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The Right to Travel by Air of Persons with Disabilities

On Thursday 16 November 2017, Lalin Kovudhikulrungsri will defend her doctoral thesis entitled ‘The Right to Travel by Air of Persons with Disabilities’. The defence will commence at 11.15 hrs at the Academy Building of Leiden University, Rapenburg 73. The supervisors are Professor P.M.J. Mendes de Leon and Professor A.C. Hendriks.

Lalin Kovudhikulrungsri
Lalin Kovudhikulrungsri

Persons with disabilities and air travel

Normally, when persons wish to travel by air, their concerns include the price of the ticket, security checks at the airport, travel time, visa and border controls, if applicable. However, in the case of persons with disabilities, there are higher obstacles for them to travel by air on an equal footing with persons without disabilities. For instance, a wheelchair user who travels with an accompanying person may require a lift or a ramp in order to board an aircraft, need to be seated in a specific seat with extra space, and pay an extra insurance premium for liability for a wheelchair. In her research, Lalin examined the problems faced by persons with disabilities from the pre-journey to after disembarkation at the airport of destination. These problems can be categorized in accordance with the human rights obligations under the Convention on the Rights of Persons with Disabilities, namely, accessibility and non-discrimination on the basis of disability.

There are two central research questions. First, how does one balance the rights of persons with disabilities (PWDs) according to States’ obligations towards international human rights law and international air law, without causing undue burden, either operational or financial, to airports and airline operators or inconveniencing other passengers? Second, how does one legally ensure the balance in the first question in a uniform manner among jurisdictions since air travel has a transnational character and when inconsistent legal provisions benefit no one?

Legal barriers to accessible air travel

Since there is no explicit international human right to travel by air, Lalin studied the fundamental rights of persons with disabilities under the Convention on the Rights of Persons with Disabilities and investigated four international, regional and national accessibility standards with respect to air travel: the International Civil Aviation Organization, the European Union, the United States and Canada. An analysis of the accessibility standards illustrates that their contents are varied and this gives rise to a question concerning compliance with the prohibition of discrimination on the basis of the disability principle. Moreover, remedies for persons with disabilities with respect to air travel involve a special private air law. This law, however, is an exclusive channel to claim that an air carrier is liable and it provides a limited type and amount of compensation.

Obligations erga omnes and cooperation among stakeholders

In her doctoral thesis, Lalin defends the view that an obligation erga omnes can be conceptualized through accessibility being a global public good. Hence, States are obliged to provide accessible air travel to persons with disabilities even if they are not a party to the Convention on the Rights of Persons with Disabilities. In order to balance the rights and obligations as well as to ensure a uniform manner, the International Civil Aviation Organization and the Committee on the Rights of Persons with Disabilities should jointly publish an interpretation guideline to guarantee that air law and human rights law are not neglected. She also proposes that States refrain from exercising extraterritorial jurisdiction in their accessibility standards, and they should incorporate a clause concerning accessibility in air services agreements.

Prof.dr. P.M.J. Mendes de Leon

"A multifaceted and unique work combining human rights with different branches of international air law. An impressive work because of its broad scope."

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