1 Bill Bowring, Professor of Law,V SUMMER SCHOOL OF HUMAN RIGHTS OF THE CONSORTIUM OF RUSSIAN UNIVERSITIES «SOCIAL VULNERABILITY: MODERN CHALLENGES AND INTERNATIONAL PROTECTION» Yekaterinburg, 26 – 30 June 2017 Do Children have the Right to Education under the ECHR? Bill Bowring, Professor of Law, Birkbeck College, University of London
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3 Билл Бауринг Профессор права Беркбекского колледжа Лондонского университета; Практикующий адвокат с 1975 г., Middle Temple Член коллегии Field Court Chambers, Gray’s Inn (Лондон): Я представляю интересы заявителей в делах против Армении, Азербайджана, Эстонии, Грузии, Латвии, России, Испании Основатель и член правления Комитета по правам человека Коллегии адвокатов Англии и Уэльса; Основатель (2003 г.) и председатель Европейского центра защиты прав человека (EHRAC); у Центра несколько сотен дел против Грузии и России, которыми занимаются штатные юристы в Чечне, Москве и регионах России Президент Европейской ассоциации юристов в защиту демократии и прав человека (18 европейских стран); в России – Центр социально-трудовых прав (Герасимова)
4 Article 2 of Protocol 1 to the ECHR 1950The ECHR was promulgated on 4 November 1950 Protocol 1 was promulgated in Paris on 20 March 1952 It contained three additional rights, which had proved too controversial for the Convention itself. These were Article 1 ‘Protection of property’, Article 2 ‘Right to education’, and Article 3 ‘Right to free elections’.
5 Article 2 of Protocol 1 to the ECHR 1950‘No person shall be denied the right to education. 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.’ Why does this not mention children? Why is it negative rather than positive? Why the focus on the right of parents?
6 The origin of the ECHR The Council of Europe (CoE), was founded by the Treaty of London on 5 May 1949 by 10 Western European Member States. The ECHR, which opened for signature on 4 November 1950 in Rome, was expressly designed to provide the means for the collective enforcement of the Universal Declaration of Human Rights (UDHR). The UDHR, which is not a binding treaty, even though it has come to be seen as reflecting customary international law, was adopted by the UN General Assembly on 10 December 1948 at the Palais de Chaillot, Paris.
7 However, as Williams (2013) notes:The origin of the ECHR The ECHR’s Preamble makes it clear that its starting point is the UDHR. It reads, in part, as follows: ‘Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948; Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared;… Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration.’ However, as Williams (2013) notes: ‘… the rights were limited; only partially reflected the scope of the UDHR; paid little or no heed to the past; made no attempt to mention, let alone address the potential of systemic violence re-emerging; restrained their application on the basis of legal technicality…’
8 The UDHR on the Right to EducationArticle 26 of the UDHR is as follows: ‘(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children.’ Note: Everyone, not no person
9 The UDHR on the Right to EducationFive components: (1) the generic right to education itself; (2) the principle of free education, at least at elementary and fundamental stages; (3) ‘that education shall be compulsory’; (4) that ‘technical and professional education shall be made generally available’; and (5) that ‘higher education shall be equally accessible to all on the basis of merit’.
10 The right to education in the ECHR - 1950In the negotiations concerning the ECHR, a right to education was not listed in the original proposals from the European Movement in March 1949, or the ‘Teitgens Proposals’ of July 1949. Only in the Report of the Maxwell-Fyfe Committee in September 1949 was there a reference to ‘the right of parents to have first choice regarding the education of their children’, with no reference to a right to education. However, in the debate on 7 September 1949, this right was found to be controversial and was referred back. The British expert for the Assembly of the Council of Europe, Sir Oscar Dowson, was instructed to oppose inclusion of such a right in the Convention. Thus, the right to education in any form was not included in the text of the Convention finally agreed and opened for signature in 1950.
11 The right to education in the ECHR - 1950At the Consultative Assembly which met in 1949 inclusion of a right corresponding to the third paragraph only of Article 26 of the UDHR was said to be justified as a reaction to the forced regimentation of children and young persons organised by totalitarian regimes. The right to education as such was still out of the question. Support for a limited right, corresponding only to part of Article 26, also derived from the religious beliefs held by a majority of the populations of France and Italy, and a significant section of Belgians, ‘and in particular from the insistence by the Roman Catholic Church, and indeed other churches, on sectarian education generally, or at least control over religious education’.
12 The right to education in the ECHR - 1950On the other hand, opposition came from the British Colonial Office, which insisted that ‘Recognizing a right to education was problematic in view of the primitive arrangements even for primary education in some dependencies, such as the Somaliland Protectorate’. The negative formulation of the right, as it appears in P1-2, was proposed by Britain at the Committee of Experts Meeting of 18–19 April 1951. The final version, retaining reference to both religious and philosophical convictions, was agreed by the end of 1951.
13 The right to education in the ECHR - 1950Wahlström (2009): ‘the discussions about the right to education between 1949 and 1952 were permeated from the very beginning by what can be referred to as the balance between the state and religion in the light of the Second World War and Europe’s experience of totalitarian states.’ the serious disagreements between the founding states as to whether social and economic rights should be included at all in the ECHR or its Protocols led to the negative formulation in P1-2 in the sessions in which the formulation of the right was discussed, there was no discussion as to why it did not include the word ‘child’: ‘It is only because the word “parents” is used that we know that “no person” is in fact a child’. ‘The Contest within … the Council of Europe was not really about education, but rather about the relation between the state and religion, or where to draw the line between the public and the private’.
14 The right to education in the ECHR - 1950the aversion of Britain and other founder members of the CoE to inclusion of any social and economic rights at all; the anxieties of the colonial powers in the CoE with respect to their colonies; the desire of the Catholic Church to maintain control over the content of educational provision; probably decisive in the inclusion of any right at all, the demonstrative stand against the politicisation and standardisation of education in the ‘Communist bloc’, in favour of parental choice. In all of this, the rights of the child were nowhere to be seen.
15 The Revised Social Charter of the CoEArticle 17 of the Council of Europe’s Revised European Social Charter 1996, which the UK has not ratified: 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: 1 (a) 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;… (c) to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools.’
16 The leading ECHR case The leading judgment was delivered in 1968, in the Belgian Linguistics Case. The applicants were parents of families of Belgian nationality, who complained on behalf of themselves and more than 800 children. They were French-speaking and wanted their children to be educated in that language. Five out of six groups lived in towns in the region considered by law to be Dutch-speaking, while the sixth lived in a town which since 1963 formed part of a separate administrative district with a ‘special status’. In all of these districts (‘communes’), part of the population – in some cases a large part – was French-speaking.
17 The leading ECHR case The parents complained that the Belgian State:– did not provide any French-language education in the towns where the applicants lived or, that the provision made for such education was, in their opinion, inadequate; – withheld grants from any institutions in the towns which may fail to comply with the linguistic provisions of the legislation for schools; – did not allow the applicants’ children to attend the French classes which existed in certain places; – thereby obliged the applicants either to enrol their children in local schools, a solution which they considered contrary to their aspirations, or to send them to school in the ‘Greater Brussels district’, where the language of instruction was Dutch or French according to the child’s mother-tongue or usual language, or in the ‘French-speaking region’ (Walloon area). Such ‘scholastic emigration’ was said to entail serious risks and hardships.
18 The leading ECHR case The court analysed P1-2, and held that:‘in spite of its negative formulation, this provision uses the term “right” and speaks of a “right to education”. Likewise the preamble to the Protocol specifies that the object of the Protocol lies in the collective enforcement of “rights and freedoms”. There is therefore no doubt that Article 2 (P1-2) does enshrine a right.’ The court further held that the first sentence of P1-2 does not specify the language in which education must be conducted in order that the right to education should be respected. However, the court continued, the right to education would be meaningless if it did not imply, in favour of its beneficiaries, the right to be educated in the national language or in one of the national languages, as the case may be.
19 The leading ECHR case However, in the view of the court, the right did not require of states that they should, in the sphere of education or teaching, respect parents’ linguistic preferences, but only their religious and philosophical convictions. To interpret the terms ‘religious’ and ‘philosophical’ as covering linguistic preferences would amount to a distortion of their ordinary and usual meaning and to read into the Convention something which is not there. The court determined that Belgium’s refusal to establish or subsidise, in the Dutch unilingual region, primary school education (which is compulsory in Belgium) in which French is employed as the language of instruction was not incompatible with the requirements of the first sentence of P1-2.
20 Further case-law Cyprus v Turkey (2001) where the authorities in the unrecognised ‘Turkish Republic of North Cyprus’ had assumed responsibility for Greek-language primary schooling, the Grand Chamber held that they should have also made such provision at secondary level. Folgerø and Others v Norway (2007): the Grand Chamber held, by 9 votes to 8, that there was a violation of P1-2 where the authorities refused to grant full exemption to the humanist applicants’ children from instruction in Christianity. Hasan and Eylem Zengin v Turkey (2007): the court found a violation of P1-2 where the teaching of religion was found not to be sufficiently objective or to reflect Turkey’s religious diversity. Only Jewish or Christian children could be exempted from religious education, but not Alevis; and there was little or no teaching of the Alevi faith.
21 Further case-law Irfan Temel and Others v Turkey (2009): suspension of students for two academic terms, when those students had petitioned for Kurdish language courses, was held to violate P1-2, as being unreasonable and disproportionate. This case concerned the suspension of the students, violating their right to education, and did not engage with the question of language of instruction. Lautsi and Others v Italy (2011): the Grand Chamber held that the display of crucifixes in state schools was an ‘essentially passive symbol’, and fell within Italy’s margin of appreciation. Catan and Others v Moldova and Russia (2012): the complaints in question were lodged in 2004 (25 October), and in 2005 and There was an admissibility decision on 15 June 2010 The applicants were pupils at three Moldovan-language (that is, Romanian language) schools and their parents, Moldovan citizens, in Transdniestria.
22 The Grand Chamber in Catan‘The “MRT’s” language policy, as applied to these schools, was intended to enforce the Russification of the language and culture of the Moldovan community living in Transdniestria, in accordance with the “MRT’s” overall political objectives of uniting with Russia and separating from Moldova.’ ‘… there is no evidence of any direct participation by Russian agents in the measures taken against the applicants. Nor is there any evidence of Russian involvement in or approbation for the “MRT’s” language policy in general. Indeed, it was through efforts made by Russian mediators, acting together with mediators from Ukraine and the OSCE, that the “MRT” authorities permitted the schools to reopen as “foreign institutions of private education”.’ However, the Grand Chamber relied on its judgment in Ilaşcu and Others v Moldova and Russia, to the effect that Russia exercised ‘effective control’ over the “MRT” during the period in question. ‘By virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia incurs responsibility under the Convention for the violation of the applicants’ rights to education.’
23 Çam v. Turkey (2016) The latest case52. As regards the right to education, the Court reiterates that it has already had occasion to point out that in a democratic society that right is indispensable to the furtherance of human rights and plays a fundamental role (Velyo Velev v. Bulgaria 2014). In that connection, while repeating that education is one of the most important public services in a modern State, the Court acknowledges that it is an activity that is complex to organise and expensive to run, whereas the resources that the authorities can devote to it are necessarily finite. The Court cannot overlook the fact that, unlike some other public services, education is a right that enjoys direct protection under the Convention 53. The provisions on the right to education set out in such instruments as the European Social Charter or the United Nations Convention on the Rights of Persons with Disabilities should therefore be taken into consideration. Lastly, the Court emphasises that the object and purpose of the Convention, as an instrument for the protection of individual human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.