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Equality, Inclusion, and Article 24 of the Convention on the Rights of Persons with Disabilities

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Abstract:

A substantive principle of equality and non-discrimination underpins the right to education and the concept of inclusion as understood in article 24 of the Convention on the Rights of Persons with Disabilities (the Convention). This paper will consider the conceptual basis of a right to equality as it has developed in international human rights instruments, including the Convention, as well as in a number of domestic jurisdictions. In particular, it will evaluate the extent to which a guarantee of non-discrimination in education can encourage or require inclusive educational environments.

In the preamble and in many of its provisions, the Convention generally emphasizes the need to transform social structures in order to ensure the rights of persons with disabilities in all areas. It also promotes a concept of substantive equality which moves beyond a formal theory of non-discrimination and requires that states take positive, proactive measures to address the actual disadvantage and marginalization encountered by persons with disabilities. For example, the Convention’s notion of disability focuses on the ways in which social and environmental barriers and attitudes create disadvantage and limit participation rather than on individual impairments. Also, its definition of discrimination includes the denial of reasonable accommodation which is defined as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. Article 24 provides that a right to education – and inclusion - should be aimed at the full development of human potential, dignity, self-worth, diversity, and participation. Although the text of other human rights instruments have not gone this far, their monitoring bodies have increasingly interpreted the relevant provisions with reference to a substantive and transformative equality principle.

At the domestic level, formal approaches to equality and non-discrimination in anti-discrimination legislation and constitutional jurisprudence have limited the implementation of these standards. In particular, the need (in some jurisdictions) to find a non-disabled comparator who is similarly situated to the claimant with a disability in order to establish a discrimination claim has sometimes posed insurmountable difficulties for achieving inclusion.

The disability paradigm makes us question in a profound way what we mean by “normal” and the implications of the ways in which we have constructed our societies. It also requires a reassessment of how we conceptualize “equality” and identify its aims. This analysis concludes that it is necessary to reconfigure current legal approaches in order to better meet the objectives of participation and inclusion in light of evolving international norms.
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Name: The Law and Society Association
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MLA Citation:

Loper, Kelley. "Equality, Inclusion, and Article 24 of the Convention on the Rights of Persons with Disabilities" Paper presented at the annual meeting of the The Law and Society Association, Renaissance Chicago Hotel, Chicago, IL, May 27, 2010 <Not Available>. 2014-11-27 <http://citation.allacademic.com/meta/p407822_index.html>

APA Citation:

Loper, K. , 2010-05-27 "Equality, Inclusion, and Article 24 of the Convention on the Rights of Persons with Disabilities" Paper presented at the annual meeting of the The Law and Society Association, Renaissance Chicago Hotel, Chicago, IL <Not Available>. 2014-11-27 from http://citation.allacademic.com/meta/p407822_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: A substantive principle of equality and non-discrimination underpins the right to education and the concept of inclusion as understood in article 24 of the Convention on the Rights of Persons with Disabilities (the Convention). This paper will consider the conceptual basis of a right to equality as it has developed in international human rights instruments, including the Convention, as well as in a number of domestic jurisdictions. In particular, it will evaluate the extent to which a guarantee of non-discrimination in education can encourage or require inclusive educational environments.

In the preamble and in many of its provisions, the Convention generally emphasizes the need to transform social structures in order to ensure the rights of persons with disabilities in all areas. It also promotes a concept of substantive equality which moves beyond a formal theory of non-discrimination and requires that states take positive, proactive measures to address the actual disadvantage and marginalization encountered by persons with disabilities. For example, the Convention’s notion of disability focuses on the ways in which social and environmental barriers and attitudes create disadvantage and limit participation rather than on individual impairments. Also, its definition of discrimination includes the denial of reasonable accommodation which is defined as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. Article 24 provides that a right to education – and inclusion - should be aimed at the full development of human potential, dignity, self-worth, diversity, and participation. Although the text of other human rights instruments have not gone this far, their monitoring bodies have increasingly interpreted the relevant provisions with reference to a substantive and transformative equality principle.

At the domestic level, formal approaches to equality and non-discrimination in anti-discrimination legislation and constitutional jurisprudence have limited the implementation of these standards. In particular, the need (in some jurisdictions) to find a non-disabled comparator who is similarly situated to the claimant with a disability in order to establish a discrimination claim has sometimes posed insurmountable difficulties for achieving inclusion.

The disability paradigm makes us question in a profound way what we mean by “normal” and the implications of the ways in which we have constructed our societies. It also requires a reassessment of how we conceptualize “equality” and identify its aims. This analysis concludes that it is necessary to reconfigure current legal approaches in order to better meet the objectives of participation and inclusion in light of evolving international norms.


Similar Titles:
The Expert of Self in the Process of Global Governance: The Role of Persons with Disabilities in the Drafting of the Disability Rights Convention

Emergent Disability and the Context of Equality: Considering the UN Convention on the Rights of Persons with Disabilities

Inclusion as a human right: The gap between the convention for the rights of persons with disabilities and national policies


 
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