Over the past months, the coronavirus disease (COVID-19) has spread across the globe, infected some three million individuals and claimed over 230,000 lives so far. The rapid surge of the pandemic has brought unprecedented challenges to all aspects of daily life and world governments have adopted unparalleled measures in an effort to halt the spread of the virus and ‘flatten the curve’. As the global economy collapses and a third of the world population remains in lockdown, no one can tell with certainty what the next few months will bring about.

Access to education in times of a global health crisis

As a result of the pandemic and the need to practice ‘social distancing’, 186 countries have closed down all schools and universities. According to UNESCO, over 1.2 billion students are affected by nationwide and localised school closures, representing around 73% of the total of enrolled students worldwide. Unfortunately, as schools shut down and classes move online, social and economic inequalities are exacerbated. While the transition to online education has been rather smooth in developed countries, which largely benefit from the necessary infrastructure and technology to ensure academic continuity, this is far from true in developing countries with education systems that are lagging behind. In addition, in both low-income and high-income countries, many students suffer from the so-called ‘digital divide’, as they lack the essential technological equipment and adequate internet connectivity to pursue their studies at home. Overall, underprivileged individuals are more likely to be disproportionately affected in their studies during the pandemic. However, the impact of the COVID-19 outbreak on education has been quite overlooked in political and public discourse since the start of the crisis.

Education as a human right

What does international human rights law say about the right to education and corresponding State obligations? Education is a fundamental right enshrined in Article 26 of the Universal Declaration of Human Rights (UDHR) and Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), two of the core United Nations human rights treaties. Various other global and regional human rights instruments also recognise the right to education and further expound on its specific dimensions. The UDHR and ICESCR provide that primary education ‘shall be compulsory and available free to all’. On the other hand, secondary and higher education are not compulsory but ‘shall be made generally available and accessible to all by every appropriate means’. As with all economic, social and cultural (ESC) rights, the right to education is subject to progressive realisation and the availability of State resources (see Article 2 ICESCR).

In 1999, the Committee on Social, Economic and Cultural Rights published its General Comment No. 13 on the right to education, elaborating on the normative content of Article 13 ICESCR and States parties’ obligations arising from it. Although not legally binding, General Comments are considered to be authoritative interpretations of the provisions contained in the Covenants. The Committee identified four interrelated components on the right to receive an education: (i) availability; (ii) accessibility; (iii) acceptability; and (iv) adaptability. In the context of the COVID-19 outbreak, the second and fourth components are of particular interest. Accessibility can be further divided into three overlapping dimensions: non-discrimination, physical accessibility and economic accessibility. Hence, education should be available to all without discrimination, affordable (primary education shall be free) and if necessary accessible via ‘modern technology’ such as ‘distance learning programs’. In addition, adaptability entails that States’ education systems should be flexible in order to adapt to changing societal needs as well as the needs of students.

Derogating from ESC rights

In contrast to other human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR), the ICESCR does not contain a derogation clause allowing or prohibiting States to limit or derogate from ESC rights in times of emergency. Article 4 only provides that States parties ‘may subject such rights only to such limitations as are determined by law and only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’. In its General Comment No. 3, the Committee indicated that States cannot derogate from the minimum core obligations of ESC rights, which in the context of Article 13 ICESCR includes, amongst others, an obligation ‘to ensure the right of access to public educational institutions and programs on a non-discriminatory basis; to provide primary education for all, and; to adopt and implement a national educational strategy which includes provision for secondary, higher and fundamental education’. Accordingly, the Convention and General Comments can be interpreted as requiring States to ensure that these minimum levels of the right to education are satisfied at all times, including in times of emergency.

States obligations

States parties to the ICESCR have an obligation to take ‘deliberate, concrete and targeted’ steps towards the full realization of the right to education. In particular, States have the obligation to respect, protect and fulfil human rights. The obligation to fulfil first requires States ‘to take positive measures that enable and assist individuals and communities to enjoy the right to education’. Second, States must provide the right ‘when an individual or group is unable to realize the right themselves by the means at their disposal’. But what does this imply in times of COVID-19? Do States have an obligation to provide all students with digital tools, such as computers, and to ensure access to reliable internet connectivity so that the continuity of education via virtual learning is ensured? Admittedly not: General Comment No. 13 simply provides that States shall ‘provide the adaptability of education by designing and providing resources for curricula which reflect the contemporary needs of students in a changing world’. However, it is argued that States should take into account global health threats when designing their education systems and prepare for the eventuality of remote teaching. States should ensure that varied delivery systems of education are available, and that curricula are flexible enough to adjust to unforeseen circumstances. This requires investing in the necessary telecommunication and technological infrastructure, in order to remove structural obstacles impeding the full implementation of the right to education. In Argentina, the Ministry of Education set up the programme ‘Seguimos Educando’, a multimedia education platform aimed at ensuring the continuity of teaching activities during the pandemic. The government has concluded partnerships with telecommunication companies to guarantee free access to the platform. The programme also ensures that communities which lack access to internet will have access to printed educational materials. As such, education is a fundamental long-term investment that States must make today in order to reap its benefits tomorrow.

Conclusion

While school closures are a necessary measure to halt the spread of COVD-19, it must be remembered that education is a human right, and States should employ all necessary measures to ensure its continuity in times of crisis. Planning and reforming education systems to anticipate the risk of disruptions to education is therefore essential. As the world continues to experience its greatest disruption to education since the Second World War, lessons must be drawn from this unprecedented challenge. As the Committee on Economic, Social and Cultural Rights underlined, education is an empowerment right, a tool for all individuals to fully participate in and contribute to society. Let us not forget that the students of today will be the leaders of tomorrow, and that these leaders will in turn need to respond to perhaps even greater crises than the one facing humanity today.