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de Beco, G (2016) Transition to Inclusive Education Systems According to the Convention
on the Rights of Persons with Disabilities. Nordic Journal of Human Rights, 34 (1). pp.
40-59. ISSN 1891-8131
https://doi.org/10.1080/18918131.2016.1153183
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1
Transition to Inclusive Education Systems According to the
Convention on the Rights of Persons with Disabilities *
Gauthier de Beco
Lecturer in Disability Law; University of Leeds
Forthcoming in the Nordic Journal of Human Rights (2016 - Vol. 34 No. 1)
Abstract:
This article deals with the transition to inclusive education systems, and therefore concerns
states that have built segregated education systems. Article 24 of the Convention on the Rights
of Persons with Disabilities (CRPD) proclaims the right to inclusive education for disabled
people. State parties that are equipped with special schools, however, face particular
challenges in progressively realising the right in question. This article therefore examines
what ‘inclusive education’ truly means, what steps must be taken to achieve it, and what tools
can be used to ensure the transition to inclusive education systems so as to comply with the
CRPD. Considering the obstacles to inclusive education, the article argues that inclusive
education is a process that needs permanent efforts to adapt the general education system to
disabled children. It also considers the implementation of the right to education of disabled
people through the adoption of national human rights action plans and the use of human
rights indicators.
Key words:
Inclusive Education – CRPD – Disabled Children – Segregated Education – Transition –
Progressive Realisation – Challenges
I. Introduction
As with anyone else, the right to education is of the utmost importance for disabled people.
Education works as a multiplier, since it enhances both economic, social and cultural rights,
such as the right to work and the right to food, in addition to civil and political rights, such as
the right to vote and the freedom of speech. The right to education also has a added impact on
disabled people, as it enhances their autonomy and strengthens their participation in society. It
can alleviate their marginalised position and empower them to take control of their life. In
view of this, the right to education is probably the most effective means of achieving equal
opportunities for disabled people.
This article focuses on the transition to inclusive education systems. It therefore concerns
states that have built segregated education systems. Article 24 of the Convention on the
Rights of Persons with Disabilities
1
(CRPD) proclaims the right to inclusive education for
* At the very last stage of the review process of the present article, the CRPD Committee issued Draft General
Comment No. 4 on the Right to Inclusive Education (Draft General Comment). See:
http://www.ohchr.org/Documents/HRBodies/CRPD/GC/DraftGC_Education.doc (accessed 2 February 2016).
While it was not possible to discuss this draft in depth, a few suggestions on its content are made in the
footnotes, where relevant.
1
Convention on the Rights of Persons with Disabilities 2006, 46 ILM 443.
2
disabled people. In wealthier states, however, disabled children often receive special
education, since the general education system is not adapted to their individual needs. These
states face particular challenges in progressively realising the right to inclusive education.
What these states require therefore is to transform their education systems. This article
outlines the state obligations for the right to education of disabled people and attempts to
provide a definition for the concept of ‘inclusive education’ in the CRPD. It examines the
main challenges to progressively realise the right to inclusive education and considers
whether any obstacles to inclusive education can be removed in practice. It also explores what
tools can be used to ensure the transition to inclusive education systems so as to comply with
the CRPD. It suggests that a gradual approach is required to achieve inclusive education, by
adopting national human rights action plans and using human rights indicators, while relying
on the recommendations of the Committee on the Rights of Persons with Disabilities (CRPD
Committee) and other UN bodies.
The article is divided into three parts. The first part analyses the various elements of the right
to education of disabled people under the CRPD. It then moves to discuss the challenges in
progressively realising the right to inclusive education as well as limits to adapting the general
education system to disabled children. Thirdly, the article examines how both ensuring the
transition to inclusive education systems and how national human rights action plans and
human rights indicators can help towards the purpose.
II. Standards Relating to the Right to Education of Disabled People
Several international legal instruments protect the right to education. In addition to article 26
of the Universal Declaration of Human Rights, both articles 13 and 14 of the International
Covenant on Economic, Social and Cultural Rights
2
(ICESCR) and articles 28 and 29 of the
Convention on the Rights of the Child
3
(CRC) recognise ‘the right of everyone to education’
and provide obligations relating to primary, secondary and tertiary education. The UNESCO
Convention against Discrimination
4
also prohibits discrimination in education based on
various grounds (but not disability).
Article 24 of CRPD protects the right to education of disabled people. Concerned with the
exclusion of many disabled children from the general education system, the drafters of the
Convention opted for the principle of inclusive education. While the idea was expressed
previously in the 1993 Standard Rules on the Equalization of Opportunities for Persons with
Disabilities (Standard Rules)
5
and the Salamanca Statement and Framework for Action on
Special Needs Education (Salamanca Statement),
6
the CRPD is the first binding international
legal instrument to establish a right to inclusive education for disabled people.
7
Inspired by
2
International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3.
3
Convention on the Rights of the Child 1989, 1577 UNTS 3.
4
Convention against Discrimination in Education 60, 429 UNTS 93
5
Article 3(5), Jomtien Declaration; Rule 6 (1), Standard Rules.
6
World Conference on Special Needs Education: Access and Equality, Salamanca Statement and Framework
for Action on Special Needs Education, Salamanca, 7-10 June 1994, available at:
http://unesdoc.unesco.org/images/0009/000984/098427eo.pdf (accessed 2 February 2016).
7
G de Beco, ‘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’ (2014) 32 NQHR 263, 272-
74.
3
the social model of disability,
8
the Convention sees disabled people as ‘those who have long-
term physical, mental, intellectual or sensory impairments which in interaction with various
barriers may hinder their full and effective participation in society on an equal basis with
others’.
9
The Convention adopts a ‘social and relational approach’ to disability,
10
which
distances itself from the medical model of disability.
11
It aims to abolish the different
mechanisms that exclude these persons by removing the physical and social obstacles to their
participation in society. Accordingly, article 24 of the CRPD guarantees that these persons are
fully included in the general education system. It even provides in the most straightforward
way for inclusion in the entire Convention.
The drafters of the CRPD did not immediately agree on the right to inclusive education. There
was a lot of discussion on whether special education still had to be made available to disabled
people. The Ad Hoc Committee initially left to them the right to choose between inclusive
and special education.
12
While some of the drafters considered that special schools should still
exist, others thought that inclusive education should be the norm.
13
In this regard, the
Standard Rules recognised that ‘[i]n situations where the general school system does not yet
adequately meet the needs of all disabled people, special education may be considered’,
although it ‘should be aimed at preparing students for education in the general school
system’.
14
The Committee on the Rights of the Child also considered that ‘the measure in
which the inclusion occurs, may vary’.
15
There were thus doubts about whether inclusive
education was the preferable option in all circumstances for disabled children. The CRPD’s
drafters eventually decided in favour of inclusive education.
16
Thus, article 24(1) of the CRPD stipulates that ‘States Parties shall ensure an inclusive
education system at all levels and lifelong learning’, thereby providing a legal basis for the
principle of inclusive education in international law. Article 24(2) (a) and (b) of the CRPD
also provides that the state parties shall ensure that ‘children with disabilities are not excluded
from free and compulsory primary education on the basis of disability’ and that ‘persons with
disabilities can access an inclusive, quality and free primary education and secondary
education on an equal basis with others in the communities in which they live’. Consequently,
disabled children may not be denied education because of their disability and must be able to
enrol in neighbouring schools.
Article 24 of the CRPD also outlines the obligations to be fulfilled for the right to education
of disabled people. Article 24(2)(c) provides that state parties shall ensure that ‘[r]easonable
8
R Kayess and P French, ‘Out of the Darkness into Light? Introducing the Convention on the Rights of Persons
with Disabilities’ (2008) 8 HRLR 1, 5-7.
9
Article 1, CRPD.
10
M Sabatello, ‘A Short History of the Movement’ in M Sabatello and M Schulze (eds), Human Rights &
Disability Advocacy (University of Pennsylvania Press, 2013) 13, 22.
11
A Kanter, ‘The Relationship between Disability Studies and the Law’ in A Kanter and B Ferri (eds), Righting
Education Wrongs (Syracuse University Press, 2013) 1, 12-13.
12
Draft article 17(3) of the CRPD provided 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’ (Report
of the Working Group to the Ad Hoc Committee (2004) UN Doc A/AC.265/2004/WG/1, Annex 1, available at:
http://
www.un.org/esa/socdev/enable/rights/ahcwgreportax1.htm (accessed 2 February 2016)).
13
B Byrne, ‘Hidden Contradictions and Conditionality: Conceptualisations of Inclusive Education in
International Human Rights Law’ (2013) Disability & Society 232, 239.
14
Rule 6 (8), Standard Rules.
15
Committee on the Rights of the Child, ‘General Comment No. 9: The rights of children with disabilities’, 27
February 2007, CRC/C/GC/9, para. 66.
16
de Beco (n 7) 273-74.
4
accommodation of the individual’s requirements is provided’. While this obligation is already
provided for in article 5(3) of the Convention, it is thus repeated in relation to education.
‘Reasonable accommodation’ refers to an individualised measure that enables disabled
children to be educated in mainstream schools. However, such a measure targets the children
but not the schools themselves. Reasonable accommodation does not aim to achieve inclusive
education by altering the general education systems. That being said, article 2 of the CRPD
stipulates that ‘denial of reasonable accommodation’ is a form of discrimination.
17
In addition, the CRPD obliges state parties to adopt a series of measures so that disabled
children can participate in the general education system. These measures aim to supplement
the ‘reasonable accommodation’, although they should also be tailored to their individual
needs. Article 24(2)(d) and (e) of the Convention requires that ‘[p]ersons with disabilities
receive the support required, within the general education system, to facilitate their effective
education’ and that ‘[e]ffective individualised support measures are provided in environments
that maximize academic and social development, consistent with the goal of full inclusion’.
18
While both provisions seem to stipulate the same, their drafting history indicates that they
have different purposes. Originally, they were part of the same paragraph, but the second
sentence stated that ‘[i]n exceptional circumstances where the general education system
cannot adequately meet the support needs of persons with disabilities …. [a]lternative support
measures’ have to be provided. The terms ‘environments that maximize academic and social
development’ also found their way into article 24(3)(c) of the CRPD which creates a special
regime for blind, deaf, or deafblind children.
19
In view of this, article 24(e) could be seen as
an obligation to equip schools with specific support measures facilitating the transition to
inclusive education systems. While the drafters of the Convention initially thought of making
an exception to the support measures that have to be generally available according to article
24(2)(d), such measures may deviate slightly if the general education system cannot meet
their individual needs in this way.
20
They may therefore be ‘individualised’ further and be less
integrated into the overall support. The result may nonetheless not amount to segregated
education, as confirmed by the terms ‘consistent with the goal of full inclusion’ of article
24(2)(e) of the CRPD.
Furthermore, to achieve inclusive education, state parties have to adopt measures concerning
other school actors too. Article 24(4) of the CRPD requires that teachers be trained in ‘the use
17
Article 2 of the CRPD defines the concept of ‘reasonable accommodation’ as ‘necessary and appropriate
modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular
case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human
rights and fundamental freedoms’.
18
O Arnardóttir, ‘The Right to Inclusive Education For Children With Disabilities – Innovations In the CRPD’
in A Eide, J Möller and I Ziemele (eds), Making Peoples Heard Essays on Human Rights in Honour of
Gudmundur Alfredsson (Martinus Nijhoff Publishers, 2011) 197, 216-17. For the subsequent versions see: Ad
Hoc Committee, ‘Sixth Session, Ad Hoc Committee on a Comprehensive and Integral International Convention
on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’, 17 August 2005,
A/60/266, Annex II, para. 36, available at :
http://www.un.org/esa/socdev/enable/rights/ahc6docs/ahc6reporte.pdf (accessed 2 February 2016); Ad Hoc
Committee, ‘Seventh Session, Ad Hoc Committee on a Comprehensive and Integral International Convention on
the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’, 13 February 2006,
A/AC.265/2006/2, Annex II, available at:
http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7report-
e.pdf (accessed 2 February 2016).
19
Arnardóttir (n 18) 219-20.
20
It could therefore give leeway for adopting targeted support measures for those children with disabilities
whose individual needs cannot be met generally ‘in exceptional circumstances’ (as provided in the original
version of article 24 (2)(e)).