The right to education: comparing educational rights in Japan, El Salvador, and the United States.

• Author: Benitez, Yanet Marisol

1. Introduction II. The "Right to an Education" A. The Universal Declaration of Human Rights B. International Covenant on Economic, Social and Cultural Rights C. The Convention on the Rights of a Child D. Implementation of the Right to Education III. The United States, Japan, and El Salvador, and their Right to Education A. The United States B. Japan C. El Salvador IV. Conclusion I. Introduction

   Education is fundamental in the developmental stages of children and is generally referred to as "the key which allows people to move up in the world, seek better jobs, and ultimately succeed in their lives." (1) The subject of education in the United States is one that is widely discussed, and calls for education reform have been made. (2) Not only is this the case in the United States, but also in countries around the world. (3) This is such a high-priority topic in the international community that several international instruments guarantee the right to basic education. The right to education was included in the Universal Declaration of Human Rights, the Convention on the Rights of a Child, and the International Covenant on Economic, Social and Cultural Rights. (4) This Comment will analyze the right to education as found in these three international instruments; the interpretation of the right to education by signatories of these treaties; and the steps that nations have taken in order to ratify the treaties.

   In addition to analyzing the right to education as found in international instruments, this Comment will also focus on how these rights have been interpreted. Although the right to education has been universally recognized, education systems vary by country. (5) Several nations have ratified the right to basic education either through their constitutions, legislation, or ratification of the treaties, but each has interpreted the right to basic education differently. These different interpretations have led to different education laws, policies, and practices. (6)

   This Comment will focus on the right to education and its interpretation in three different countries: the United States, Japan, and El Salvador. These countries were chosen because of their particular interpretation of the right to an education, the varying expansiveness of that interpretation, the different laws and policies that have been implemented in order to secure the right to an education, the reputation of the education system in the country as compared to other countries, and its status within the international community. (7) In analyzing these nations' interpretations of the right to education and their individual education reform efforts, it is clear that improvements must be made. These improvements must consider the economic and social statuses of different nations and need to be made on an international level in order to guarantee all children the right to education.

2. THE "RIGHT TO AN EDUCATION"

   "[E]ducation is the process of instruction aimed at the all round development of individuals, providing the necessary tools and knowledge to understand and participate in day to day activities of today's world." (8) The importance of education in the development of a child is widely recognized. As previously mentioned, the right to an education is recognized by several international instruments, including the Universal Declaration of Human Rights, the Convention on the Rights of the Child, and the International Covenant on Economic, Social and Cultural Rights. (9)

   Yanet Marisol Benitez, Benitez received her J.D. from the University of Houston Law Center in May 2014 and her B.A. in Sociology from the University of Texas at Austin in May 2011. This Comment received the 2013 Lex Writing Excellence Award for a Topic in International Law. The Author would first like to thank her family for their unwavering love and support while she continues her education. She would also like to thank the editors of the Houston Journal of International Law for their hard work in preparing this Comment for publication. This Comment is dedicated to the Author's parents, Cristobal and Blanca Benitez, who are her number one supporters in all of her endeavors in education and in life. Mama y Papa, los quiero mucho y estoy muy agradecida por todos los sacrificios que han hecho para darme oportunidades que ustedes no tuvieron.

   1. The Universal Declaration of Human Rights

      The basic human right to an education was first recognized in the Universal Declaration of Human Rights (UDHR), adopted by the United Nations on December 10, 1948.10 After the Second World War ended, the international community wanted to ensure that conflicts did not happen again. (11) Thus, the U.N. General Assembly created the UDHR "to guarantee the rights of every individual everywhere." (12) One of those rights, so important that the UN General Assembly included it in the UDHR, was the right to education. Article 26 of the UDHR states: "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." (13)

      The UDHR "is the basic international pronouncement of the inalienable and inviolable rights of all members of the human body" and "lists numerous rights--civil, political, economic, social and cultural--to which people everywhere are entitled." (14) The UDHR was not written as a binding instrument on the international community. (15) The UDHR started as a statement of objectives that were to be considered by governments, but it has since become a part of customary international law. (16) The international community has recognized the UDHR as "universally obligator," meaning that all states, and their nationals, are bound to follow the instrument. (17) Thus, the rights to life, liberty, and security of person; the right to participate fully in the cultural life; the freedom from torture; the freedom from inhumane treatment or punishment; and, more importantly for the purposes of this Comment, the right to an education are all universally recognized per the UDHR. (18)

   2. International Covenant on Economic, Social and Cultural Rights

      Like the UDHR, the International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted by the U.N. General Assembly on December 16, 1966, has also recognized the basic right to an education. (19) Although the UDHR was not a binding instrument and has since become binding only through customary international law, the ICESCR is a binding treaty to all national governments who have ratified or acceded to it. (20) As of 2012, 170 states have ratified or acceded to the ICESCR. (21)

      The ICESCR is one of two treaties covering the rights found in the UDHR. (22) Those national governments that have ratified or acceded to the ICESCR have promised to oblige the many principles and rights secured by the treaty. These rights include the right to an adequate standard of living, the right to work, the right to food and water, and the duty to provide and to protect the right to a basic education. (23)

      The duty to provide an education under the ICESCR is more particularized than the right found under the UDHR. Article 13 of the ICESCR states that parties to the:

      [P]resent 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. (24) In order to realize this right to education, Article 13 of the ICESCR also requires that primary education be compulsory and free to all, that secondary education be generally available to all, and that higher education be "equally accessible to all." (25)

   3. The Convention on the Rights of a Child

      The basic right to education has also been recognized under the Convention on the Rights of a Child (CRC). (26) The CRC was adopted unanimously on November 29, 1989 by the U.N. General Assembly and "describe[s] the economic, social and cultural rights of the children." (27) The primary reasons for adopting the CRC were to recognize that children "need special care and protection that adults do not ... [and to] recognize [] that children have human rights" as well. (28)

      The CRC is a treaty binding on those who have ratified or acceded to it. As of 2005, with 192 countries having ratified the treaty, the CRC is the most ratified human rights treaty. (29) Only two countries have not ratified the treaty: Somalia and the United States. (30) By ratifying or acceding to the CRC, governments have promised to ensure and protect the rights of children, which can be separated into four different categories: survival rights, development rights, protection rights, and participation rights. (31)

      Like the ICESCR, the CRC implements more definite duties on a nation state than the general duty proclaimed in the UDHR. (32) In particular, Article 28 of the CRC states:

      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:

      (a) Make primary education compulsory and available free to all;

      (b) 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;

      (c) Make higher education accessible to all on...