human rights of persons with disabilities to travel by air
3.8 C ONCLUDING REMARKS : S YNTHESIS OF A CONCEPTUAL FRAMEWORK
Before and after the adoption of theCRPD, theUNhas recognized accessibility and non-discrimination on the basis of disability as principles which, it is argued here, are also relevant with respect to access to air travel forPWDs. TheCRPD is indispensable in its refinement on State obligations to ensure accessibility and not to discriminate on the basis of disability including reason- ably accommodating PWDs. The CRPD additionally recognizes the personal mobility ofPWDs which closely supports accessibility and non-discrimination
on the basis of disability.
The research question of this Chapter on the extent to whichPWDs can enforce entitlements with respect to air travel can be answered conversely by looking into State obligations towards them. The tripartite typology portrays obligations in levels because States are required not only to reform the law and to create an accessible environment but also to monitor private entities responsible for servingPWDs. The criteria of these obligations will be applied
to assessICAO, theEU, theUS and Canada in Chapter 4 and Chapter 5. The research answer can be divided as follows.
3.8.1 Scope of application of obligations under theCRPD
TheCRPDdoes not clearly mention the scope of application though territorial jurisdiction is applied in public international air law. States tend to apply human rights obligations beyond their territory. The justification is to connect with their nationals and their conduct. The other option that is questionable due to its unilateral approach is known as the territorial extension. Air travel can involve more than one country and States tend to use a domestic law as a condition for foreign entities to gain market access. As a result, there may be concurrent jurisdictions. Chapter 4 will explore whether selected accessibility standards on air travel overlap their scope of application and whether there is a clause inASAs to settle this problem or not.
3.8.2 Obligations concerning accessibility standards
As emphasized a number of times, the essence of accessibility lies in its pre- condition to enjoy other rights. To develop and publish accessibility standards on air travel is, thus, essential since they will play a role in plans forPWDs to evaluate their rights and for airport operators and air carriers to servePWDs. However, a review of theCRPDCommittee concluding observations reveals that not all States Parties’ initial reports and concluding observations specify precisely accessibility standards in air transport. Those that do refer to access-
ibility standards mostly mention their national law or regional law,208and only one country, Slovenia, names both Annex 9 to the Chicago Convention and Regulation 1107.209Chapter 4 will explore these two laws together with the accessibility standards of theUSand Canada in detail.
The next Chapter will focus on the completeness of accessibility standards which should contain (1) access to the physical environment and transportation i.e. airports and aircraft; (2) access to information and communication from bookings, including online bookings to the airport of destination, and (3) access to services such as movement within airports and aircraft, acceptance of accompanying persons, carriage of mobility aids and service animals other than trained dogs. The contents should cover training. Any exceptions in accessibility standards will be evaluated on their justification based on Section 3.4.2.2. In short, exceptions are permissible for existing airports and aircraft in the case of the protection of a core value of society i.e. safety. In exceptional cases economic reasons are justifiable.
It is possible that the selected accessibility standards are silent in some aspects of air travel forPWDs so Chapter 4 will check whether reasonable accommodation has been applied when there is no applicable accessibility standard. Moreover, I will also explore whether a license application incorpor- ates accessibility as a requirement or not.
3.8.3 Evaluation of different accessibility standards
After examining the contents of the selected accessibility standards, it is possible that their contents are dissimilar. In that case, there may be a dis- criminatory provision. In other words, it may lead to a violation of an obliga- tion to abolish existing laws, regulations, practices and customs. Thus, the
208See Initial Report on the Implementation of the Provisions of the Convention on the Rights of Persons with Disabilities submitted by the Canada,(7 July 2015), U.N. Doc. CRPD/C/CAN/1, paras 48-49;Initial Report on the Implementation of the Provisions of the Convention on the Rights of Persons with Disabilities submitted by Sweden,(18 Sept. 2012), U.N. Doc. CRPD/C/SWE/1, para. 87;Initial Report on the Implementation of the Provisions of the Convention on the Rights of Persons with Disabilities submitted by the European Union,(3 Dec. 2014), U.N. Doc. CRPD/C/ EU/1, para. 53;Initial Report on the Implementation of the Provisions of the Convention on the Rights of Persons with Disabilities submitted by the Czech Republic,(27 June 2013), U.N. Doc. CRPD/C/CZE/1, para. 210; Initial Report on the Implementation of the Provisions of the Convention on the Rights of Persons with Disabilities submitted by Germany,(7 May 2013), U.N. Doc. CRPD/C/DEU/1, para. 163;Initial Report on the Implementation of the Provisions of the Convention on the Rights of Persons with Disabilities submitted by Thailand, (30 Jan. 2015), U.N. Doc. CRPD/C/THA/1, para. 32.SeeSection 4.6.2.1, Chapter 4.
209Initial Report on the Implementation of the Provisions of the Convention on the Rights of Persons with Disabilities submitted by Republic of Slovenia,(17 July 2014), U.N. Doc. CRPD/C/SVN/1, para. 117.
criteria in Section 3.4.1 will be applied to assess the contents of selected access- ibility standards.
Moreover, theCRPDCommittee, when finding that the existing provision discriminates against PWDs, further evaluates the feasibility for a State to reasonably accommodatePWDs.210
3.8.4 Enforcement of obligations under theCRPD
The obligation to protect applies not only to government bodies of States Parties but also to their private entities. Obligations under Article 9 and Article 20 of theCRPDare not subject to immediate realization so States can set a time span and a deadline for themselves and private entities to implement obliga- tions. Moreover, this Chapter points out that the ambiguous language in the
CRPDleads to difficulties in enforcement. Therefore, an obligation to establish at least one focal point to implement theCRPDis significant in ensuring that
implementation will be monitored. Chapter 4 will strictly focus on the air travel sector.
3.8.5 Remedial measures
As for remedy, the criteria are developed from the two factors of an effective remedy, namely procedure and substance. In short, attention is paid to the effectiveness of both administrative mechanisms and judicial mechanisms in relation to their obligation to prevent future violations and rectifyPWDs.
From this perspective, the two aspects of effective remedy correlate to the focal point mentioned in Section 3.8.4 above. First, a focal point which has the authority to handle a complaint is without doubt an administrative body from a procedural perspective. A sanction ordered by this focal point is con- sidered as one type of substantive effective remedy. Therefore, I will examine them together in Chapter 5 dealing with remedial measures.
3.8.6 Relationship between theCRPDCommittee,ICAO, and States
Traditionally, theCRPDCommittee is like other human rights treaty bodies in that it can monitor States Parties through a country report. In relation to air travel, in addition to checking compliance with the obligations mentioned in Section 3.2 – Section 3.4, the statistics and data can be used to scrutinize such compliance. Other than a country report, a Conference of States Parties
can be a place to exchange opinions on matters relevant toPWDs including air travel.
It is acknowledged that civil aviation is one of the areas where accessibility standards should be harmonized. One way to achieve harmonization is by referring to accessibility standards published by an international organization. Moreover, States can cooperate with others. International cooperation which combines States, international organizations and civil society or, in short, all stakeholders in collaborations to implement obligations in theCRPDcan be a mechanism for generating this outcome. Hence, in Chapter 4, I will explore further how this has been performed byICAO, theEU, theUSand Canada.