In the UK, the education of students with NES operates largely within a similar legal framework. Nevertheless, it is worth mentioning some important innovations that have been introduced outside England. There is no model of good practice for inclusive education. Inclusion is indeed a difficult path, and it is probably impossible to say that “everything has been done”, because inclusion is a process that must be constantly reviewed and revised. There is therefore great progress in achieving the commitment to inclusive education for children with disabilities. The Treaty on the Functioning of the European Union established the legal basis for EU action to combat discrimination (Article 19), enabling the Council to take appropriate measures to combat discrimination on grounds of disability. The above-mentioned international legal instruments are not legally binding on Member States. Footnote 19 They also do not provide for monitoring of their implementation. Conventions, on the other hand, are binding on ratifying States. There is a need for more comprehensive legislation to guarantee the rights of persons with disabilities on an equal footing with persons without disabilities in all aspects of political, civil, economic, social and cultural rights.
All international human rights instruments protect the human rights of persons with disabilities to the extent that they apply to all. This principle of universality is reinforced by the principles of equality and non-discrimination contained in human rights instruments. Article 24 of the CRPD even provides for inclusion throughout the Convention in the simplest way and increases opportunities for persons with disabilities to receive equal treatment. Like other UN thematic human rights treaties, the UN CRPD does not establish new legislation, but clarifies the specific implications of the right to education without discrimination for persons with disabilities and sets out Parties` obligations to ensure that education systems for persons with disabilities are inclusive. While the importance and increasing role of international law in promoting the rights of persons with disabilities is recognized by the international community, national legislation remains one of the most effective ways to facilitate social change and improve the status of persons with disabilities. Jordan R (2008) Autism Spectrum Disorders: A Challenge and Model for Inclusion in Education. Br J Spec Educ 35(1):11–15 The education of students with SEN is guided by the principles of normalization and inclusion, ensuring non-discrimination and true equality in access to and continuation of the education system, allowing flexibility at different stages of their education if necessary. School attendance in special education centres or units, which may be extended until the age of 21, takes place only if their needs cannot be met by the special needs available in normal schools. (2) Adoption of various legislative measures in civil, criminal and administrative law to implement the rights recognized in international instruments.
The current trend in EU Member States is to develop policies for the inclusion of pupils with special educational needs. Some countries still have selective and non-inclusive education systems, but some progress has been made. For example, in European countries where the special education system has relatively two components, there is a tendency to develop a continuum of services between the two systems or to transform special schools into resource centres for mainstream schools. Footnote 61 Technical schools still have a role to play, but to be compatible with Article 24 of the CRPD, they must have a better raison d`être than to go after those that “fail” in mainstream schools. As is the case in Europe, technical schools should be centres of excellence developing new ways of working with ASD and dealing with the most extreme cases. They should be both research and teaching centres and play a role in collaborating with mainstream schools to achieve more effective inclusion. However, special schools should be seen as a support for an inclusive system rather than an alternative to it. International instruments such as declarations, resolutions, principles, guidelines and rules are not technically legally binding. They express universally accepted principles and represent a moral and political obligation on the part of States. They can also serve as guidelines for States to enact laws and formulate policies for persons with disabilities. The Committee notes that greater representation of women in elected bodies does not automatically enable them to be politically effective. Critical factors include: (i) elite support for women`s inclusion and gender-equitable outcomes; (ii) political coalitions exerting pressure on State or elite actors; (iii) male allies in the state bureaucracy, civil society space and the state; (iv) femocrats/politicians advocating for a gender equality agenda; (v) Strengthen women`s movements to negotiate gender equality; vi) Support to transnational actors/discourses and context.
The course of the legislative process will vary according to the respective national legal systems. Thus, the inclusion of international human rights principles and standards in national constitutions – or similar documents – remains the most important means of bringing national laws into line with international standards. In Wales, where the legal framework for the provision of special education is governed by the Welsh Education Act 2002 (SEN), the government published a white paper in June 2014 proposing amendments to the Act. The reform, which will apply to learners aged 0-25, will replace the existing legal definition of ENS with a more flexible and inclusive legal concept of additional learning needs (ALN) and replace ENS declarations with Individual Development Plans (IDPs) as the basis for fulfilling a child`s or adolescent`s ALN. The integration of students with disabilities began with Law 118/1971, which granted all children the right to be schooled in common classes, and with Law 517/1977, footnote 56, which abolished special schools. In 1992, the whole process culminated in Bill 104, a comprehensive legal framework that aims to respond more systematically to the complex needs of persons with disabilities at different stages of life. Although the UN Convention on the Rights of Persons with Disabilities is the first legally binding instrument to protect the right to inclusive education, the idea has already been expressed in previously adopted international instruments. From a legal point of view, there is no consensus on the definition of inclusive education. The United Nations Convention on the Rights of Persons with Disabilities also does not provide for such a definition.
In this context, international law plays a facilitating role for the realization of the right to education of persons with disabilities worldwide. As a recent, comprehensive and legally binding international instrument for the protection of the rights of persons with disabilities, the Convention on the Rights of Persons with Disabilities (CRPD) has set out measures to protect their right to education. Another positive aspect is the introduction of a forward-looking obligation in Article 4(1)(a) to ensure `effective and non-discriminatory access to social protection, social advantages, healthcare, education and access to goods and services made available to the public, including housing and transport, and the provision of goods and services”. The Directive does not specify who has this obligation, but it implies that Member States and service providers have a positive obligation to take measures to ensure equal access for people with disabilities. Reindal SM (2008) A social relational model of disability: a theoretical framework for special education? Eur J Spec Needs Educ 23(2):135–146 The direct application of international law by national courts can also play an important role in the implementation of international human rights law applicable to persons with disabilities by respecting relevant international standards and citing precedents in other jurisdictions. In the case of legislation on persons with disabilities, due process must be followed. There are three main methods of transposing international legal instruments into national law: However, the Nesse report points out that due to policy changes, it can sometimes be difficult to classify a country according to the type of inclusion policy. For example, Germany and the Netherlands are positioned in the two-way system, but have recently moved to the two-way system.