1. Committee on the Rights of Persons with Disabilities (“CRPD Committee”)
Convention on the Rights of Persons with Disabilities
Article 24 of the CRPD affirms the right of persons with disabilities to education. In order to realize this right without discrimination and on the basis of equal opportunity, States Parties are required to ensure an inclusive education system at all levels. States Parties must also ensure lifelong learning for the purposes of the full development of human potential, dignity, and self-worth as well as development of personality, talents, creativity, and mental and physical abilities, to their fullest potential so as to enable persons with disabilities to participate effectively in a free society.
Article 24(2) contains guidance on inclusive education:
(a) Persons with disabilities are not excluded from the general education system on the basis of disability and children with disabilities are not excluded from free and compulsory primary or secondary education on the basis of disability;
(b) Persons with disabilities can access an inclusive, free, and quality primary and secondary education on an equal basis with others in their communities;
(c) Reasonable accommodation of the individual’s requirements is provided;
(d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
(e) Effective individualized support measures are provided in environments that maximize academic and social development of persons with disabilities (consistent with the goal of full inclusion).
Article 24(3) emphasizes the need for persons with disabilities to learn life and social development skills in order to ensure their full and equal participation in education and as members of the community. Accordingly, appropriate measures to achieve these objectives include facilitating the learning of Braille, alternative script, augmentative and alternative modes, means, and formats of communication, and orientation and mobility skills. It also includes facilitating peer support and mentoring, the learning of sign language, and the promotion of the linguistic identity of the deaf community. The education of persons, and in particular children, who are blind, deaf, or deafblind, must be delivered in the most appropriate language, mode, and mean of communication for that individual in an environment that maximizes academic and social development.
The employment of qualified teachers and appropriate training of professionals and staff (i.e. disability awareness and use of appropriate augmentative and alternative modes, means, and formats of communication, educational techniques and materials) are also emphasized.
With regards to access to general tertiary education, vocational training, adult education, and lifelong learning, States Parties are required to ensure that reasonable accommodation is provided to persons with disabilities.
The following two CRPD General Comments address inclusive education:
General comment No. 2 on Article 9: Accessibility (Adopted 11 April 2014) (pdf; word)
General Comments No. 4 on Article 24: Inclusive Education (Adopted 2 September 2016) (pdf; word)
General Comment No. 2 addresses the accessibility of rights enshrined in the CRPD as well as discusses accessibility in the context of inclusive education. General Comment No. 2 emphasizes that the entire process of inclusive education must be accessible (i.e. not just buildings, but all information and communication) including ambient or FM assistive systems, support services, and the provision of reasonable accommodation in schools. Modes and means of teaching should be accessible and conducted in accessible environments. The environment must be designed in a way that fosters inclusion and guarantees equality in the entire education process.
General Comment No. 4 addresses the issue of inclusive education under Article 24 of CRPD. It outlines the historical development of this concept and defines the contents and core features of inclusive education General Comment No. 4 sets out the obligations of States Parties under Article 24 and explains its specific provisions including how such provisions should be applied in practice.
The CPRD Committee has, in its Concluding Observations for States Parties, set out its views on the implementation of Article 24 by States Parties and made recommendations in this respect.
The latest Concluding Observations on China and Hong Kong was adopted by the CRPD Committee at its eighth session on 17–28 September 2012 and published on 15 October 2012 (here). Regarding China, the CRPD Committee expressed concerns about the number of special schools and China’s policy of actively developing such schools. In particular, it is concerned that only students with certain impairments (i.e. physical disabilities or mild visual disabilities) are able to attend mainstream schools. The CRPD Committee recommended resources to be reallocated from the special education system to the promotion of inclusive education in mainstream schools, so as to ensure that more children with disabilities can receive mainstream education (Paragraphs 35-36).
Regarding Hong Kong, the CRPD Committee expressed concerns about the implementation of the Integrated Education Plan which aims to help students with disabilities study in mainstream schools. In particular, the CRPD Committee noted the teacher-student ratio and inadequate training for teachers. In addition, the CRPD Committee was concerned about low number of students with disabilities in tertiary education (due to the lack of coherent education policy). The CRPD Committee recommended a review of the effectiveness of the Integrated Education Plan and allocating sufficient resources to ensure accessibility in tertiary education (Paragraphs 73-74).
The excerpts from the recent Concluding Observations of all States Parties concerning Article 24 are accessible here. The Concluding Observations issued by the CRPD Committee are accessible at the United Nations website here.
Views on Individual Communications
The CRPD has not yet considered any individual communications related to Article 24. A list of all individual cases decided by the CRPD is accessible on the OHCHR website here.
2. UN Human Rights Council
Thematic Study on the Rights of Persons with Disabilities to Education
In recognition of the importance of the right to education, in 2013, the Human Rights Council requested the Office of the High Commissioner for Human Rights (“OHCHR”) to prepare a Thematic study on the Rights of Persons with Disabilities to Education (“Thematic Study”), in consultation with States and other relevant stakeholders. The Thematic Study focuses on inclusive education as a means to realize the universal right to education (including for persons with disabilities). It analyses the relevant provisions of CRPD, highlights good practices, and discusses challenges and strategies for the establishment of inclusive education systems.
The ongoing Thematic Study has so far received submissions from States, national human rights institutions, intergovernmental organizations, NGOs, INGOs, and DPOs. The submissions are accessible at the OCHCR website here.
The mandate of the Special Rapporteur on the right to education was originally established by the Commission on Human Rights in April 1998. Subsequent to the replacement of the Commission by the Human Rights Council in June 2006, the mandate was endorsed and extended by the Human Rights Council of 12 June 2008.
The Report of the Special Rapporteur on “The right to education of persons with disabilities” 2007 (doc) (“Report”) considers the right of persons with disabilities to inclusive education. The right to inclusive education implies that it is possible for all children and young people, regardless of their situations or differences, to learn together. The paradigm of inclusive education is a response to the limitations of traditional education, which has been described as patriarchal, utilitarian, and segregating. Inclusive education also addresses the shortcomings of special education and policies so as to integrate learners with special needs into mainstream educational systems.
The Report recommends a series of legislative, policy, and financial measures that require adoption and implementation. The Report also identifies obstacles that prevent the fulfilment of the right to inclusive education. This is indicated in the responses submitted by States and non-governmental organizations on a questionnaire by the Special Rapporteur, the purpose of which was to assess the degree to which international standards are being implemented in this area. The responses to the questionnaire cite the discrepancy between the normative framework and available resources as well as the lack of genuine political will as some of the obstacles to realizing the right to inclusive education.
3. Committee on Economic, Social and Cultural Rights (“ESCR Committee”)
International Convention on Economic, Social and Cultural Rights (“ICESCR”)
Even before the promulgation of the CRPD, the international community was expressing increasing interest and commitment to the protection of the right to education of persons with disabilities. Articles 13 and 14 of the ICESCR concerns the right to education. The concept of inclusive education is contained implicitly in Article 13(1), which reads:
“The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.”
Article 13(2) further lays out the fundamental principles that States Parties must recognize with a view of achieving full realization of the right to education for all. They include:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free 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;
(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.”
In 1994, the ESCR Committee issued General Comment No. 5: Persons with Disabilities which addresses how ICESCR provisions are to be applied in the context of persons with disabilities. Two important obligations stand out:
First, the obligation to eliminate discrimination on the grounds of disability, in particular in the area of education where a wide of range discrimination, from invidious discrimination such as denial of educational opportunities to more “subtle” forms of discrimination such as segregation, isolation or denial of reasonable accommodation, affect persons with disabilities in their access to education (Paragraphs 15-18).
Secondly, the obligation to ensure persons of disabilities are educated within the general education system, and echoing the words used in the famous Standard Rules on the Equalization of Opportunities for Persons with Disabilities adopted in 1993, in “integrated settings”.
In order to comply with such obligations, States should ensure that teachers are trained to educate children with disabilities within regular schools and that the necessary equipment and support are available to bring persons with disabilities up to the same level of education as their non-disabled peers. In the case of deaf children, for example, sign language should be recognized as a separate language to which the children should have access and whose importance should be acknowledged in their overall social environment (Paragraphs 35-36).
In its latest Concluding Observations of China, Hong Kong and Macau, the ESCR Committee noted that persons with disabilities in Macau experienced de facto discrimination and have limited access to inclusive education and teachers trained specially to educate children with disabilities (paragraph 60; pdf).
Several other recent Concluding Observations of the ESCR Committee also address the right to education of persons with disabilities, including:
Ireland: regarding discrimination in education caused by austerity measures and discriminatory criteria against children with special educational needs as contained in many admissions policies and the lack of a regulatory framework (Paragraphs 31-32 of Concluding observations on the third periodic report of Ireland issued on 8 July 2015)
Italy: regarding the standard of living and education, a high proportion of persons with disabilities who are uneducated, physical barriers in schools, and absence of training for teachers and education professionals (Paragraphs 24-25, 46-47, 54-55 of Concluding observations on the fifth periodic report of Italy issued on 28 October 2015)
Greece: regarding inclusive education (Paragraphs 39-40 of Concluding observations on the second periodic report of Greece issued on 27 October 2015)
Other Concluding Observations by the ESCR Committee are accessible at the OHCHR website here.
There is as yet to be any jurisprudence from the ESCR Committee on the right to education for persons with disabilities.
4. Committee on the Rights of the Child (“CRC Committee”)
Convention on the Rights of the Child
The CRC is the only United Nations treaty other than CRPD that addresses disabled children directly. Articles 23 and 29 of CRC detail the obligations of States Parties to ensure that mentally or physically disabled children enjoy a “full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community” (Article 23(1)). Article 29 deals with education, and states that education of children shall be directed to the following:
(a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
(c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;
(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
(e) The development of respect for the natural environment.
The CRC Committee adopted General Comment No. 9 on the rights of children with disabilities on 27 February 2007 in response to its findings that recommendations specifically addressing the situation of children with disabilities were necessary in an overwhelming majority of States Parties. General Comment No. 9 is meant to provide guidance and assistance to State Parties in their efforts to implement the rights of children with disabilities. It also expounds upon the meaning and implementation of various articles in the CRC.
The CRC Committee made the following comments in respect of inclusive education:
“Inclusive education should be the goal of educating children with disabilities. The manner and form of inclusion must be dictated by the individual educational needs of the child, since the education of some children with disabilities requires a kind of support which may not be readily available in the regular school system. The Committee notes the explicit commitment towards the goal of inclusive education contained in the draft convention on the rights of persons with disabilities and the obligation for States to ensure that persons including children with disabilities are not excluded from the general education system on the basis of disability and that they receive the support required, within the general education system, to facilitate their effective education. It encourages States parties which have not yet begun a programme towards inclusion to introduce the necessary measures to achieve this goal. However, the Committee underlines that the extent of inclusion within the general education system may vary. A continuum of services and programme options must be maintained in circumstances where fully inclusive education is not feasible to achieve in the immediate future.
The movement towards inclusive education has received much support in recent years. However, the term inclusive may have different meanings. At its core, inclusive education is a set of values, principles and practices that seeks meaningful, effective, and quality education for all students, that does justice to the diversity of learning conditions and requirements not only of children with disabilities, but for all students. This goal can be achieved by different organizational means which respect the diversity of children. Inclusion may range from full-time placement of all students with disabilities into one regular classroom or placement into the regular classroom with varying degree of inclusion, including a certain portion of special education. It is important to understand that inclusion should not be understood nor practiced as simply integrating children with disabilities into the regular system regardless of their challenges and needs. Close cooperation among special educators and regular educators is essential. Schools’ curricula must be re-evaluated and developed to meet the needs of children with and without disabilities. Modification in training programmes for teachers and other personnel involved in the educational system must be achieved in order to fully implement the philosophy of inclusive education.”
In the CRC Committee’s Concluding Observations on the third and fourth period report of China, Hong Kong and Macau of 29 October 2013 (pdf), the CRC Committee expressed concerns about the right to education for children with disabilities, including:
Underfunding of compulsory education for children with disabilities in China and inadequate resource allocation to education and social welfare for children with disabilities in Hong Kong (Paragraph 13)
Discrimination against children of disabilities in China in education (Paragraphs 25-26)
Discrimination against children of disabilities in Hong Kong in education (Paragraphs 29-30)
5. Committee on Elimination of Discrimination Against Women (“CEDAW Committee”)
In its latest Concluding Observations on China published on 14 November 2014, the CEDAW Committee expressed concerns about the limited access to education for women and girls with intellectual disabilities and recommended the removal of all obstacles to access to education for women and girls with disabilities (particularly those with intellectual disabilities) (paragraphs 35-36; pdf).
6. United Nations Educational, Scientific and Cultural Organization (“UNESCO”)
UNESCO is a UN agency created in 1945 premised on the belief that peace must be established on the basis of humanity’s moral and intellectual solidarity. UNESCO strives to build networks amongst nations by mobilizing education initiatives, building intercultural understanding, pursuing scientific cooperation, and protecting the freedom of expression.
UNESCO Policy Guidelines 2009
UNESCO issued its Policy Guidelines on Inclusion in Education in 2009 (pdf). The Policy Guidelines aim to assist States in strengthening ‘inclusion’ in strategies and plans for education, introducing the broader concept of inclusive education, and highlighting areas which require particular attention to promote inclusive education and strengthen policy development.
Part I explains the relevance of inclusive education in today’s context, outlines the legal frameworks in support of inclusion, and describes how inclusion is linked to ‘Education for All’.
Part II outlines the key elements in the shift towards inclusion with a particular focus on teaching for inclusion and the role of teachers, other educators, non-teaching support staff, communities, and parents. It highlights the challenges for policy-makers and areas of concern. It also provides suggestions and recommendations for developing an inclusive education system.
7. European Court of Human Rights (“ECtHR”)
Article 2 Protocol 1 of the ECtHR deals with the right to education and reads as follows:
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
Article 14 on the prohibition on discrimination reads as follows:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
It is well-established that disability is included in “other status”.
ECtHR case law on right to education for persons with disabilities
Whilst cases concerning persons with disabilities have rarely been raised before the ECtHR, compared to the position taken by the former European Commission of Human Rights (“European Commission”), the ECtHR seems increasingly willing to find a violation of Article 2 of Protocol No. 1 where States fail to provide reasonable accommodation or access to education facilities for students with disabilities.
The European Commission, in the cases of Klerks v. the Netherlands (4 July 1995) and McIntyre v. the United Kingdom (21 October 1998), gave a wide margin of appreciation to the authorities to decide on the best way to use the resources available for the interests of children with disabilities. In Klerks, that meant the State did not need to place a child with serious hearing impairment in a regular school. In McIntyre, that meant where the use of public funds and resources is required, the failure to install a lift at a primary school for the benefit of a pupil suffering from muscular dystrophy did not constitute a violation Article 2 of Protocol No. 1, whether taken alone or together with Article 14 of the ECHR.
By contrast, in the case of Cam v Turkey (23 February 2016), the ECtHR held that the State’s refusal to enrol a blind student into a music academy violated the right to education and constitutes discrimination. It also held that the State’s refusal to make reasonable accommodation to facilitate access to school facilities constitutes discrimination. A violation of both Article 2 Protocol No. 1 and Article 14 was found.
Note however that an application to the ECtHR might be declared inadmissible if the applicant failed to exhaust all domestic remedies first. In Gherghina v Romania (18 September 2015), the applicant complained he was unable to continue with his university studies due to lack of suitable facilities (such as access ramps) on campus. The application was declared inadmissible because the applicant did not exhaust all domestic remedies within Romania before making an application to the ECtHR.
8. European Committee on Social Rights (“European Committee”)
European Social Charter
The European Social Charter is a Council of Europe treaty that guarantees fundamental social and economic rights. It is a counterpart to the European Convention on Human Rights (which concerns civil and political rights). The European Social Charter guarantees a broad range of everyday human rights related to employment, housing, health, education, social protection, and welfare. The European Social Charter places emphasis on the protection of vulnerable persons such as elderly people, children, persons with disabilities, and migrants. It requires the enjoyment of the abovementioned rights be guaranteed without discrimination.
Regarding education, Article 17 of the Revised European Social Charter includes a general right to education for all children and young persons. It states that in order to ensure the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and physical and mental capacities, States shall, either directly or in cooperation with public and private organizations, provide a free primary and secondary education as well as encourage regular attendance at schools.
Article 15 deals specifically with the right of children with disabilities to education. Article 15 (right of persons with disabilities to independence, social integration, and participation in the life of the community) considers that persons with disabilities are to enjoy full citizenship and guarantees the essential rights to “independence, social integration and participation in the life of the community”.
Article 15 embodies a new approach to disability whereby disability is no longer seen in terms of the target group only or as individual problems. Rather, disability is regarded as a question of citizenship which affects the whole community. Therefore, it is necessary to remove barriers and end the exclusion of persons with disabilities. Article 15 applies in respect of all disabilities: physical, mental, and intellectual. According to Article 15(1), all persons with disabilities have a right to education and training which includes: general education, basic compulsory education, further education, and vocational training in the traditional sense. Persons with disabilities (children, adolescents, adults) must be integrated into mainstream facilities, education and training must be made available within the framework of ordinary schemes, and only where this is not possible, through special facilities.
The European Committee has issued a few decisions on the education of children with disabilities, including the following:
Association Internationale Autisme-Europe (AIAE) v. France, Complaint No. 13/2002, Decision on the merits of 4 November 2003. The European Committee held that the underlying vision of Article 15 is one of equal citizenship for persons with disabilities and, fittingly, the primary rights are those of “independence, social integration and participation in the life of the community”. Article 15 applies to all persons with disabilities regardless of the nature and origin of their disability and irrespective of their age. Regarding education (Art 15(1)), the European Committee held that teaching (whether in mainstream or special schools) must be adapted to suit students with disabilities so as to guarantee equal and non-discriminatory treatment.
European Action of the Disabled (AEH) v. France, Complaint No. 81/2012; 11 Sept 2013. The European Committee held that France violated Article 15(1) in regard to its provision of education to autistic children because vocational training was not guaranteed and work in specialized institutions was not predominantly educational in nature. The European Committee also found that the State provided limited funds in this respect. As a result, parents were forced to educate their children outside France.
The European Committee monitors compliance with the European Social Charter through reports drawn up by States Parties. It then publishes Conclusions outlining whether the national situations comply with the European Social Charter. Follow-ups to the Conclusions are carried out by the Committee of Ministers of the Council of Europe, which intervenes in the last stage of the reporting system.
All Conclusions and Follow-up on Conclusions on Article 15 of the European Social Charter are accessible at the HUDOC website here.