A Fourth Optional Protocol to the CRC to Strengthen the Right to Education in International Law?

Introduction

The UN Convention on the Rights of the Child (CRC), adopted by the General Assembly on 20 November 1989, is the most widely ratified treaty within the UN human rights system. Comprising 54 articles, the CRC covers the civil, political, economic, social and cultural rights of children, recognising them as individual rights holders. Between 2000 and 2011, the CRC was integrated by three Optional Protocols. The first two, the Optional Protocol on the Involvement of Children in Armed Conflict and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, expand the substantive obligations of the CRC. The third protocol, the Optional Protocol on a Communications Procedure, introduces a mechanism allowing for the submission of individual communications.

At its 56th session, the Human Rights Council adopted the historic Resolution 56/5 (A/HRC/RES/56/5), establishing an open-ended intergovernmental working group tasked with exploring the possibility of drafting a fourth Optional Protocol to the CRC on the right to education. The Resolution, introduced by Luxembourg, the Dominican Republic and Sierra Leone, and co-sponsored by a cross-regional group of 58 States, was adopted by consensus on 10 July 2024. In September 2025, the working group held its first session, bringing together representatives from 92 States, alongside experts, civil society organisations and children. Over the course of the meeting, participants engaged in substantive discussions on how to strengthen the international legal framework governing the right to education. This blog post examines the principal views that emerged during this debate.

Background of HRC Resolution 56/5  

Resolution 56/5 established an open-ended intergovernmental working group

with the mandate of exploring the possibility of, elaborating and submitting to the Human Rights Council a draft Optional Protocol to the CRC with the aim to: (a) Explicitly recognize that the right to education includes early childhood care and education; (b) Explicitly state that, with a view to achieving the right to education, States shall: (i) Make public pre-primary education available free to all, beginning with at least one year; (ii) Make public secondary education available free to all.

The initiative to introduce a fourth Optional Protocol was originally driven by an advocacy campaign led by the NGO Human Rights Watch aimed at creating stronger international standards to guarantee the right to free education. Human Rights Watch’s campaign was grounded in the belief that a global consensus already exists, since States have committed, through targets 4.2 and 4.1 of the Sustainable Development Goals – Agenda 2030, to ensure universal access to inclusive, equitable and quality education from early childhood to the completion of secondary education. The campaign was based on several studies, including the “Global Report on Early Childhood Care and Education: The Right to a Strong Foundation”, jointly published by UNESCO and UNICEF (2024), which highlights persistent disparities in access, quality and equitable opportunities in early childhood services.

The working group discussions

In accordance with the Resolution, the first session of the open-ended intergovernmental working group took place from 1 to 3 September 2025 at the Palais des Nations in Geneva, lasting three days instead of the planned five due to the liquidity crisis affecting the UN system. Analysis of the working group’s discussions revealed that although early childhood education services are often available from the age of 3 or 4, attendance remains optional and many States do not have regulations guaranteeing free and compulsory pre-school education. In most States, compulsory schooling begins between the ages of 5 and 6 and coincides with entry into primary school. Similarly, secondary education is not yet universally compulsory. Moreover, it emerged that children from low-income families, those living in rural areas, working children, those belonging to ethnic minorities, children with disabilities and migrant children continue to be excluded.

Supporting States

The discussion within the working group highlighted significant divisions on the proposal for a new Optional Protocol. Most of the States that took part expressed their strong support for the explicit recognition in international law of every child’s human right to early childhood education and care and to a universal guarantee of free public pre-primary and secondary education. The analysis of the statements shows that these States view early childhood education as a social investment. It was emphasised, for example, that such education contributes to “consolidate democracy” (Chile) and that it is “by investing in the earliest years that we build peaceful, resilient and just societies” (Portugal). It was also noted that pre-school education is “fundamental not only for individual development but also for the sustainable progress of society” (Azerbaijan) and that “an educated population is more resilient, healthy, with higher economic productivity and with more active civic participation” (Slovakia). In this perspective, the States in favour of adopting the new Protocol highlighted how a solid education system from an early age has positive effects throughout life, with an increase in the number of students accessing higher and post-graduate education, thus contributing to higher employment rates and the formation of a highly skilled workforce. According to these States, the current international legal framework, which only guarantees free and compulsory primary education, is incomplete. For this reason, a new Optional Protocol could fill these gaps by extending legal protection to early childhood care and education and guaranteeing free access to pre-school and secondary education.

Opposing States

On the other hand, several States have expressed reservations regarding the idea of developing a new Protocol. States such as Belgium, the United Kingdom, Eritrea, Algeria, Japan, Canada, Mexico, and Argentina emphasised that the right to free primary and secondary education is already widely recognised under the CRC and other international legal instruments. Indeed, the right to education is enshrined in a broad range of international instruments, including Articles 28 and 29 of the CRC, Article 13 of the Internatinoal Covenant on Economic, Social and Cultural Rights (ICESCR), Article 10 of Convention on the Elimination of Discrimination against Women (CEDAW), Article 24 of the Convention on the Rights of Persons with Disabilities (CPRD), Article 26 of the Universal Declaration of Human Rights (UDHR), Article 12 of the International Convention on the Protection of the Rights of Migrant Workers (ICMW), as well as the UNESCO Convention against Discrimination in Education. Moreover, this right has been extensively addressed by UN human rights treaty bodies, including the Committee on Economic, Social and Cultural Rights (CESCR), the Committee on the Elimination of Discrimination against Women, and the Committee on the Elimination of Racial Discrimination (CERD). Therefore, they also emphasized that any new Protocol should be fully consistent with existing human rights instruments and avoid duplication. These States argued that a thorough analysis is necessary to determine whether a new Protocol would be the most effective means of achieving the proposed objectives. From their perspective, the priority should not be the creation of additional obligations, but rather the more effective implementation of those already established. They also cautioned that introducing a new legal instrument, which might have limited ratification, could risk weakening, rather than strengthening, the protection of the right to education provided for in the CRC.

In a similar vein, the UN Special Rapporteur on the right to education, Farida Shaheed, also noted that, although certain legal gaps exist, attention should be paid to whether the real issue is a lack of political will. She further stressed that it may be more productive to focus on improving implementation and strengthening accountability mechanisms with respect to existing obligations. In line with these observations, several States underscored that such an initiative should take into account national capacities, resources and contexts, including both socio-cultural and religious aspects and those related to economic and political structures. A new Protocol could impose an additional burden on States Parties, by increasing reporting obligations and adding to the workload of the UN Committee on the Rights of the Child. Some of those States also drew attention to the current financial difficulties of the UN, which have already led to the cancellation of the 100^th Session of the UN Committee on the Rights of the Child scheduled for September 2025. They used this as a further argument to consider whether initiating a complex negotiation process is the best option. It is noteworthy that the UN Committee on the Rights of the Child has not expressed an official position on the matter, maintaining a neutral stance regarding the possible negotiation of a Fourth Protocol.

Conclusion 

The work of the Working Group concluded with a series of recommendations, including a commitment to continue consultations, aiming to prepare a progress report for the Human Rights Council in June 2026 and a set of key principles to guide the potential drafting of a new legal instrument. It clearly emerged from the discussions that the proposed Protocol could, on the one hand, help clarify the content of the right to education, but on the other hand, could weaken the right if the text is not widely ratified and effectively implemented.