A New Optional Protocol to the Convention on the Rights of the Child on Rights to Early Childhood Care and Education, including Free Pre-Primary Education, and Free Secondary Education? An Intervention at the United Nations

In 2024, the UN Human Rights Council created an Open-Ended Intergovernmental Working Group to explore the possibility of, and potentially later draft, an Optional Protocol to the Convention on the Rights of the Child, protecting rights to early childhood care and education, including free pre-primary education, and free secondary education. The Working Group held its first session in September 2025. The text that follows is essentially the annotated version of one of two interventions - the other was by the UN Special Rapporteur on the Right to Education - delivered in a panel during the session that deliberated on the desirability of, or need for, the stated rights to be protected as express and binding treaty rights, for example, in an Optional Protocol to the Convention on the Rights of the Child. At present, treaty law does not expressly protect a right to early childhood care and education or, as an aspect thereof, a right to free pre-primary education. Secondary education is a treaty right, but need, at most, be made "progressively" free. The author's intervention addresses fees as an obstacle to access, points out gaps in the international legal framework, and presents "weighty" reasons for drafting legally binding obligations. Central to the argument is the notion that early childhood care and education - or aspects thereof, certainly free pre-primary education - and free secondary education are core aspects of the right to education. As such, rights to the provision thereof should be expressly laid down in a treaty and drafted so as to give rise to so-called "minimum core obligations" for states parties to the treaty. Such obligations must be realised immediately or with a high degree of urgency. Non-compliance with such obligations automatically constitutes a prima facie violation of the underlying right, placing the onus on the state party concerned to strictly justify non-compliance. A minimum core approach under hard law would therefore create a "new culture of justification" in implementing the rights at issue - something difficult to achieve under soft law.