Academic journal article Washington International Law Journal

Making Good on the Promise of International Law: The Convention on the Rights of Persons with Disabilities and Inclusive Education in China and India

Academic journal article Washington International Law Journal

Making Good on the Promise of International Law: The Convention on the Rights of Persons with Disabilities and Inclusive Education in China and India

Article excerpt

I. INTRODUCTION

Disability is a human rights issue!... Those of us who happen to have a disability are fed up being treated by the society and our fellow citizens as if we did not exist or as if we were aliens from outer space... If asked, most people, including politicians and other decision makers, agree with us. The problem is that they do not realize the consequences of this principle and they are not ready to take action accordingly.1

The governments of China and India are responsible for the education of approximately twenty-six million children with disabilities.2 Both China and India have adopted laws encouraging the education of disabled children,3 but have been unable to provide many of them with education. In China approximately sixty percent of children with disabilities are enrolled in some form of school;4 as few as forty percent of children with disabilities in India are enrolled in school.5 Both China and India have recognized the need to improve the provision of education to children with disabilities.6

Educating students with disabilities is a human rights issue and an economic one.7 Scholars recognize that, around the world, children with disabilities are often marginalized and poorly served by schools, even when they are enrolled.8 Lack of adequate education is the key risk factor for poverty and social exclusion for all children, but children with disabilities who are excluded from education in developing countries are almost certain to live in long-term poverty.9

The United Nations Convention on the Rights of Persons with Disabilities ("Convention"), which China signed in 2007 and India signed and ratified in 2007,10 recognizes education as a basic human right.11 The Convention is the first piece of binding international law that places on states an affirmative obligation to ensure that students with disabilities are educated in mainstream schools and have equal access to educational opportunities. If enforced in India and ratified and enforced by China, the Convention could potentially increase educational opportunity for millions of children with disabilities. India and China could then provide a model for other nations facing similar challenges. The United Nations must leverage the Convention to engage China and India in revising existing laws to comply with the Convention's view of inclusive education as a basic human right, as well as involve the international community-particularly nongovernmental organizations-in building China's and India's capacity to make and implement such changes.

Part II of this Comment will explain how the Convention, unlike earlier United Nations documents, exemplifies a social model or human rights approach to disability and education. Part III will define the Convention's primary method of providing education to children with disabilities: "inclusive education," which attempts to ensure the best outcomes for students with disabilities by providing non-discriminatory access, reasonable accommodations, and individualized support. Part FV will argue that China and India need to revise their existing laws and policies in order to comply with the Convention's requirements for inclusive education. Part V will analyze how the United Nations can use the Convention's enforcement mechanisms to facilitate effective revision of China's and India's existing laws and encourage transnational advocacy networks to provide the expertise, financial resources, and capacity-building that will enable China and India to transform their education systems.

II. THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES EXEMPLIFIES A HUMAN RIGHTS APPROACH TO EDUCATION AND DISABILITY

The Convention is the culmination of the United Nations' shift from a medical to a social model of disability.12 A "medical" model "views a disabled person's limitations as inherent, naturally and properly excluding her from participating in mainstream culture."13 A "social" or "human rights" framework has two elements. …

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