Making Good on the Promise of International Law: The Convention on the Rights of Persons with Disabilities and Inclusive Education in China and India
Hernandez, Vanessa Torres, Pacific Rim Law & Policy Journal
Abstract: The Convention on the Rights of Persons with Disabilities conceptualizes disability as a human rights issue and requites state parties to provide an inclusive education to all children with disabilities. However, China and India, the two most populous signatory countries, do not currently provide inclusive education-described by the Convention as nondiscriminatory access to general education, reasonable accommodation of disability, and individualized supports designed to fulfill the potential of individual children with disabilities. Though both India and China have laws that encourage the education of children with disabilities, neither country's laws mandate inclusive education and neither country currently provides universal education to children with disabilities. Furthermore, both countries lack the funding and teaching force to enforce existing laws or provide inclusive education. Assuming that India and China intend to comply with the Convention, the United Nations must use the Convention to persuade China and India to also change domestic laws and facilitate the involvement of non-governmental organizations that can help increase and effectively use fiscal and human resources necessary to provide inclusive education to all students with disabilities.
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. …