残疾人权利公约中的合理便利——考量基准与保障手段

Reasonable Accommodation in the Convention on the Rights of Persons with Disabilities——Benchmark of Consideration and Method of Protection

合理便利是联合国残疾人权利公约中的一个关键概念。公约中的便利广泛而全面,只以合理为限制条件。合理可以从有效、必要、适当和不造成过度或不当负担四个方面予以解释。合理便利的提供者不能拒绝为合理便利承担大于微不足道的负担,只有过度或不当负担才可以作为免责理由。在判断过度或不当负担时,成本/收益的经济分析是基本但不惟一的分析工具。合理便利不同于无障碍建设,其基本特征是个人化和协商性,一般要求提供者积极行动、区别对待。公约缔约国对合理便利承担着三重义务,即直接提供的义务、确保提供的义务和促进的义务。合理便利反映了反歧视手段和工具的新发展。人权理论中的连带关系理论和财产权的社会义务理论为合理便利提供了正当性支持。

The concept of reasonable accommodation is a key concept of United Nations Convention on the Rights of Persons with Disabilities（ the Convention）. The accommodations in the Convention are very abroad and comprehensive,and take reasonableness as the only restricted condition. Reasonableness could be explained by four aspects： effectiveness,necessity,appropriateness and not imposing a disproportionate or undue burden. The provider of reasonable accommodation should not refuse to bear some insignificant burden in providing accommodation,and only disproportionate or undue burden can be exempted from reasonable accommodation. In determining what constitutes disproportionate or undue burden,all relevant circumstances of a particular case shall be taken into account,and the proportionality test which balances the burdens and benefits is a basic analysis tool. Reasonable accommodation is different from accessibility,and is distinguished by individual and consultative,which generally ask the duty bearer to take positive actions and give different treatment to the persons with disabilities according to their specific conditions. The states parties to the Convention not only have the direct duty to provide reasonable accommodations in some situations,but also shall take all appropriate steps to ensure that reasonable accommodation is provided by other social subjects. The state parties also have the duty to promote reasonable accommodation. Reasonable accommodation reflects new developments in the measures and tools in anti- discrimination. The human rights theory of solidarity and the social responsibility of property rights provide justification of reasonable accommodation.