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

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UN Convention on the Human Rights of People with Disabilities

Sixth Ad Hoc Committee Daily Summaries

A service brought to you by RI (Rehabilitation International)
Volume 7, #3

August 3, 2005

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. ( 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: 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.
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.
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