CAPÍTULO 5. PROGRAMA PARA EL CÁLCULO DE SISTEMAS DE PUESTAS A TIERRA
5.2. Guía de uso
TheCRPDobliges States Parties to adopt legislation and accessibility standards, but it is silent on the scope of application of these standards. Hence, this gives rise to the question of which State should exercise its jurisdiction over activities concerningPWDs and air travel because air transport is not static and a flight may involve more than one country. Does an air carrier have to comply with regulations of the State of departure when it leaves the territory of that State?
3.6.1 Jurisdiction under theCRPD
The legislative history of theCRPDdoes not yield a satisfactory answer. In the preparatory works, States Parties’ obligations are restricted only to all indi- viduals ‘within their jurisdiction’ and this phrase is taken from Article 2 of the Convention on the Rights of the Child (CRC).168The discussion was mainly involved with concerns on leaving out non-citizens with disabilities but there was no negotiation on the extraterritorial jurisdiction of human rights obliga- tions.169
3.6.2 Jurisdiction under the Chicago Convention
Since theCRPDis silent on the scope of application in the case of air travel, the next source to find an answer is in public international air law. Territorial jurisdiction forms the basis of jurisdiction under public international air
166 Fredman,supran. 63, 82; De Schutter,supran. 20, 571-572. 167 Fredman,ibid., 82.
168 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,10, U.N. Doc. A/AC.265/2004/ WG.1 (2004).
169 UN Department of Economic and Social Affairs Division for Social Policy and Development,
Article 4 – General Obligations Third Session, http://www.un.org/esa/socdev/enable/rights/ ahcstata4tscompilation.htm (accessed 13 Jan. 2017).
law.170 This is in line with theLotus case where international law permits States equal power to adopt legal norms, but when enforcing them, territorial jurisdiction overrides the other two jurisdictions, i.e. quasi-territorial juris- diction and personal jurisdiction.171
Applying this principle of territorial jurisdiction to a case ofPWDs and air travel, it certainly does not make sense for an air carrier to change the applic- able law once an aircraft leaves a State, especially when the destination State’s accessibility standards are dissimilar. The Chicago Convention recognizes complete and exclusive sovereignty over the airspace above the territory of every State.172 As a result, scheduled international air services are subject to bilateral or multilateralASAs among States in order to grant permission to
operate above or in the territory of said State.173 States sometimes exercise their domestic law as a condition for foreign persons to gain market access to their territory.174Therefore,
ASAs can incorporate a clause on the provision of services toPWDs in order to settle the applicable law.
3.6.3 Extraterritorial application of human rights
TheHRCexpressed the opinion that States bear obligations to respect and to
ensure theICCPR rights to all persons subject to their jurisdiction, not only within their territory.175 Petersmann and Bhuta concurringly observed that the jurisprudence of human rights courts and treaty bodies tends to hold that States have human rights obligations over a territory or a person that States factually control, such as in an armed conflict or a situation of military occupa- tion.176Similarly, an extension of obligations on economic, social and cultural rights going beyond the territory of States is proposed by a group of experts in international law and human rights which can be considered as the teach-
170 I.H.Ph. Diederiks-Verschoor & Pablo Mendes de Leon,An Introduction to Air Law, 14, (9th ed., Kluwer Law International 2012).
171Lotus Case, (1927), P.C.I.J. Series A, No. 10, 18-19.
172 Convention on International Civil Aviation (Chicago, 7 Dec. 1944), 15 U.N.T.S. 295, 61 Stat. 1180, T.I.A.S. No. 1591, arts 1-2, (Chicago Convention). For the discussion on the connection of sovereignty and jurisdiction,seePablo Mendes de Leon,The Dynamics of Sovereignty and Jurisdiction in International Aviation Law,489 in State, Sovereignty and International Govern- ance (Gerard Kreijen, Oxford University Press, 2002).
173 Chicago Convention, art. 6.
174 Chicago Convention, art. 6; Cedric Ryngaert,Jurisdiction in International Law,94 (2nded., Oxford University Press 2015).
175 HRC General Comment 31,supran. 24, para. 10.
176 Ernst-Ulrich Petersmann,Human rights require ‘cosmopolitan constitutionalism’ and cosmopolitan law for democratic governance of public goods,13, http://cadmus.eui.eu/handle/1814/27155 (accessed 13 Jan. 2017); Nehal Bhuta,The Frontiers of Extraterritoriality – Human Rights Law as Global Law,10-11 in Frontier of Human Rights: Extraterritoriality and Its Challenge (Nehal Bhuta, Oxford University Press 2016).
ings of the most highly qualified publicists of the various nations.177They adopted the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (Maastricht Principles) which also include relevant obligations in theCRPD.178 Under these Principles, an extension of obligations on economic, social and cultural rights applies to obligations of a global character in theUDHR.179Principle 24 states an obliga- tion to regulate and bases an extension on two grounds: (1) the active personal- ity principle to regulate its nationals abroad or (2) a reasonable link between the State and the conduct to be regulated.180 For instance, adding human rights requirements to the public procurement system can be a lawful means to exercise obligations and set requirements extraterritorially when States are in a position to influence non-State actors.181
In short, it is possible to apply human rights obligations extraterritorially provided that a State has a causal link to a person and the conduct being regulated.
3.6.4 Territorial extension
The phenomenon to apply domestic standards to foreign activities beyond a State territory occurs in areas other than PWDs and air travel as well.182 One argument to this unilateral approach is the good intention to protect global value.
In an article dealing with the rise of theEUas a global regulatory power, Scott distinguished between extraterritoriality and the new concept called territorial extension. Whereas the former is an application of a measure ir- relevant to a territorial connection, the territorial extension is an application of a measure connected with territory; however, ‘in applying the measure the regulator is required, as a matter of law, to take into account conduct or
177 Statute of the International Court of Justice, art. 38(1)(d).
178 FIAN International,Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights,(2013) http://www.etoconsortium.org/nc/en/main- navigation/library/maastricht-principles/?tx_drblob_pi1%5BdownloadUid%5D=23 (accessed 13 Jan. 2017).
179Ibid.,Principle 8(b). 180Ibid.,Principles 24-25. 181Ibid.,Principle 26.
182 They are international trade, martime transport, air transport. In air transport, they are climate change, gambling restrictions, and smoking restrictions.SeeJoanne W. Young,
Globalism versus Extraterritoriality Consensus versus Unilateralism: Is there a Common Ground? A US Perspective,24:4-5 Air & Space L., 211 (1999); Jol A. Silversmith,The Long Arm of the DOT: The Regulation of Foreign Air Carriers Beyond US Borders, 38 Air & Space L., 173 (2013).
circumstances abroad’.183 She further argued the legitimacy to apply the territorial extension, which is compatible with the territoriality principle in public international law, if it fits two criteria. First, the content deals with the enforcement of international standards or towards objectives that have been internationally agreed.184 Second, the measure leaves room for other States to waive their compliance if they have a comparable effective measure.185
However, this proposal is not free from controversy. First, while a unilateral action concerning global value may in the end become an international action and formulate global public good, a unilateral action disregards the perspect- ives and other values of the affected entities.186 An obligation erga omnes, which is the result of attaining a global value, does not confer universal jurisdiction on a bystander State, as it should rely on treaty or customary international law to declare such jurisdiction.187 It is contestable whether it is fair to apply high regulatory standards to developing countries in the application of the territorial extension.188
In relation to the exercise of jurisdiction, when there is a conflict in regula- tions between two States, the Restatement of the Law places an authority on the State that has a greater interest in exercising jurisdiction.189But who will measure which State possesses more interest is an issue that has not been settled. Moreover, this so-called ‘rule of reason’ is viewed by the EU as a discretionary concept and has not yet crystallized into an international norm.190