Diseño técnico sector LABRADO (2°43'44.7"S, 79°04'21.8"O)

At the outset, it is necessary to clarify some terms omnipresent in the study. They arePWDs, air travel and mobility aids.

1.4.1 Persons with disabilities

PWDs are the main subject in this study, so the first step is to define who they are. Actually, a review of term usage and definition in legal documents pertain- ing to air travel of ICAO, the EU, and the US, as well as decisions by the Canadian Transportation Agency (CA Agency) since this term is not defined in Canada, which are demonstrated in Table 2, shows a number of terms in use to refer to PWDs, including the terms ‘disabled persons’, ‘persons with

reduced mobility’ and ‘individual with a disability’. However, this research uses persons with disabilities as referred to in theCRPD. It also tries to avoid

any derogatory language and to use people-first language.

TheCRPDdoes not definePWDs but it describes disability as an evolving concept.103 _{Under the description in the}

CRPD, this term consists of three components: (1) long-term impairments, (2) interaction with barriers and (3) hindrance to full and effective participation in society.104_{The interaction with} barriers reflects recognition of the social model of disability which takes the view that disability is socially constructed. Yet, Kayess and French note that the description demonstrates a conceptual confusion between impairment and

101 Skytrax,The World’s Top 100 Airlines in 20116http://www.worldairlineawards.com/awards/ world_airline_rating.html (accessed 13 Jan. 2017).

102 International Air Transport Association,IOSA Standards Manual,INT 1, (8th_{ed., International} Air Transport Association 2014); Airports Council International,Airports & Persons with Disabilities: A Handbook for Airport Operators,2, (4th_{ed., Airports Council International 2003).} 103 CRPD, preamble (e).

disability because it only provides that only the persons with impairments may be subject to disability.105_{This limitation causes social oppression under} the social model.106_{They further recommend construing this term in accord-} ance with what the drafters actually intended rather than with what they wrote.107_{A perusal of the concluding observations indicates that the Commit-} tee on the Rights of Persons with Disabilities (CRPDCommittee) asks States Parties to incorporate the social and human rights-based model of disabil- ity.108_{In short,}

PWDs should include persons without impairment but being disabled by society.

From the concluding observations together with the Handbook for Par- liamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol (CRPDHandbook), States Parties are free to define the termPWDs more broadly as long as it is subject to the social and human rights-based model of disability.109_{A review of the definitions of}

PWDs shown in Table 2 demonstrates a mixed approach between the medical model and the social model of disabilities as shown in the description of theCRPDbecause

impairment is still a factor in evaluating disability. Except for theUS, past and perceived impairments are not explicitly covered in the definition of the other countries.110

Apart from this dissimilarity, three shared elements are found. First, all of them fall along the same line that the duration of impairment is not a major issue to exclude persons from being considered as PWDs.111 _{Second, inter-} actions with barriers are limited to when using transport, which is reasonable

105 Rosemary Kayess & Phillip French,Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities,8:1 Hum. Rts. L. Rev. 1, 21 (2008).

106Ibid.,21. 107Ibid.,22.

108SeeCommittee on the Rights of Persons with Disabilities,Concluding Observations on the Report Submitted by Turkmenistan,(Thirteenth session, 2015), U.N. Doc. CRPD/C/TKM/CO/ 1, paras 5-6; Committee on the Rights of Persons with Disabilities,Concluding Observations on the Report Submitted by Paraguay,(Ninth session, 2013), U.N. Doc. CRPD/C/PRY/CO/1, paras 7-8; Committee on the Rights of Persons with Disabilities,Concluding Observations on the Report Submitted by Peru,(Seventh session, 2012), U.N. Doc. CRPD/C/PER/CO/1, paras 6-7; Committee on the Rights of Persons with Disabilities,Concluding Observations on the Report Submitted by Mauritius,(Fourteenth session, 2015), U.N. Doc. CRPD/C/MUS/ CO/1, paras 5-6.

109 UN Office of the High Commissioner for Human Rights,From Exclusion to Equality Realizing the rights of persons with disabilities, 13 (2007). The CRPD Committee even stated that Mongo- lia appears to be trapped with the concept of ‘permanent disability’. An implication is non- permanent disability can be incorporated into the definition.SeeCommittee on the Rights of Persons with Disabilities,Concluding Observations on the Report Submitted by Mongolia,

(Thirteenth session, 2015), U.N. Doc. CRPD/C/MNG/CO/1, para. 5. This manner is in line with the rules of treaty interpretation. For an evolutive interpretation,seeSection 1.3.2.1.C.

110 14 C.F.R. § 382.3 (2009). 111Ibid.

since the regulations cover air travel.112_{Last, the interactions reduce or limit} the mobility ofPWDs. The first two elements are similar to those of theCRPD. The third one is worth paying careful attention to because of its different use of the term. The third element in bothUSand Canada appears to fit with the hindrance of full and effective participation in society as mentioned in the

CRPDbecause both refer to limitations in activity.113

ICAOand theEU, sharing an almost verbatim definition, refer to the reduction of mobility.114_{On the} surface, this phrasing casts doubt as to whether it connects with actual society or not. However, a closer look taking the capabilities approach brings this phrase into line with theCRPD. The reduction of mobility connects with bodily integrity in Nussbaum’s list which encompasses the ability to move; as a result, reduction of this ability impedes social participation.

Despite some resemblances, the interpretations remain varied and debat- able, particularly in cases of persons with obesity,115 _{and persons with} allergies.116 _{At this stage, the aim of this research is not to give a detailed} definition ofPWDs in relation to air travel. Rather, it intends to illustrate an

evolving concept of disability embedded in theCRPD. While at the first stage, this study was designed to cover types of impairment as broadly as possible,

112 For the meaning of travel by air,seeSection 1.4.2.

113 Canada uses the International Classification of Functioning, Disability and Health (ICF).

SeeWorld Health Organization,International Classification Of Functioning, Disability and Health

(World Health Organization, 2001). Kayess and French are of the view that the ICF, incor- porating the medical model with the social model approach, can be one criterion in deciding exactly what factors constitute a person with disabilities, although the CRPD does not refer to ICF in any preamble.SeeKayess & French,supran. 105, 24.

114 Annex 9,Facilitation,(14th_{ed. Oct. 2015), 1-4; Regulation (EC) No 1107/2006 of the European} Parliament and of the Council of 5 July 2006 concerning the Rights of Disabled Persons and Persons with Reduced Mobility when Travelling by Air, OJ L 204, 26.7.2006, p. 1-9, art. 2, (Regulation 1107).

115 The European Commission interpreted that persons with obesity may be subject to Regula- tion 1107 but it did not further discuss air fare.SeeEuropean Commission,Interpretative Guidelines on the Application of Regulation (EC) N° 1107/2006 of the European Parliament and of the Council of 5 July 2006 Concerning the Rights of Disabled Persons and Persons with Reduced Mobility when Travelling by Air, SWD (2012) 171 Final, 11.6.2012, 3.

The European Court of Justice ruled that obesity can constitute a disability in the Employ- ment Equality Directive.SeeCase C-354/13Fag og Arbejde (FOA) v Kommunernes Landsfore- ning (KL)[2014]. The CA Agency ruled that obesity can constitute a disability in the context of air travel.SeeCanadian Transportation Agency, Decision No. 6-AT-A-2008, (10 Jan. 2008); Section 4.6.3.3, Chapter 4.

116SeeCanadian Transportation Agency, Decision No. 4-AT-A-2010, (6 Jan. 2010); Canadian Transportation Agency, Decision No. 134-AT-A-2013, (28 Mar. 2013); Canadian Transporta- tion Agency, Decision No. 335-AT-A-2007 (29 June 2007), paras 28-35. For a person with severe environmental or chemical sensitivities,seeCanadian Transportation Agency, Decision No. 604-AT-A-2006, (31 Oct. 2006). For cat allergy,seeCanadian Transportation Agency, Decision No. 66-AT-A-2010, (25 Feb. 2010), paras 70, 104-105. For dog allergy,seeCanadian Transportation Agency, Decision No. 528-AT-A-2004, (5 Oct. 2004). For the view of the US,seeSection 4.6.2.1.C. For the provision of reasonable accommodation,seeSection 4.6.2.4 Chapter 4.

it later accepted that there are various types of mental disorders from anxiety to depression, and services in relation to air travel may differ among persons with each type of mental impairment.117 _{Therefore, this study confines its} scope to address only persons with a physical impairment, persons who temporarily have a physical impairment at the time of travel, persons with past perceived impairment, persons with obesity and persons with allergies.

1.4.2 Travel by air

Travel means to make a journey or to go from one place to another.118_This research pays attention to air transport as a means of travel. So applying this meaning, travel by air means to go from one place to another by commercial aircraft.

The research has not chosen to distinguish between the terms ‘travel by air’, ‘air travel’, ‘air transport’ or ‘carriage by air’. They can be used inter- changeably depending on the context.

1.4.3 Mobility aid, devices and assistive technologies

The legal instruments explored in this study use various terms to refer to aids and devices used byPWDs such as mobility aids (CRPD,ICAO,USand Canada), mobility equipment (ICAOandEU) and assistive devices (ICAO,USandEU). Accordingly, these terms are used interchangeably.

1.4.4 Live assistance

According to the Report of the Working Group to the Ad Hoc Committee, live assistance ‘includes human assistance, such as guides and readers, and animal assistance, such as guide dogs’.119_{The term ‘live assistance’ is men-} tioned in theCRPD and is understood in an unrestrictive manner to cover

117 The CA Agency once decided a case concerning a person who was claustrophobic and required a window seat to ease his discomfort. But the CA Agency found that claustro- phobia could be an impairment but the claimant was not able to demonstrate the other two factors, namely activity limitations and participation restrictions.SeeCanadian Trans- portation Agency, Decision No. 60-AT-A-2010, (19 Feb. 2010).

118 Oxford English Dictionary, http://www.oed.com/view/Entry/205268?rskey=GhLZ9e& result=2&isAdvanced=false#eid (accessed 13 Jan. 2017); Cambridge Dictionary, http:// dictionary.cambridge.org/dictionary/english/travel (accessed 13 Jan. 2017).

119 Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities Working Group,Report of the Working Group to the Ad Hoc Committee,24, U.N. Doc. A/AC.265/2004/ WG.1 (2004).

humans and animals.120_{When applying the expression to air travel, it consists} of accompanying persons and service animals.

While dogs are the most accepted service animal, other animals can also be used to assistPWDs. Trained capuchins can become helpers for persons with physical impairment. Guide horses can do the same duty as guide dogs for persons with visual impairment and dog allergies.121

Neither theCRPDnor the preparatory draft draws a line on types of eligible

service animals. The drafting history reflects a debate on this issue, but it reached the conclusion not to restrict any kinds of animal assistance.122 Similarly,ICAOleaves the types of service animals open and allows each State to set its regulations.123_{At this stage, the term ‘service animal’ in this study} is a general term to cover any animal providing assistance toPWDs.

1.5 GENERAL HUMAN RIGHTS CONCEPTS ON PERSONS WITH DISABILITIES AND