20 International Legal Protection of Elderly Rights

Ms. Krithika B. S.

epgp books

 

 

1. LEARNING OUTCOMES

  • To give an overview of the legal protection accorded to the various rights of the elderly in the international arena.
  • To develop and overall understanding of the international as well as regional treaties pertaining to elderly and their rights.
  • To critically understand the key principles relating to the UN Principles for Older Persons, 1991, Plans of Action on Ageing and the CESCR General Comment No. 6 relating to Economic, Social and Cultural Rights of the Elderly.

2. INTRODUCTION

As already noted in the previous section, the elderly are facing a number of challenges in enjoying their rights. Consequently, they are increasingly being side-lined from the society which, if not addressed immediately, will result in the total social exclusion of these people. In order to prevent this and protect the elderly from the ill-treatment of the society and ensure them their fundamental human rights, various efforts have been made to recognise the rights of the elderly and accord legal protection to those rights. However, with the focus on the human rights problems being faced by the elderly being relatively new, not much has been achieved in this direction thus, calling for a comprehensive legal instrument that accords complete protection to the human rights of the elderly.

3. INTERNATIONAL LAW AND THE RIGHTS OF THE ELDERLY

With the emerging challenges in the enjoyment of their human rights by the elderly in the post-industrial era, there arose a necessity to legally recognise and protect the rights that are fundamental to the peaceful, happy and dignified existence of the elderly. In this background, a series of efforts were made both at the international, regional as well as domestic levels to accord legal protection to the human rights of the elderly people.

The legal protection of elderly rights in the international echelon can be considered under the following heads:

3.1. UNITED NATIONS AND ELDERLY RIGHTS

United Nations, which is the modern day master of protection of human rights and peace at the international level, has time and again considered the issue of elderly rights. Accordingly, various efforts have also been made by the organisation to protect the human rights of the aged.

3.1.1. Universal Declaration of Human Rights, 1948

The Universal Declaration of Human Rights of 1948, which is the foundation of the contemporary human rights law, for the first time, recognised the right to security of the elderly under the provisions of Article 25. This recognition of the rights of the elderly served as the basis for the formulation of various other documents in this direction.

3.1.2. Vienna International Plan of Action on Ageing, 1982

The initial coordinated efforts for the recognition and protection of the rights of the elderly on the basis of the Universal Declaration of Human Rights, 1948 were made in the year 1980 when the issue was incorporated in the United Nation’s agenda. Consequently, a World Assembly on Ageing was organised in the year 1982 for the first time at Vienna, where 124 nations of the world were represented. An International Plan of Action on Ageing was adopted in this Assembly, known as the “Vienna International Plan of Action on Ageing”, to assist and protect the elderly community.

3.1.3. UN Principles for Older Persons, 1991

The Vienna International Plan of Action on Ageing of 1982 was followed by the adoption of the UN Principles for Older Persons in the year 1991 by the UN General Assembly vide Resolution No. 46/91. The principles were adopted to facilitate the implementation of the Vienna Plan of Action of 1982 by clearly identifying the various rights of the elderly persons.

The UN Principles for the elderly comprises of 18 Principles grouped under 5 themes. The Principles acknowledge that the diversity in the elderly community, healthy advancement of age and the ageing of population imposing a strain on the family life and thus, there is a necessity to support the elderly as well as those providing care to them.

The Rights of the Elderly as enshrined under the UN Principles for Older Persons, 1991 can be summarised as follows:

3.1.4. Madrid International Plan of Action on Ageing, 2002

The International Plan of Action on Ageing was criticised by many scholars for the lack of age-based perspective. Later, in the year 2002, the document was revisited by the United Nations in the Second World Assembly on Ageing held in April, 2002 at Madrid. A revised International Plan of Action on Ageing, commonly known as the Madrid Plan was adopted in this Conference with the consensus of 159 nations.

The Madrid International Plan of Action, 2002 called for

  • Promotion of all human rights and fundamental freedoms of the elderly, including their right to development
  • Combating the issue of ageism
  • Including the ageing concerns in the global agenda
  • Elimination of Neglect, Abuse and Violence towards Older People

3.1.5. General Comment No. 6 of CESCR on “Economic, Social and Cultural Rights of Older Persons”

The International Covenant on Economic, Social and Cultural Rights, 1966 is one of the most relevant international human  rights documents regarding the status of the elderly in the contemporary world. However, the convention does not explicitly refer to the elderly persons. To overcome this lapse, the Committee on Economic, Social and Cultural Rights, which is the supervisory body of the Convention, adopted a General Comment on the Economic, Social and Cultural Rights of the Elderly. Adopted in 1995, the Committee’s General Comment No. 6 provides the most comprehensive legal analysis of the rights of the elderly at the international level by interpreting the International Covenant on Economic, Social and Cultural Rights in the context of the elderly. By providing an insight into the different mechanisms for the implementation and protection of the elderly rights, the General Comment expands the scope of the Convention and enables the development of a comprehensive set of human rights of the elderly.

 


3.1.6. Other Documents

Certain other documents adopted by the United Nations that concern the elderly issues are as follows:

  1. Proclamation on Ageing, 1991
  2. 1992 General Assembly Resolution on 2001 Global Targets on the Ageing
  3. Integration of older Women in Development, 1994
  4. Modalities for the review and appraisal of the Madrid International Plan of Action on Ageing, 2004

3.1.7. UN Special Agencies and Elderly Rights

Some of the special agencies of the United Nations have also been contributing in the protection of the rights of the elderly persons in the form of either General Comments or adopting conventions. Some of them are as follows:

Committee on Economic, Social and Cultural Rights

  • CESCR General Comment No. 14 on the Right to the Highest Attainable Standard of Health
  • CESCR General Comment No. 19 on the Right to Social Security
  • CESCR General Comment No. 20 on Non-Discrimination in Economic, Social and Cultural Rights
  • CESCR General Comment No. 21 on the Right of Everyone to Participate in Cultural Life

Committee on Civil and Political Rights

  • CCPR General Comment No. 18 on Non-Discrimination

Committee on the Elimination of Discrimination against Women

  • CEDAW General Recommendation No. 27 on Older Women and the Protection of their Human Rights

Committee Against Torture

  • CAT General Recommendation No. 2 on the implementation of Article 2 of the Convention

International Labour Organisation

  • ILO Convention No.102 concerning Social Security (Minimum Standards)
  • ILO Convention No.128 concerning Invalidity, Old-Age and Survivors’ Benefits
  • ILO Convention No. 142 concerning Vocation Guidance and Vocational Training in the Development of Human Resources
  • ILO Convention No. 156 Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities
  • ILO Recommendation No. 122 concerning Employment Policy regarding certain Vulnerable Groups, including the Elderly
  • ILO Recommendation No. 131 concerning Invalidity, Old-Age and Survivor’s Benefits
  • ILO Recommendation No. 162 concerning Older Workers
  • ILO Recommendation No. 166 concerning Termination of Employment
  • ILO Recommendation No. 202 concerning National Floors for Social Protection

World Health Organisation

The World Health Organisation has also time and again dealt with the issue of the rights of the elderly, especially the Right to Highest Attainable Standard of Physical and Mental Health of the elderly. Though not much of legal relevance, the World Health Organisation has considered the concerns of the elderly from the biological and psychological perspective i.e., the science of health and has issued comments to the Committee on Economic, Social and Cultural Rights time and again to enable more effective protection of the human rights of the elderly.

3.1.8. Other Human Rights Instruments applicable to Elderly

Apart from the above human rights instruments that particularly deal with the concerns of the elderly persons, several other instruments pertaining to human rights are also relevant to the elderly and can be made applicable to them. Some of these instruments include

  • International Covenant on Civil and Political Rights, 1966
  • International Covenant on Economic, Social and Cultural Rights, 1966
  • Convention on the Elimination of All Forms of Discrimination against Women, 1979
  • Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1987
  • Convention on the Elimination of All Forms of Racial Discrimination
  • International Convention on the Protection of the Rights of Migrant Workers and the Members of their Families, 1990
  • Convention on the Rights of Persons with Disabilities, 2006
  • Toronto Declaration on the Global Prevention of Elder Abuse, 2002, WHO/INPEA

3.2. ELDERLY RIGHTS UNDER REGIONAL INSTRUMENTS

Various efforts have been made at the regional levels as well for the protection of the human rights of the elderly. Unlike the universal human rights instruments, several regional human rights treaties explicitly protect the rights of the elderly. This section deals with the protection of the rights of the elderly in four regions namely,

  • Europe
  • Africa
  • Asia and Pacific
  • Latin America and Caribbean

The various human rights instruments concerning the rights of the elderly adopted at these regional levels inter-alia include the following.

4. NEED FOR A NEW CONVENTION ON ELDERLY RIGHTS

The Elderly, as with all other sections of the population, have human rights as they are inherent to all human beings. Despite the fact that human rights laws are applicable to all members of the society irrespective of their age, there exists a normative as well as an implementation gap with respect to the elderly. The provisions that directly address the concerns of the elderly and their rights are very few. While most of the approaches to the rights of the elderly are directed towards their development, the legal standards of their rights still remain unexplored mainly due to the fact that the international legal mechanisms have not yet expanded their scope to meet their full potential regarding the issue. Consequently, the elderly are becoming more and more vulnerable and side-lined in the society.

The United Nations and its agencies are continuously  working towards the improvement of the collective well-being of the elderly. Accordingly, the UN Open-ended Working Group on Ageing was established by the General Assembly in the year 2010 to strengthen the protection of the human rights of the elderly by

  1. Reviewing the extent up to which the existing human rights instruments address the rights of the elderly,
  2. Identifying any gaps in protection of these rights and
  3. Exploring the feasibility of new human rights instruments.

Is it necessary to adopt a new international legal instrument, a treaty or at least a declaration on the rights of the elderly?

Since its establishment, the Open-ended Working Group has been meeting every year to discuss and deliberate the status of the elderly in the contemporary world and device mechanisms to ensure their well-being. Discussions are focused on the protection of the rights of the older persons and the necessity of formulation of a new international convention dealing specifically with the elderly section of the populace and comprehensively recognising and protecting all their rights. However, currently there exists a lack of consensus regarding the adoption of a comprehensive international legal instrument on the rights of the elderly. While some countries are of the opinion that the adoption of a new legal instrument on the rights of the elderly at the international level is grave necessity, few others are against this initiative.

Thus, the issue of adopting a new international legal instrument on the rights of the elderly is an on-going debate both at the international, regional as well as the national levels.

5. CONCLUSION AND SUMMARY

Ageing brings with it particular vulnerabilities to discrimination and rights violations. Thought various efforts are being made both at the international as well as regional levels to protect the rights of the elderly and ensure their well-being, not much progress has taken place in this direction. There is neither a comprehensive law enabling the elderly to enjoy their human rights on an equal basis with others nor they have been explicitly provided protection under the existing legal instruments. The mentioning of the elderly people in the universal legal instruments is very rare and wherever mentioned, it is in the form of a comment or a recommendation made by the committees. Thus, the need for the development of a strategy to adopt a comprehensive legal instrument on the rights of the elderly at the international level has gained focus.

you can view video on International Legal Protection of Elderly Rights

Reference

  • In 1992, the U.N. General Assembly adopted the proclamation to observe the year 1999 as he International Year of the Older Persons.
  • The U.N. General Assembly has declared “1st October” as the International Day for the Elderly, later rechristened as the International Day of the Older Persons. This is observed every year.
  • According to Article 4(5) of the American Convention on Human Rights, death penalty cannot be imposed on persons above the age of 70 years.
  • The International Human Rights Status of Elderly Persons, American University International Law Review (2003) 4: 915-1008
  • Normative standards in international human rights law to older persons, Analytical Outcome Paper, United Nations Office of the High Commissioner for Human Rights (August 2012)
  • Human Rights of Older People: Universal and Regional Legal Perspectives, by Claudia Martin, Diego Rodríguez-Pinzón, Bethany Brown
  • The Rights of Older People: International Law, Human Rights Mechanisms and the Case for New Normative Standards, Lindsay Judge, December 2008 http://www.globalaging.org/elderrights/world/2008/internationallaw.pdf
  • Human Rights of Older Persons http://social.un.org/ageing-working- group/documents/Table%20HR%20&%20MIPAA%20-%20April%202011.pdf
  • http://social.un.org/ageing-working-group/
  • http://www.coe.int/t/dghl/standardsetting/hrpolicy/other_committees/cddh- age/default_EN.asp
  • http://www.ohchr.org/EN/Issues/OlderPersons/IE/Pages/InternationalStandards.asp x
  • http://undesadspd.org/Ageing.aspx
  • http://www.aoa.acl.gov/AoA_Programs/Special_Projects/Global_Aging/resources_ri ghts.aspx