1. Access to Higher Education and Equality of Opportunity in Education
Ryo SASAKI
Project manager of RIJUE, Hiroshima University
Adjunct lecturer of International and Public Law, Atomi University
LLM in International Human Rights Law (York)

2. Focus of previous research
Studies on the right to education
more focuses on primary and secondary
education
Studies on higher education
policy and management oriented
lack of perspectives of ‘education as a right of
individuals’
→ Studies on higher education also requires
viewpoints of ‘education as individual rights’

3. Legal framework (1) Article 26 of the Constitution of Japan
(1) All people shall have the right to receive an equal
education correspondent to their ability, as provided
by law.
All people shall be obligated to have all boys and
girls under their protection receive ordinary
education as provided for by law. Such compulsory
education shall be free.

4. Legal framework (2)
Article 13 of the International Covenant on Economic, Social and Cultural Rights
(2) The States Parties to the present Covenant
recognize that, with a view to achieving the full
realization of this right [to education]:
[…]
(c) Higher 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;

5. Reservation of Japanese Government to the ICESCR
Reservation – A State can exclude legally-binding effect of a particular provision of a convention which it ratifies as far as compatible with its intent and purpose
Article 2 (2) (c) of the ICESCR
(c) Higher 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;
(reservation retracted in 2012)

6. Cf. the Convention on the Rights of the Child
Articles 28 and 29 of the CRC provide the right to education
but,
Article 1 of the CRC,
For the purposes of the present Convention, a
child means every human being below the age of
eighteen years unless under the law applicable to
the child, majority is attained earlier.

7. Hierarchical structure of legal system
Constitution
Ratified international treaties &
established international custom
Legislation by the National Diet
Administrative regulation, legal act, etc.

8. Implementation of fundamental (human) rights through legal system
Constitutional and administrative complaint in domestic courts
Review of Report submitted by the State parties by a Committee established on the basis of a treaty
Concluding observations by the Committee
* Individual complaint to the Committee (not applied to Japan)

9. Core elements of the right to education
Right to receive an education
(access to education)
Non-discrimination and equality
(equality of opportunity)
Academic freedom or autonomy of education

10. Specificity of higher education in terms of ‘equality of opportunity’
19. The third and most significant difference between article 13 (2) (b) [secondary education] and (c) [higher education] is that while secondary education “shall be made generally available and accessible to all”, higher education “shall be made equally accessible to all, on the basis of capacity”. According to article 13 (2) (c), higher education is not to be “generally available”, but only available “on the basis of capacity”. The “capacity” of individuals should be assessed by reference to all their relevant expertise and experience.
General Comment No. 13 of the ICESCR

11. Barriers against equality of opportunity in education
Physical barriers
Financial barriers
Linguistic and cultural barriers
[K. Singh 2011(Report of the UN Special Rapporteur on the right to education)]

12. Social context of higher education in Japan (1)
Type of Univ.
Tuition fee
Admission fee
National
\535,800
(£3,857.80)
\282,000
(£2,030.40)
Local
\537,857
(£3,872.60)
\397,721
(£2,863.60)
Private
(Humanitarian and Social Sciences
\746,123
(£5,372.10)
\242,579
(£1,746.60)
(Natural Sciences)
\1,048,763
(£7,551.10)
\262,436
(£1,889.60)
(Benesse 2015)

13. Reason for giving up higher education
Survey to 1,297 high schools by License Academy Co. Ltd. (2010)
Students give up applying to higher education due to financial reason rather than academic outcome.
Strongly
Agree
So-so
Partially
disagree
Others
19.3 (%)
52.8
12.1
12.7
1.1
Why students giving up applying to higher education? [multiple answers allowed]
Academic outcome
Fees
Parents’
expectation
Occasional reason
Location
Subjects
chosen in exam
Future plan
Environment of univ.
Others
79.9(%)
76.3
31.5
25.4
14.2
11.5
6.8
2.4
1.1

14. Concerned affairs in Japan
- Expensive fees (national universities are not cheap any more!) other costs
Lack of scholarship system
Student loan similar to debt
As to internationalisation, cultural and linguistic barrier against primary and secondary education may affect accessibility to higher education

15. Significance of legal perspective in higher education studies
Add the viewpoint of the ‘right to education’ to higher education studies/policy etc.
Debates on higher education tend to be close to effective management, economical affairs, etc., but individual rights shall still be respected.
Barriers against higher education are not only academic outcome or capacity but also external factors such as financial situations.

16. Thank you!