Equality of What? The Capability Approach and the Right to Education for Persons with Disabilities

Education is one of the most topical issues in South Africa. In recent years, particularly in the period after the adoption of the UN Convention on the Rights of Persons with Disabilities (2006) (hereinafter CRPD), the discourse on the education of children with disabilities has mainly focused on the potential of White Paper 6 on Special Needs Education (2001) (hereinafter WP 6) and its implementing programmes to facilitate the realisation of the right to education for children with disabilities. The CRPD proposes inclusive education as the appropriate way of ensuring the right to education for children with disabilities, and sets out a framework for the implementation thereof. In addition, the CRPD sets out other principles which essentially redefine the approach to the interpretation and implementation of the rights of persons with disabilities. One such principle is the principle of non-discrimination, which demands that all rights be implemented on a basis of equality between all people, disability notwithstanding. Arguably, the legal and policy frameworks on education in South Africa reflect the standards proposed under the CRPD to some extent, and other instruments on the right to education. However, there are still considerable challenges in the conceptualisation and implementation of inclusive education, especially at the basic education level. These challenges are not unique to South Africa, and are mainly attributable to the evolutionary background of the concept of inclusive education at the international level. Hence for instance, the understanding of inclusive education often tends to focus exclusively on the education of persons with disabilities as opposed to the inclusion of all marginalised and excluded groups. This narrow understanding is replicated in South African law, policy, and practice of education. Challenges to the realisation of inclusive basic education in South Africa are compounded further by the pertinent issues underlying the implementation of basic education in South Africa such as the question of equality in education, the financing of basic education, the nature of the states duties pertaining to the provision of basic education, and the interpretation of the notion of basic education. The understanding of inclusive education in South Africa has also been impacted by historical factors, such as the apartheid exclusion of the masses from mainstream basic education, and the subsequent need to "include" everyone in post-apartheid education. All of these factors point to the need to interrogate the current approaches to inclusive basic education in South Africa as against the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution), and international standards that South Africa has committed to through the ratification of the CRPD and the UN Convention on the Rights of the Child (1989) (hereafter the CRC). For instance, there is a need to establish the extent to which the differentiated obligations with respect to basic education as distinct from other levels of education apply to inclusive education. Hence, is there a difference between the nature of the states obligations in respect of "basic education" and those relative to "inclusive basic education"? Further, it is imperative to establish the convergence or divergence between inclusive education as set out in the CRPD and as implemented through WP 6.

The Capability Approach (CA), developed by economist Amartya Sen, in political philosophy, emphasizes the importance of capabilities, functioning, and freedoms of individuals as necessary components for achieving a good life. The development of the capabilities of individuals is influenced by education, which is key to improving individual well-being and social development. CA is characterized by advocating for social justice, the fight against discrimination, and equal education for all, but in a way that, instead of an exclusive focus on economic progress, emphasizes individual well-being. In education, it prioritizes achieving learning outcomes based on individual capabilities rather than uniform resource allocation or standardized results. In line with these characteristics, this paper was created with the aim of exploring the connection between CA and the education of persons with disabilities, as it highlights the importance of adapting teaching methods, taking into account individual differences and specialized support based on the capabilities of students. By analyzing the content of normative documents and scholarly works dealing with the theoretical framework and application of CA, the paper emphasizes its contribution to the more appropriate implementation of normative frameworks aimed at achieving equality and protecting rights and freedoms in educational policies. This approach is linked to the social model of understanding disability and contrasts with the outdated medical model, which viewed disability as pathology and an individual problem. Emphasizing the importance of environmental factors, the social model includes the engagement of social, political, and educational institutions to improve the physical and mental development and educational capabilities of persons with disabilities according to their own capabilities. Martha Nussbaum, who philosophically developed and expanded CA, advocates for a list of fundamental capabilities for achieving social justice, thus complementing the shortcomings of existing theories of social justice by including the needs of vulnerable groups, such as persons with disabilities. This list includes life, health, bodily integrity, and political participation, aiming to ensure a minimum standard of dignity and freedom for individuals and social groups. Therefore, in inclusive education, it is essential to consider how the social and political climate shapes the perception of disability, human rights, and social welfare, and consequently, how it contributes to the development of capabilities and specialized support, such as personal assistance services, which are essential for inclusive education policy and inclusion in all other areas of social and political life.

Inclusive Education—A Sustainable Approach? Markku Jokinen This article is excerpted from Jokinen, M. (2016). Inclusive education—A sustainable approach? In G. A. M. De Clerck & P. V. Paul (Eds.), Sign language, sustainable development, and equal opportunities (pp. 105–117). Washington, DC: Gallaudet University Press. Full and Equal Participation Through Learning Life and Social Skills Full participation is one of the general principles in the United Nations Convention on the Rights of Persons With Disabilities (CRPD) for enabling the enjoyment of human rights. This concept cuts across all issues in the Convention, and is a specific obligation of states/parties that have ratified the Convention document. Other general principles relevant to the education of deaf persons are respect for the evolving capacities of children with disabilities and respect for their right to preserve their identities. The latter is related to the linguistic and cultural identity of the deaf community stated in Articles 24(2)(b) and 30(4). Both principles are essential to full enjoyment of human rights by deaf students in educational contexts. According to Article 24, on education, learning life and social development skills facilitates full and equal participation of persons with disabilities. With respect to deaf students, facilitating the learning of a sign language, promoting the linguistic identity of the deaf community, and ensuring that education is delivered in the most appropriate languages are the measures adopted by the ratified states to enable full and equal participation. The states must also take appropriate measures to employ teachers who are qualified, at least in the use of a sign language. These measures reflect culture-sensitive approaches to guiding students in learning skills that match their personalities, needs, and ways to live as deaf persons. This is part of the CRPD's recognition of the diversity of persons with disabilities and that these individuals can and do contribute to human, social, and economic development. Using and learning sign language with and from proficient teachers provides a foundation for balanced personal, academic, and social development. Enabling deaf students to participate fully in all learning processes and respecting their linguistic and cultural identities require that educators and professionals examine possible factors in successful inclusive education based on needs of deaf students. Deaf People: A Linguistic and Cultural Group Article 24 is connected to Article 2 regarding definitions of the language and communication used in the CRPD. It is the first treaty to consider sign languages as equal to spoken languages, and thus recognizes sign languages as languages in their own right. Another important link is to Article 9, on accessibility, where it is stated that states/parties shall take measures to provide professional sign language interpreters. [End Page 70] Article 21, on freedom of expression and opinion and access to information, includes recognizing and promoting the use of sign languages. Article 30, on participation in cultural life, recreation, leisure, and sport, includes the state's obligation to recognize and support the specific cultural and linguistic identity of persons with disabilities, including sign languages and deaf culture. A perspective on deaf people as a linguistic and cultural group is strengthened through these articles (CRPD, n.d.; Kauppinen & Jokinen, 2014). This perspective should be kept in mind when one develops programs for the education of deaf people that strengthen their educational rights. There is a traditional position that only individual rights are recognized in international law, whereas linguistic rights have been perceived as having a more collective nature. For example, the development of legally binding treaties such as the Framework Convention for the Protection of National Minorities has shown a shift toward acceptance in political and legal terms of the linguistic rights (of minorities) to education (de Varennes, cited in Phillipson, 2000). Further in-depth analysis of the minority and human rights status of deaf people from the linguistic and cultural rights perspective in relation to the CRPD and other treaties is needed to gain a better understanding of what the linguistic and cultural rights of deaf students mean in an educational context. The World Federation of the Deaf used the linguistic rights perspective and arguments during negotiations of the...

Barclay, Linda. <i>Disability with Dignity: Justice, Human Rights, and Equal Status</i>. New York: Routledge, 2018. Pp. 142. $124.00 (cloth).

Background: The Convention on the Rights of Persons with Disabilities (the CRPD) is the first human rights treaty of the 21st century and the first binding instrument specifically focused on protecting persons with disabilities within the framework of the UN's universal system of human rights. The CRPD came into force on May 3, 2008, and as of December 3, 2016 it has been ratified by 168 states. The CRPD developed the Committee on the Rights of Persons with Disabilities (Article 34) to monitor compliance with the Convention by States Parties. The main role of the Committee is to review the reports (both the initial and the periodic reports) submitted by States Parties pursuant to Article 35 of the CRPD. In accordance with the CRPD Article 35, States Parties are required to submit to the Committee “a comprehensive report on measures taken to give effect to its obligations [under the CRPD] … and on the progress made in that regard” within two years after the entry into force of the present Convention for the State Party concerned, and subsequently they must submit periodic reports every four years “and further whenever the Committee so requests.” Qatar ratified the UNCRPD in May 2008 and is obliged as a signatory nation to implement a number of social and legal measures to become fully compliant. Aim: The aim of this paper is to identify Qatar»s degree of compliance with the CRPD as per the last available CRPD reports. Subsequently, we list recommended actions toward Qatar's compliance with the Convention. Findings and recommendations: On June 19, 2012 Qatar submitted its report to the Committee on its compliance with the Convention. Following review of the Qatar report, the committee made six concluding observations. The six observations made by the Committee on the Rights of Persons with Disabilities on Qatar's compliance with the Convention: The legislation revolves around a medical (treatment) model of disability, in contrast to the convention's call for a social model and the human rights approach. It is necessary to safeguard non-discrimination, adopting the inclusive social model. Accommodation and accessibility are not in line with the Convention. There is an absence of specific legal and policy frameworks to ensure accessibility for persons with disabilities on an equal basis with others, and reasonable accommodation is not sufficiently guaranteed. Lack of consultation and participation of persons with disabilities in the drafting of regulatory policies that affect them. Lack of systematic information. There is no independent internal mechanism to coordinate policy on the rights of persons with disabilities and monitor the implementation of the Convention. The Committee's six concluding observations on the rights of persons with disabilities indicate that Qatar, similar to many other countries, has a long way to go before reaching compliance with the convention. As a first step towards compliance with the Convention, Qatar action regarding the six issues highlighted here is key, and can be as follows: Adopt a social model whereby the state moves beyond the assistance-based approach to the development of actual individual rights enforceable in a court of law, considers disability rights as validity standards, and regards the field of conflict of rights as other rights or fundamental legal interests. Prevent discrimination by adopting an inclusive social model, as well as via adapting both the situation strategy (equality focused on the situation) and the identity strategy (acknowledging the rights of specific persons or groups). Provide accessibility through universal design and reasonable accommodation. Consult and include persons with disabilities in the drafting of regulatory policies that affect them. Collect systematic (research and statistical) data on persons with disability for use in the development and implementation of policies. Put in place an independent internal mechanism to coordinate policy on the rights of persons with disabilities and monitor the implementation of the Convention. Acknowledgement: This presentation was made possible by the support of the NPRP grant 7 - 380 - 5 - 051 from the Qatar National Research Fund. The statements made herein are solely the responsibility of the authors.

The 2006 United Nations Convention on the Rights of Persons with Disabilities (UN CRPD) is the first human rights treaty to explicitly acknowledge the right to education for persons with disabilities. In order to realize this right, the convention’s Article 24 mandates state parties to ensure inclusive education systems that overcome outright exclusion as well as segregation in special education settings. Despite this major global policy change to tackle the discriminations persons with disabilities face in education, this has yet to take effect in most school systems worldwide. Focusing on the factors undermining the realization of disability rights in education, Julia Biermann probes current meanings of inclusive education in two contrasting yet equally challenged state parties to the UN CRPD: Nigeria, whose school system overtly excludes disabled children, and Germany, where this group primarily learns in special schools. In both countries, policy actors aim to realize the right to inclusive education by segregating students with disabilities into special education settings. In Nigeria, this demand arises from the glaring lack of such a system. In Germany, conversely, from its extraordinary long-term institutionalization. This act of diverting from the principles embodied in Article 24 is based on the steadfast and shared belief that school systems, which place students into special education, have an innate advantage in realizing the right to education for persons with disabilities. Accordingly, inclusion emerges to be an evolutionary and linear process of educational expansion that depends on institutionalized special education, not a right of persons with disabilities to be realized in local schools on an equal basis with others. This book proposes a refined human rights model of disability in education that shifts the analytical focus toward the global politics of formal mass schooling as a space where discrimination is sustained.

This article examines a new capability‐based measurement framework that has been developed as a basis for equality and human rights monitoring in twenty‐first‐century Britain. We explore the conceptual foundations of the framework and demonstrate its practical application for the purposes of monitoring equality (in terms of the distribution of substantive freedoms and opportunities among individuals and groups) and human rights (in terms of the achievement of substantive freedoms and opportunities below a minimum threshold) in England, Scotland and Wales. The article challenges the sceptical position by suggesting that ‘operationalizing’ the capability approach is both ‘feasible’ and ‘workable’. A new two‐stage procedure for deriving a capability list is proposed. This combines human rights and deliberative consultation and strikes a balance, we contend, between internationally recognized human rights standards and principles on the one hand, and direct deliberation/participation on the other, in the development and agreement of capability lists.

This article examines the rights of persons with disabilities in the field of inclusive education based on fundamental human rights outlined in the Convention on the Rights of Persons with Disabilities. Inclusive education is essential to achieve universal respect for the right to education, including persons with disabilities. Only inclusive education systems can offer persons with disabilities both quality education and the opportunity to improve their social situation. Inclusive education is not just about placing students with disabilities in mainstream educational institutions; it also means making them feel welcome, respected and valued. The values that underlie the concept of inclusive education reinforce the capacity of everyone to achieve their goals and to conceive of diversity as a source of enrichment. Students with disabilities need appropriate support to participate in the education system on an equal basis with other students. Ordinary educational institutions must provide students with disabilities with a learning environment that maximizes academic progress and socialization.

Assistive technologies (ATs) promote participation and inclusion in society, and support access to health, social services, education, work and other important life experiences for persons with disabilities, older people and those with chronic conditions. The Global Report on Assistive Technology, launched in May 2022 by WHO and UNICEF, calls for concrete actions to improve access to AT globally, and recognizes AT as both a means to, and an end itself, in the achievement of rights of persons with disabilities. The UN Convention on the Rights of Persons with Disabilities (CRPD, 2006) is the most widely ratified human rights convention, affirming the right to participation in society on an equal basis with others. Purpose In this paper, we highlight examples of how AT may play a role in realizing each of the fundamental rights affirmed in the UNCRPD. Materials and methods We conducted an indicative literature search for relevant literature to each of the substantive articles of the CRPD. Results Assistive technology plays a critical role in achieving the rights affirmed by the Convention on the Rights of Persons with Disabilities. Conclusions Ensuring adequate provision of AT by states parties is critical to the progressive realization of the rights of persons with disabilities and to fulfilling commitments made by states parties upon ratification of the CRPD. Implications for rehabilitation Assistive technology (AT) is critical to enable full participation of persons with disability in society and the achievement of rights affirmed by the Convention on the Rights of Persons with Disabilities. Governments and other key stakeholders should endeavour to improve access to AT through inclusive, evidence-informed programs and services. Advocacy is required to improve access to AT through universal health coverage.

The article analyzes the legal regulation of inclusive education in modern society, both at the international and national levels. The processes, according to the authors, levels existing in most countries a common understanding of the right of disabled persons to education as inalienable and absolute, deriving from the respect for their human dignity. In the present work investigates the main international documents regulating this right, including the Declaration on the rights of persons with disabilities and the Salamanca statement on principles, policy and practice in education of persons with special needs. Special attention is paid to the domestic regulation of inclusive education, including at the regional level.

Capability scholars employ the Amartya Sen’s approach to evaluate living standards. While this original type of approach supports of well-being and individual living standards, its recent expansion into a new approach by using the capability approach together with other approaches. However, the operationalizing capability approach, whether original from Amartya Sen or blended with other theories, is still in use nowadays and has emerged to examine the relevance of the theory of capability approach. To evaluate the relevance of the implemented Sen’s capability approach, the author conducted a systematic review of 1,456 peer-reviewed articles from the JStor and ScienceDirect databases related to the capability approach to assessing living standards. The results of this study including 39 articles, only 1 article showed that Sen’s capability approach does irrelevant and the 38 others proved that the capability approach still relevant to implemented in economic development and many field studies to evaluate the living standards of society. This study evaluates the relevance of the implemented Amartya Sen’s capability approach by conducting a systematic review of scientific articles around the worldwide in JStor and ScienceDirect databases. The author conducted a systematic review of 1,456 peer-reviewed articles from the JStor and ScienceDirect databases related to the capability approach. The screening process was analyzed in the Rayyan program and following PRISMA guidelines. Almost all previous studies proved that the idea from Amartya Sen about the capability approach still relevant to use until now. Studies that assess human living standards can continue in using a capability approach from the idea of Amartya Sen. This study conducted a systematic review of all scientific evidence with different research approaches published for their relevance to assessing living standards . Keywords: capability approach, Amartya Sen, living standard. DOI: https://doi.org/10.55463/hkjss.issn.1021-3619.60.65

In recent years, the European Court of Human Rights has developed a significant jurisprudence which illustrates the added value of the European Convention on Human Rights (ECHR) in the field of poverty. Building on the findings of Amartya Sen's “capability approach”, the article examines the extent to which the Court has grasped the nature of poverty as “capability deprivation”. It is argued that, due to polycentric concerns and a reluctance to overcome the negative / positive obligations and civil and political / social and economic rights dichotomies, the Court has only, to a limited extent, done so. Subsequently, three approaches are examined that could allow it to better take into account the findings of the “capability approach” and that could allow for enhanced protection of the human rights of persons living in poverty under the ECHR: endorsing a more complex perspective on the responsibility of the state; analysing poverty as a failure to provide substantive equality; and recognising the vulnerability of persons living in poverty.

Human Rights Due Diligence (HRDD), as outlined by the UN Guiding Principles on Business and Human Rights (UNGPs), is constrained by normative foundations that prioritize corporate risk management over meaningful engagement with rightsholders. This paper critiques these foundations, which limit HRDD’s capacity to foster substantive human rights respect and protection. We argue that HRDD, in its current form, fails to sufficiently empower rightsholders. To address these limitations, we propose integrating Sen’s capability approach into HRDD frameworks. This approach focuses on enhancing rightsholders’ freedoms and agency, allowing them to actively shape the processes that affect them. The capability approach presents a more inclusive, ethically robust model for HRDD, transforming it from a compliance-driven mechanism into a genuinely rights-respecting process. By realigning HRDD with the broader principles of Business and Human Rights (BHR), we emphasize the importance of prioritizing rightsholders’ voices, ensuring institutional support, legal mandates, and corporate accountability.

For advocates of the rights of persons with disabilities, particularly persons with mental disabilities, the human right to live in the community as an equal member is seen to be central and, often, even as the basis for all other human rights. Yet, despite its articulation in human rights law in the Convention on the Rights of People with Disabilities (CRPD), foundational issues about the right remain undertheorized and unclear. This paper brings to bear the capabilities approach, a normative framework about human well-being, social development and social justice, to this central concern in disability rights, mental health ethics, and international human rights law: protecting and respecting a person's right to live in a community as an equal. We argue that this human and moral right is best conceptualized as a capability to live in the community as an equal member. The capabilities approach provides this capability with a strong ethical framework and conceptual resources to guide reasoning and its practical realization.

Goal: the purpose of this article is to provide insight into the current state of protection of the rights of persons sentenced to imprisonment in Ukraine; analyze the fundamental rights of convicted persons as defined by the Convention for the Protection of Human Rights and Fundamental Freedoms; highlight the legal and regulatory framework for the protection of the convicted persons’ rights at the national and international levels. Methods: general and specific scientific (special) methods were used to achieve the research goal. Results: improvement of national legislation that would protect the rights and freedoms, as well as continue the course of Ukraine on European standardization of laws. Discussion: the author finds out whether it is expedient to apply conditional release to persons sentenced to life imprisonment. The author analyzes the judgment of the European Court of Human Rights and outlines the main rights that are most often raised in criminal proceedings. Proper safeguarding and protection of the rights of both citizens and convicted persons prior to imprisonment in Ukraine require their clear legal regulation, which makes it necessary to perform a scientific analysis of the protection of the convicted persons’ rights. It is worth noting that increasing the attention to the issues of respect and protection of the rights and freedoms of persons sentenced to imprisonment today is one of the priority tasks in the field of the Criminal and Executive Law in Ukraine. The purpose of this article is to provide insight into the current state of protection of the rights of persons sentenced to imprisonment in Ukraine; analyze the fundamental rights of convicted persons as defined by the Convention for the Protection of Human Rights and Fundamental Freedoms; determine the grounds for applying to the European Court of Human Rights; highlight the legal and regulatory framework for the protection of the convicted persons’ rights at the national and international levels. Ukraine has a significant amount of regulatory legal acts intended for protection of the human rights. Some of these documents are international standards in the field of the human rights and the other part relates to the regulatory acts of the national legislation. Being based on the constitutional provisions the Criminal and Executive Code of Ukraine defines the basis for the legal status of convicted persons thus establishing their basic rights and obligations. Most of them align with the provisions of the international instruments concerning the legal status of the convictedpersons, in particular, regarding the treatment of a convicted person with respect to his human dignity; provision of the conditions for the convicted persons in compliance with the accepted standards.