CYIL vol. 10 (2019)

VERONIKA BÍLKOVÁ CYIL 10 ȍ2019Ȏ In the absence of a specific legal instrument that would address their particular needs and problems, older persons are left with the protection granted to them by two types of hard law rules. The first type consists of provisions referring specifically to older persons or old age that are contained in human rights treaties of general nature or, rather, human rights treaties primarily focused on other categories of vulnerable persons. Three treaties of the latter nature contain references to (old) age. One is the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which grants women “the right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave” (Article 11(e), emphasis added). The second is the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) which includes “age” among grounds on which discrimination among migrant workers is prohibited. 10 Although the pre-1990 human rights treaties also contained non-discrimination clauses, age was not specifically mentioned there. This is usually explained by the fact that in the first decades following WWII, “the problem of demographic ageing was not as evident or as pressing as it is now” . 11 The most frequent references to age can be found in the third treaty, the 2006 Convention on the Rights of Persons with Disabilities (CRPD). This treaty invokes age, encompassing young and old age in most cases, both as a ground on which any unfavourable distinction, exclusion, or restriction must not be based (see par p) of the Preamble), and as a factor that has to be taken into account when adopting measures and designing policies (see references to age-appropriate or age-sensitive assistance, support, or accommodation – Articles 7(3), 13(1) or 16(2)). In addition to age, the CRPD also speaks explicitly – as the only human rights treaty at the universal level – about older persons. It does so in Article 25 relating to the right to health 12 and in Article 28 granting the right to an adequate standard of living and social protection. 13 Although this regulation may seem relatively comprehensive, it is important to keep in mind that the scope of the relevant provisions, and of the CRPD as a whole, is limited to older persons with disabilities. 14 There is, at the moment, no similar regulation that would apply to other categories of older persons. These other categories are thus only subject to non-specific provisions contained in general or sectoral human rights treaties, such as the 1966 International Covenants on Civil 10 Article 7 of the ICMW reads as follows: “States Parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction of any kind such as to sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age , economic position, property, marital status, birth or other status” (emphasis added). 11 UN Doc. E/1996/22, General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons, 8 December 1995, par. 11 (it is noticeable that even the UN Committee on Economic, Social and Cultural Rights describes ageing as a “problem”). 12 Article 25 declares the obligation of States to “provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons ” (par. b, emphasis added). 13 Article 28 declares that States shall “ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities , to social protection programmes and poverty reduction programmes” (par. 2(b), emphasis added). 14 See also KANTER, Arlene S., The United Nations Convention on the Rights of Persons with Disabilities and its Implications for the Rights of Elderly People under International Law, Georgia State University Law Review, Vol. 25, No. 3, 2009, pp. 527-573.

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