الأشخاص ذوي الإعاقة

The legal definition of persons with disabilities includes those who have long-term physical, mental, intellectual or sensory impairments which, in conjunction with attitudinal and environmental barriers, may prevent them from fully and effectively participating in society on an equal basis to other people (Article 1, Convention on the Rights of Persons with Disabilities [CRPD]).

It is important to note that this definition is prefaced with the word ‘includes’ and is not exhaustive.  In recognition that disability is an evolving concept, the Committee on the Rights of Persons with Disabilities (‘the Committee’) states that this definition is not intended to limit wider definitions of disability found in national laws (such as persons with short-term or intermittent disabilities).

The drafters of the CRPD were clear that disability should be seen as the result of the interaction between a person and their environment, not something that is inherent within the individual as the result of an impairment. The Committee notes that a person may be perceived to have disabilities in one society or setting but not in another, which can depend on the assistance available as well as cultural considerations.

Exclusion and segregation are discriminatory practices that are prohibited by international human rights law. Article 24 (2)(a) of the Convention on the Rights of Persons with Disabilities (CRPD) prohibits the exclusion of persons with disabilities from the general education system, including any legislation or regulations that limit their inclusion on the basis of their impairment or its ‘degree’.

Exclusion occurs when students are directly or indirectly prevented from or denied access to education in any form.

Direct exclusion would include classifying certain students as ‘non-educable’ and therefore deeming them ineligible for school education.

Indirect exclusion would include a school setting a common entry exam without making reasonable accommodations for people with disabilities.

Segregation occurs when the education of students with disabilities is provided in separate environments, designed or used to respond to a particular or various impairments, in isolation from other students.

CRPD General Comment 4 makes clear that excluding or segregating persons with disabilities from the general  education system constitutes discrimination. States must prevent such discrimination by providing reasonable accommodation and developing support systems and  accessible learning environments.

The Committee makes the distinction between integration and inclusion. Integration is a discriminatory process of placing persons with disabilities in existing mainstream educational institutions as long as they can adjust to the standardised requirements of the institution. Inclusion, in contrast, involves modifying content, teaching methods, and structures to provide all students with an equal and participatory learning experience which meets their individual requirements. The Committee makes clear that placing students with disabilities within mainstream classes without also making structural changes to for example, curriculum or teaching strategies, does not constitute inclusion.

For examples of exclusion and segregation, see Human Rights Watch’s reports 'Complicit in Exclusion' - South Africa’s failure to guarantee an inclusive education for children with disabilities (2015) and ‘As long as they let us stay in class’: Barriers to education for persons with disabilities in China (2013).

Although inclusive education is commonly associated with the education of people with disabilities, it is in fact, applicable to all learners. The Committee on the Rights of Persons with Disabilities in General Comment 4 has clearly defined inclusive education as a human right of every learner.

Inclusive education is based on the principle that all children should learn together, regardless of difference. Inclusive education recognises the capacity of every person to learn, including people with disabilities, and acknowledges that each person has different strengths, requirements, and learning styles. Inclusion, therefore, takes an individualised approach with curricula, teaching, and learning methods that are flexible and adaptable. By taking into account differences among learners, inclusive education promotes respect for and value of diversity and seeks to combat discriminatory attitudes both in the classroom and society.

Article 24(1) of the Convention on the Rights of Persons with Disabilities (CRPD) lays out the aims of an inclusive education system:

• full development of human potential and sense of dignity and self-worth, strengthening respect for human rights, fundamental freedoms, and diversity

• development of the personality, talents and creativity of people with disabilities, as well as their mental and physical abilities, to their fullest potential

• enable persons with disabilities to participate effectively in society

Inclusive education takes on particular features in application to people with disabilities. It seeks to address the specific barriers people with disabilities face in enjoyment of their right to education, through supports and accommodations, and ensure their effective access to education and fulfilment of their individual potential on equal terms to other students within a participatory learning environment.

General Comment 13 of the Committee on Economic, Social and Cultural Rights provides that educational institutions and programmes must be accessible to everyone, without discrimination.

Article 9(1)(a), of the Convention on the Rights of Persons with Disabilities (CRPD) provides that states must take appropriate steps to make schools accessible to persons with disabilities. The CRPD Committee’s General Comment 2 on Accessibility makes clear, however, that it is not just the school building that must be accessible, but the entire education system including: information and communication, assistive systems, curriculum, education materials, teaching methods, assessment and language and support services. The whole environment must be designed in a way that fosters inclusion of students with disabilities and guarantees their equality throughout their education.

Article 24(2)(b), CRPD also requires states to ensure that persons with disabilities can access an inclusive, quality, and free primary education and secondary education on an equal basis with others. Students must be able to access education within the community in which they live, which means the educational environment must be reachable for persons with disabilities, including through safe transport.

The Committee asserts that states should prevent the building of future education facilities that are inaccessible and should establish a monitoring mechanism and time frame for already existing education environments to be made accessible. The Committee calls for states to commit to the introduction of Universal Design. Universal Design is defined in Article 2, CRPD and means the design of products, environments, programmes, and services to be usable by all people, to the greatest extent possible, without the need for adaptation. It does not exclude assistive devices for particular groups where this is needed.

There continues to be a widespread global lack of textbooks and learning materials in accessible formats and languages, including sign languages. The Committee highlights that to meet their obligations to provide access to inclusive education, states must invest in developing such resources, and should ratify and implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

The CRPD Committee affirms that accessibility also requires that education at all levels be affordable for students with disabilities. Free primary education for all particularly implies that accessibility measures should be free of charge. In their 2013 thematic report the Human Rights Committee cite the Finnish Basic Education Act as a good example of this, because it provides that a pupil with disability has the right to free interpretation and assistance services in order to participate in education.

Availability means that states must ensure that there are enough good quality functioning educational institutions with places available for learners with disabilities at all levels.

Adaptability means that education must be flexible and adapt to the changing needs of societies and the diverse needs of students in different social and cultural settings. Curricula must be designed and applied to adapt to the requirements of every student and standardised tests must be replaced by flexible and varied forms of assessments, recognising different routes to learning and the progress of individual students towards broad goals.

Article 24(2)(d) of the Convention on the Rights of Persons with Disabilities (CRPD) requires states to ensure that persons with disabilities receive the support they need for their effective education, provided within the general education system. This support can be provided through the general availability of education services and facilities, such as trained school counsellors and other professionals. Article 24(2)(e), CRPD further requires that individualised support measures are provided to maximise academic and social development, in line with the aim of full inclusion of persons with disabilities. In CRPD General Comment 4 the Committee emphasises the need for individualised education plans to identify any reasonable accommodations and specific support required by individual students. The nature of the provision must be determined in collaboration with the student, and where appropriate with parents or caregivers.

Adapted teaching methods, materials and modes of communication are particularly important for enabling students with disabilities to learn life and social development skills in accordance with Article 24(3), CRPD. However, in General Comment 4 the Committee observes that many states are still failing to make appropriate provision for persons with disabilities to gain these skills.

The Committee makes a series of specific recommendations for provision and investment in order for states to meet this obligation, including providing blind and partially sighted students with opportunities to learn Braille and alternative modes, means and formats of communication and providing deaf and hard of hearing students with the opportunity to learn sign language.

Article 24(2)(c), Convention on the Rights of Persons with Disabilities (CRPD), requires states to provide reasonable accommodation for individual students to enable them to access an inclusive education on an equal basis with others.

Reasonable accommodation is defined in CRPD, Article 2 as appropriate modification and adjustments which are necessary, in a particular case, to ensure persons with disabilities can enjoy, on an equal basis with others, all human rights and fundamental freedoms.

Accommodations may be material, for example, providing handouts in alternative formats or use of assistive technology, or non-material, for example, allowing a student more time. Discussions must take place between educational authorities, the academic institution and the student with disability (and if appropriate their parents/caregivers), to ensure that the accommodation meets the needs and choices of the student and can be implemented by the institution provider.

General Comment 4 of the Committee on the Rights of Persons with Disabilities explains that ‘reasonableness’ is a context-specific test. It involves an analysis of the relevance and effectiveness of the specific accommodation, including whether it counters discrimination.

The resources and financial implications of providing the specific accommodation are recognised as legitimate considerations when assessing whether it would impose a ‘disproportionate burden’ on the provider. However, the extent to which reasonable accommodation is provided must be considered in light of the overall obligation on states to develop an inclusive education system through maximising the use of existing resources and developing new ones. The CRPD Committee explicitly affirms that using lack of resources and financial crises to justify a failure to progress towards inclusive education is a violation of Article 24.

In General Comment 2 the CRPD Committee makes a clear distinction between accessibility and reasonable accommodation which is reiterated in General Comment 4. Accessibility is a general duty to groups, whereas reasonable accommodation is a specific obligation to an individual. States have a duty to implement accessibility before receiving an individual request to use a place or service. In contrast, the duty to provide reasonable accommodation is enforceable from the moment an individual makes a request in a specific situation. Reasonable accommodation is, therefore, an anti-discrimination measure to be realised with immediate effect. In General Comment 4 the CRPD Committee makes clear that the denial of reasonable accommodation constitutes discrimination and is a violation of the Convention. This would include in private schools, which have an obligation to ‘take all appropriate measures to eliminate discrimination on the basis of disability’ under Article 4(1)(e) of the CRPD.

Provision of reasonable accommodation should not be conditional on a medical diagnosis of impairment and should instead be based on the evaluation of social barriers to education. Further, the provision of reasonable accommodation should not involve extra costs for learners with disabilities.

For further information on reasonable accommodation see also the Human Rights Council’s Thematic study on equality and non-discrimination under Article 5 of the CRPD (2016).

Article 31, Convention on the Rights of Persons with Disabilities provides (CRPD) that states must collect data to enable them to design and implement policies which give effect to the Convention. The data collected must be disaggregated and used to help assess how far states have met their obligations, to identify barriers faced by people with disabilities in exercising their Convention rights, and for the development of effective policies and interventions to promote inclusive and quality education.

Article 33, CRPD further provides that states must establish a framework, including independent mechanisms, to promote, protect and monitor implementation of the Convention. Article 33 also stipulates that persons with disabilities and their representative organisations must participate fully in the monitoring process.

The Committee on the Rights of Persons with Disabilities’ General Comment 4 emphasises that persons with disabilities must be recognised as partners, not merely recipients of education. States must therefore consult persons with disabilities, including children with disabilities through their representative organisations, in all aspects of planning, implementation, monitoring and evaluation of inclusive education policies.

For indicators on the right to education of people with disabilities, see our Indicators Selection Tool and Structural indicators for inclusive systems in and around schools (2017).

For information on UNESCO’s approach to data on the education of people with disabilities see their Factsheet (2017).

For guidance on reporting, see International Disability Alliance Effective use of international human rights monitoring mechanisms to protect the rights of persons with disabilities (2010).

• African Charter on Human and People’s Rights, 1981 (Articles 2 & 17)

• African Charter on the Rights and Welfare of the Child, 1990 (Article 11; Concept Note of the African Committee of Experts on the Rights and Welfare of the Child on the Rights of Children with Disabilities: the duty to protect, respect, promote and fulfil)

• African Youth Charter, 2006 (Article 13)

• European Convention for the Protection of Human Right and Fundamental Freedoms, 1948 & its Optional Protocol 1, 1952  (Article 14 of the Convention and Article 2 of the Protocol)

• European Social Charter (revised), 1996 (Articles E, 10, 15 & 17)

• Charter of Fundamental Rights of the European Union, 2000 (Article 14)

• Additional Protocol to the American Convention on Human Rights, Protocol of San Salvador, 1998 (Articles 13 & 16)

• Arab Charter on Human Rights, 2004 (Articles 40 & 41)

• ASEAN Human Rights Declaration, 2011 (Article 31)

For a full list see our International Instruments - the Right of Education of Persons with Disabilities