A Study On The Protection Of Disabled Person’s Right To Travel In Air Transport

Disabled passenger, like its able-bodied counterpart, shall have the same opportunity in using air transport. However, disabled passenger is always obstructed in real life. Following disability rights movement, European and American countries have enacted legislations to promote disabled passenger to have the same convenience in air travel. China has also enacted special rules to protect disabled passenger’s right to travel in air transport. But in practice, the condition of the realization of disabled person’s right to air travel is not improved.This thesis aims to analyze the theoretical bases of the protection on disabled person’s right to travel in air transport, to find a better way to protect disabled person’s right using a comparative approach, and to advice on how to realize this right. Aside from the conclusion, this thesis consists of an introduction and four chapters.The part of introduction is used to introduce the value of this topic, the findings of the literature review and the approaches employed. The topic is rich in both academic and practical values. According to materials like the Investigation on Disabled Persons’ Air Travel, many disabled people have experienced hardships in air travel. In contrast with the topic’s value, there is only one thesis dedicated to this topic in the Chinese academia. Scrutinizing the literatures on the topic suggests that the researches done by Western researchers outmatch those by their Chinese peers. In this thesis, the methodologies of legal hermeneutics, comparative law and case study are 2 employed.Chapter One, “the theoretical bases of protecting disabled passenger’s right to travel in air transport”, is dedicated to clarify the theory of disabled passenger’s right to travel, to ascertain problems in its realization, and to lay the foundations for further discussion. Disabled people have the right to travel as able-bodied men. However, its realization is obstructed by various factors. As formal equality transforms to substantive equality, vulnerable groups like disabled people are entitled to compensatory treatment to rectify the substantive inequality brought by formal equality. The right to travel is a citizen’s right to use transport resources in certain space and time. As disabled people have physical or psychological impairments and are exposed to other people’s prejudice, their right to air travel is not actually realized. Substantive equality requires not only non-discrimination but also special arrangement be made to accommodate disabled people’s needs. That is the obligation of accessibility imposed on airlines and airports. The obligation of accessibility consists of the obligation to provide accessible buildings, vehicles, facilities and communication and the obligation to provide assistance. The obligation of non-discrimination and the obligation of accessibility have the same function to realize disabled person’s right to travel, but they focus on different obstacles to this right. The obligation of non-discrimination aims to eradicate other people’s discrimination which is the subjective obstacle to disabled person’s right, while the obligation of accessibility helps disabled people to overcome objective obstructions.Chapter Two is titled “special rules for disabled person’s air travel”. This Chapter uses a comparative approach to analyze the special rules dedicated to the protection of disabled person’s right to travel in the United States and the European Union, and compare these rules with their Chinese counterparts. The realization of the right to travel needs the performance of the obligation of non-discrimination and the obligation of accessibility. The rules in the EU focus on the obligation of non-discrimination and set mere general standards for the performance of the airlines and airports’ obligations of accessibility, while the rules in the US lay specific and detailed regulations for the airlines and airports’ performance of their obligations of accessibility. The EU practice results in the inadequate protection of disabled persons’ right to travel and differentiated treatments across Europe, while the US practice affords a uniform standard of protection in the States. China has enacted the Technical Standards for Airport Passenger Terminal Facilities with Accessibility by Individuals with Disabilities and the Measures for Administration of Disabled Persons’ Air Transport. The latter one is more important in the realization of disabled person’s right to travel. However, this rule’s usefulness is hindered by its own and its superior regulations’ defects.Equality demands that disabled people cannot be treated differently because of unreasonable reasons; the exercise of the right to travel cannot jeopardize other person’s legitimate rights; the combination of these two requirements are the enumerated exceptions which allow a carrier to limit a disabled person’s equal right to travel. In the Chinese, US and EU rules, aviation safety is the most important reason to limit a disabled person. Three methods of limitation are observed: deny boarding, require a medical certificate and require a safety attendant. To prevent the abuse of safety limitation, EU and US rules require the airlines to properly train their staffs, forbid the airlines from denying disabled passengers on grounds of inconvenience or uncomfortable travel conditions and demand the airlines to produce written statements when denying passengers. The United States also requires that an airline can only deny a disabled passenger if he or she presents direct threat, which means the risk of transporting the passenger cannot be mitigated. The direct threat standard can help to balance aviation safety and disabled person’s right to travel.The obligation of accessibility appears in the form of the accessible standards of buildings, vehicles, facilities and communication, and in the form of the assistances the airlines and the airports are obligated to provide. The Chinese, EU and US rules do not lay down strict obligations for disabled person’s advance notice; the rules require the airlines and airports to provide assistances as far as possible. The rules forbid airlines and airports to charge disabled passengers for the cost of performing their obligations against disabled person’s right to travel. The result is to make all passengers bear this cost. It will incentivize the airlines to deny disabled passengers, and shifts the burden of the state, which is the ultimate provider of social welfares, to others. The cost shall be borne by the state.Chapter Three, “the remedies to disabled passenger’s right to travel in air transport”, discusses the remedies offered when a disabled passenger’s rights are invaded. The first part of this Chapter continues to use the materials from China, the EU and the US and to use a comparative approach to discuss the remedies afforded when the airlines or the airports infringe disabled person’s right to travel. Restricted by the Warsaw Convention, Montreal Convention and relevant domestic legal documents, civil liability faces the problems of low limitation of liability and non-compensation of pure mental injury. Criminal penalty is hardly rendered because of three reasons: high standard of proof in criminal prosecution; a legal person cannot be imprisoned; it is harder to render criminal fines than to render administrative fines. Pursuing administrative liability seems to be the only effective way to deter infringement. In the meantime, the administrative penalties imposed by the US Department of Transportation include guidance for infringers on how to rectify their wrongs. It is useful to prevent future infringements.Most countries in the world, including China and all member states of the EU, are contracting parties to the Convention on the Rights of Persons with Disabilities and bear the obligations to protect disabled person’s right to travel under the Convention. The Optional Protocol to the Convention on the Rights of Persons with Disabilities offers the scheme of individual communication to those disabled persons when they think the contracting parties fail to protect disabled person’s right to travel under the Convention on the Rights of Persons with Disabilities. In this scheme, the time used to process individual communication is consuming. The decisions made by the Committee on the Rights of Persons with Disabilities are unclear and unenforceable. The scheme of individual communication fails its purpose to purse state responsibility and protects the right to travel.Chapter Four is “the advices for the protection of disabled person’s right to travel in China”. This Chapter will analyze the problems in China’s protection on disabled persons’ right to travel and give corresponding advices. According to the bulletins on consumers’ complaints published by the Civil Aviation Administration of China, the weak point in China’s protection on the right to travel lies in the implementation of the Measures for Administration of Disabled Persons’ Air Transport. The reasons for the poor implementation are: the Measures’ inadequate force of law; the Measures’ superior regulations leave an open door for airlines’ non-performance of their obligations under the Measures; ambiguous standards of safety; no punishment on violation; improper allocation of the costs. Accordingly, the improvement of China’s protection on the right to travel needs the following changes: elevation of the Measures’ force of law; incorporate the direct threat standard to determine a disabled passenger’s threat to aviation safety; subsidize the airports and airlines for their costs in carrying out the obligations against disabled passengers’ right to travel; amend the defective regulations; lay down administrative penalty for violation; exclude mobility equipment from the scope of baggage; allow the compensation of pure mental injury; and reinforce the guidance by the Civil Aviation Administration of China.