De-centring inclusion: Discussing the meaning and place of inclusive education in international and European law through the case of children with autism
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/09240519241284448 |
| Author | Lucie Margot Ducarre |
| Date | 01 December 2024 |
| Subject Matter | Articles |
De-centring inclusion:
Discussing the meaning and
place of inclusive education in
international and European law
through the case of children
with autism
Lucie Margot Ducarre
University of Bergen, Faculty of Law, Bergen, Norway
Abstract
This paper aims to contribute to the current legal reflections on the meaning and place of inclusive
education within the conception of the right to education. While the recent progress on inclusive
education have contributed to enhance the realisation of the right to education for many disabled
children, it has had mixed results for others. Autistic children in particular appear to still suffer
from poor educational experience and outcomes. This paper argues that better fulfilling the
right to education of autistic children will entail abandoning the conception of inclusive education
as exclusively realised in mainstream schools. Instead, it appear s important to offer a variety of
settings and to refocus the discussions on the notions of non-discrimination and substantial equal-
ity, quality education, and children’s rights.
Keywords
Education, children’s rights, autism, inclusive education, quality education, human rights, school
Corresponding author:
Lucie Margot Ducarre, University of Bergen, Faculty of Law, Postboks 7806, 5020, Bergen, Norway.
E-mail: lucie.ducarre@uib.no
Creative Commons CC BY: This article is distributed under the terms of the Creative Commons Attribution
4.0 License (https://creativecommons.org/licenses/by/4.0/) which permits any use, reproduction and distribu-
tion of the work without further permission provided the original work is attributed as specified on the SAGE and Open
Access page (https://us.sagepub.com/en-us/nam/open-access-at-sage).
Article
Netherlands Quarterly of Human Rights
2024, Vol. 42(4) 319–339
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519241284448
journals.sagepub.com/home/nqh
1. Introduction
The right to education is widely recognised in human rights law as a central and multiplier right.
1
While classified as an economic and social right, the implications it holds for the realisation of other
human rights and freedoms contribute to its key importance.
2
Although education is essential for
all, it is acknowledged as particularly crucial for marginalised or at-risk populations, and among
them children with disabilities and/or autism.
3
Within the international and European context, children’s right to education is provided for by
several treaties, and in particular the First Protocol to the European Convention for the Protection
4
the Revised European Social Charter
5
(revised
ESC), and the Convention on the Rights of the Child
6
(CRC). The CRC also expressly provides
for a right to quality education, through the notion of the aims of education.
7
In addition, the
Convention on the Rights of Persons with Disabilities
8
(CRPD) has reaffirmed disabled
people’s right to education, which must be realised without discrimination and on the basis of
equal opportunity, through an inclusive education system.
9
Together, the aforementioned treaties
therefore entitle children with disabilities to a right to availability and access to a quality and
inclusive education.
10
This right is also part of the larger framework of children’s rights,
which includes for example the principle of the child’s best interests or children’s right to
participation.
11
Education, and the rights attached to it, forms a complex and multidisciplinary topic that has
generated a consequent body of literature, including from legal, social, or political sciences.
However, authors have underlined a persisting need for further reflections on the conceptualisation
of the right to education.
12
In this regard, almost 20 years after the adoption of the CRPD, what
1. Laura Lundy and Patricia O’Lynn, ‘The Education Rights of children’in Ursula Kilkelly and Ton Liefaard (eds),
International Human Rights of Children (Springer 2019) 259–275; Gerison Lansdown and Ziba Vaghri, ‘Article 28:
The Right to Education’in Ziba Vaghri and others (eds), Monitoring State Compliance with the UN Convention on
the Rights of the Child (Springer 2022) 247–260.
2. ChristianeCourtis and John Tobin, ‘Article 28: The Right to Education’in John Tobin (ed), The UN Convention on the
Rights of the Child: A Commentary (OUP 2019) 1056–1115.
3. Rachele Cera, ‘National Legislations on Inclusive Education and Special Educational Needs of People with Autism in
the Perspective of Article 24 of the CRPD’in Valentina Della Fina and Rachele Cera (eds), Protecting the Rights of
People with Autism in the Fields of Education and Employment: International, European and National Perspectives
(Springer 2015) 79–108; Courtis and Tobin (n 2).
4. First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, 20
March 1952) ETS 9, as amended by Protocol No. 11 ETS 155.
5. Revised European Social Charter (Strasbourg, 3 May 1996) ETS 163.
7. CRC, Article 29.
8. Convention on the Rights of Persons with Disabilities (New York, 24 January 2007), UN Doc. A/RES/61/106.
9. CRPD, Article 24.
10. Maria Soledad Cisternas Reyes, ‘Inclusive Education: Perspectives from the UN Committee on the Rights of Persons
with Disabilities’in Gauthier de Beco, Shivaun Quinlivan and Janet E. Lord (eds), The Right to Inclusive Education
in International Human Rights Law (Cambridge University Press 2019) 403–423.
11. CRC, art 3(1) & CRPD, art 7(2) and CRC, art 12 & CRPD, art 7 (3).
12. Tristan McCowan, ‘Reframing the universal right to education’(2010) 46(4) Comparative Education 509–525; Courtis
and Tobin (n 2).
320 Netherlands Quarterly of Human Rights 42(4)
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