monitoring
Report describes how access to education enables women to
make choices that improve maternal and child health. In
other words, education gives people the freedom to make
informed choices and enhances what Amartya Sen calls their
capability to lead lives they have reason to value.
Spreen and Vally describe how education acts as a multi-
plier. Where the right to education is effectively guaranteed, it
enhances the enjoyment of all individual rights and freedoms.
Conversely, where the right to education is denied, violated or
disrespected, this deprives people of their awareness and
enjoyment of many other rights and freedoms. (Of course,
education acts as a multiplier only if schools are not being

54. used — as most of them were under apartheid — to indoc-
trinate learners or produce a compliant underclass.)
Human rights considerations inform every facet of the
education system. Vally points out that this includes policy,
access, budgeting, curriculum, management, assessment,
teaching and learning. Human rights education is also an
essential component of the Revised National Curriculum
Statement which aims to develop informed and active citizens
who know their rights and can challenge injustices.
Figure 1: Rights to, in and through education as described in the
Constitution
Rights to education Rights in education Rights through
education
Everyone has the
right to basic education
Section 29(1)(a)
Everyone has the
right to further education
Section 29(1)(b)

55. Everyone has the right
to learn in their official
language of choice
Section 29(2)
Children have the right
to be protected from work
that places their education
at risk
Section 28(1)(f)
Everyone has the right to dignity
Section 10
Everyone has the right to equality
Section 9
Everyone has the right to an
environment that is not
harmful to health
Section 24
Children have the right to

56. protection from abuse and neglect
Section 28(1)(d)
Children have the right
to basic nutrition
Section 28(1)(c)
Basic education facilitates access
to a wide range of political, social
and economic rights.
This includes, amongst others:
� the rights to equality and
dignity;
� the right to further
education;
� the right to information;
� the right to health care
and social security;
� the right to just
administrative action;
� freedom and security of
the person;
� freedom of religion, belief

57. and opinion; and
� freedom of expression
and association.
22 SOUTH AFRICAN CHILD GAUGE 2 0 0 8 / 2 0 0 9
What are the State’s obligations regarding
children’s right to basic education?
Section 7(2) of the Constitution requires the State to “respect,
protect, promote and fulfill the rights in the Bill of Rights”.
Each obligation imposes a related set of duties on the State:
� the obligation to respect requires the State to avoid
measures that prevent children’s enjoyment of the right to
basic education;
� the obligation to protect requires the State to prevent
others (for example, parents and caregivers) from inter-
fering with children’s enjoyment of the right to basic
education;
� the obligation to promote imposes a duty on the State to
encourage educational participation and to make citizens

58. aware of their educational rights; and
� the obligation to fulfil imposes a duty on the State to take
positive measures that enable all children to enjoy the right
to basic education.
South Africa has developed an impressive array of laws, regula-
tions and policies which aim to get all school-aged children
into schools and ensure a safe school environment. The policy
intent is to establish an education system that is inclusive,
efficient and attentive to the quality of learning conditions and
outcomes. Children’s rights to dignity and equality are
protected through, for example, the abolition of corporal
punishment, the prohibition of discriminatory practices, codes
of ethics for educators and learners, and particular attention
to the rights of children infected or affected by HIV/AIDS and
those with disabilities and special education needs.
Despite a comprehensive set of laws and policies to give
effect to rights to, in and through education, many children in
South Africa do not yet enjoy these rights in practice. The

59. other essays in this publication present some key factors that
hamper full realisation of the right to basic education.
Legislation gives effect to the right to basic education and
defines some of the corresponding duties and duty-bearers.
But in the absence of clear norms and standards, many of the
State’s constitutional obligations remain loosely specified.
© Jenni Karlsson
23PART TWO: Meaningful access to basic education
Children’s moral rights often extend beyond existing policy
and legislation and create what Sen calls “imperfect obliga-
tions” that stretch beyond the fully delineated roles of duty-
bearers. Sen argues that, in the case of imperfect obligations,
there can and should be ongoing deliberation about the way
in which the right is best fulfilled; what would count as
genuine realisation; and how the respective demands of
different rights should be integrated. As education is itself a
contested terrain, many of the obligations regarding the right

60. to education are imperfect and thus open to debate.
Why is ongoing public debate about rights
important?
Sen argues that a theory of human rights “cannot sensibly be
confined within the juridical model within which it is so
frequently incarcerated”. Human rights are also moral injunc-
tions that can be used as political tools to challenge and
extend existing policies and to motivate and mobilise for
social change.
Wilson argues that rights have conservative as well as
radical potential. The concept of rights can be used to
challenge injustices or it may be used to mask existing
inequalities. Spreen and Vally warn against “constitutional
romanticism” or proceeding as if rights exist for everyone
instead of recognising circumstances where people’s rights
on paper don’t translate to rights on the ground. It is therefore
vital that the concerns and needs of those who are most
deprived become central in defining what is meant by the

61. right to basic education.
While legislation and litigation can get results, enduring
respect for human rights is sustained not just by a country’s
constitution, government and legal system. It is, Pogge sug-
gests, sustained more deeply by people’s values, as shaped by
the education system and the economic distribution of
resources. What is needed to secure a right, he suggests, is a
vigilant public that is willing to work towards the political
realisation of the right. Ongoing public debate is critical for
securing meaningful access to education. So, too, is what
Vally describes as “an active and responsible citizenship who
understand the law and its limitations and are willing to insist
on their rights and mobilise when these aren’t forthcoming”.
What are the conclusions?
In South Africa, the right to education is defined in section 29
of the Bill of Rights, which must be interpreted in line with
international law and democratic values.
Human rights are indivisible, and the right to education

62. must be seen in relation to other human rights. Children have
rights in and through education, as well as to education. The
rights to equality and dignity set the standards for a
democratic system of education, and the right to education
acts as a multiplier that enables people to access other
political and socio-economic rights.
Government has an obligation to respect, protect, promote
and fulfil these rights through policy and legislation; yet many
of these obligations are imperfect and the precise content and
meaning of the right to education remain open to debate.
Rights are political resources that can be used to extend
and deepen meaningful access to education. Children’s right
to basic education will only be realised when government
meets the educational needs of all children in South Africa.
Ongoing dialogue and advocacy are essential in order to
interpret what is meant by the right to basic education, and to
mobilise public action for its full realisation.
Sources

63. Constitution of the Republic of South Africa. Act 108 of 1996.
Currie I & De Waal J (2005) The Bill of Rights Handbook (Fifth
Edition). Cape
Town: Juta.
EFA Global Monitoring Report Team (2009) Education for All –
Global
Monitoring Report. Overcoming inequality: why governance
matters. Paris:
United Nations Educational, Scientific and Cultural
Organisation.
Motala S, Dieltiens V, Carrim N, Kgobe P, Moyo G & Rembe S
(2007)
Educational access in South Africa: Country Analytic Report.
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the Consortium for Research on Educational Access, Transitions
and Equity
(CREATE). Johannesburg: Education Policy Unit, University of
the
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Office of the United Nations High Commissioner for Human
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United Nations Convention on the Rights of the Child General
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The Aims of Education (Art. 29 of the Covenant), 17 April
2001. CRC/GC/
2001/1. Geneva: UNCHR.
Office of the United Nations High Commissioner for Human
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Convention on the Rights of the Child, General Assembly
Resolution 44/25.
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International Covenant on Economic, Social and Cultural
Rights. Geneva:

64. UNCHR – UNOG.
Pogge T (2002) World Poverty and Human Rights. Cambridge:
Polity Press.
Right to Education Project (2008) The Right to Education
Project. Available:
www.right-to-education.org.
Sen A (2004) Elements of a theory of human rights. Philosophy
and Public
Affairs, Fall 2004; 32(4): 315.
South African Human Rights Commission (2006) Report on the
Public
Hearing on the Right to Basic Education, 12 – 14 October 2005.
Johannesburg: Human Rights Commission.
Spreen CA & Vally S (2006) Education rights, education
policies and
inequality in South Africa. International Journal of Educational
Development,
26(2006): 352-362.
Tomas̆ evski K (2001) Right to Education Primers No. 3 Human
Rights obliga-
tions: making education available, accessible, acceptable and
adaptable.
Gothenburg: Novum Grafiska.
United Nations Committee on Economic, Social and Cultural
Rights (1999)
General Comment No. 13: The Right to Education (Art. 13 of
the Covenant),
8 December 1999. Geneva: Office of the United Nations High
Commissioner
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Vally S (2007) Rights and Responsibilities in Education. In:
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the South

65. African education system. South African Journal on Human
Rights, 20(3):
418-447.
World Education Forum (2000) The Dakar Framework on
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for All: Meeting our collective commitments. Adopted by the
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Forum, Dakar, Senegal, 26 – 28 April 2000.