HIGHER EDUCATION AS A HUMAN RIGHT.

• Published date: 22 September 2018
• Author: Gilchrist, Heidi R.
• Date: 22 September 2018

Education is the most powerful weapon which you can use to change the
                world
                --Nelson Mandela
                

Introduction 647
                I. Higher Education as a Human Right 648
                 A. Right to Higher Education Under International Law 648
                 B. Right to Education Under United States Law 652
                 C. Right to Higher Education Under European Union Law 656
                 D. Higher Education is a Right, Not a Luxury 660
                 E. Scope of the Right to Higher Education 664
                II. Impact on the Refugee Crisis--The Syrian Example 668
                III. Higher Education as a Counterterrorism Measure 673
                Conclusion 676
                

INTRODUCTION

Although the right to primary education enjoys broad recognition in human rights law, the human right to higher education is not as fully developed. However, the right to higher education is incredibly important and is an integral part of the right to education. Although the right to higher education may sound lofty or like a luxury at first glance, it is not. To deny someone with capacity access to higher education is to deny them their full dignity and potential as a human being. By understanding higher education as a human right, we can change the dialogue about higher education. No longer should highly selective colleges be considered only accessible to the wealthy but should be accessible to those with the capacity and ability. And everyone who has the capacity to succeed in college should be able to attend college. But that is not currently the case in the United States. Instead, in the United States, we have reached a point of crisis. Costs at many highly selective institutions are estimated to be between $60,000 to almost $70,000 per year (2) and yet the median household income in the United States in 2015 was only $53,718.

On a global level, recognizing the human right to education, and higher education, has counter-terrorism benefits. We need diverse, educated, innovative thinking to combat terrorism. And, in war-torn countries such as Syria we cannot risk a 'lost generation' who lack the necessary education to rebuild Syria or the ability to integrate into the host countries in which they are living. We do not want a fertile ground for more terrorist groups to grow in. But, at the most basic level, a human right to higher education is simply correct.

This article closes a gap in the literature by looking critically at the human right to higher education. Section I looks at the right to higher education under international law, law in the European Union and the United States. I examine cases in the United States regarding education, and cases that have been brought in the European Union looking specifically at the right to higher education. I argue that the right to higher education is already established under international law, and that the United States needs to recognize the right to education generally and specifically the right to higher education. The dialogue in the United States needs to begin regarding the scope of the right. And the United States, at a minimum, needs a plan on how to address how to best facilitate the right as high costs have made higher education a luxury item and it is not.

Section II addresses the impact of recognizing a human right to higher education on the Syrian refugee crisis. As the war in Syria drags on, there is a real danger of a 'lost generation.' Syrians who were already in university, or now should be, are not getting the education they will need to rebuild and lead their country. Terrorists are using this vacuum to propagate their own distorted education and this is not merely a problem for Syria, but also for Europe, where many of the refugees flee. This is a problem that needs to be addressed on a moral level and also strategically as a national security issue.

Finally, Section III looks specifically at the impact of a human right to higher education from a national security perspective. In order to counter the terrorist message and the new lone wolf and low-level attacks, we need new ways to counter terrorism. Bombs and war will not work. We need individuals from all backgrounds to examine the terrorist appeal and come up with ways to counter it. People from different backgrounds need to work in the intelligence field to come up with new and innovative solutions. There needs to be education that promotes inclusion and respect for human rights and different opinions and viewpoints. Once again, this is a problem that needs a solution at a global level. In sum, higher education is a human right and needs to be recognized as such. Recognizing the right to higher education will not only benefit the individuals with capacity and desire who will be able to attend institutes of higher learning, but it will also have benefits on a global level.

I. Higher Education as a Human Right

A. Right to Higher Education under International Law

There is both broad language in international law recognizing the right to education and specific language regarding the right to higher education. Article 26 of the Universal Declaration of Human Rights recognizes the right to education, stating "[e]veryone has the right to education" and "higher education shall be equally accessible to all on the basis of merit." (4) Although the Declaration is not binding, it has strong moral authority as it is generally agreed to be the foundation of international human rights law (5) and much of it has acquired the status of customary international law. (6)

The United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966 declares in Article 13, "[t]he States Parties to the present Covenant recognize the right of everyone to education" and that "[h]igher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education." (7) The ICESCR is incredibly important for discussing the right to higher education as it is a legally binding document on state parties and is widely recognized with 167 state parties and four signatories. (8) The language shifted from "merit" to "capacity" to include those who come from disadvantaged backgrounds. (9) Capacity must be looked at broadly to include those who may not have benefited from a strong primary and secondary education, but nonetheless have the capacity for further study. The scope of the right is not clearly defined as the cost of education is very high so states are only required to have higher education that is "equally accessible" and free higher education is a goal. (10) However, although the exact contours of the right are not fully defined that does not detract from it being a human right.

The Convention on the Rights of the Child is the most widely ratified treaty pertaining to the right to education with 196 states parties and one signatory--the United States. (11) Therefore, it is an important source of the human right to higher education. Article 28 of the Convention on the Rights of the Child states that signatories should "[m]ake higher education accessible to all on the basis of capacity by every appropriate means" and should "[m]ake primary education compulsory and available free to all." (12) The treaty differentiates between primary education and higher education, but higher education is still recognized as a human right.

The right to education is also enshrined in other conventions against discrimination. The International Convention on the Elimination of All Forms of Discrimination against Women states, "The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training." (13) The International Convention on the Elimination of All Forms of Racial Discrimination recognizes "[t]he right to education and training." (14) The Convention on the Rights of Persons with Disabilities requires state parties to ensure that persons with disabilities are "able to access general tertiary education" without discrimination and ensure that "reasonable accommodation is provided to persons with disabilities." (15) The Convention on the Protection of the Rights of All Migrant Workers and Members of their Families also provides that migrant workers shall have equality of treatment with nationals of the State of employment in relation to access to educational institutions. (16)

The United Nations formed the United Nations Educational, Scientific and Cultural Organization ("UNESCO") recognizing the importance of education not only because of its human value but its value at a national security level. UNESCO is a specialized agency of the United Nations system created with the mission of contributing to peace and security in the world by "promoting collaboration among nations through education, science, culture and communication in order to further universal respect for justice and the rule of law and for the human rights and fundamental freedoms... without distinction of race, sex, language or religion." (17) The UNESCO Convention against Discrimination in Education in Article 4 states that parties must, "make primary education free and compulsory; make secondary education in its different forms generally available and accessible to all; make higher education equally accessible to all on the basis of individual capacity; assure compliance by all with the obligation to attend school prescribed by law." (18)

In contrast to the rights afforded to other groups mentioned above, a refugees' recognized right to higher education is extremely limited. The Convention Relating to the Status of Refugees, states in Article 22(2), "The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same...