Tourism:
On the way from disability to accessibility
Summary: 0. - Conceptual frame. 1. - Legal system. 2. - International Conventions. 3. - Tourism.
4. - Axis of the tourism experience. 5. – By way of conclusion
0. - Conceptual Frame
The following work is aimed at explaining by way of summary and within the wide legal system that considers persons with disabilities, which are the standards that directly or indirectly cross the axes linked with the tourism practice, revealing their degree of articulation with the integrity of the system; in order to prove up to where legal rules can be considered appropriate or rather they deserve some rectification or adjustment depending on the case.
For this we start from the conceptualization of the theme, not without first warning that, in order to fully understand the universe of aspects regarding the subject, it would be necessary to consider other levels beyond the juridical (the role the NGOs play, the quantification of persons with disabilities, some clinical and institutional aspects, etc.) which we deliberately skip in order to face up to the strictly normative, without prejudice to avoid some aspects of the social security system or matters that contribute to the system without being part of the central nucleus [1]. For this, it is necessary to cover the legal setline which makes up the system of integration of people with special needs emphasizing their constitutional base. Afterwards, we describe the specific references of Tourism regulations, so that we reach some useful conclusion that reflects the current efforts and allows us to keep improving the integration model society owes to all citizens.
The WTO, the UN consultative organ, in the Manila General Assembly, celebrated on September 27th 1980, included the right to Tourism with the best access conditions and without discrimination, after declaring in its 4th item that: ‘Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay’, a natural consequence of the right to labor, these are recognized as elements of expansion of the human being by the universal Declaration of Human Rights, as well as by the legislation of several countries. This means for the society, the duty of creating, for the citizens, the best practical effective access conditions and without discrimination of this kind of activities. Such an effort must be conceived in harmony with the institutional and traditional priorities of each country in particular. And this was the first time the term “tourism” was associated with “accessibility” at international level.
When we speak of disability in Argentina we must refer to art. 2 of Law 22.431: “a person is considered as disabled if he or she has either permanent or prolonged physical or mental impairments, which according to their age and social environment imply considerable disadvantages for their family, social, educational or labor integration.” [2] On its part, art. 1 of the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities defines:
“1. Disability: a physical, mental, or sensory impairment, whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life, and which can be caused or aggravated by the economic and social environment. And, finally, the UN Convention on the Rights of people with disabilities states that: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”
Notice that although definitions are similar, they are not identical: the first speaks in terms of an adjective: “disabled persons” and the others in terms of a circumstance “disabilities” except for the subtleness of temporariness without further accuracy and in regards to personal circumstances which include the Convention´s definition.
And though it has been recognized that everyone has the right to tourism under the best access conditions and without discrimination; in practice, the existence of obstacles avoiding or restricting the access for the disabled persons is a fact in every tourism destination.
The dominant discourse suggesting inclusive and integration policies has traveled an interesting road map since the so-called “Rehab Model” going through the existing “Integral Protection System” to the current “System of Basic Benefits”[3]. In a broad sense: focusing on the person with disability up to relocating them in the very society.
In the “Rehab model” outlined in the 70s, the disabled person made up the core of the “issue”, the subject was seen as someone having some anomaly, some deviation preventing them from performing the activities other persons were able to do. People, who, on the contrary, fit in the “normal” type; put in other terms the disability ranged from the noun to the adjective. Someone was said to be disabled or handicapped, disability was not part of some circumstance but of a definition, very close to stigmatization.
On a second stage, outlined a decade later and influenced by the international bodies (especially the UN), the Integral Protection System is proposed, where, although parting from a “rehabilitating” criterion, it focuses on the States responsibility.
Finally, and without resigning the second stage in the 90s, public action is restricted and responsibility is displaced towards social work and prepaid medicine institutions, we are then facing the “Basic Benefit System”.
So far, when it comes to analysis, the tourism sector (perhaps because of its emphasis on natural and cultural attractions and the territorial circumstances bearing them) has always parted from a wide criterion centered on Destination. And logically, in order for a destination to be classified as accessible, it must cover for the whole set of premises and services which make up the tourism supply (travel agencies, information bureaus, lodging, means of transport, stations, ports, airports, restaurants, leisure places, etc.). This requirement is not always regulated. Or even worse, where the reflex coincides with the rest of the system: laws do exist but they are never obeyed.
The very existence of barriers in one of these premises would already be restricting the access to the disabled persons into a tourism destination in equality of condition. What is the sense of a destination having accessible beaches when it does not provide for the accessible means of transport or lodging?
“Accessibility” in tourism matter can have different meanings. The sector can refer to it either as the generic right every citizen has to enjoy their leisure time or as a synonym for connectivity, that is accessibility to destinations, or in a mere economic sense linked to the cost/benefit equation.
Nevertheless, the National Tourism Law n° 25.997 in its article 2 states that “accessibility” is strictly related to a governing principle tending to “the elimination of barriers preventing all sectors of society from using and enjoying the tourism activity, encouraging the equality of opportunities”. And in this sense, every time this section is mentioned, it is directly linked to article 37 of the same legal body which prescribes the application of rules and proceedings tending to effectively protect the rights of the tourist as a duty of the enforcement authority (in this case the current Department of Tourism).
Thus outlined, what we call accessible tourism could be defined as “the set of activities, originated during the free time directed towards tourism and the active and passive reaction, which enable the full integration of any person, beyond their physical, psychic or sensory capacities, in a closed or open environment, either in a cultural environment or enjoying nature” [4] or as strictly stated by the “Accessible Tourism” Law n° 25.643 from 2002 in its art. 1: “…it is the set of activities originated during the free time, oriented towards tourism and recreation, which allow for the whole integration – from the functional and psychological point of view – of persons with reduced mobility and/or communication, during which visitors get individual and social satisfaction and a better quality of life”.
The fact that persons with some kind of disability are able to be in equal conditions for the exercise of any of their rights means to compensate the gap which improves as an act of justice where it is not enough to set public policies; rather, political will and collective consciousness are necessary.
1. - Legal system
As any enumeration the current one is perfectible and suffers from the omissions typical of subjectivity. We add the antecedent of Law 20.475[5] which, as we understand, throws light on the relatively primitive approach to the issue; nevertheless we are making clear that if we had to go back to the remote antecedents of state intervention regarding disability, we should think of the approval of law 1666 from 1885 which at that moment founded the National Institute for Deaf-Mutes. We are dismissing here the resolutory level since we consider it exceeds the work´s aim and we focus on laws and decrees strictly linked to the disability issue[6]. Leaving aside those rules tangentially linked to the issue (Higher Education, Cheque, Nutrition and national feeding, social security, etc.). In a chronological order, we can then mention:
| Type of Rule | Year | Issue |
| Law Nº 20.475 | 1973 | Social Security: Special system for the physically disabled. |
| Law 22.431 and law 24.314/94 | 1981 | Protection System for the disabled |
| Decree 498 | 1983 | Regulated by Law 22.431 |
| Constitutional Reform | 1994 | Inclusion of subsection 23 from art. 75 |
| Decree 762 | 1997 | Decree Creation of the Single System of Basic Benefits |
| Law 24.901 and Decree 1193/98 | 1997 | System of Basic Benefits in Integral Habilitation and Rehabilitation in a favor of the disabled |
| Law 25.346 | 2000 | National Day of Persons with Disabilities |
Synthesis:
1. Law Nº 20.475 (1973) Special system for the physically disabled
§ It was issued during the last stage of the self-proclaimed Argentinean Revolution de facto government. It considers as “physically disabled”, under this law, those persons whose physical or intellectual disability, certified by the official health authority, produces a decrease higher than 33% in their labour capacity.
§ It states that the physically disabled affiliated to the national welfare system, will have a right to the ordinary retirement with a 20 years of service credit and be 45 years old, as long as they have worked under an employment contract, or be 50 years old as a self-employed person, as long as they credit, reliably, that during the 10 years preceding dismissal or application for the benefit, they rendered service in the state of mental or physical diminishment considered in article 1°.
§ It grants them disability retirement, under the provisions of laws 18.037 and 18.038 (XXIX – A, 47, 65), when they are unable to carry out those activities their remaining initial ability allows them to perform.
2. Law 22.431 (1981) and law 24.314 (1994). Integral Protection System for Disabled Persons.
§ Issued during the first stage of the de facto government self-proclaimed Process of National Reorganization, it creates an Integral Protection System for Disabled Persons, “aimed at providing them with medical attention, education and social security, as well as granting them franchises and incentive which allow them neutralize the disadvantages the disability provokes them; and give them the opportunity, by their own means, to play a role equivalent to the one normal people play in community.” (Art. 1)
§ Since then and until 2011 it has been modified or amended by other 92 rules. Nevertheless its main modifications have been laws 24.308 and 24.314 from 1994, law 24.901 from 1997, law 25.504 from 2001, law 25.635 from 2002 and law 25.689 from 2003
§ It defines disability as mentioned ut supra. (Art. 2)
§ It determines that the Unique Disability Certificate issued at first by the National Ministry of Health, shall credit for the existence, nature and level of the disability in the whole national territory, as well as the possibilities for rehab. (Art. 3)
§ It covers for the State´s benefit providing via its institutions; the disabled not included in the social work system; the integral rehab services; labor or professional training; loans and grants aimed at facilitating their intellectual or labor activity; differential systems for social security; schooling; and individual, familiar and social coaching.
§ It states implementation functions for the National Welfare Ministry (Art. 5)
§ Labor hiring by the State in a proportion not lower than a 4% (Art. 8)
§ It expressly replaces the expression “handicapped” with “disabled” (Art. 25)
§ Chapter IV on Accessibility to the physical environment was amended by Law 24.314
3. Decree 498 (1983) Law Regulation 22.431
§ It was issued in the last stage of the de facto government. It subdues the disability certificate submission to a Medical Board´s evaluation, with broad faculties; and it delegates the possibility to establish which institution shall deliver such certificate to the Ministry of Health (Art. 3)
§ It imposes the responsibility to provide the disabled with jobs keeping a 4% quota on national institutions, state firms, etc. (Arts. 8, 9, 11 y 12)
§ It establishes basic medical aid services for rehab purposes. ( Art. 15)
§ It sets on transport companies of all kinds (terrestrial, underground or railway) the obligation to provide the ones who comply with the requirements demanded by the law for such procedure with a permanent free ticket. (Art. 20)
§ It determines that, in every public work aimed at activities which imply free access, they shall provide with transportation means and adequate premises for the disabled persons; vertical transportation (ramps, lifts, etc), horizontal (corridors, gates, etc.) or sanitary services. (Art.22)
4. Constitutional Amendment (1994)
§ As a result from the so-called Pacto de Olivos (Olivos Pact) celebrated in 1993 between the Radical and Peronist Parties leaders the Congress passed Law 24.309, which in turn gave the designated “Nucleus of Basic Coincidences” legislative form. It consisted of thirteen stony topics by which they should vote altogether and a series of issues fit for debate in the Constituent Assembly imposed by law (when the very Constitution enabled the very Assembly to determine content and meaning of the modifications). As well as many other issues from this period they would not discuss on the need for the reform (which was finally born in 1994) but the proceedings to carry it on.
§ Within the organic part of our Constitution and as part of the National Congress competencies, Art. 75 has three subsections clearly linked to human rights policies[7]: 22, 23 and 24. The first one gives the Human Rights treaties constitutional hierarchy; and the latter makes the approval of integration treaties with supra-state bodies conditional on the respect for democratic order and Human Rights. So far, two are the verbs used in subs. 23: “To legislate and to promote measures for positive action which guarantee the real equality of opportunities and treatment, and the full enjoyment and exercise of rights declared by this Constitution and by the current international treaties on human rights; particularly regarding children, women, elderly people and the disabled persons. To issue a special and integral social security regulation to protect the helpless children, from pregnancy to the end of the elementary learning period, and the mother during pregnancy and the breastfeeding period.” A state role is here raised as a leveler in situations of inequality. In both paragraphs the hypothesis is that it must provide the means to guarantee equality of opportunities, and where it is not enough to regulate but pro-active measures are also required[8].
§ So, the hierarchical organization of the international treaties on human rights guarantees that, once ratified, they become links to every State´s institution.
5. Decree 762 (1997)
§ It creates the Single System of Basic Benefits for Persons with Disabilities. Its regulatory body is the National Advisor Committee for the integration of disabled people.
§ It makes the National Rehab Service responsible for the national record of disabled people; and the Superintendence of Health Services responsible for the supervision and control of the basic benefits nomenclature (prevention, rehab, educational, care, technical and transport).
§ It imposes on the Special Programs of the Ministry of Health and Social Action area the responsibility to manage the Care Fund for redistribution.
6. Law 24.901 (1997) and Decree 1193 (1998)
§ Aimed at providing the care system with integrality, an operative structure is defined composed by:
.1. Unique System´s Directory in which participate:
§ National Council Committee –CONADIS (National Council Committee for the Integration of Disabled Persons) - (dependent on the National Council for the Coordination of Social Policies, which in turn depends upon the National Presidency)
§ Department of Social Development
§ Special Programs Management
§ Health Benefits Division
§ National Rehabilitation and Promotion of the Disabled Services (dependent on the Ministry of Health)
§ Federal Health Council
§ National Guarantee Program for Health Care Assistance
§ National Institute of Social Services for Retired and Pensioned People
§ Superintendence of Occupational Hazard
§ Superintendence of Retirement and Pension Fund Management Companies
§ 2 representatives for non-profit institutions for the disabled
.2. National Register of Disabled Persons
.3. National Register of Service Providers
.4. Basic Services Nomenclature
.5. Assistance Program for the needy disabled persons of the whole country
§ The Social Security Administration is in charge of covering for all basic services stated by the law
§ Persons not included in the social security system shall benefit from the services through national State institutions (or provincial institutions adhered to law 24.901)
§ It defines the beneficiary persons in agreement with law 22.431
§ Regardless of considering an alternative system for the family group and casual complementary services, the so-called basic services are classified as:
.1. Preventive
.2. Rehab
.3. Educational therapeutic
.4. Educational
.5. Social Security
§ It is the Ministry of Health´s responsibility through the National Rehab Service to set criteria and provide with the respective disability certificates.
7. Law 25.346 (2000)
§ It declares December 3rd as the National Day of People with Disability in response and support for the calling by the 89ª General Assembly (A/Res/47/88)
2.- International Conventions:
| Type of Regulation | Year | Issue |
| Law 25.280 | 2000 | Incorporates Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities |
| Law 26.378 | 2008 | Incorporation of UN Convention on the Rights of Persons with Disabilities to our legislation |
Synthesis:
1) Inter-American Convention on the Elimination of all forms of Discrimination against Persons with Disabilities. Approved by Law 25.280 (B.O. 4/8/2000)
This Convention sanctioned in July 1999 in Guatemala City, in its brief article takes inventory of the main public policies they may have with the promotion of the rights of the persons with disabilities and exhorts the governments to put them into practice.
It sets a Monitoring Committee made up by the governments, whose first meeting took place in Panama in February 2007 and the second one in Brasilia, in July 2008.
§ It is aimed at preventing and eliminating all forms of discrimination against persons with disabilities. As well as facilitating their full integration into society.
§ It sees disability as a physical, mental or sensory impairment, either permanent or transitory, that substantially limits one or more major life activities of an individual, which can be caused or aggravated by the social and economic environment.
§ It delimits the end of discrimination against persons with disabilities, considering it as any distinction, exclusion or restriction based on a disability, antecedent of disability, consequence of prior disability or perception of a present or past disability, which has the effect or purpose of preventing or annulling the disabled person´s acknowledgement, enjoyment or exercise of their human rights or fundamental liberties.
§ On its part, it specifies that a State Party´s distinction or preference aimed at promoting social integration or personal development of persons with disabilities does not constitute discrimination, as long as the distinction or preference does not limit itself the right to equality of the persons with disabilities, and the disabled persons do not feel compelled to accept such distinction or preference. In the cases where the internal regulation contemplates the figure of the statement of interdiction, whenever necessary and appropriate for its welfare, it shall not constitute discrimination.
§ It commits the State Parties to take legislative, social, educational, labor or any other sort of measures, necessary to eliminate discrimination against persons with disabilities. Among which we can find accessibility, disability prevention, early detection, treatment, education, occupational training in order to grant a top level of independence, people´s sensitizing through several educational campaigns aimed at eliminating prejudices, stereotypes, propitiating respect for the persons with disabilities.
2) UN Convention on the Rights of Persons with Disabilities and its Facultative Protocol. Approved by Law 26.378 (B.O. 9/06/2008)
The Convention as well as its Facultative Protocol were approved, by means of Resolution Of the UN General Assembly, on December 13th 2006 (A/ RES/ 61/ 106), coming into effect on May 3rd 2008.
According to its article 1, the purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include:
- Those who have long-term physical, mental, intellectual, or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
The general principles are:
- Respect for the inherent dignity, individual autonomy including the freedom to make one´s own choices, and independence of persons;
- Non-discrimination;
- Full and effective participation and inclusion in society;
- Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
- Equality of opportunity;
- Accessibility
- Equality between men and woman;
- Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
Article 9 refers to “accessibility”.
1) To enable persons with disabilities to live independently and participate fully in all aspects of life, State Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies, and to other facilities and services open or provided to the public, both in urban and rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:
a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;
b) Information, communications and other services, including electronic services and emergency services.
2) State Parties shall also take appropriate measures to:
a) develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public;
b) Ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities;
c) Provide training for stakeholders on accessibility issues facing persons with disabilities;
d) Provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms;
e) Provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;
f) Promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;
g) Promote access for persons with disabilities to new information and communications technologies and systems, including the Internet;
h) Promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost.
Article 30: On the participation in cultural life, recreation, leisure and sport.
1) States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:
a) Enjoy access to cultural materials in accessible formats;
b) Enjoy access to television programmes, films, theatre and other cultural activities, in accessible formats;
c) Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services[9], and, as far as possible, enjoy access to monuments and sites of national cultural importance.
2) States Parties shall take appropriate measures to enable persons with disabilities to have the opportunity to develop and utilize their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of society.
3) States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials.
4) Persons with disabilities shall be entitled, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture.
5) With a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities, States Parties shall take appropriate measures:
a) To encourage and promote the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at all levels;
b) To ensure that persons with disabilities have an opportunity to organize, develop and participate in disability-specific sporting and recreational activities and, to this end, encourage the provision, on an equal basis with others, of appropriate instruction, training and resources;
c) To ensure that persons with disabilities have access to sporting, recreational and tourism venues;
d) To ensure that children with disabilities have equal access with other children to participation in play, recreation and leisure and sporting activities, including those activities in the school system;
e) To ensure that persons with disabilities have access to services from those involved in the organization of recreational, tourism, leisure and sporting activities.
Optional Protocol
- It establishes a Committee on the Rights of Persons with Disabilities, which is the body of independent experts who monitor the enforcement of the Convention.
- A mechanism for rights protection is created, by means of a reports system and a denunciation system.
- The Reports System contemplates the introduction of the Committee by the States Parties, a comprehensive report on measures taken to give effect to its obligations under the present Convention and on the progress made in that regard, within two years after the entry into force of the present Convention for the State Party concerned.
- The Committee shall transmit, as it may consider appropriate, to the specialized agencies, funds and programmes of the United Nations, and other competent bodies, reports from States Parties in order to address a request or indication of a need for technical advice or assistance contained therein, along with the Committee’s observations and recommendations, if any, on these requests or indications.
- On its part, enquiries are set in Amendment II to the Optional Protocol to the Convention on the rights of persons with disabilities, each report shall be considered by the Committee, which shall make such suggestions and general recommendations on the report as it may consider appropriate and shall forward these to the State Party concerned.
- It recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party to the Convention that is not a party to the present Protocol[10].
3.- Tourism:
| Type of Regulation | Year | Tema |
| Law 25.643 | 2002 | Accessible Tourism Law |
| Law 25.997 | 2005 | National Tourism Law |
Synthesis:
1) Law 25.643 (2002). National Law on Accessible Tourism.
§ Passed in September after the serious crisis of 2001, following Adolfo Rodríguez Saa´s resignation and under the also brief presidency of Eduardo Camaño
§ Article 1 to this law defines accessible tourism as the set of activities originated during leisure time, aimed at tourism and recreation, to ensure full integration – from the functional and psychological view – to persons with limited mobility and/or communication, giving them individual and social satisfaction and a better life quality
§ It refers and widens the concept of persons with limited mobility and/or communication to the ones comprised in article 2° of Law 22.431, as well as the ones suffering from functional alterations caused by transitory, chronological and/or anthropometric circumstances
§ It states the travel agents obligation, the Travel Agencies duty to warn the persons with reduced mobility and/or communication and/or family group and/or escort on the problems and hindrances which might be an attempt to their physical, functional or social integrity, when they are planning a travel. And, at the same time, they must inform the tourism service providers on the circumstances referred to in article 2°, so that they take the appropriate measures.
§ It determines in article 4° that tourism services shall meet the criteria of the universal design prescribed by Law 24.314 and regulatory decree 914/97, gradually in terms and proportions prescribed by the regulation.
§ It adds that service providers who fulfill conditions of the previous paragraph shall be identified with the accessibility symbols adopted by Law 19.279[11] and IRAM 3722, 3723 y 3724[12] regulations, issued by the National Secretary of Tourism and/or the bodies provinces delegate such functions to, with a previous request to the competent authority.
§ Finally, it determines it shall make the institutional broadcasting material of the Argentinean Republic suitable for graphic, visual and/or auditory understanding for the persons with reduced mobility and or communication.
2) Law 25.997 (2005). National Law of Tourism.
§ In its Art. 2 it outlines the governing principles of the law namely: social, economic and cultural Development; sustainable development; quality; competitiveness and accessibility
§ It defines accessibility as the tendency to eliminate barriers which hinder the use and enjoyment of tourism activity by all sectors of society, encouraging the equity of opportunities
§ Thus explained in this wide formula, accessibility has had in the doctrine three possible interpretations: As a synonym of connectivity; as the expression of any physical person´s right to rest, or (and in agreement with the regulatory plexus) as the elimination of barriers preventing the most vulnerable sectors from their access to tourism, specially regarding persons with disabilities
§ There are two tools provided by the law for the fulfillment of the above mentioned goals. One springs from Article 37, which allows the enforcement authority to implement effective proceedings aiming at protecting the rights of the tourist. The other one arises from the 5th Title on social Tourism, particularly in Article 39. It forces the enforcement authority device a Social Tourism Planning to “…promote benefits of accessible services to people favoring the most vulnerable sectors…”
4.- Axes of the tourism experience
Fort he sake of mentioning the axes most associated with a displacement with these characteristics. As an example: the search for proper lodging, the chance to have a special guiding service, or simply an effective communicational manner; the need to move to the destination. And in the destination to allow the acknowledgement and the richness which come from a travel without conditioning and finally assisting some of the disabilities that affect digestive functions (celiac disease or diabetes as the most frequent cases) and the supply of alternative menus.
Which are the standards for these cases? Or put in other words, which aspects are covered with laws or decrees of the very system of protection for persons with disabilities; and which others are covered with local or lower hierarchy regulations?
Notice the following chart; not intended to exhaust the subject, but rather to give an answer to some of the hypotheses:
| | Regulation Type | Year | Issue |
| Structure | Law 24.314/Decree 914 | 1994/1997 | It determines the minimum required special rooms |
| | Law N° 962 CABA | 2005 | Urban building Code |
| Communication | Law 24.421 | 1995 | Telephones for deaf people |
| | Law 25.643 | 2002 | Signposting |
| | Law 26.522 Art. 66 | 2009 | Audiovisual Communication Services - Accessibility |
| | Law 26.653 | 2010 | Accessibility to information in web pages |
| Transport | Decree 467 | 1998 | Integral Protection System for disabled persons – Transport |
| | Law N° 429 / Law N° 2510 CABA | 2000/2007 | Allowance of guide dog in transport and public places |
| | Law Nº 438 / Law N° 1080 CABA | 2000/2003 | Parking booking |
| | Law 25.644 | 2002 | Accessible units for persons with reduced mobility |
| | National Law N° 25.635 | 2002 | Right to free terrestrial public transport services and to a companions travel |
| | Decree N° 38 | 2004 | Certificates for long and short distance national terrestrial transport |
| | Airline regulation | | Extra seat for physical affection |
| | Airline regulation | | Aircraft Transfer of persons with reduced mobility |
| Food | Law N° 66 CABA | 2005 | Braille Menu |
| | Law N° 1906 CABA | 2005 | Cardiovascular, obesity and diabetes prevention |
| | Law N° 3373 CABA | 2010 | It imposes several obligations on the highest health authority, among them to promote an option for the celiac in bars, restaurants and coffee shops |
| | Airline regulation | | Special menus |
Structure:
When it comes to determining accessibility to the physical environment law 24.314 contemplates urban physical as well as architectural barriers. In the latter, and via regulations improvements on lodgings are achieved, stating:
§ A board with a set of “special rooms” according to the number of conventional rooms fit for persons with reduced mobility.
§ The arrangement of special sanitary facilities in the information and reception areas
§ It makes clear that the rooms in hostels or in any other lodging shall be placed in accessible levels, setting one bed every other conventional fifty and suggesting that sanitary facilities be near the bedrooms
Several remarks to make. We doubt whether the best criterion is to distinguish between special and conventional rooms/bedrooms. But, assuming this was the case, can one easily access the hotel? And, once in there, what´s the use in having a “special” room if I can not get there? Or else, what happens if only the room is accessible and the rest of the hotel is full of physical barriers? And, if for security reasons the building’s architecture wouldn´t allow for modifications as the ones required? Or even more, why should we think that only the hotel should consider the persons with reduced mobility? The law ignores that every jurisdiction controls their own institutions; therefore the term “lodging” may mean something different according to every province or town. Or else, it could not even exist as a modality; consequently, the fulfillment turns impossible.
It is necessary to logically appeal to the local Building Codes in order to understand the accessibility considerations which may and must be effective, without a prejudice to the kind of environment we are dealing with.
Communication:
In a broad sense, considering the act of information interchange as essential for human development and relationship life, it can be classified as oral, written, augmentative, alternative, tactile, and audio or based on technologies (telephones, computers, etc.). Let us see some of the examples fitting these premises: Braille brochures, maps and manuals with big typography or scale models for tourist attractions, automated elevators, telephones with luminous signals, scale models for cultural or natural attractions, journey plan-reliefs, and trained people in sign language. These are only some of the resources companies, services providers and the public sector use for dealing with persons with any sort of disability.
Law 24.421 forces telephone companies to provide deaf persons or people with a speech impediment and within a specific term with a common rate for a special service. But this is not an obligation in force to a provider who intends to give this service to their customers.
Law 25.643 forces tourism providers (notice the above mentioned on the absence of sanctions) the responsibility to identify environments according to law 19.279 and IRAM (Argentinean Standardization Institute) standards 3722, 3723 and 3724. The former linked with the international symbol for automobile drivers with disabilities, and IRAM[13] standards with the standardized symbols to identify mobility, audio and visual disability.
Finally, regarding technology media, we must mention two initiatives already practiced by many providers which are nowadays also taken as obligatory for the public sector:
· In a broad sense, as mentioned at the beginning, article 66 to law 26.522 imposes on open television and local station broadcasting the duty to incorporate additional visual communication media with hidden subtitles (closed caption), sign language and audio description, for the reception by persons with sensory disabilities, older adults and other people who might have difficulty to understand contents
· According to law 26.653 and within the system of access to public information, all bodies belonging or linked to the State are forced to provide with web pages information accessible for persons with disabilities and for users who have their equipment or programs with several settings
Transport:
Regarding long and medium distance urban and suburban vehicles, public transport, a system of unit renewal was devised. These should have special characteristics for wheelchairs and two seat of priority use for persons with reduced mobility and/or communication, avoiding any type of barriers against their movement. So far, since the term for the renewal of all units (expired in 2002) was impossible to achieve, it became necessary to identify in a better way the adapted units and to impose on the companies the broadcasting of the frequency of such transports.
On the passenger´s side and for public transport in general, there were also rights and obligations imposed: to free travel with the possibility of extending the benefit for the companion; and to show the corresponding certification of disability.
In the local orbit, the so-called “guide dogs”, properly registered and with a visible identification, have access to public places and transports, without this implying any spending for this concept for the person with special needs.
Within the city´s regulation, if the person with disability should have their own vehicle, they are authorized to book their own parking place in public places with some restrictions (if they suffer from permanent mobility deficiency of their inferior limbs, and declared mobility problems). This benefit is extendable for the ancestor, descendant, spouse, partner, first degree relative or tutor of the disabled person.
Regarding rail transport and other franchise services it is interesting to remember the Verbrugghe case. It was about a collective appeal against the National State (Ministry of Economic Affairs, Secretary of Transportation) and against the TBA (Buenos Aires Trains) company. It was the case of a teacher with a mobility disability who, in order to reach her work, she usually took the Mitre line. The setting of turnstiles and vending machines violated law 24.314, since it implied modifications in the urban physical environment which worsened the accessibility conditions.
In September 2000, the Supreme Court of Argentina confirmed the Chamber´s verdict which had condemned the company "[...] to make the necessary arrangements to enable alternative access to turnstiles in every station to Mitre branch railways, allowing persons with reduced or complete mobility disability to access the service in equality of condition to the rest of the users [...] in a 60-day term”. It also strongly sentenced the National State to "[...] control the effective fulfillment of public works and to adapt the regulations in force”.
Also regarding air transport, there could be the case that a person injured or because of their physical build need an extra seat. In these cases it falls to the passenger to prove their condition and to the airline medical service to deal with the issue. Eventually, it shall become a company´s affair whether or not to charge for this service, which is free in the case of our flag carrier.
When it comes to persons with reduced mobility, airline companies must interact with the airport; that is why the ORSNA[14]at the moment of measuring quality standards shall also check toilettes, parking, telephones, ramps, and accessibility availability. They shall also provide for the existence of embarkation and disembarkation methodology for persons with impediments.
Feeding:
Many Restaurants, Coffee shops and Bars have Braille menus, or options for diabetics and celiac persons. In the particular case of Buenos Aires City laws 66, 1906 and 3373 impose the promotion of these kinds of options, in the first two cases, on institutions and in the last one on the highest health authority.
The same as when dealing with transporting persons with reduced mobility or regarding the extra seat for heavily-built persons; this is another issue in which each airline has their own policies. Thus, for instance, Aerolíneas Argentinas (Argentinean Airlines)[15] includes it among their special services with certain restrictions (depending on destination, class, advance notification, etc.). Other airlines set a minimum fee or simply vary restrictions.
5.- By way of conclusion:
As we can see, the regulatory system comtemplating persons with disabilities has complex ramifications which consider clinical, labor, educational, credit issues, etc. a result of the political times they were issued at and the respective institutional learning we have been facing throughout these years.
The system with its own logic and evolution nowadays pivots on the axis of laws 22.431 and 24.901 without a prejudice to the regulations which might be considered part of it. Changes do not happen by chance; they answer not only to the fact that the very concept of disability has mutated, but also to the social view in question. And what initially was the “issue of the handicapped” gradually became a post of social responsibility for accessibility.
Specific standards of Tourism appear in this second period, so they are inserted in the social dimension. And in this sense the national law of Tourism, from its wideness and principled character seems to be generous enough to cover for such concept and as outlined from the system of protection for persons with disabilities.
Law 25.643 deserves, on the other hand, another analysis. From a political point of view it becomes appropriate since it calls for reflection on an action area so necessary for any subject like leisure and free time, understood as recreational and restoring. On the other hand, it implies an advancement to acknowledge and to go back on certain issues –signposting, for instance – settled in behavior guidelines of a lower hierarchy than the legal ones. In the rest it becomes quite perfectible:
A) To consider that “Accessible Tourism” runs out in the agent´s information duty, in the service providers adjustment to criteria of universal design; and in the adaptation of broadcasting material it does not cease to be a well-meant reductionism, but reductionism anyway.
B) The writing of the second paragraph of Art. 4th turns confusing since IRAM could be interpreted as an independent body from the Secretary of Tourism (a Ministry nowadays) or else that it could generate its own standardization or signposting, regardless national and/or universal standards. None is correct.
C) It is also prescriptive but it lacks sanctions for those who break its postulates.
D) And, finally, sanctioned in a context of political instability, it was never regulated.
Why should citizens be interested in accessibility? Because it constitutes a social compromise beyond the sector one belongs to. So far, there is a double interest from tourism activity: one from the public sector to achieve integration and social inclusion; and another one from the private sector to attract this segment of persons who generally do not move on their own, and who in global terms represent an interesting niche. This double view can nothing but be integrated from Ethics and integral Quality applied to Destination, infrastructure and service. In this sense it is not only clear to acknowledge the ignorance many citizens have on the totality of their rights, but also the impossibility to fulfill certain standards.
When it comes to concrete experience in some cases (as in the arrangement of “special” rooms) the law may turn out to be scarce or ambiguous. And since regarding lodging, mobility disabilities are more considered than others; also regarding communication, audio disabilities are very well covered in contrast with visual disabilities.
As far as the system is concerned, for the exposed reasons of evolution, conceptions, etc. it does not seem to present itself with an integral logic, either.
As regards terrestrial transport, it seems to be fairly covered, unlike aquatic or air transport where there is anomie or at best dispositions depend on the companies’ goodwill. And finally, in the case of railway transports it has been the Court who had to give a clue.
As we have seen national legislation often suffers from gaps, generalizes or is simply not enough. And the need to set some standards comes either from local offices or form the very individuals. This sets heterogeneous possibilities according to the coactive force of each regulatory model. Not to mention the cliché that many times the law exists but it is not fulfilled.
The National Ministry of Tourism has been promoting the issue from two angles. Infrastructure and sensitizing: incorporating accessibility criteria in the planning of every work it participates in: tourism information units, facilities, signposting, and reassessing patrimony. And raising awareness from the Quality Management area, developing together with the National Rehab Service what is known as referentials (recommendations of voluntary adhesion which once implemented and carried out are subdued to auditing and pondered, and if they pass they are qualified with a badge). The first ones were the Guidelines to Accessibility in Tourism Lodgings[16] and recently the ones which cover the whole spectrum of Tourism Services[17].
Is it then necessary either to reformulate or to issue a new law for Accessible Tourism? If the answer were positive, it is obvious that this standard should be able to articulate with the rest of the system and consider every aspect of a travel experience. Without prejudice to this and as it can be observed, many of the initiatives seen as desirable for the development of the activity have not been aroused by the coactive force of the law but by the community´s conviction in a permanent learning state, either from the State, from an airline management, or from a gastronomy or hotel manager´s concern. In any case, the law helps, accompanies, accelerates…but actually, it is conscience that really motorizes changes.
[1] As for instance subsidies arising from law 24.452 –regarding the cheque- and its comptroller´s guidelines: Decree 961/98 or else the National Fund for the integration of People with Disabilities regulated by decrees 1277 and 1085 from 2003
[3] Acuña Carlos H. and Bulit Goñi Luis compilers. In “Políticas sobre la discapacidad en la Argentina” Fara Luis´ article: “Análisis de la normativa nacional orientada a las personas con discapacidad” Siglo veintiuno editores 2010
[4] Gómez María Fernanda “Grupos Turísticos y discapacidad” Buenos Aires 2004 Ediciones Turísticas
[5] The term “handicapped” shall be expressly replaced by “disabled” in art. 25 to law 22.431
[6] See a very complete enumeration in Pablo Oscar Rosales´ work “La discapacidad en el Sistema de Salud Argentino: Obras Sociales, Prepagas y Estado Nacional” Buenos Aires 2004 Lexis Nexis 2nd ed.
[7] Bidart Campos German J. “Manual de la Constitución Reformada” Vol. III Ediar Buenos Aires 1999
[8] In Sarmiento García and others “La Reforma Constitucional interpretada” article by Armagnague Juan Fernando “El Poder Legislativo en la reforma constitucional” IEDA Depalma Editions Buenos Aires 1995
[9] The ones in bold letter are ours
[10] http://www.ohchr.org/EN/HRBodies/CRPD/Pages/CRPDIndex.aspx
[11] Motor vehicle for the disabled regulation 10/04/71 See Clause 601/2007 of the National Rehab Service
[12] Symbols for persons with physical, hearing/deafness, and visual impairments
[13] www.iram.org.ar
[14] www.orsna.gov.ar
[15] http://www.aerolineas.com.ar/arg/main.asp?idSitio=AR&idPagina=22&idIdioma=es
[16] http://2016.turismo.gov.ar/wp_turismo/wp-content/uploads/2008/06/directrices-accesibilidad.pdf
[17] http://2016.turismo.gov.ar/wp_turismo/wp-content/uploads/2010/09/dir-acce-servicios-turisticos-2.pdf
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