The right to education

European Social Charter

The Council of Europe’s European Social Charter, adopted in 1961 and revised in 1996 completes the European Convention for the Protection of Human Rights and Fundamental Freedoms and guarantees social human rights. Its significance and impact on internal legal systems of the European states is increasing notably owing to the procedure of collective complaints which makes the European Committee of Social Rights (ECSR) a quasi-judicial body. This Committee assesses the compliance of national situations with the provisions of the Charter.

The European Social Charter was signed in Turin in 1961 as the economic and social counterpart of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). At the time of preparing the ECHR, the idea of having a single instrument for both civil and political, as well as social and economic rights was explored, although it was in the end impossible to materialise since there was no consensus among the Member States on which rights should have been guaranteed, their scope and the control mechanism. This is why finally two distinct treaties have been adopted and two different supervisory mechanisms have been opted for. In spite of this solution, the Council of Europe defends the idea that human rights are universal, indivisible and interdependent, whether they be civil and political or economic and social.

Rights guaranteed by the Revised Social Charter

The Charter’s content is nowadays as broad as to cover almost the whole spectrum of social rights worth of being protected in a democratic society. It enshrines rights that are among the most important human rights and concern all individuals in their daily life. Its material scope does not only relate to the right to work, but goes well far beyond in the sphere of fundamental human rights.

These rights are built on three values: dignity, equality and solidarity – values lying at the very basis of the legitimacy of any democratic state. Human dignity means that people are to be valued, and their rights protected thereby, because they are people – not because they are economically or otherwise useful. Equality means creating a society that treats all equally and makes due and positive allowance for differences, hence increases the role of non-discrimination. Solidarity means helping those who cannot help themselves or whose capacity is diminished.

Education

A number of Charter provisions relate to education in one way or another:

-                     Article 17 sets out a right to free primary and secondary education;

-                     Article 10 guarantees a right to initial and continuing vocational training;

-                     Article 15 concerns the independence and social integration of disabled people and one important element in this is provision of education and vocational training.

 

 Accessible and effective education

The education system must also be both accessible and effective.

In assessing whether the system is effective the European Committee of Social Rights examines whether there is a functioning system of primary and secondary education, the number of children enrolled in school, the number of schools, class sizes, the teacher pupil ratio, and the system for training teachers. School drop out rates and the number of children who successfully complete compulsory education and secondary education must be monitored. Where there is a significant number of children dropping out of school or failing to successfully complete compulsory education, measures must be taken to improve the situation.

An effective system of education further requires the existence of a mechanism to monitor the quality of education delivered and to ensure a high quality of teaching.

Accessibility requires firstly that there is a fair geographical and regional distribution of schools (in particular as regards urban/rural areas). Secondly that the basic education system is free of charge; any hidden costs such as books, uniforms etc must be reasonable and assistance must be available to limit their impact on the must vulnerable groups. Thirdly equal access to education must be guaranteed for all children.

Equal access to education for children from vulnerable groups

 

Particular attention must be paid to ensure that vulnerable groups benefit from the right to education and have equal access; for example children from minorities, children seeking asylum, refugee children, children in hospital, children in care, pregnant teenagers, teenage mothers, and children in young offender institutions/serving custodial sentences. Where necessary equal access to education for these children should be guaranteed through special measures. However special measures for Roma children must not involve the establishment of separate/segregated schooling facilities.

Vocational training and higher education

In view of the current evolution of national systems, which consists in the blurring of the boundaries between education and training at all levels within the dimension of lifelong learning, the notion of vocational training of Article 10§1 covers: initial training - i.e. general and vocational secondary education - university and non-university higher education, and vocational training organized by other public or private actors, including continuing training – which is dealt with under Article 10§3 of the Charter. University and non-university higher education are considered to be vocational training as far as they provide students with the knowledge and skills necessary to exercise a profession.

According to Article 10§1, the right to vocational training must be guaranteed to everyone. States must provide vocational training by:

– ensuring general and vocational secondary education, university and non-university higher education; and other forms of vocational training;

– building bridges between secondary vocational education and university and non-university higher education;

– introducing mechanisms for the recognition/validation of knowledge and experience acquired in the context of training/working activity in order to achieve a qualification or to gain access to general, technical and university higher education;

– taking measures to make general secondary education and general higher education qualifications relevant from the perspective of professional integration in the job market;

– introducing mechanisms for the recognition of qualifications awarded by continuing vocational education and training.

 

Facilities other than financial assistance to students  shall be granted to ease access to technical or university higher education based solely on individual aptitude. This obligation can be achieved namely by:

– avoiding that registration fees or other educational costs create financial obstacles for some candidates;

– setting up educational structures which facilitate the recognition of knowledge and experience, as well as the possibility of transferring from one type or level of education to another.

The main indicators of compliance include the existence of the education and training system, its total capacity (in particular, the ratio between training places and candidates), the total spending on education and training as a percentage of the GDP; the completion rate of young people enrolled in vocational training courses and of students enrolled in higher education; the employment rate of people who hold a higher-education qualification and the waiting-time for these people to get a first qualified job.

Access to vocational training also covers the granting of financial assistance, whose importance is so great that the very existence of the right to vocational training may depend on it. All issues concerning financial assistance for vocational training up to higher education, including allowances for training programmes in the context of the labour market policy, are dealt with under Article 10§4. States must provide financial assistance either universally, or subject to a means-test, or awarded on the basis of the merit. In any event, assistance should at least be available for those in need and shall be adequate. It may consist of scholarships or loans at preferential interest rates. The number of beneficiaries and the amount of financial assistance are also taken into consideration for assessing compliance with this provision.

The education of children with disabilities

The underlying idea behind Article 15 (right of persons with disabilities to independence, social integration and participation in the life of the community) is that persons with disabilities must enjoy full citizenship, and that their essential rights in this respect are “independence, social integration and participation in the life of the community”.

Article 15 embodies a new approach to disability: this is no longer seen in terms of the target group or individual problems, but as a question of citizenship affecting the whole community, which must remove the barriers and put an end to exclusion. It applies in respect of all disabilities: physical, mental and intellectual.

According to Article 15§1, all persons with disabilities have a right to education and training: general education, basic compulsory education and further education as well as vocational training in the traditional sense. Persons with disabilities (children, adolescents, adults) must be integrated into mainstream facilities; education and training must be made available within the framework of ordinary schemes and, only where this is not possible, through special facilities.

 

Lessons provided in mainstream schools and, if need be, in special schools must be adequate. This means that in order to guarantee an equal and nondiscriminatory treatment of persons with disabilities, mainstream and special schools must ensure adapted teaching. States must take measures (such as the support of teachers and the accessibility of premises) in order to enable integration and must demonstrate that tangible progress is being made in setting up education systems which exclude nobody.

Legislation should prohibit discrimination on the basis of disability in the field of education. Such legislation should, as a minimum, require compelling justification for special or segregated educational systems and confer an effective remedy on those who have been unlawfully excluded, segregated or otherwise denied an effective right to education.

Irregularly present children

The Charter guarantees the right to free primary and secondary education for all children, including irregularly present children. The Committee considers that a child who has been denied access to education sustains consequences thereof in his/her life. The denial of access to education clearly exacerbates the vulnerability of an irregularly present child. Therefore, the States Parties are required to ensure that children irregularly present in their territory have effective access to education in keeping with any other child (Statement of Interpretation of Article 17§2, Conclusions 2011).