The Right to ‘Inclusive’ Education
| Published date | 01 November 2022 |
| Author | Gauthier de Beco |
| Date | 01 November 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12742 |
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Modern Law Review
DOI:10.1111/1468-2230.12742
The Right to ‘Inclusive’Education
Gauthier de Beco∗
The adoption of the Convention on the Rights of Persons with Disabilities (CRPD) has intro-
duced a new right in international human rights law: the right to inclusive education.What the
‘inclusive’ component of this right stands for is however unclear, with the result that a narrow
approach to inclusion has taken priority. In order to counter this narrow approach, this arti-
cle makes the normative case for advancing a particular understanding of inclusive education
that moves beyond existing interpretations of the CRPD’s provisions. It constructs a concep-
tual framework based on Fraser’s recognition theory, arguingthat the pr inciple of ‘participatory
parity’ orientates the right to inclusive education towards stressing the importance of oering
all children equal consideration throughout the education system. This has implications not
only for the fullment of legal obligations but also for how international human rights law can
actually be used to combat inequalities.
INTRODUCTION
The right to inclusive education has gained prominence in international hu-
man rights law. Article 24 of the Convention on the Rights of Persons with
Disabilities (CRPD), adopted in 2006,1requires the establishment of an ‘inclu-
sive education system’ to protect the right of disabled children to education.2
This right has further grown in signicance in recent years, as attested by a
resolution of the UN Human Rights Council (HRC).3The Committee on
the Rights of Persons with Disabilities (CRPD Committee), the body of ex-
perts responsible for monitoring States Parties’ compliance with the CRPD,
has furthermore issued a comprehensive General Comment on ‘The Right to
Inclusive Education’, in which it set out its views on this right’s normative
elements while providing guidance on the meaning of inclusive education un-
der the Convention.4
∗Reader in Law, University of Hudderseld. The author wishes to thank Anna Lawson (University
of Leeds), Colm O’Cinneide (University College London) and Andrea Broderick (Maastricht Uni-
versity) for their valuable comments on an earlier version of this article. He is also grateful for the
helpful comments of the two anonymous reviewers. All URLs last visited 1 March 2022.
1 Convention on the Rights of Persons with Disabilities 2006, 46 ILM 443.
2 CCRPD, Art 24(1).
3 HRC, The Right to Education of Persons with Disabilities, 24 March 2014, A/HRC/25/L.30.
4 CRPD Committee, General Comment No 4. Article 24: Right to Inclusive Education, 2
September 2016, CRPD/C/GC/4.
© 2022 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1329–1356
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, provided the original work is properly cited.
The Right to ‘Inclusive’ Education
Scholars have drawn increasing attention to the right to inclusive education
by analysing the related provisions of the CRPD with a particular focus on the
drafting history of Article 24.5They have thus helped determine the dierent
steps that must be taken towards the realisation of this right, although they have
not been able to fully clarify what its ‘inclusive’ component involves for States
Parties.As the Convention itself does not dene the concept of inclusive educa-
tion,the very existence of the r ight to inclusive education continues to generate
controversy.On the one hand, there are those who accept the right to inclusive
education uncritically,6disregarding as they do any questions about the practi-
cability of that right. On the other hand, there are those who reject the right
to inclusive education altogether,7because they reject the possible implications
of such a right. Misunderstandings around the right have consequences that are
not just limited to issues of disability but reect broader tensions in protecting
the rights of historically marginalised groups.
The diculty in constructing an understanding of inclusive education arises
not only from its lack of denition in the CRPD. It is also due to the absence
of consensus on the contours of the concept itself . Hence,it been argued that
‘[t]urning to the law to begin to establish a viable denition of inclusive edu-
cation is not propitious.’8The reality nonetheless is that any application of the
right to inclusive education will vary according to how inclusive education is
actually conceptualised in the Convention.9
Confusion in the understanding of inclusive education has led to the temp-
tation to adopt a narrow approach to inclusion that is concerned with where
education takes place. While academic literature in the eld of education has
criticised the pitfalls of such a narrow approach,10 the tendency remains to give
5 G. de Beco,‘Comprehensive Legal Analysis of Article 24 of the Convention on the Rights of
Persons with Disabilities’ in G. de Beco, J. Lord and S. Quinlivan (eds), The Right to Inclusive
Education in International Human Rights Law (Cambridge: Cambridge University Press, 2019) 58;
D. Anastasiou, M. Gregory and J. Kauman, ‘Education’ in I. Bantekas, D. Anastasiou and M.
Stein (eds), Commentary on the UN Convention on the Rights of Persons with Disabilities (Oxford:
OUP, 2018) 656; A. Broderick and S. Quinlivan, ‘The Right to Education: Article 24 of the
CRPD’ in C. O’Mahony and G. Quinn (eds), Disability Law and Policy. An Analysis of the UN
Convention (Dublin: Clarus Press, 2017) 293.
6 R. Kayess and J.Green, ‘Today’s Lesson is on Diversity: A Reection on Inclusive Education’ in
P. Blanck and E. Flynn (eds), Routledge Handbook of Disability Law and Human Rights (London:
Routledge, 2016) 53; O. Arnardóttir, ‘The Right To Inclusive Education For Children With
Disabilities – Innovations in the CRPD’ in A. Eide, J. Möller and I. Ziemele (eds), Making Peo-
ples Heard Essays on Human Rights in Honour of Gudmundur Alfredsson (Leiden/Boston:Martinus
Nijho Publishers, 2011) 197.
7 C. Hyatt and G.Hor nby, ‘Will UN Article 24 Lead to the Demise of Special Education or to
Its Re-Ar mation?’ (2017) 32 Support for Learning 291; J. Kauman et al, ‘Inclusive Education
Moving Forward’ (2016) 32 Advances in Special Education 153; S. Gordon, ‘Is Inclusive Education
a Human Right?’ (2013) 1 Jour nal of Law,Medicine & Ethics 754.
8 E. Shyman, ‘Towards a Globally Sensitive Denition of Inclusive Education Based in Social
Justice’ (2015) 62 Inter national Journal of Disability,Development and Education 351, 352.
9 B. Byrne,‘Hidden Contradictions and Conditionality: Conceptualisations of InclusiveEducation
in International Human Rights Law’ (2013) 28 Disability & Society 232,233.
10 B. Norwich, Addressing Tensions and Dilemmas in Inclusive Education.Living with Uncertainty (New
York,NY/London: Routledge,2013) 93-94; M.Moore and R. Slee,‘Disability Studies, Inclusive
Education and Exclusion’in N.Watson,A. Roulstone and C. Thomas (eds), Routledge Handbook
of Disability Studies (New York, NY/London: Routledge,2012) 225, 235; K. Runswick-Cole,
1330 © 2022 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1329–1356
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