Case Ⅱ

1. Case Ⅱ A case of no bathroom for wheelchair users in intermediate range trains DRTAP Senior Attorney Yoshikazu Ikehara

2. Outline of the case • Plaintiff: Person with physical disabilities (wheelchair user) • Defendant: Japan Railways (JR) West • The plaintiff was difficult to travel because of no bathroom for wheelchair users. • The intermediate range (a run about 150km) trains of JR West have bathroom but those are not for wheel chair users.

3. Issues of the case • Is it discrimination and illegal that there are no bathroom for wheelchair users in an intermediate range (a run about 150km) trains? • Is it infringement of accessibility for him? • Can the plaintiff demand JR to equip bathrooms for wheelchair users in such a train? • Should the Government have obligation to order JR to equip it ?

4. Domestic law of the issue(Issue 1) • Constitution：Art.14‐1 All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin. • The Basic Law for Person with Disabilities: Art. 3-3 No one shall be allowed to discriminate against persons with disabilities or infringe their rights and benefits on the basis of disability.

5. The judgment of domestic court( Issue 1 ) • The Constitution Art.14 does not guarantee to realize substantial equality focusing on real life. • Judiciary should primarily respects legislative discretion how to take measures for such disparities. • Judiciary should judge such a case unconstitutional just where it is obviously univocal.

6. Domestic law of the issue( Issue 2 ) • Constitution:Art.22-2 Freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be inviolate. • The Basic Law for Person with Disabilities: Art. 1 The purpose of this Law is to promote welfare of persons with disabilities through establishing fundamental principles, clarifying the responsibilities of the Government and the local governments, and establishing comprehensive and steady measures for supporting independence and social participation of persons with disabilities. • Art.3 Every person with disability shall have a right to be respected for his or her individual dignity and lead a decent life. Every person with disability, as a member of the society, shall be entitled opportunities to participate in social, economic, cultural and all other activities in the society. No one shall be allowed to discriminate against persons with disabilities or infringe their rights and benefits on the basis of disability.

7. The judgment of domestic court( Issue 2 ) • The International Convention on Economic, Social and Cultural Rights Art.2-2 does not stipulate “disability” or “freedom of travel”. • The Convention demands only progressive achievement. That is why, it is impossible to judge illegality from the convention.

8. The judgment of domestic court( Issue 2 ) • The court allowed of legislature and company’s right of discretion about “equality” of construction and application on the Constitution Art.14. • The court denied that the plaintiff could not demand a specific action for reasonable accommodation. • The court denied obligation of the government to ensure equality in private sphere for PWDs.

9. Points at Issue of this judgment • Domestic court acknowledged broad discretion of legislature and a corporation about interpretation and application of Constitution Art.14 “Equality”. • The court denied right to demand “reasonable accommodation” of a corporation. • The court denied governmental obligation to ensure the rights of PWDs in private sphere.

10. Application relationship of law (Third party effect of human rights) • The Constitution conventionally handles relationship between public power and private individual, public sphere. That is why, the Constitution can not apply directly to relationship between private company and individual. • Normative value of the Consitution can be considered as factors of illegality under civil tort law or as appraisal elements for bona fide and good cause under general provisions of Civil Law.

11. Application relationship of law(Treaty’s third party effect of human rights ) • A treaty does not apply directly to private actors. • Judiciary may replenish human rights provision under JP Constitution with CRPD. CRPD help its interpretation. • The same approach as the Constitution can apply private sphere.

12. Third Party Effect

13. Application of CRPD in private sphere

14. Possibility of CRPD • We should interpret JP Constitution Art.14 and Basic law for PWDs Art.3-3 in accordance with CRPD Art.2, Art.5. • We should interpret a general provision of a contract for travel between private railway co. and customers, respecting rights under CRPD and JP Constitution. • Reasonable accommodation = Equipping bathrooms for wheelchair user in a train could be acknowledged as obligation of a railway co. based on interpretation of a contract and/or general provision of civil law. • Railway undertaking can be regarded as the governmental one. In this case CRPD and Constitution should apply directly.