Legal Framework

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The relationship between Childs’ Rights and the Right to Education is reflected in several international and national legal documents that pose a positive obligation to the European States that have adhered to them. These binding legal documents imply the responsibility of the States and supranational institutions to develop the necessary measures (norms, policies, and programmes) to guarantee their fulfilment.

The Universal Declaration of Human Rights (art. 26 UDHR) declares the right to education for all persons on equal terms, as well as access to free, compulsory, and universal basic education aimed at the full development of the human personality. Articles 28 and 29 of the UN Convention on the Rights of the Child (1989) recognise the right to education on the basis of equal opportunities for all children. This right must be ensured by the States without discrimination of any kind (art.2) and considering first the best interests of the child (art.3). This right is extensively defined in the Convention against Discrimination in Education (1960). This binding international instrument defines education as a fundamental human right that States must guarantee without discrimination and in order to promote equality of educational opportunities.

The right to education is an end in itself, and at the same time a means to the fulfilment of other rights. The International Covenant on Economic, Social and Cultural Rights (art. 13 ICESCR) further recognises that education shall enable individuals to participate effectively in a free society and promote understanding, tolerance and friendship among all nations and peoples. It also connects the right to education with the development of the human personality and the sense of its dignity, and with the respect for human rights and fundamental freedoms. Therefore, it connects the satisfaction of the right to education with other social benefits such as social cohesion, freedom, equity, and fraternity.

At the European level, the Council of Europe and the European Union incorporate the content of international treaties into their own regulation. This is the case, for instance, of the Additional Protocol to the European Convention on Human Rights (Art. 2 ECHR), European Guidelines to tackle school segregation 5 the European Social Charter (Art. 17 ESC), and in the Charter of Fundamental Rights of the European Union (Art.14).

The contravention of both the Rights of the Child and the Right to Education has been reported by different European organisations. The European Network of Ombudspersons for Children (ENOC) Position Statement on Equal Opportunities in Education (2016) states that the inequality of educational opportunities affecting children in Europe due to their socioeconomic background, their ethnicity, their disabilities or special educational needs, or their specific circumstances (i.e. children under custody of the state, children on the move, etc.) is a violation of the child’s right to education. Further, the ENOC Statement claims for a widen conceptualisation of the right to education, not only able to capture the relevance of compulsory or basic education, and of the access to pre and post compulsory education, but also of informal and non-formal educational options. The inequalities in all these dimensions of education are a violation of the right to education for the most disadvantaged children.

The Council of Europe report on Fighting school segregation in Europe through inclusive education (2017) details some key impacts of school segregation on the children’s right to education and on the rights that are eroded for its violation. According to this report, school segregation is a violation of the children’s rights as it threatens their learning opportunities. Furthermore, as long as school segregation affects especially to vulnerable groups of children (ethnic minorities, socioeconomically disadvantaged students, children with disabilities, among others) it adds another layer of discrimination to their daily lives. And this layer impacts on a social institution -education- that is precisely aimed at improving the social opportunities of all children, and especially of those in a more disadvantaged position. Therefore, school segregation is particularly harmful for the cohesion of societies as it contributes to perpetuate discriminatory practices against individuals and social groups.

Against this situation, the last two documents urge the European Member States to promote reactive but mainly proactive initiatives to improve the regulation of the national education systems in order to revert and prevent school segregation.