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

MORNING SESSION

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.

AFTERNOON SESSION

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”.