CYIL vol. 10 (2019)

VERONIKA BÍLKOVÁ CYIL 10 ȍ2019Ȏ Moreover, it is also argued that the very fixation on the chronological age may be culturally specific. 33 While it is important for the definition of older persons in the Western countries, it does not count so much in countries of Asia, Africa, or Oceania. There “/o/ther socially constructed meanings of age are more significant such as the roles assigned to older people; in some cases it is the loss of roles accompanying physical decline which is significant in defining old age”. 34 The second way of defining older persons might therefore involve using a set of characteristics that are typically associated with older persons and/or old age. Such an approach works well for other categories of vulnerable persons, for instance migrant workers (1990 ICMW). It is however questionable whether it could work equally well for older persons. Unlike the status of migrant workers which can be described through objective criteria (persons, travel abroad, remunerated work purpose, etc.), “the status of older persons is /…/ a social, political and economic construct, which may be geographically and culturally relative”. 35 In some countries, old age is associated with positive features (wisdom, experience, stability). In others, it is mostly linked to negative ones (health problems, dependence, frailty). Leaving the chronological age aside, there do not seem to be any objective characteristics of old age or older persons that would be universally recognized. This brings in the third option for the definition, which is the one embraced in the 2006 CRPD. This option combines certain general objective characteristics of persons belonging to a certain vulnerable category with the impact that these characteristics, or their (mis) perception in society, have on the social and legal position of such persons. In case of persons with disabilities, the former element encompasses “long-term physical, mental, intellectual or sensory impairments”, the latter consists of the potential hindrances for “the full and effective participation in society on an equal basis with others”. The hindrances stem not only from the impairments themselves but also from the negative stereotypes that the society links to them. The aim of the legal regulation is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities” (Article 1(1)) by making it possible for these persons to overcome such hindrances. The same approach could be used with respect to older persons, although here, as we saw above, defining the general objective characteristics would be more difficult. Yet, the third way would make it possible to partly overcome this difficulty by focusing on the vulnerability of persons resulting from the process of ageing and from negative stereotypes linked to this process. An interesting example of this approach is offered in the documents adopted by the Committee of Ministers of the Council of Europe, especially Recommendation No. R (94) 9 Concerning Elderly People, adopted in 1994, 36 and Recommendation 2014/2 on the Promotion of Human Rights of Older Persons, adopted in 2014. 37 The former instrument notes that “ageing is a process: being old depends on the individual’s circumstances and wider environment /…/. It 33 GORMAN, M., Development and the rights of older people, In RANDEL, Judith, GERMAN, Tony, EWING, Deborah (eds), The ageing and development report. Poverty, independence and the world’s older people, London: Earthscan Publications, 1999, pp. 3-21. 34 Ibidem . 35 OHCHR, Normative standards, op. cit., p. 6. 36 Recommendation No. R (94) 9 of the Committee of Ministers Concerning Elderly People, 10 October 1994. The recommendation contains, in its appendix, the Guiding principles to be taken into account when taking measures concerning elderly people. 37 Recommendation CM/Rec (2014)2 of the Committee of Ministers on the promotion of human rights of older persons, 19 February 2014.

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