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Back to: Sixth
Session of the Ad Hoc Committee
Summaries of the Sixth Session
Original
MS Word version
Languages: French
A service brought to you by RI (Rehabilitation International)
Draft Article 17 – Education (cont)
Yemen emphasized the need for the education and training of
disabled children to enable them to work when they reach maturity. However there
needs to be a balance with Article 16 on Children so this article should not
be about children only. The importance of professionals specializing in education
and training should be recognised. It questioned the need for the reference
to “mandatory” education in 2(c).
China called for the retention of the chapeau’s language on
progressive realization and equality. No model of education, special or general,
should be excluded as a way to fulfill the right to education. CRC Article 28.1
should be reflected in the chapeau. It supports Russia that the article should
reference PWD not only children with disabilities. The purpose of education
should be limited to the formulation in Article 13.1 of the CESCR rather than
inserting any new ideas. In para 1(b), China supported the proposal of Mexico
to insert “and inclusive”. In para 1(d), the focus should be on PWD rather than
children. In para 5, as proposed at AHC4, appropriate measures should be taken
to ensure equal opportunities in accessing higher education and training.
Chile supported the WG text with the Australian amendments
which contains stronger obligations upon states. Inclusive education should
be the primary focus. The reference to progressive realization should be removed.
Education is a lifelong process and therefore “persons with disabilities” should
be used instead of “children with disabilities”.
Norway preferred the Australian proposal as it strengthens
the WG text, particularly in its chapeau and Para 1(iii). References to “persons
with disabilities” are preferable to “children” or “students”.
The Chair noted that the Australian proposal tracks the WG
text quite closely. If there is agreement on substantive elements, it should
be possible to amend the WG text, mainly in the chapeau and structure, accordingly.
Korea agreed that “children” should be changed to “persons”
as education includes lifelong learning and adult education. The principle of
inclusiveness should be incorporated in the second part of the chapeau of para
1 by inserting “and according to the principle of inclusive education” or some
other formulation, as suggested by the EU.
Japan asserted reservations with regard to replacing “children”
with “people” or “student” due to differences in the way their domestic laws
deal with the education of children and higher education.
Serbia-Montenegro stressed the need to replace “children” with
“persons”. Training and lifelong learning should be more explicit within the
text. The EU text’s reference to states parties committing themselves to the
goal of inclusiveness may be good compromise language and perhaps a less controversial
way to insert this principle into the chapeau of the WG text.
EU put forward a new proposal based on the WG text but with
a restructuring that reflects proposals from Australia and Jordan. (http://www.un.org/esa/socdev/enable/rights/ahc6eu.htm.
The chapeau must be strengthened. Progressive realisation issues should be handled
as a general statement elsewhere. The principle of equal opportunity in the
WG text should be replaced by the stronger principle of non- discrimination.
The EU text has been structured so that the core principles are contained in
para 1. The purpose of education is in para 2, which is similar to the WG text.
Para 3 refers to the issues specific to children because they are dealt with
differently in international covenants. Para 4 deals with issues of access and
improving understanding. Para 5 covers training and alternative modes and means
of communication. The first sentence of the chapeau has been reworded to stress
the issue of non-discrimination, to stress the goal of inclusiveness but to
couch its exception so that it remains the ultimate goal. The phrase “effective
alternative forms of education” has been included because of concerns that by
NGOs in particular that “alternative forms of education” may be of a lower standard.
The Chair reviewed the three texts in circulation. Para 1 of
the WG text is equivalent to Australian text para 1 and EU text para 1 and 2;
para (d) of the WG text is covered elsewhere in the EU text. The Chair asked
that interventions be focused on the chapeau and paras 1 (a), (b), (c) and (d)
of the WG text, in order to avoid confusion while referring to other texts and
proposals.
Argentina supported use of the term “persons” rather than “children”.
It proposed removing para (d) from Article 17 and placing it in Article 16 on
the rights of children. The Chair noted that there is a difference of view on
whether Article 16 will remain, but Argentina’s proposal will be noted.
Thailand emphasised that the right to education should be on
an equal basis with others. It noted that the “right to inclusive education”
or alternative forms of education are in fact references to educational service
delivery models. They refer not to the right to education but to the means to
achieve that right and therefore do not belong in a chapeau. The obligation
“to make education that is provided to the general public inclusive to PWD”
could be mentioned in the first para but references to “alternative” and “inclusive”
forms of education describe models of education that should not be mentioned
here: http://www.un.org/esa/socdev/enable/rights/ahc6thailand.htm.
It supported using “person” or “student” rather than “child” in para 1of WG
text.
Russian Federation suggested combining the proposals put forth
by Australia and the EU by incorporating the first two sentences from the Australian
text into the WG text, deleting the reference to progressive realization, and
retaining the reference to equal opportunity. Education and training of PWD
should take place in accordance with general education standards. This is a
key component to the integration and rehabilitation of PWD. The term “children”
should be replaced by “persons” or “students”. It is fundamental that the provision
with respect to the rights of education for children with disabilities be maintained
in the text. The language of 1(d) of the WG text and para 1(iv) of the Australian
text, on individualizing education plans should be changed to “individualizing
education methods”, given the broad differences among PWD, as this would encompass
educational plans, technologies and modes of education.
The Chair enquired further into the differences in nuance between
“plan” and “method”.
India supported inclusion of “persons” rather than “children”
in the chapeau and the inclusion of training. It is important for this article
to be consistent with provisions in other instruments; therefore, the retention
of all elements in para 1 is essential. This is not intended to diminish obligations
of state parties but recognise that the efficacy of any legal regime or rights
to be introduced is closely linked with availability of resources. However if
and when there is agreement on this concept in Article 4, the reference to progressive
realization of rights could be dispensed with here. India agrees with delegations
advocating for references to different approaches to the right to education.
The EU proposal recognizes the goal of inclusiveness but also recognizes where
the general education system does not meet the needs of PWD, alternative forms
of education should also be provided.
New Zealand agreed with Australian and EU proposals on the
use of “person” rather than “child” in the chapeau. The exception for this is
in 1(d), where in addition, “taking into account” should be deleted. The phrase
“in particular by individualizing education plans” is a jargon term and should
also be deleted. With respect to the Russian proposal, “plans” are not the same
as “methods”, at least in English, and such a prescriptive reference potentially
confines this convention to current methods. NZ shares Thailand’s concerns that
references to “inclusive education” describe a model of education rather than
the right, and notes that this is also a jargon term. While NGOs have attempted
to define this term, and NZ strongly supports the concept behind it, it needs
to be made clear that this term is about ensuring that PWD have access to all
of the general education system, and about making the general education system
inclusive. The Australian text’s listing of all the various educational settings
in the chapeau of para 1 “pre-school, primary, secondary, tertiary ….etc” is
a positive contribution, because this para seeks to highlight the purpose of
education, and it should be emphasized that the purpose of education applies
in all settings.
The Chair read out a note from the Thai delegation, stating
that “Individualized education program” is an established term.
Israel recommended that both terms “plan” and “method” should
be included as “plan” refers to curricular matters whereas “method” refers to
strategies. Human rights education and other professionals should be included
in 2(b): “…. psychologists, and other relevant professionals, in an accessible
curriculum based on human rights principles.” The Chair sought
clarification with regard to use of "program" as opposed to "method"
and "plan". Israel clarified that they preferred
the inclusion of both “method” and “plan” instead of “program.”
Jordan supported the EU in stressing the importance of including
the principle of inclusive education in the chapeau. All barriers to inclusive
education should be removed, social, physical, communicational, attitudinal
and any other barrier.
The reference to children should be removed from the chapeau. Para 1(b) should
be removed as this is a goal of the convention as a whole, not specific to education,
and mentioned elsewhere.
Mexico supported a general reference to all PWD rather than
singling out particular groups. The right to education is valid for all PWD
throughout their lives and in all phases of education, and this is stated in
the Australian proposal. A reference should be included in para 1(d) to satisfy
the special educational needs of PWD, not by individualising education plans,
but by making curricular adjustments to the general educational plan. Identifying
the individual educational needs will enable the provision of an integrated
form of education, and rule out any form of segregation.
Russian Federation agreed with the rationale and language of
the Israeli proposal to include “plans and methods” in para (d).
Costa Rica agreed with the added value of the EU proposal regarding
the goal of inclusiveness, as well as its exception. This could be strengthened
by ensuring the right to education of all PWD on the basis of equality of opportunity
“at all stages of life and all educational levels and services”. It agrees with
delegations seeking to broaden the scope of educational plans in 1(d). The article
should deal with all persons, not just children. The issue of disability, PWD
and their interaction in the field of human rights should be made part of the
general curriculum of all educational programs, which would facilitate inclusion
and reinforce ethics-based tolerance. Gender should be addressed in a crosscutting
manner and should be reflected in this article. Para 1(a) should include an
explicit reference to the “inherent” dignity of the human person.
Yemen preferred references to “persons” instead of “children”
or “student” because in many countries there is a distinction between students
and trainees. There is a distinction between “plans” and “methods”.
The EU preferred the use of the term “plans” in para 1 (d)
given its focus on the individual needs of the child. A plan could include alternative
methods of education, as well as inclusion in a specific program of education.
Para 1(d) is concerned with linking the individual child to the best available
education and therefore “individualized education plans” is the best formulation.
The EU prefers the use of the term “persons” as the reference to “students”
can be ambiguous and subject to misinterpretation.
Oman preferred references to all PWD. The training of specialists
in special programs and the provision of sufficient resources to achieve this
objective should be strengthened.
Costa Rica proposed the inclusion of “creativity” in para 1(c)
and a caveat in para 1(d) that takes account of the interests of the educator,
in particular their various styles and pace of learning through appropriate
education plans.
Qatar supported replacing “children” with “persons” and deleting
“free” in para 1(b) enabling all PWD to participate effectively in society.
The term freedom has many different implications.
Canada agreed with many delegations that the education of children
with disabilities should be mainstreamed into this article, but the article
should not be limited to children. Para 1 should be revised as a general chapeau
for the whole article based on the CEDAW non-discrimination model and applying
to every person with a disability. Progressive realization of economic, social
and cultural rights should be addressed in Article 4. The subparas in para 1
should be deleted because they repeat provisions already contained in the CESCR,
with the exception of the last subpara on the principle of the best interests
of the child, which is enshrined in the CRC and belongs in a general provision
like Article 2. http://www.un.org/esa/socdev/enable/rights/ahc6canada.htm
Norway supported Canada’s proposal to enshrine the principle
of the best interest of the child in Article 2. Para 1(d) is taken from CRC
and it would not make sense to change this reference to “person.”
The Chair highlighted the clear consensus that the chapeau
should refer to persons rather than children with disabilities but that the
reference to children in 1(d) should remain. The first sentence of para 1 has
been generally accepted. The Australian and EU proposals also contain that sentence.
Although the EU proposal also refers to non-discrimination, many delegates want
to retain “on a basis of equal opportunity” or “on a basis of equality with
others”. The first and second sentences will be retained with the replacement
of children with persons in the second sentence.
A majority of delegations wish to delete references to the progressive realization
of this right. At least one delegation pointed out that the reference might
not be necessary depending on its inclusion in Article 4 or elsewhere in the
convention. The CRC language may be helpful. Everyone has accepted that the
realization of economic, social and cultural rights will be reflected in the
convention as being progressive.
A number of delegations supported the need to express commitment to the goal
of inclusiveness in the chapeau. A concern was expressed that the approach of
the Australian proposal was too focused on inclusive education because there
may need to be exclusions from that on occasion. The Chair suggested using the
language of the EU proposal as a compromise.
Apart from one delegation suggesting the deletion of all subparas, most addressed
their substance and there was no overwhelming view to delete them. Para (a)
received general support with a suggestion from Costa Rica to take up more specifically
the reference to human rights. Under para (b), Qatar questioned the reference
to “free society”. This is from CRC Article 29.1(d) and ICESCR Article 13.1,
is accepted terminology and does not reflect any ideology. There was a proposal
to include a reference to creativity in para (c) to which nobody objected. The
reference to the child is to be replaced by person. The phrase “education plans”
caused some difficulty in para (d). “Plans and methods” received a good deal
of support although there may still be unanswered questions regarding that.
There was also some concern that the phrase “taking into account the best interest
of the child” is not strong enough. CRC Article 3, which states “the best interest
of the child shall be a primary consideration” is stronger. This para should
not slip below the standard in the CRC and so CRC language should be used.
The Chair noted that if delegations object to the balance that he has sought
to find in these proposed amendments, there will be an opportunity to return
to them later. He asked for comments on Para 2 of the WG text which is closely
tracked in the Australian proposal and in paras 3 and 4 of the EU proposal.
Thailand suggested insertion of “quality” before “education”
in 2(a) because the purpose of inclusive and accessible education is participation.
Any service that does not allow full participation of PWD should not be considered
inclusive. With reference to the inclusion of “program” in Para 1, it is cited
from the Individuals with Disabilities Education Act, which has been in use
for many decades.
Japan proposed inserting “endeavor” between “ensure” and “shall”
in the chapeau because “shall ensure” is too strong. Education within the community
is ideal but this may not always be possible and in certain circumstances a
child will have to attend school outside of their community, so “to the extent
possible” should be added.
The EU proposed an alternative text for para 2. The WG text’s
Para 2 is EU Para 4 on access to education. Para 2(a) of the WG text is in EU
text 4(b), which deals with Thailand’s point regarding quality education, Japan’s
concerns with education within the community, and reasonable accommodation is
also dealt with in that para. WG text 2(b) is in EU text Para 5. WG text 2(c)
is EU text 4(a) but is broadened to cover all persons as opposed to children.
Serbia-Montenegro supported the EU proposal, the Australian
text’s references in 17(bis) to “..orientation and mobility skills, peer support
and mentoring…” and suggested that the Australian and EU delegations propose
a combined text. It echoed the Canadian concerns regarding listing; there is
exhaustive listing in WG text 2(b). Serbia-Montenegro supported Costa Rica’s
proposal regarding 1(a).
Chile suggested inserting “quality” into para 2(a) because
in some cases the education provided to PWD is not of an equal quality with
that of their non-disabled counterparts. This would reaffirm the contents of
the Salamanca Declaration referring to education. Chile suggested including
reference to teachers and other professionals with disabilities in para (b)
to ensure access of PWD to this field. There may be empathy between teachers
and educational professionals with disabilities and PWD and providing support
for such professionals would be a positive contribution. Secondary education
should be included in para (c).
Jamaica suggested, in keeping with the chapeau, to replace
“students” with “persons” in para (b). This para is a good example of the need
for references to international cooperation. There are states that can share
their knowledge and expertise on providing and improving access to education
for all PWD in terms of accessible formats, access to the physical environment
and assistance in training.
Russian Federation supported replacing WG text 2(a) with EU
text 4(b).
It would be problematic to grant opportunities for learning directly in the
community that the PWD resides. The term “community” is not appropriately translated
in the Russian text. Place or area of residence might be more appropriate. There
is merit in the proposal to add “quality”. In addition, the right to access
relevant education and the establishment of a standard prohibiting denial of
such a right is an important element of EU text 4(a) that should be contained
in the convention. These elements could be contained in para 2(a) or in a separate
para. Russia is flexible with respect to the elements contained in WG text 2(b),
Australian text 2(ii) and EU text para 5, as they correspond with each other.
Para 2(c) should also refer to secondary education.
The Chair summarized the proposals put forth under para 2 of
the WG text. There has been a proposal to change the chapeau so that states
are obliged “to endeavor to ensure” rather than “ensure” the subsequent obligations.
Another qualifier proposed by one delegation and in the EU text is that the
obligation to provide education within the community be softened with “to the
extent possible”. He requested delegations to address these proposed amendments.
Thailand’s proposal to refer to “inclusive and accessible quality education”
in 2(a) was supported by other delegations, and will be inserted unless objections
are raised. The Chair also noted the emergence of the theme of training and
education to be provided throughout the lives of PWD, which is contained in
EU text 4(a). As echoed by Mexico and Costa Rica and Chile this para should
not be restricted to children and should not be restricted to primary education.
New Zealand proposed deleting the reference to “choice” from
the WG text 2(a) in the event that the EU text is not adhered to. As expressed
by many NGOs choice in this situation can be misinterpreted and the EU proposal
has dealt with this issue very well. There should be no sense of choice in this
article in terms of obligations of states between segregated and inclusive systems.
Special provisions can be made within the general education system. EU text
4(b) addresses Japan’s concerns, which New Zealand understands, as for example,
tertiary education is not provided in everyone’s community, and makes a positive
contribution with the addition of “throughout their lives.” This latter point
is also reflected in para 1 of the Australian text. It is not necessary to add
“endeavor”. Also many PWD may miss out on primary education as children therefore
it is important that they can access primary education as adults if that is
necessary. Therefore “child” should be replaced with “person” in 2(c) or the
phrase “including the provision of catch-up services as appropriate” should
be inserted.
Brazil preferred references to “ensure” rather than “endeavor
to ensure”. It also favors retaining the clear and direct right of PWD to choose
inclusive and accessible education without qualifiers.
Norway preferred references to “ensure” rather than “endeavor
to ensure”. It agreed with Chile that para 2(a) should not be restricted to
early childhood and preschool education, these references should be removed,
and it ideally would have preferred the language of the Australian proposal’s
para 1. In 2(b) Norway supports the EU text para 5 with regard to professional
training. As stated by New Zealand, “child” should be changed to “person” in
para 2(c).
Argentina suggested the following amendments to the WG text
chapeau: para 2(c) should be moved to the beginning to become 2(a) and “primary”
should be deleted because in some countries it is not only primary education
that is compulsory; para (b) should be divided into two paras; one dealing with
the required support including the training of teachers, councilors and psychologists
and the second with the establishment of methods, programs and technologies
including a reference to alternative languages and formats.
Chile emphasized that the subpara’s obligations should be reinforced
and made clear and therefore the chapeau should remain to “ensure.” “Endeavor
to ensure” is much weaker.
India proposed modifying para 2(a) to read “to the extent possible
in the communities in which they live” in support of the EU proposal.
Uruguay supported the WG text chapeau so as not to weaken the
obligation. It supported the EU proposal with regard to education within the
community. There are many small communities in many countries where basic primary
and secondary education services are not provided therefore, it would be difficult
for these countries to fulfill this commitment.
Mexico recommended replacing “in their own communities” with
“the community in which they live” in para 2(a) to take into account mobility
restrictions and the diversity within countries. Reference to the employment
of teachers with disabilities should be included in order to prevent discrimination
based on disability.
Peru supported the WG text chapeau with the recognition of
the importance of inclusive education, the insertion of the word “quality” to
describe it; the broadening of the reference to education in the community because
some small communities do not have access to certain types of schools given
their remote locations; and replacing the reference to “primary” education in
para (c) with “basic” education, or, as in the Australian proposal, adding “secondary”
education.
The Chair responded to proposals to remove or add to references
to “free” and “primary” education in 2 (c). He noted his understanding that
para (c) does not oblige states to provide free and compulsory education to
PWD, rather that states are obliged not to deny access to free and compulsory
education on the grounds of disability. PWD are placed on the same status as
persons without disabilities. If free and compulsory primary education is available,
it should be made available to PWD without discrimination based on disability.
Likewise, if free and compulsory secondary education is available, it should
be made available to PWD without discrimination and if free tertiary education
is available, it should be made available to PWD without discrimination. A new
standard and obligation is not being made upon states here. ICESCR Article 13
and 14 creates an obligation to make primary education free and compulsory,
though this is a progressive obligation and if it is not available then there
must be a plan to achieve it in a limited number of years. In the case that
it is available, it PWD should have access to it and should not be discriminated
against. There seems to be a general agreement in the room with regard to this
understanding.
Russian Federation enquired whether “education” applied only
to knowledge acquired in school or college or if it refers to upbringing, that
is a process during which a person is socialized, becomes a member of society,
acquires skills in interaction with other persons, an understanding of social
morality and social duties.
The Chair pointed out that this issue is dealt with in para
1(c) and Article 16.4 but delegates may want to discuss it further at a later
stage.
Qatar agreed with delegations on replacing “child” with “person”
in para 2(c).
The EU suggested using “effective” rather than “quality” as
proposed by Thailand as the education may be of poor quality and of a lower
standard to other education provisions. Para 2(c) should reflect CRC Article
28 on free and compulsory primary education. EU text 4(b) covers access to other
stages of education for PWD. Para 2(c) should not be broadened to cover “persons”
is it could suggest that PWD are excluded from any education that is not free.
2(c) should be retained as it is in order to reflect CRC.
The Chair enquired from the EU with regard to the possible
redundancy of having 2(c) as well as a general provision in 4(b) that says that
no PWD shall be denied access to education because of their disability. Is 2(c)
not contained in the statement that no PWD shall be denied access to education
because of their disability?
The EU described the differences between EU text 4(a) and (b).
The EU text 4(a) is a clear statement that PWD should not be denied access to
education because of their disability whereas 4(b) covers a much broader concept,
that education is beyond only schooling, that PWD can undertake throughout the
lives. With regard to 2(c) the EU acknowledged there may be some overlap but
stressed the importance of reiterating the CRC language.
Yemen agreed with Qatar to replace “child” with “person” in
para 2(c). Obligatory language should remain “to ensure”. With regard to free
and compulsory education, PWD should be on an equal basis with non-disabled
persons so that disability is not a ground for discrimination. A child with
a disability cannot be forcibly educated if their disability prevents them,
but free education should be stipulated here in order to give a child with disability
rights. In most societies, the PWD is marginalised as poor, less capable so
if they are not provided with free education, they cannot achieve. With regard
to education in the community, there are many benefits in providing this. In
some cases, if a child has to travel to receive education, they will remain
in their own communities uneducated. Language on “to the extent possible” will
be a loophole for non-implementation and should be avoided. Article 25 on Monitoring
will ensure all these commitments.
China stated that para 2 covers two issues; firstly, the right
of PWD to access education without discrimination and secondly, how to implement
this right and ensure its fulfillment. The EU has made a very useful attempt
in resolving this issue in para 4. China supports para 4(a) of the EU text,
which can serve as the new para 2. 4(b) refers to social and cultural rights
as in CRC 23.3, 28.1 and CERD Article 7 which all cover the progressive realization
of the right to education. EU 4(b) should become WG text 2 bis but with the
inserted text: “state parties should endeavor to ensure that…”
The Chair reiterated that where there are significant proposals
to restructure or reword the text that these proposals are made in relation
to the WG Text, as it will reduce the confusion.
Article 17 - Education (Cont)
Macedonia supported the WG text chapeau with regard to the
obligation to “ensure”. It supports the EU proposal for para 2(b), ie EU text
para 5, replacing “specialized training for teachers” with “initial and continuing
training for all professionals and staff who work at all levels of education”.
In para 2(c), “students” should be replaced with “persons”.
United States of America announced information sheets which
it has prepared on accessible, inclusive and individualized education, covering
their implementation in US domestic law and programs.
Japan clarified their rational for inserting “endeavor” in
the chapeau. It is not a matter of having strong or weak wording. The question
lies in whether paras (a), (b) and (c) should be implemented immediately or
if they can be realized progressively. If progressive realization is allowed,
there is no need to insist on insertion of “endeavor” in the chapeau. Similarly,
with regard to provision of specialized education within the community, this
system is not available within the communities at present, but if this can be
realized progressively, Japan would be flexible on language here as well.
The Chair clarified with Japan that EU text 4(b) supported
by many delegations would also satisfy Japan’s concerns. He then went on to
summarize the previous discussion on para 2. There was a good level of support
for the WG text. Within the chapeau, a number of delegations are opposed to
inserting “endeavor” as proposed by Japan.
There was general agreement that “quality” be inserted in para 2(a). There was
also a suggestion that “effective” be used instead, as “quality” may not necessarily
be high quality. It seems that delegations deem it necessary to have a qualitative
adjective there, so “quality” will be inserted for the moment and delegations
can decide later which adjective they prefer.
The reference to choice in para 2(a) has raised concerns, especially among civil
society, that it could be misinterpreted to imply that states, rather than PWD,
have the choice. It was suggested that another way of formulating this would
be that PWD “have access to inclusive and accessible education.” At least one
delegation thought that “choose” should be retained. It is the Chair’s understanding
that the Committee views choice here as belonging to the PWD, rather than states
parties. If there is still ambiguity, there are many ways of clarifying that
while retaining this language. It can be stated in the report or in the adoption
document. The views of civil society perhaps could be sought again on this point.
In para 2(a), there was a lot of support for retaining “communities in which
they live”. There was also some acceptance that it is not always possible to
provide accessible education in that particular community. There was a lot of
support for the formulation in the EU text “to the extent possible in the communities
within which they live”. This language meets the concerns raised by Japan and
others, recognizing that while it may not be immediately possible to provide
this in the community in which the PWD is living, it is the goal we are striving
for.
The suggestion that training of disabled teachers be included in the text either
in para 2(b) or elsewhere in the text was supported by a number of delegations.
In para (c) suggestions included replacing “child” with “person” and referencing
secondary as well as primary education, so that where secondary education is
free and compulsory then no child or PWD is excluded from that on the basis
of their disability. Primary education is referred to in this case because that
is the terminology used in CRC. A rule is being established here that what applies
to those who are not disabled shall also apply to those who are disabled so
there will not be any discrimination on this basis. One way of doing this would
be to expand the reference in para 2(c) to say “primary or secondary” or “primary
and secondary” and couple that with the general statement found in EU text 4(a).
While EU text 4(a) encompasses the elements of WG text 2(c), many delegates
were quite attached to the latter concept. Both concepts shall be retained and
can be looked at again later to ensure there is no duplication or negative implication
created.
Yemen reiterated that the EU language of “effective” was preferred
over that of “quality” because the latter suggests the function of education
rather than a proportion.
Jordan agreed with the EU that “effective” is preferable, and
proposed to also insert “efficient” after that as well. There is no need to
have the reference to choice in 2(a), PWD should simply “have” inclusive education.
In 1(d) on the best interest of the child, a reference should be added about
the role of the family and parents. Their duties, rights and experiences contribute
to the welfare of the child. Free services should be provided based on socio-economic
grounds rather than on existence of disability so the reference to “free” in
2(c) should be removed. Often the people who benefit from services for disabled
people are nondisabled people, or those who can afford to produce the necessary
medical reports attesting to disability status.
The Chair noted that the role of families is emerging as a
theme. Its coverage will need to be considered in the context of the convention
as a whole, with additional language in other parts of the text. In response
to Jordan’s comment on para (c) the Chair clarified again that this is not intended
to create a new obligation on states to provide free and compulsory primary
and secondary education. There is an existing obligation in CRC to provide free
primary education, if not immediately then to move quickly towards that. The
obligation being made on a state is that if free and compulsory education is
available to children in the community, it should also be made available to
children with disabilities without discrimination. The Chair asked for comments
on para 3.
Japan proposed inserting the phrase “To the maximum extent
practicable in a manner consistent with the interest of the child or student”
at the end of para 3(c) or a similar formulation. http://www.un.org/esa/socdev/enable/rights/ahc6japan.htm.
This will ensure that in the exceptional circumstance where a PWD chooses to
attend a mainstream school in their community, and the mainstream school does
not have the teachers and facilities to cater for the needs of the student,
that student will therefore attend a specialized school outside of their community.
New Zealand noted that since the text proposed by the EU: “where
exceptionally the general education system does not adequately meet the needs
of PWD, states parties shall take appropriate measures to ensure effective alternative
forms of education, bearing in mind the goal of full inclusion” is now incorporated
into the chapeau of para 1, there is no need to have similar language in the
chapeau to para 3. Nor are the qualifiers proposed by Japan that weaken the
provisions of this para needed. The aspiration of this para is that the general
education system become inclusive of all PWD. If para 3 remains, it should be
reduced. Its chapeau should be changed to read: “states parties shall ensure
that where special and alternative forms of education are provided,” and follow
on from that.
The Chair agreed that there was replication between paras 1
and 3 and this will be addressed. The main issue is whether the subparas in
para 3 are appropriate.
Chile supported Australia, saying that it is important to have
as a rule the right to inclusive education. This is strengthened by para 3 which
establishes the idea of special education as being an exception. Para 3 should
therefore be retained with the chapeau noting the exceptional nature of this
system of special education when the general system cannot meet the needs of
certain PWD.
The reference to the state providing alternative forms of learning should refer
to “education” because “learning” implies a focus on the recipient of the educational
process and “education” reflects the purpose of the para placing obligations
on the state.
There should be a specific para recognizing the need for official certification
of all alternative forms of educational processes, including those that take
place outside traditional environments like hospitals. The education of PWD
using an alternative system should not be considered second-class.
Thailand supported the IDC proposal for this para with a slight
amendment: http://www.un.org/esa/socdev/enable/rights/ahc6thailand.htm.
Thailand is flexible on replacing the specific references to “blind, deaf and
deafblind” with “people with disabilities”. This text should address concerns
of Japan because it does not call for a choice between a general and special
education system. The latter is already dealt with in para 2.
Para 1 would then be focused on the right to education; para 2 on commitment
to the choice of inclusive quality education; and para 3 on commitment to the
choice of special and alternative education within various settings. In response
to an enquiry from the Chair Thailand confirmed that its proposal would replace
the WG text para 3 in its entirety.
The Chair questioned whether the concepts contained in the
subparas of para 3 were adequately contained elsewhere, for example in para
1 as proposed by the EU. Do delegations support the proposal from Thailand and
if so, in place of para 3 of the WG text or in addition to para 3?
Thailand noted that since the EU proposal has not yet been
fully accepted it can be accommodated up to the second sentence ending in “inclusiveness
in general education”. States should be obliged to make general education inclusive,
but whether PWD are educated in the general system or in their own groups and
settings is a choice that is up to PWD. Both options should be provided. The
right of PWD to choose to be educated in their own settings should not be contingent
upon the inability of states to provide adequate services for PWD in the general
education system. Thus the last sentence in para 1 of the EU proposal is not
compatible with para 3 of the Thai proposal. The former applies only to situations
when states cannot provide adequate services to PWD within the general education
system, that is, when PWD have no choice. The latter is about preference, and
applies when PWD have a choice, to be educated separate from the general education
system and beyond the obligation in para 2 to make general education inclusive.
Jordan suggested broadening Thailand’s proposal to read “States
parties shall ensure that PWD including blind, deaf and deafblind persons…”
Australia restated their proposal made at AHC4 to include training
after education where it occurs in this para and elsewhere throughout the article.
The Chair noted that a number of colleagues had spoken in favor
of including training.
The EU asserted that para 3 was unnecessary because a strong
statement has been added to the chapeau in para 1 beginning with “Where exceptionally…”
The term “effective” added to para 2 covers very well the concept in WG text
para 3 on “standards and objectives.”
The Chair enquired into the EU’s position in relation to Thailand’s
proposal. The EU noted that they have in the past avoided specifying
particular education needs for people with particular impairments, but will
consult further with partners on this.
Yemen supported Jordan’s proposal to avoid listing categories
of disabled people. All PWD are confronted with the same difficulties in terms
of general and specific educational choices.
Thailand explained that the reference to specific groups of
disabled people was subject to much debate and is based on the IDC text. Because
this language does not cut across all groups, it has been carefully crafted
to ensure that those who were not in favor would not be offended by it. Thailand
has no objection to a general reference to “people with disabilities” if that
is the view of the Committee.
New Zealand expressed concern with the reference to “in their
groups and settings” in the Thai proposal. Care should be taken with such ambiguous
language, which can be interpreted broadly and out of context, for example,
religious settings. The Australian proposal 17(bis) deals more appropriately
with these issues.
Qatar supported the positions of Jordan and Yemen that listing
categories of PWD should be avoided and to refer only to PWD.
The Chair summarized the discussion of para 3. There has only
been one delegation that supported the text as is. Education outside the general
system should be the exception. An additional proposed obligation on states
to provide for equivalent certification arising out of the special education
system needs to be addressed. The issue of including training as well as education
came up again. If the Thai proposal were to replace WG text para 3, many delegations
would prefer to avoid listing groups of PWD. The Chair proposed to move onto
paras 4 and 5.
Australia reiterated its proposal to replace para 4 with its
proposed text for17 bis. The skills referred to in para 4 are life skills which
are necessary to facilitate participation of PWD in much broader areas of life,
and it is inappropriate to have them in the education context. This new article
is also relevant to the articles on work and rehabilitation.
The Chair noted that social development skills have been raised
by the Russian Federation. The chair asked Australia how its proposal would
affect para 5. Australia indicated its preference for the deletion
of para 5 but would be flexible.
Chile called for an emphasis in para 4 on autonomy in addressing
issues related to people with sensory disabilities. In addition to the reference
to sign language and Braille, the para should also include other methods of
communication used by deaf persons. Such support systems must be implemented
in the context of preschool education so there is equality of opportunity throughout
the subsequent educational process. Para 5 should be retained, but should recognize
the role of the family in the educational process of the PWD. It should also
recognize the role of DPOs as agencies for consultation with the state on legislative
issues related to education of PWD.
The Chair recommended referring to the extensive previous discussions
that have been held on the correct terminology for referring to assistive technologies
other than sign language and Braille.
The EU recommended that WG text paras 4 and 5 be incorporated
into the EU proposal. WG text para 4 is in EU text para 5. WG text para 5 is
covered by EU text paras 4(a) and 4(b), which cover the elements of access to
broader education, training and appropriate assistance expressed as reasonable
accommodation, ie, adjustments that would need to be made to enable PWD access
education.
New Zealand noted that the elements of EU text para 4 has been
incorporated into the Chair’s summary except for the notion of “throughout their
lives”. If that were incorporated into WG text 2(a), then para 5 would not be
needed. NZ supports replacing para 5 with 17(bis).
The Chair noted that the reference to “throughout their lives”
was also proposed by Mexico and Costa Rica.
Japan proposed inserting “endeavor” between “shall” and “ensure”
in para 5. If progressive realization is allowed, then Japan will not insist
on inserting “endeavor”.
As suggested by Chile “other modes of communication” should be added after Braille
and sign language in para 4. This is particularly important for those who suffer
hearing loss in adulthood.
The Chair confirmed that it is economic, social and cultural
rights that are being dealt with here and therefore they are progressively realized.
This point will need to be covered in the text, whether in a general provision
in Article 4 or elsewhere.
Mexico called for an explicit statement of the means of communication
being referred to in para 4. In response to an enquiry from the Chair, Mexico
agreed that Japan’s proposed language would be acceptable here. It agreed with
Chile that the studies and vocational and professional training of PWD gained
through alternative means of instruction should receive appropriate certification.
Norway welcomed the Australian proposal to replace WG text
para 4 with Article 17 bis as it recognizes that sign language is a separate
language and not just a mode of communication. Para 5 contains the important
element of education throughout the whole life, but Norway prefers to incorporate
this element using the Australian text’s para 1 which outlines the stages of
education beyond primary. The New Zealand proposal to insert “throughout their
lives“ in para 2 is also acceptable.
Jordan noted that para 5 covers the important element of training,
and should be retained with the additional reference, from the EU text, of professional
training.
Argentina supported Chile, Japan and Mexico to broaden references
to alternative modes of communication in para 4. It would be better to use “support”
rather than “assistance” in para 5. This would avoid any confusion with concepts
of aid. Education at all its levels should be on an equal basis for PWD, and
should specify university education. Argentina therefore proposes a rewording
of the para so that it begins, “state parties shall ensure that PWD have access
to the university, tertiary education, vocational training etc”.
Jamaica cautioned that in refining and revising the WG text
essential elements might be lost. The issue of tertiary education in para 5
for example is such an essential element that should be retained. This element
is missing from the EU text, which also does not specifically mention vocational
training. Tertiary education is necessary for social mobility. Education makes
a person trainable and training makes a person employable. The important link
between education and training should not be lost. Jamaica also supported the
training of professionals who will be educating PWD.
There was reference to life skills in a restricted way, in relation to sign
language and Braille. Life skills in fact refer to conflict management, self-esteem,
environmental issues, and a range of social skills, which are infused in the
curriculum in various subject areas. Jamaica enquired into the context in which
life and social skills are being dealt with in this Article.
The Chair agreed with Jamaica that caution is necessary not
to lose elements inadvertently in the shifting of text from one proposal to
another. The issue of balance should also be addressed as this was obviously
a consideration of the WG. The chair sought direction from delegations with
regard to the replacement of para 4 with 17bis, as some states had proposed
amendments on the basis that the WG text should prevail.
Costa Rica shared Argentina’s concerns with respect to the
reference to “assistance” in para 5 because it is linked to the philosophy of
aid for PWD. Costa Rica prefers “support services” instead, which reflects the
UN Standard Rules on the Equalisation of Opportunities for PWD. This is important
from an administrative standpoint. Sign language interpretation, for example,
is not the same as assistance being given but rather a specific service that
supports PWD. Para 5, which covers the entire educational system, should be
moved further up in the article, because tertiary education and lifelong learning
are essential for PWD to have access to education regardless of their age. Para
4 should remain because persons who are deaf and blind sometimes have no access
to sign language or Braille in their education system. This has a direct impact
on their access to higher education which in turn affects employment.
Yemen reiterated its proposal from AHC3 that modes of communication
should be referred in the broadest possible way to accommodate new technological
advances. For example, there may be alternatives to Braille in the future. States
should be obliged to train teachers of sign language and Braille, which would
in turn make it possible for PWD to learn them. Assistance should be given to
those who will benefit from these modes of communication.
The Chair sought clarification from the World Federation of
the Deaf, whether sign language is a mode of communication or a language in
its own right.
World Federation of the Deaf clarified that sign language is
a language in its own right. At AHC5 during discussion of Article 13 the general
view was that sign language should be separated from means of communication
since they are not means of communication but natural languages in the same
way that there is spoken English, spoken Chinese and spoken Russian. There are
languages that can be spoken, written and signed, but they are each a system
of symbols, with their own grammar and structure, which form the language itself.
The language is not a means or mode of communication, language is something
that is expressed via speaking, signing or writing. It is very important to
make these distinctions. It is important that every person has the right to
learn his or her natural language and to be fluent in it. It is only when one
has this fluency with the mother tongue that one can learn other languages.
People who can hear but cannot speak also want to express themselves, these
people use different modes of communication but these people have the system
of spoken language in their heads.
It is crucial to separate sign languages as languages of education whereas Braille
is used to read any written language. Braille is not a language. Article 13
uses the phrase “sign language, Braille, and other augmentative and alternative
modes of communication” which separates sign language from Braille and from
other modes of communication.
Thailand proposed inserting the text from Article 13 and as
just outlined by the World Federation of the Deaf, into para 4. It affirmed
the spirit and content of paras 4 and 5, and they should be retained with additional
elements from Article 17bis and Article 13.
Israel agreed with Thailand, Yemen and others that paras 4
and 5 should be retained with modifications. The second sentence in para 4 should
be broadened to refer to people with “sensory and communication disabilities”
and the language from the WFD should be added to the end. The reference to “assistance”
should be removed from the second sentence of para 5 for reasons outlined by
other delegations. That sentence should instead read: “State parties shall render
appropriate supports, through services, curriculum, assistive technology to
PWD”.
New Zealand responded to Jamaica’s question regarding life
skills. This is the main element of 17bis that is not included in WG text para
4. Whereas non-disabled children will pick up life skills as they grow up from
people around them, some disabled children who do not have contact with people
with similar impairments will not able to pick up basic life skills, such as
sign language, mobility with canes, in the same way. This is not just an issue
for people with sensory disabilities. This issue is sometimes used as a justification
for the need for special schools; however it is possible to meet those special
curriculum needs within the provision of general schools. If 17bis is not accepted,
then para 4 should be broadened beyond children with sensory disabilities and
refer to persons with disabilities, with the addition of the following: “and
have access to education on the everyday life skills and mobility that is required
in relation to some specific disabilities to participate on an equal basis with
others.” This is often referred to as habilitation, and when an impairment is
acquired, it is referred to as rehabilitation. While this may be discussed in
the context of Article 21 on health, NZ believes these ideas are appropriate
in Article 17 because it deals with the right of access to education on these
matters.
Russian Federation supported the consolidation of states obligations
in paras 4 and 5 to provide training for people with sensory disabilities and
to provide opportunities and access for PWD to vocational and higher education
throughout their entire life. “Children” should be deleted from para 4 so that
it deals with all PWD. States should provide instruction not only to the sensory
disabled but also to other categories including the families.
UNESCO submitted a detailed statement of its position in relation
to inclusive education and made several recommendations with respect to strengthening
the language of the WG text in this regard: http://www.un.org/esa/socdev/enable/rights/documents/ahc6unescoda17.doc
ILO cited Convention 142 on human resource development adopted
in 1975 ratified by 62 countries and its accompanying Recommendation 195 on
human resources adopted in 2004 that represents current thinking on skills development
that covers both disabled and nondisabled people. It also referred to Convention
159 ratified by 78 countries, most of whom are represented at this meeting.
The ILO is concerned at the lack of emphasis on vocational training and skills
development in the WG text. These are employable skills that are crucial in
enabling PWD to improve living standards and make a contribution to the economy.
ILO therefore supports the recommendation in Footnote 57. In addition, ILO calls
for additional provisions to cover training extensively in this Article: [1]
Women and men of all types disabilities should benefit from training and skills
development wherever they live. This is to address the concern that institution-based
training is urban based and does not typically cater to people living in rural
or remote areas where PWD may need to rely on family support networks. [2] PWD
should specifically be able to access training and vocational rehabilitation
later in life. [3] Alternative and non-formal training, like workplace learning,
should be made available, in order to stress the need for skills relevant to
the labor market so PWD can compete with other job seekers. [4] There should
be the development, recognition and certification of skills acquired by PWD.
[5] Employment related services related to training, like information, vocational
guidance and counseling, should be provided.
The Chair thanked the UN bodies for their contributions noting
the role that they. Like the World Bank, would play in the implementation of
this Convention.
The International Disability Caucus clarified that Braille
is not a language but a script, and technological advances will adjust to Braille,
not reduce the need for it.
Education is a life-long process, and primary education should be made available
to adults with disabilities in order to reach the goals set out by UNESCO. The
IDC is concerned with 2(a) of the WG text. The language of “all …. can choose”
allows states to use schools as a means for institutionalizing PWD. PWD should
have the right to be educated where they live, and in the same schools as everybody
else.
The only exception to this is for the groups specified – blind, deaf and deafblind
– who have substantial and complex communication requirements and should have
the right to choose to be educated in their own groups in order to get a quality
education. These groups, independently of each other, have come to this conclusion
through long experience both in integrated and special education settings.
Inclusive education is not special education. Inclusive education must be based
on the principle of universal design, with the same curriculum.
The following 3 elements need to be incorporated into this Article: [1] quality
education, meaning curricula of the same standard as others and accreditation
designed to take into account PWD; [2] the provision of pre-school support for
children with disabilities and their families; [3] full access to education
so PWD have the same right to participate from pre-school through university
level and the acquisition of professional qualifications; [4] consultation of
PWD when school policies and education plans are developed.
For IDC, the “choice” in education is the choice for PWD not governments. The
Chair enquired, referring to the Thai proposal for para 3, whether the people
who do not have sensory disabilities have the same choice between a general
and special education system. The IDC responded that the right to choose education
in special settings only applies to blind, deaf and deafblind persons. This
is not to imply that these groups need to be educated in physically separate
structures, but in the early stages in particular, these groups need an opportunity
to acquire language and the means of communication from particular methods of
instruction so they can be better integrated later. All other children can and
should be trained in general inclusive settings.
World Network of Users and Survivors of Psychiatry on behalf
of the IDC highlighted that institutionalization can be perpetuated
without use of the word “institution”. In para 1, for example, there is now
a commitment to the “goal of inclusiveness”. This does not sound like a binding
obligation. This future goal suggests the current maintenance, not only of the
kind of separate settings that the blind, deaf and deafblind people want for
themselves, but of the institutionalization of PWD in the name of education.
There is a need for clarity here, and in this regard IDC prefers language put
forward by Australia calling for an “inclusive educational system.” Progressive
realization is best addressed once in the convention, otherwise it gives this
concept undue emphasis. In para 2, the reference “to the extent possible” does
not suggest the choice of inclusive and accessible education but implies being
put away when someone does not want PWD to be in the community. In para 3, the
IDC cannot accept the broadly stated exception that education outside of the
general education system is the exception. The existence of settings specifically
for the blind, deaf and deafblind is a separate matter, but the IDC opposes
the maintenance of special school systems outside of this context. There isn’t
a binary choice between such systems for these groups, for whom a variety of
options ought to be available. It should be noted also that it is possible for
people with disabilities from these groups to be segregated within mainstream
schools if they don’t have these options.
The IDC emphasizes that its opposition to institutionalisation is based on situations
where there is a deprivation of self-determination, and is separate from the
desire of the blind, deaf and deafblind to develop their culture and language
in their own settings and methods among their peers.
The IDC supports the following elements in this article: inclusive education;
training of staff and individuals; measures to promote learning of life skills,
pre-school support and tertiary education; choice for deaf, blind and deafblind
people to be educated in their own settings.
Inclusion International, a member of the IDC,
underlined the implications of this convention for people with intellectual
disabilities. There is no particular accommodation or technology that will allow
them to fit into the general school system if that system has not been transformed
to understand the diversity of needs of all children.
There are 3 questions that must be addressed with regard to the issue of choice:
Who chooses? What do they have to choose from? And how do we know they chose?
The reference in para 3 “where the general education …..” speaks directly to
the issue of investment. If regular schools are given the option then this language
will be, and has been, interpreted such that investment goes into segregated
systems, and “choice” becomes a misnomer. This reference in 3(c) reflects a
choice of the state.
In 1(d) “the best interest of the child” is likely to be interpreted as a determination
that will be made by the state. Children are rarely given the opportunity, even
with the CRC, to make such choices. If they are able to make a choice, this
is rarely respected. In addition, this provision deals with children with disability
who have even less capacity to have their views heard. Finally, the provision
does not recognise families in the process of making choices. It is clear therefore
where the choice in this provision lies - with professionals, and by people
who see themselves as experts in determining where the child should go. This
is also reflected in the jurisprudence of how “the best interest of the child”
has been determined by courts in many countries.
If this convention does not affirm inclusive education as “a first right” then
it will not meet the needs of people with intellectual disabilities and those
PWD whose voices have not been heard. The Chair enquired as to who would make
the choice, if the reference is to children, and how would one know that they
chose? Inclusion International clarified that they wish to move away from the
notion of choice. Without negating the provisions the IDC has made for blind,
deaf and deafblind learners there should be no choice. The provision of choice
results in resources being sucked away from the general education system.
World Federation of the Deaf, a member of the IDC,
stressed that language is the foundation for the education of deaf children.
Language acquisition is essential in the early years so as not to limit intellectual
growth. Without it they cannot communicate even with their parents, and without
it they cannot acquire an education, even though they may be physically present
in schools. WFD supports inclusive education for all based on individual needs
and goals. So for deaf people choices are essential.
The Barcelona Convention of 1996 affirmed linguistic rights and the right to
be educated in one’s own language in Article 25 and 35. The Hague Recommendation
of 1996 related to the education rights of culturally listed groups referred
to in Article 1, 2, 13, 20. WFD supports footnote 59 and 17(bis). In 2(a) it
is the education process not the place that should be emphasized. The reference
to “community” is not simply a geographic one, but also means “groups with the
same interest”.
Disabled Peoples International a member of the IDC
affirmed that education should be a lifelong process to encompass all
people with disabilities. The references to children should be removed. The
term “student” is preferable because it is age-neutral. The concept of the best
interest of the child is already enshrined elsewhere in this convention and
the CRC, is not relevant to PWD in educational settings, and does not need to
be repeated here. Institutions are not and will never be acceptable in educational
settings. Education should encompass the right to learn life and social development
skills in order to facilitate the participation of PWD in their communities,
and institutionalization will lead to marginalization and exclusion.
The session was adjourned.
The Sixth Ad Hoc Committee Daily Summaries is a public service by RI*, a global network promoting the Rights, Inclusion and Rehabilitation of people with disabilities. RI extends its sincere gratitude to the Governments of Norway, Ireland, Canada and New Zealand for their generous support towards this project.
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