ABSTRACT
Introduction Until the formulation of international human rights law, which followed the grave violations and genocidal policies committed during World War II, ‘education’ was recognized only as a duty of parents.1 Initially, the 1945 Charter of the United Nations did not recognize the right to education as such. Subsequently, major international legal instruments recognized and armed the right to education. Article 26 of the UN Declaration of Human Rights (UNDHR) of 1948 recognized that “Everyone has the right to education.” According to Hodgson, setting elementary and fundamental education as a compulsory obligation on state members through Article 26 “appears to be based on the notion that every person has an irrevocable entitlement to a period of education at public expense.”2 Hodgson further argues that “the apparent inconsistency between the right to education and the compulsory nature of elementary education can be accommodated if the term ‘compulsory’ is intended to imply that no person or body can prevent children from receiving a basic education”, thus imposing a minimum obligation on the state to ensure that children receive elementary education in circumstances of parental neglect or ignorance.3 Nevertheless, Article 26 lacks full recognition of the state’s obligation to all components of the right to education. As such, it stipulates that elementary and fundamental education should be compulsory. Secondary and tertiary education were not mentioned explicitly, nor were they recognized by Article 26. However, the latter did recognize that technical and professional education should be generally available, but not necessarily compulsory, and higher education should be equally accessible to all.
