Abstract
The CRPD is the first human rights treaty to contain an express reference to inclusive education. Indeed, Article 24 recognizes the right to inclusive education as a means to make the universal right to education effective for people with disabilities.
The drafters of the CRPD did not immediately agree on the right to inclusive education. Within the Working Group, and then among the members of the Ad Hoc Committee, different approaches were expressed to setting out the relationship between the provision of specialist education services and the general education system.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See de Beco (2014), pp. 273 et seqq.
- 2.
The text of draft Article 17 is available at http://www.un.org/esa/socdev/enable/rights/ahcstata24wgtext.htm. The wording of the provision was partially taken from Article 24 (“The Right to Education”) of the Chair’s Draft Elements of a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities of December 2003. http://www.un.org/esa/socdev/enable/rights/wgcontrib-chair1.htm. Accessed September 15, 2015.
- 3.
Some members thought that specialist education services should have been provided not only where the general education system was inadequate but at all times, without a presumption that one approach was more desirable than the other. Some members highlighted, in particular, the need for deaf and blind children to be educated in their own groups. If the latter approach was accepted, the Working Group deemed necessary an explicit obligation on States to make the general education system accessible to students with disabilities, without limiting the individual’s ability to choose either the general system or the specialist services.
- 4.
For a compilation of proposed revisions and amendments made by the members of the Ad Hoc Committee to the Working Group’s draft text, see http://www.un.org/esa/socdev/enable/rights/ahcstata24tscompilation.htm. Accessed September 15, 2015.
- 5.
The Commission also recalled the decision of the Supreme Court of Canada in the case of Eaton vs. Brant County Board of Education of February 1997 in which the Court ruled that “While integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality .... Integration can be either a benefit or a burden depending on whether the individual can profit from the advantages that integration provides.” The Commission’s view was set out in its report titled “The Opportunity to Succeed: Achieving Barrier-free Education for Students with Disabilities.” http://www.ohrc.on.ca/en/opportunity-succeed-achieving-barrier-free-education-students-disabilities. Accessed September 18, 2015.
- 6.
Para. 3 read as follows: “States Parties shall ensure that where the general education system does not adequately meet the needs of persons with disabilities special and alternative forms of learning should be made available. Any special and alternative forms of learning should: a) reflect the same standards and objectives provided in the general education system; b) be provided in such a manner to allow children with disabilities to participate in the general education system to the maximum extent possible; c) allow a free and informed choice between general and special systems; d) in no way limit the duty of States Parties to continue to strive to meet the needs of students with disabilities in the general education system.”
- 7.
http://www.un.org/esa/socdev/enable/rights/ahcstata24fscomments.htm. Accessed September 15, 2015.
- 8.
For a detailed account of the discussion in the Ad Hoc Committee, see the report A/60/266, paras. 30–46.
- 9.
See the “Statement on Inclusive Education for Persons who are Deaf, Blind and Deafblind: The Rationale for Choice in Education” of the World Federation of the Deaf, the World Blind Union and the World Federation of the Deaf-Blind of August 2, 2005. http://www.un.org/esa/socdev/enable/rights/ahcstata24sscomments.htm#wbu. Accessed September 18, 2015.
- 10.
http://www.un.org/esa/socdev/enable/rights/ahcstata24ssfacilitator.htm. Accessed September 18, 2015. The Facilitator observed that the reference to the progressive realization of the right to education contained in para. 1 of the Working Group’s text was deleted since this kind of obligations was defined within Article 4 (General obligations). Furthermore, the equality provisions in the chapeau needed to be revised in light of the overall approach to be taken throughout the Convention. To this regard, the UNESCO supported the inclusion of the principle of non-discrimination in the chapeau as it was consistent with the 1960 UNESCO Convention on the Elimination of Discrimination in Education.
- 11.
The Chairman of the Ad Hoc Committee, in a Letter of October 7, 2005, addressed to all members, informed that after a discussion, the structure of the draft Convention was changed and consequently also the numbering of the articles. The new text was separated into four parts, consistent with the approach followed by other conventions, and for the first time it included draft final clauses. However, civil and political rights were not separated from economic, social, and cultural rights as there were strong views that they had to be treated all together. http://www.un.org/esa/socdev/enable/rights/ahcchairletter7oct.htm. Accessed September 18, 2015.
- 12.
http://www.un.org/esa/socdev/enable/rights/ahcstata24sevscomments.htm. Accessed September 18, 2015.
- 13.
For proposals submitted by States, international organizations, NHIs, and NGOs, see http://www.un.org/esa/socdev/enable/rights/ahc8contngos.htm. Accessed September 18, 2015. For the Working Text of the International Convention on the Rights of Persons with Disabilities at the eight session see A/AC.265/2006/2, Annex II.
- 14.
Article 26 reads as follows: “1. Everyone has the right to education . Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. 3. Parents have a prior right to choose the kind of education that shall be given to their children.”
- 15.
For a detailed analysis of the right of education in the framework of international law, see Beiter (2005).
- 16.
Article 2, para. 4, of the Convention on Technical and Vocational Education establishes that “the contracting States shall pay attention to the special needs of the handicapped and other disadvantaged groups and take appropriate measures to enable these groups to benefit from technical and vocational education .”
- 17.
See the Recommendation against Discrimination in Education (1960), the Recommendation concerning the Status of Teachers (1966), the Recommendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms (1974), the Recommendation on the Development of Adult Education (1976), the Recommendation on the Recognition of Studies and Qualifications in Higher Education (1993), the Recommendation concerning the Status of Higher-Education Teaching Personnel (1997), and the Revised Recommendation concerning Technical and Vocational Education and Training (2001).
- 18.
For a systematic analysis of the right of education as protected in Article 13 of the ICESCR, see Beiter (2005), pp. 339 et seqq. The ICESCR also contains Article 14, which reads as follows: “Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education , free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.” See CESCR, General Comment No. 11: Plans of Action for Primary Education (Article 14), E/1992/23.
- 19.
The CESCR emphasized that “the adoption of temporary special measures intended to bring about de facto equality for men and women and for disadvantaged groups is not a violation of the right to non-discrimination with regard to education, so long as such measures do not lead to the maintenance of unequal or separate standards for different groups, and provided they are not continued after the objectives for which they were taken have been achieved.” Ibid., paras. 31–37.
- 20.
Article 13, para. 2, lists a number of specific steps that States Parties are required to pursue to realize the right of education. See de Beco (2014), p. 267.
- 21.
See CESCR, General Comment No. 13: The right to education (article 13 of the Covenant), E/C.12/1999/10, para. 1.
- 22.
- 23.
See the CEDAW (Article 10) and the ICMW (Articles 12, 30 and 45).
- 24.
See, among others, Parkes (2013), pp. 123 et seqq.
- 25.
See the Protocol 1 to the ECHR of 1952 (Article 2), the Revised European Social Charter of 1996 (Part I, Articles 7, 10, 15, 17), the European Charter for Regional or Minority Languages of 1992 (Article 8), the Framework Convention for the Protection of National Minorities of 1995 (Articles 12–14), EUCFR (Article 14), the African Charter on Human and Peoples’ Rights of 1981 (Articles 17 and 25) and its Protocol on the Rights of Women in Africa of 2003 (Article 12), the African Charter on the Rights and Welfare of the Child of 1990 (Article 11), the African Youth Charter of 2006 (Articles 13 and 20), the Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) of 2009 (Article 9, para. 2 b), the Arab Charter on Human Rights of 2004 (Articles 40–41), the Additional Protocol to the ACHR (Protocol of San Salvador) of 1988 (Article 13), and the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities of 1999 (Article 3).
- 26.
A few years earlier, the Jomtien World Conference on Education for All (1990) set the goal of “Education for All” (EFA) with the adoption of the “World Declaration on Education for All” and the “Framework Action to Meet Basic Learning Needs”. The Salamanca Statement was adopted by the World Conference on Special Needs Education: Access and Quality organized by Spain in cooperation with UNESCO (Salamanca, Spain, 7–10 June 1994). http://www.unesco.org/edu, http://www.unesco.org/education/pdf/SALAMA_E.PDF. Accessed September 18, 2015. On inclusive education for people with disabilities see, among others, Shoonheim and Ruebain (2005), pp. 163 et seqq. On EFA, see Miles and Singal (2010).
- 27.
- 28.
http://www.unesco.at/bildung/basisdokumente/dakar_aktionsplan.pdf. Accessed September 20, 2015.
- 29.
See “Goal 4. Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all.” http://www.un.org/sustainabledevelopment/education/. Accessed January 20, 2016.
- 30.
Under Article 165, para. 2, of the TFEU, the Union’s action is aimed at developing the European dimension in education, particularly through (a) teaching and dissemination of the languages of the Member States; (b) encouraging mobility of students and teachers; (c) promoting cooperation between educational establishments; (d) developing exchanges of information and experience on issues common to the education systems of the Member States; (e) encouraging the development of youth exchanges and of exchanges of socioeducational instructors; and (f) encouraging the participation of young people in democratic life in Europe.
- 31.
See, respectively, Council Resolution on promoting the employment and social integration of people with disabilities, of July 15, 2003 and Council Resolution on equal opportunities for pupils and students with disabilities in education and training of May 5, 2003.
- 32.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, “Improving competences for the 21st Century: an Agenda for European Cooperation on Schools”, COM/2008/0425 final, paras. 3.17 and 3.18.
- 33.
Communication for the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, “European Disability Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe”, COM(2010) 636 final.
- 34.
See European Commission, Working Paper Commission Staff Working Document, “Report on the Implementation of the UN Convention on the Rights of Persons with Disabilities (CRPD) by the European Union”, SWD(2014) 182, final, para. 123. The EU promotes inclusive education also through the European Agency for Special Needs and Inclusive Education, an independent organism established by EU Member States, along with Iceland, Norway, and Switzerland, to strengthen cooperation in the field.
- 35.
Council Directive 2000/78/EC of November 2000 establishing a general framework for equal treatment in employment and occupation includes within its scope the vocational training . The latter was defined by the ECJ as “any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment […] even if the training programme includes an element of general education.” See ECJ, Case 293/83, Gravier v. City of Liege, judgment of February 13, 1985.
- 36.
Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, COM/2008/0426 final—CNS 2008/0140. http://eur-lex.europa.eu/legal-content/GA/TXT/?uri=CELEX:52008PC0426. Accessed October 15, 2015.
- 37.
The European Parliament adopted its Opinion under the Consultation Procedure on April 2, 2009. Following the entry into force of the Lisbon Treaty in December 2009, the proposal now falls under Article 19 of the TFEU; thus, unanimity in the Council is required, following the consent of the European Parliament. For details regarding the critics on Article 3, see Cera (2015), p. 87.
- 38.
http://data.consilium.europa.eu/doc/document/ST-13877-2015-REV-1/en/pdf. Accessed December 20, 2015.
- 39.
See NESSE Network of Experts and European Commission (2012).
- 40.
See CRPD Committee, Concluding Observations on the initial report of the European Union, CRPD/C/EU/CO/1, October 2, 2015, para. 61.
- 41.
- 42.
See Draft General Comment No. 4, Article 24: The right to inclusive education , para. 9, available at http://www.ohchr.org/EN/HRBodies/CRPD/Pages/GCRightEducation.aspx. Accessed February 3, 2016. For the Committee, the core features of inclusive education are (a) whole educational environment, (b) whole person approach, (c) supported teachers, (d) respect for and value of diversity , (e) learning-friendly environment, (f) recognition of partnerships, and (g) monitoring (ibid., para. 12). Differently, integration is “a process of placing persons with disabilities in existing mainstream educational institutions, and requiring them to adapt and accommodate to a pre-determined environment” (ibid., para. 11). General Comment No. 4 (2016), Article 24: Right to inclusive education, was adopted on August 26, 2016, see CRPD/C/GC/4. This latter one has confirmed the abovementioned definition of inclusive education and its core features. All references in this chapter relate to the Draft, the only document available at the time of writing. On the concept of inclusive education , see also OHCHR (2013), para. 4.
- 43.
See http://unesdoc.unesco.org/images/0014/001402/140224e.pdf (pp. 13 and 15). Accessed September 30, 2015.
- 44.
See Draft General Comment No. 4, para. 10. The General Comment No. 4 (2016), cit., para. 10, has confirmed this approach.
- 45.
See de Beco (2014), p. 274.
- 46.
Article 24 refers to persons with disabilities rather than just children because learning is a life-long process. The norm also reflects the fact that not everyone receives primary and secondary education whether as a child or adolescent; see Schulze (2009), p. 91.
- 47.
See OHCHR (2013), para. 19.
- 48.
Ibid.
- 49.
See Draft General Comment No. 4, cit., para. 15; General Comment No. 4 (2016), cit., para. 15 (last sentence).
- 50.
Ibid., para. 16 of both the abovementioned acts.
- 51.
Ibid., para. 17 of both the abovementioned acts.
- 52.
The CRPD Committee observed that para. 2 (a) “prohibits the exclusion of persons with disabilities from the general education system, including any legislative or regulatory provisions that place limits on the inclusion of persons with disabilities on the basis of their impairment or its “degree”, such as by conditioning their inclusion “to the extent of the potential of the individual”, or by alleging a disproportionate and undue burden to evade the obligation to provide reasonable accommodation. In this context, general education includes all regular learning environments and the education department.” See Draft General Comment No. 4, cit., para. 18.
- 53.
Ibid., paras. 19–25.
- 54.
See Article 2 [Definitions] in this Commentary.
- 55.
See, infra, para. 5.1.
- 56.
Cf. de Beco (2014), p. 282.
- 57.
Ibid.
- 58.
Ibid., pp. 284–286 for remarks on special schools in the framework of Article 24 of the CRPD.
- 59.
According to the CRPD Committee, States must support the recruitment and education of teachers with disabilities by removing any legislative or policy barriers that require candidates to fulfill specific medical eligibility criteria, as well as the provision of reasonable accommodations for their participation as teachers. For the Committee, their presence in schools is useful to promote equal rights for persons with disabilities to enter the teaching profession, bring unique expertise and skills into learning environments, contribute to breaking down barriers, and serve as important role models. See Draft General Comment No. 4, cit., para. 36; General Comment No. 4 (2016), cit., para. 36.
- 60.
Draft General Comment No. 4, cit., para. 35. In General Comment No. 4 (2016), cit., the wording of para. 35 has changed.
- 61.
See, infra, para. 4.1.
- 62.
OHCHR (2013), para. 3.
- 63.
CRPD Committee, Concluding Observations on the initial report of New Zealand, CRPD/C/NZL/CO/1, October 31, 2014, para. 50. See also the reports of the Special Rapporteur on the Right to Education (A/HRC/4/29, February 19, 2007) and the HRC (A/HRC/25/L.30, March 24, 2014).
- 64.
See the Concluding Observations on the initial reports of Argentina, CRPD/C/ARG/CO/1, October 8, 2012, para. 38; Australia, CRPD/C/AUS/CO/1, October 21, 2013, para. 45; China, CRPD/C/CHN/CO/1, October 15, 2012, para. 36; Paraguay, CRPD/C/PRY/CO/1, May 15, 2013, para. 58.
- 65.
Declaration: “Education – Convention Article 24 Clause 2 (a) and (b) The United Kingdom Government is committed to continuing to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff, which have the capacity to meet the needs of disabled children. The General Education System in the United Kingdom includes mainstream, and special schools , which the UK Government understands is allowed under the Convention.” https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en. Accessed September 30, 2015.
- 66.
http://www.ohchr.org/Documents/HRBodies/CRPD/DGD/2015/OSF.pdf. Accessed September 30, 2015.
- 67.
During negotiations, ILO supported a focused coverage of vocational training in the current Article 24 recognizing that training in employable skills was central to enabling persons with disabilities to earn a decent living.
- 68.
Cf. Chiappetta Cajola (2015).
- 69.
Cf. Yang et al. (2015), p. 7.
- 70.
See Osborne et al. (2015), pp. 17 et seqq.
- 71.
http://unesdoc.unesco.org/images/0011/001161/116114eo.pdf. Accessed September 30, 2015.
- 72.
See the Report of the Special Rapporteur on the right to education devoted to technical and vocational education and training from a right to education perspective (doc. A/67/310).
- 73.
See also Article 26, para. 1, of the UDHR stating that “[t]echnical and professional education shall be made generally available.”
- 74.
See the Report of the Special Rapporteur on the right to education , cit., para. 28.
- 75.
See the European Commission’s “Memorandum on Higher Education in the European Community” of 1991, and the “Memorandum on Lifelong Learning” of 2000. The purpose to increase adult participation in higher education received further impetus by the Lisbon Strategy of 2000 and by the European Commission’s Communication, “Making a European Area of Lifelong Learning a Reality” of 2001.
- 76.
On the Copenhagen process see http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:ef0018. Accessed September 30, 2015.
- 77.
See the European Commission’s Communication, “Europe 2020-A strategy for smart, sustainable and inclusive growth”, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:2020:FIN:EN:PDF. Accessed September 20, 2015.
- 78.
See OHCHR (2013), para. 70.
- 79.
For a framing of the right of education within international human rights law and international trade law, see Tomasevski (2005).
- 80.
See Draft General Comment No. 4, cit., para. 40 (emphasis added); General Comment No. 4 (2016), cit., para. 40. See also CESCR, General Comment No. 3 on the nature of States parties’ obligations, E/1991/23, 1990, 3, para. 9. Cf. de Beco (2014), p. 268.
- 81.
See Draft General Comment No. 4, cit., para. 40.
- 82.
The CRPD Committee recommended China to “reallocate resources from the special education system to promote the inclusive education in mainstream schools, so as to ensure that more children with disabilities can attend mainstream education” (Concluding Observations on the initial report of China, cit., para. 36). The Committee also recommended to Argentina to “develop a comprehensive State education policy that guarantees the right to inclusive education and allocates sufficient budgetary resources to ensure progress towards the establishment of an education system that includes students with disabilities” (Concluding Observations on the initial report of Argentina, cit., para. 38). See also the Concluding Observations on the initial report of Spain, CRPD/C/ESP/CO/1, October 19, 2011, para. 9.
- 83.
CRPD Committee, Concluding Observations on the initial reports of Paraguay, cit., para 58; Belgium, CRPD/C/BEL/CO/1, October 28, 2014, para. 37.
- 84.
CRPD Committee, Concluding Observations on the initial reports of Ecuador, CRPD/C/ECU/CO/1, October 27, 2014, para. 38 (a); Germany, CRPD/C/DEU/CO/1, April 17, 2015, para. 46.
- 85.
See International Disability Alliance (IDA) submission on inclusive education , Day of General Discussion on the Right to Education, CRPD Committee, 13th session, April 15, 2015, p. 5.
- 86.
See OHCHR (2013), para. 26.
- 87.
The CRPD Committee recommended Croatia to establish the principle that exclusionary and segregated education is discriminatory (Concluding Observations on the initial report of Croatia, CRPD/C/HRV/CO/1, April 17, 2015, para. 36).
- 88.
Also in this field, States Parties have the duty to respect, to protect, and to fulfil. The obligation to respect requires States to avoid measures that hinder or prevent the enjoyment of the right to education , such as legislation excluding certain children from education on the ground of the disability. The obligation to protect implies for States to take measures preventing third parties from interfering with the enjoyment of the right to education . Finally, the obligation to fulfil requires Contracting States to take affirmative action measures that enable and assist persons with disabilities to enjoy the right to education (e.g., accessible schools).
- 89.
See Draft General Comment No. 4, cit., paras. 41–58; General Comment No. 4 (2016), cit., paras. 42–57.
- 90.
See Article 5 [Equality and Non-Discrimination] in this Commentary. See also CESCR, General Comment No. 20 on Non-discrimination in economic, social and cultural rights, E/C.12/GC/20, 2009, para. 28. Cf. de Beco (2014), pp. 278 et seqq.
- 91.
See the Background conference document prepared by the Department of Economic and Social Affairs, The Concept of Reasonable Accommodation in Selected National Disability Legislation. http://www.un.org/esa/socdev/enable/rights/ahc7bkgrndra.htm. Accessed September 30, 2015. In this document, it is specified that States use a variety of terms to connote the types of accommodations such as: reasonable accommodation; reasonable adjustments, adaptations or measures; and effective or suitable modifications.
- 92.
CRPD Committee, Concluding Observations on Spain, cit., para. 43; Hungary, CRPD/C/HUN/CO/1, October 22, 2012, para 41.
- 93.
CRPD Committee, Concluding Observations on Spain, cit., para. 44. Draft General Comment No. 4, cit., para. 30.
- 94.
See Draft General Comment No. 4, cit., para. 28.
- 95.
See OHCHR (2013), para. 41. See also CRPD Committee, Concluding Observations on Hungary, cit., paras 15–16; Spain, cit., para. 20; Tunisia, CRPD/C/TUN/CO/1, May 13, 2011, para. 13.
- 96.
Concluding Observations on Spain, cit., para. 44 (c).
- 97.
CRPD Committee, Concluding Observations on the initial report of Australia, CRPD/C/AUS/CO/1, October 21, 2013, para. 46. The concept of reasonable accommodation linked to education and to other areas has also been endorsed by other treaty bodies including the CEDAW Committee in the Concluding Observations on Hungary, CEDAW/C/HUN/CO/7-8, March 1, 2013, para. 29 (c); CESCR, Concluding Observations on the Republic of Moldova, E/C.12/MDA/CO/2, July 12, 2011, para. 7; Cameroon, E/C.12/CMR/CO/2-3, January 23, 2012, para. 11; Japan, E/C.12/JPN/CO/3, June 10, 2013, para. 12; New Zealand, E/C.12/NZL/CO/3, May 31, 2012, para. 13.
- 98.
CRPD Committee, Concluding Observations on the initial report of Belgium, CRPD/C/BEL/CO/1, October 28, 2014, paras. 36–37. See also the Concluding Observations on the initial report of Croatia in which the Committee has recommended the State Party to take immediate steps to ensure that all persons with disabilities have access to inclusive quality primary, secondary, and tertiary education and to provide reasonable accommodation in mainstream education, cit., para. 36.
- 99.
See CRPD Committee, Concluding Observations on Germany, cit., para. 46 (c). Emphasis added.
- 100.
See Article 2 [Definitions] in this Commentary.
- 101.
Cf. Cera (2015), pp. 91 et seqq. IDA observed that in “analysing the financial costs of a measure to determine whether it amounts to a disproportionate burden, the body of resources considered should be the State’s resources as a whole and not that restricted to the lowest unit of the State bureaucracy. States should be prohibited from dividing itself in as many subdivisions as possible, each with their own limited budget, in order to evade the obligation to fulfil inclusive education and provide reasonable accommodation by alleging a disproportionate burden based on the limited resources of the subdivision.” See IDA submission on inclusive education , cit., p. 7.
- 102.
See OHCHR (2013), para. 43.
- 103.
Draft General Comment No. 4, cit., para. 28.
- 104.
The Italian Constitutional Court invoked the right to individualized support in the context of the right to inclusive education in judgment No. 80 of February 22, 2010.
- 105.
See de Beco (2014), pp. 280 and 283–284, on the relationship between support measures and reasonable accommodation.
- 106.
See OHCHR (2013), para. 46. UDL is a set of principles providing teachers with a structure to create adaptable learning environments and develop instruction to meet the diverse needs of all learners. In this way, UDL ensures that the barriers to learning are minimized by designing lessons that address the learning needs of all learners.
- 107.
The CRPD Committee has encourage States Parties to introduce IEPs that identify the specific support needed for an individual student (see Draft General Comment No. 4, cit., para. 32).
- 108.
See OHCHR (2013), para. 49, also for some best practices in this field.
- 109.
The EU Disability Strategy 2010–2020 encourages the incorporation of accessibility and “design for all” in educational curricula and training for relevant professionals (p. 5).
- 110.
See General Comment No. 2 on accessibility, CRPD/C/GC/2, April 11, 2014, para. 39.
- 111.
The use of Braille and sign language to ensure accessibility for blind, deaf, and hard of hearing people was stressed in the Concluding Observations on Mexico, CRPD/C/MEX/CO/1, October 27, 2014, para. 48 (c), together with the crucial importance of teacher training in these areas, and in alternative modes and methods of communication. The CRPD Committee expressed its concerns about the fact that many States Parties have failed to make appropriate provision for children with sensory disabilities to acquire the life and social skills essential for participation in education and within their communities, requesting to fulfill the obligations arising from Article 24, para. 3 (see Draft General Comment No. 4, cit., para. 34).
- 112.
The CRPD Committee stressed the need to develop accessible pedagogic materials and methodologies, as well as to provide access to new technologies and the Internet to students with disabilities. See CRPD Committee, Concluding Observations on the initial reports of Azerbaijan, CRPD/C/AZECO/1, May 12, 2014, para. 41 (a); Belgium, cit., para. 37; El Salvador, CRPD/C/SLV/CO/1, October 8, 2013, para. 50 (c); and Republic of Korea, CRPD/C/KOR/CO/1, October 29, 2014, para. 46 (b). The need to adequate spaces, in particular, within universities was highlighted in the Concluding Observations on the initial report of Ecuador, CRPD/C/ECU/CO/1, October 27, 2014, para. 37 (d).
- 113.
All new objects, infrastructure, facilities, goods, products, and services have to be designed in a way that makes them fully accessible for persons with disabilities, in accordance with the principle of universal design, including construction of new buildings and renovations to existing ones. See CRPD Committee, General Comment No. 2, cit., para. 24.
- 114.
See IDA submission on inclusive education , cit., p. 9.
- 115.
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled was adopted by the WIPO Diplomatic Conference that took place in Marrakesh, Morocco, on June 17–28, 2013. The Treaty, entered into force on September 30, 2016, calls for copyright exceptions to ensure the accessibility of published works (in any media) for blind, visually impaired, or otherwise print-disabled persons.
- 116.
The CRPD Committee has urged States to ratify and implement the Marrakesh Treaty; see the Concluding Observations on the initial reports of Azerbaijan, cit., para. 47; Belgium, cit., para. 41; Costa Rica, CRPD/C/CRI/CO/1, May 12, 2014, para. 63; Denmark, CRPD/C/DEN/CO/1, October 30, 2014, para. 63; New Zealand, CRPD/C/NZL/CO/1, October 31, 2014, para. 66; Republic of Korea, cit., para 58; Ecuador, cit., para. 49; Mexico, cit., para. 58; Sweden, CRPD/C/SWE/CO/1, May 21, 2014, para. 54.
- 117.
In more than one General Comment, the CRC Committee has called on States to establish copyright exceptions for the benefit of children with visual or other impairments; see General Comment No. 16 on State obligations regarding the impact of the business sector on children’s rights, CRC/C/GC/16, para. 58, and General Comment No. 17 on the right of the child to rest, leisure, play, recreational activities, cultural life, and the arts, CRC/C/GC/17, para. 22.
- 118.
Several countries have introduced exceptions in their domestic legislation. See, for example, section 121(a) of the United States Copyright Act as amended in 1996, 17 U.S. Code § 121; Section 32 of the Canadian Copyright Act, as amended in 1997; European Union, Article 5, para. 3 (b) of the Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society of 2001; Brazil, Article 46 of Law 9.610 of 1998; Nicaragua, Article 34 of Copyright Law of 1999; Paraguay, Article 39 of Law 1328/98 of 1998; El Salvador, Article 44 of the Law on Promotion and Protection of Intellectual Property of 1993; Panama, Article 17 of Law 15 of 1994; and Dominican Republic, Article 44 of Law 65 of 2000.
- 119.
General Comment No. 17, cit., paras. 23 and 27.
- 120.
Ibid., para. 58(e) and (g).
- 121.
See UNESCO (2015). Fifty-nine Member States participated in this consultation by submitting national reports to UNESCO and 80 % of them reported on measures taken for disabled people.
- 122.
For a picture of national practices on the implementation of Article 24 among the 54 Commonwealth countries, see Rieser (2012).
- 123.
See UNESCO (2015), pp. 13 and 71.
- 124.
Ibid., p. 13.
- 125.
Ibid., pp. 14–15.
- 126.
- 127.
See UNESCO, UNICEF (2015).
- 128.
Italy has developed legislation to support inclusive education of all children with disabilities since 1970s (see laws No. 118/71, 517/77, and 104/92). Law No. 107/2015 on school reform foresees specific training processes and separate careers of support teachers, as well as compulsory training on the inclusion strategies for students with disabilities to be included in the curricula of curricular teachers, in order to improve the quality and continuity of education for pupils and students with disabilities. However, in 2014, DPOs promoted the Bill No. 2444 on inclusive education of pupils with disabilities and other special educational needs that was introduced into the Chamber of Deputies, but as of February 2016, it has not yet been adopted. http://www.senato.it/leg/17/BGT/Schede/Ddliter/44529.htmand. On the Italian inclusive education system, worldwide recognized as one of the most advanced, see Kanter et al. (2014); Cera (2015), pp. 102 et seqq.
- 129.
See Judgment of the Italian Constitutional Court No. 80 of February 22, 2010, published in “Gazzetta Ufficiale, I Serie Speciale”, No. 9 of March 3, 2010.
- 130.
Regarding the reduction of resources allocated to education in Italy and the negative impact on the provision of teaching support for children with disabilities, see European Parliament, Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs (2013), pp. 40–41.
- 131.
See Draft General Comment No. 4, cit., para. 59 et seqq; General Comment No. 4 (2016), cit., para. 57 et seqq.
- 132.
Draft General Comment No. 4, cit., paras. 68 and 69.
Table of Cases
Canadian Supreme Court 06.02.1997, Case No. 24668, Eaton vs Brant County Board of Education, [1997] 1 SCR 241
ECJ 13.02.1985, Case 293/83, Gravier v City of Liege, ECR 593
Italian Constitutional Court 22.02.2010, judgment No. 80, Gazzetta Ufficiale (I Serie speciale) No. 9 of 03.03.2010
References
Arnardóttir OM (2011) The right to inclusive education for children with disabilities-innovations in the CRPD. In: Eide A, Möller J, Ziemele I (eds) Making peoples heard. Essays on Human rights in honour of Gudmundur Alfredsson. Martinus Nijhoff Publishers/Brill, Leiden/Boston, pp 197–227
Beiter KD (2005) The protection of the right to education by international Law. Martinus Nijhoff Publishers/Brill, Leiden/Boston
Cera R (2015) National legislations on inclusive education and special educational needs of people with autism in the perspective of Article 24 of the CRPD. In: Della Fina V, Cera R (eds) Protecting the rights of people with autism in the fields of education and employment: international, European and national perspectives. Springer, Cham/Heidelberg/New York/Dordrecht/London, pp 79–108
Chiappetta Cajola L (2015) Tertiary education, vocational training and lifelong learning for adults with autism: comparing domestic laws and best practices. In: Della Fina V, Cera R (eds) Protecting the rights of people with autism in the fields of education and employment: international, European and national perspectives. Springer, Cham/Heidelberg/New York/Dordrecht/London, pp 109–143
de Beco G (2014) The right to inclusive education according to Article 24 of the UN Convention on the rights of persons with disabilities: background, requirements and (remaining) questions. Neth Q Hum Rights 32(3):263–287
European Agency for Fundamental Rights (2015) Implementation of the Convention on the rights of persons with disabilities (CRPD). An overview of legal reforms in EU Member States. FRA Focus 05/2015. Available via http://fra.europa.eu/en/publication/2015/implementing-un-crpd-overview-legal-reforms-eu-member-states. Accessed 30 Oct 2015
European Parliament, Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs (2013) Country Report on Italy for the study on Member States’ policies for children with disabilities. European Union, Brussels. Available at: http://www.europarl.europa.eu/studies. Accessed 30 Oct 2015
Kanter AS, Damiani ML, Ferri BA (2014) The right to inclusive education under international law: following Italy’s lead. J Int Spec Needs Educ 17(1):21–32. doi:10.9782/2159-4341-17.1.21
Miles S, Singal N (2010) The education for all and inclusive education debate: conflict, contradiction or opportunity? Int J Incl Educ. doi:10.1080/13603110802265125
Mitchell D (ed) (2005) Contextualising inclusive education: evaluating old and new international perspectives. Routledge, Abingdon/London
NESSE Network of Experts and European Commission (2012) Education and Disability/Special Needs-policies and practices in education, training and employment for students with disabilities and special educational needs in the EU. http://www.nesse.fr/nesse/activities/reports/activities/reports/disability-special-needs-1. Accessed 30 Sept 2015
OHCHR (2013) Thematic study on the right of persons with disabilities to education. Available via http://www.ohchr.org/EN/Issues/Disability/Pages/ThematicStudies.aspx. Accessed 30 Oct 2015
Osborne M, Rimmer R, Houston M (2015) Adult access to higher education: an international overview. In: Yang J, Schneller C, Roche S (eds) The role of higher education in promoting lifelong learning. UNESCO Institute for Lifelong Learning (UIL), Hamburg, pp 17–39
Parkes A (2013) Children and international human rights law: the right of the child to be heard. Routledge, Abingdon/Oxon/New York
Rieser R (2012) Implementing inclusive education: a commonwealth guide to implementing Article 24 of the UN Convention on the rights of persons with disabilities, 2nd edn. Charlsworth Press, London
Schulze M (2009) Understanding the UN Convention on the rights of persons with disabilities. http://www.handicapinternational.fr/fileadmin/documents/publications/HICRPDManualpdf. Accessed 30 Jan 2015
Shaw B (2014) Inclusion or choice? Securing the right to inclusive education for all. In: Sabatello M, Schulze M (eds) Human rights and disability advocacy. University of Pennsylvania Press, Philadelphia, pp 60–68
Shoonheim J, Ruebain D (2005) Reflections on inclusion and accommodation in childhood education: from international standard setting to national implementation. In: Lawson A, Gooding C (eds) Disability rights in Europe: from theory to practice. Hart Publishing, Oxford/Portland, pp 163–185
Tomasevski K (2005) Globalizing what: education as a human right or as a traded service? Indian Glob Leg Issues 12(1):1–78
UNESCO (2015) The right to education for persons with disabilities. Overview of the measures supporting the right to education for persons with disabilities reported on by Member States. UNESCO, Paris. http://unesdoc.unesco.org/images/0023/002325/232592e.pdf. Accessed 15 Oct 2015
UNESCO, UNICEF (2015) Fixing the broken promise of education for all. http://www.unicef.org/education/files/allinschool.org_wp-content_uploads_2015_01_Fixing-the-Broken-Promise-of-Education-For-All-full-report.pdf. Accessed 20 Sept 2015
World Health Organization, The World Bank (2011) World report on disability. WHO Press, Geneva
Yang J, Schneller C, Roche S (eds) (2015) The role of higher education in promoting lifelong learning. UNESCO Institute for Lifelong Learning (UIL), Hamburg
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Fina, V.D. (2017). Article 24 [Education]. In: Della Fina, V., Cera, R., Palmisano, G. (eds) The United Nations Convention on the Rights of Persons with Disabilities. Springer, Cham. https://doi.org/10.1007/978-3-319-43790-3_28
Download citation
DOI: https://doi.org/10.1007/978-3-319-43790-3_28
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-43788-0
Online ISBN: 978-3-319-43790-3
eBook Packages: Law and CriminologyLaw and Criminology (R0)