|4.1 Does the immediate nature of state responsibilities for basic education apply to inclusive education?
Both the CRC and the ICESCR establish a duty to provide free and compulsory primary education. Article 28(1) of the CRC recognises the right of children to education "with a view to achieving [it] progressively". Article 13(2 (a) of the ICESCR provides for the duty to ensure primary education that is compulsory and freely available to all. When read together with Articles 2(1) and 14, however, the right to primary education under the ICESCR is subject to progressive realisation.113 Article 14 particularly requires state parties to the ICESCR to provide a plan for the progressive implementation of free and compulsory primary education within a reasonable number of years, which period is to be set in the plan. One can therefore argue that on a strictly textual basis, the right to free and compulsory primary education under these two treaties is subject to progressive realisation.
The prevailing view at the international level that state obligations for primary education are immediate has developed through interpretation by both the CESCR and the CRC Committee through General Comments and concluding observations on state party reports.114 Whether or not the jurisprudence of the CESCR and CRC Committees on the right to education in general can be deemed to form part of international law is therefore a decisive factor in determining the nature of the obligations of a state under the provision.
General Comments expound on specific provisions of international instruments but are not binding.115 Nevertheless, the General Comments and concluding observations of the respective Committees have substantial jurisprudential and guiding value that must be duly acknowledged.116 The near universal ratification of the CRC and the wide acceptance of the standards established under the ICESCR could also support the view that the jurisprudence of the Committees does amount to international law. Indeed, the understanding of the duty of all states to provide free and compulsory primary education has been widely endorsed and propagated by national and international legal instruments, judicial decisions, and the works of renowned writers on human rights.117 These works are of great persuasive value in terms of Article 38 of the Statute of the International Court of Justice, and constitute a source of international law.118
It is also clear from the travaux preparatoires of the CRPD that Article 24 was intended to be subject to progressive realisation along with other socio-economic rights under the Convention.119 In terms of Article 4(2) of the CRPD, state parties "undertake to take measures to the maximum of their available resources and where needed, within the framework of international cooperation, with a view to achieving progressively the full realization" of socioeconomic rights including the right to education. however the provision does not apply to immediate obligations for socioeconomic rights that are established in international law.120
Notably also, throughout the negotiation of Article 24, the progressive nature of the obligations in respect of primary education was constantly highlighted, suggesting that state parties were either oblivious of (which is unlikely) the jurisprudence on the immediacy of their obligations, or consciously endorsing a different standard with respect to the primary education of children with disabilities.121 In addition, the ultimate removal of the progressive realisation clause from the final wording of the provision was not prompted by the acceptance of an already established immediate responsibility to provide free primary education, but rather by an agreement that the progressive nature of socio-economic rights should be addressed in a general clause, is Article 4(2) of the Convention.122 Such a general clause would apply to all rights including those under Article 24. This suggests that there was an almost explicit intention to make the right to primary education under the CRPD subject to progressive realisation.
However, such a conclusion is inconsistent with the expressed intention of Article 24(2)(b), which is to provide education for children with disabilities on an equal basis with others in the communities in which they live. This inherent inconsistency notwithstanding, the dominant theme of the provision is to ensure that children with disabilities have access to free and compulsory education on terms similar to those provided for other children. The clause nullifies the justification for the progressive establishment of inclusive schools where the state is already implementing free and compulsory primary education for other children.123 The equality basis also means that measures taken towards improving the education of children with disabilities cannot be prioritised over those of other children in the community. The balancing affects both groups.
If it is therefore accepted that if the implementation of the right to "free and compulsory primary education" yields immediate obligations, then inclusive free and compulsory primary education as envisaged under the CRPD ought to be excluded from progressive realisation. This means that WP 6 and the progressive approach to the realisation of inclusive education as conceptualised therein are out of step with both the Constitution and international human rights standards.
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