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Inclusive Education in Strasbourg: Still Learning?

Published online by Cambridge University Press:  11 February 2021

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Summary

ABSTRACT

Too often, children with disabilities worldwide do not enjoy the right to education (on an equal footing). Yet the right to inclusive education is enshrined in Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and General Comment No. 4 to this Convention. This right has, moreover, found its way into many other layers of inter- and supranational law. It might therefore seem surprising that the European Court of Human Rights (ECtHR, the Court) is criticised for misapplying the CRPD in its case law, especially concerning the right to education of children with disabilities – all the more so as the Court usually has regard to the broader developments in international law and the development of a consensus. In this contribution, we firstly consider the precise obligations imposed by Article 24 CRPD and its success in international law. After having considered this yardstick, we analyse the cases concerning the right to education of children with disabilities. These cases concern Article 2 of the First Additional Protocol to the European Convention on Human Rights, alone and in conjunction with the prohibition of discrimination in Article 14 European Convention on Human Rights. As our analysis shows, this case law does reveal some inconsistencies as well as certain aspects that are difficult to reconcile with the CRPD framework. These difficulties can also be seen when considering the Article 2 case law more broadly. However, some rays of hope can be found both in the case law concerning children with disabilities and in the Article 2 case law more broadly, most notably through applying a consistent alliance of Article 2 with Article 14 in such cases. We end this contribution with a tentatively suggested approach that would allow the Court to interpret Article 2 in a way that is compatible with the CRPD framework and which is thus more respectful of the rights of children with disabilities.

INTRODUCTION: INCLUSIVE EDUCATION, THE COUNCIL OF EUROPE AND THE EctHR

According to the United Nations Children's Fund (UNICEF), about 93 million children worldwide have a disability. As is the case for all other children, if not even more so, a good education is crucial for them to flourish and to participate in society on equal terms with everyone else.

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Publisher: Intersentia
Print publication year: 2020

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