Strengthening the Rights of Older People Worldwide: Building Greater European Support
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Background Paper Strengthening the Rights of Older People Worldwide: Building Greater European Support This paper provides background to the conference organised by HelpAge Deutschland and HelpAge International, in Osnabrück, Germany, on 5-7 December 2012. The conference seeks to generate greater political support in Europe for new international human rights instruments specifically for older people. The year 2012 is a critical one for the rights of there has been little engagement of older people, older people. It is the European Year of Active civil society and other actors in this debate within Ageing and Solidarity between Generations; the Europe. Madrid International Plan of Action on Ageing (MIPAA) is undergoing a 10-year review; and The conference, Strengthening the Rights of Older regional instruments on older people’s rights are People Worldwide: Building Greater European being drafted at the Inter-American, African and Support, will contribute to that debate. European levels. At the international level, the Today, 760 million people are over 60; by 2050, Open-ended Working Group on Ageing (OEWG), that number will have risen to 2 billion.1 As the has now met three times. This is the first and global population of older people rapidly only UN Member State forum dedicated to increases, so will the number of rights violations identifying gaps in the protection of older against older people unless there is a concerted people’s rights under existing human rights law effort by States to redress the current situation. and discussing the need for new instruments to fill these gaps. The impact of advances in health and longevity were not foreseen when the first international A consensus has emerged that older people’s human rights instruments were drafted. As a rights have been neglected and that action needs result, older people’s rights and State obligations to be taken to address this. Even so, there is still were not explicitly codified. Today, when older no consensus among UN Member States about people challenge violations of their rights, they the best course of action to take. Strong support must search a fragmented system of generic for an international convention and a UN special human rights law, and then seek clarification that rapporteur on the rights of older people has they are included in the group protected by a emerged primarily from Latin American Member particular law. States, and support is growing among African and Asian Member States. This is challenging when there are almost no explicit references to older people in international The general position of European Union Member law and the elaboration of soft law over time has States, however, is that there is no need for new failed to meet the most urgent needs of this human rights instruments and that existing growing demographic. mechanisms need to be better implemented. It is critical that the position taken by European This paper explains the international discussion Union Member States is informed by, reflects, around “gaps”, explores existing international and responds to the reality of the lives of older human rights law, and outlines possible women and men around the world. However, solutions. 1 Existing international human rights law Types of gaps within the current framework Why not just improve implementation of existing documents devoted to older people? There are different gaps in international human rights law, each of which infringes on the rights Scope and depth: These three plans or principles 2 of the individuals concerned. The OEWG has are the only international documents devoted to identified four types of gaps: ageing and while they have moral weight, they have no legally-binding power. Even if States A normative gap exists where persistent acts were to implement each recommendation to the and circumstances depriving a person or letter, these existing documents would not people of their dignity are not provided for in address the full range of specific rights older existing human rights law. people require. They do not provide for An implementation gap exists where the rights independent monitoring or accountability and obligations are contained within law, but mechanisms to assess progress, or an are not wholly translated into national law and investigatory body for violations and non- practice. compliance. The target population and other stakeholders have no basis to call upon their A monitoring gap exists where no independent government to enforce equal treatment and body or mechanism is mandated to ensure protection with the offerings of these documents. States comply with their obligations, thus depriving citizens of their State’s accountability Legal certainty: Some who oppose the and protection for commitments made. development of new international standards specific to older people's rights have argued that An information gap exists where substantive since all human rights are universal, provisions discussions on the rights of older people are within existing human rights law are applicable inhibited by a lack of disaggregated data and to older people, and therefore attempts to further statistics. clarify States' obligations are unnecessary. However, for international human rights law to Existing documents devoted to be effectively incorporated and upheld in national ageing and older people law, there must be legal certainty of how human rights obligations apply to different people and in The 1982 Vienna International Plan of Action different circumstances. Human rights law has on Ageing is the first international document never been comprehensively applied to older on ageing, created by the first World Assembly people or within the context of ageing. As a on Ageing, and later endorsed by UN General result, there is a lack of legal certainty and clarity Assembly resolution 37/51. It is developmental which threatens the equal protection of older in focus, outlining principles and people’s rights. Improved implementation of recommendations on areas such as social existing policy documents alone will not address welfare, health and income security. this protection gap. The UN Principles for Older Persons were Multiple “gaps”: Implementation gaps represent adopted by UN General Assembly resolution only one type of legal gap facing the world’s A46/91 of 1991. These Principles are preceded older people. Addressing one gap and not others by a reaffirmation of faith in fundamental and could result in any number of problems, equal human rights, however, this text is not including weak legal standards, high theoretical binding. standards that are not put into practice, low The 2002 Madrid International Plan of Action levels of accountability, and the inability for on Ageing (MIPAA) was adopted by the dialogue around lessons learned for continuous Second World Assembly on Ageing, along with improvement in levels of progress. a political declaration, and later endorsed by UN General Assembly resolution 57/167. It contains three priority themes: development, health and wellbeing, and enabling environments. 2 Binding international human rights Obviously, the rights protected in these treaties law and older people are contingent on the older person in question, being a migrant or part of a migrant's family, a None of the foundational human rights woman or a person with a disability. instruments, namely the Universal Declaration on Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), Does the term “other status” provide or the International Covenant on Economic, adequate protection in international law? Social and Cultural Rights (ICESCR) explicitly prohibits discrimination on the basis of age. Failure to report: A consequence of excluding age from explicit prohibited grounds for To explore the exact language of these discrimination is that States are not prompted foundational documents in greater detail, UDHR to report on the situation of older people. They Article 2 states that “Everyone is entitled to all are therefore less likely to ensure older people the rights and freedoms set forth in this are included within national law, programmes Declaration, without distinction of any kind, such or initiatives, or to ensure equality across as race, colour, sex, language, religion, political groups. The UN Secretary-General recognised or other opinion, national or social origin, that States “are ‘age-blind’ in their human property, birth or other status” [emphasis added]. rights reporting”, citing the fact that just four of While not binding, the UDHR provides the basis, 124 State reports to the Human Rights language and moral force for subsequent human Committee between 2000 and 2008 had made rights instruments. even a passing reference to older people.4 Both the ICCPR and the ICESCR ensure that the These findings are not restricted to the Treaty rights contained within are applicable to all Body mechanisms themselves. The Universal people “without distinction of any kind, such as Periodic Review process referred to older race, colour, sex, language, religion, political or people only 31 times out of 21,353 other opinion, national or social origin, property, recommendations made during the entire first birth or other status” [emphasis added]. Within round of reviews from 2008-2012, and where 3 the nine core international human rights treaties, they are mentioned, it is often within a long list only one prohibits discrimination on the basis of of other vulnerable groups.5 age and two mention older people: Lack of redress: Where older people’s specific Articles 1.1 and 7 of the International situations are not expressly referenced and Convention on the Protection of the Rights of their specific rights not articulated, older people All Migrant Workers and Members of Their face rights violations without any recourse to Families (ICRMW, 1990) prohibit justice or redress. discrimination on the basis of age. Selective interpretation and lack of legal Article 11.1.e of the Convention on the certainty: States can selectively interpret Elimination of All Forms of Discrimination “other status”, and therefore their obligations.