CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HUMAN RIGHTS OF OLDER PERSONS IN INTERNATIONAL LAW In the absence of this instrument, we have to rely, to a large extent, on the case law of UN human rights bodies. There is now a solid body of such case law confirming that “a distinction related to age which is not based on reasonable and objective criteria may amount to discrimination on the ground of ‘other status’”. 53 Yet, even within the UN bodies themselves, this position does not secure a uniform consensus. In Love and Others v. Australia, for instance, one of the members of the UN Human Rights Committee, Nisuke Ando, opposed the inclusion of age under “other status” on the ground that “age has a distinctive character which is different from all the grounds enumerated in article 26” . 54 While the other grounds apply to a portion of the human species only, age, allegedly, “is applicable to all the human species, and /…/ constitutes ground to treat a portion of persons differently from others in the whole scheme of the Covenant”. 55 This argument is not entirely true. First, most, if not all of the other grounds (race, sex, national or social origin or birth) are clearly applicable to all the human species as well. Second, Ando is right in pointing out that distinctions based on age are more prevalent in national legal orders and, also, in human rights systems than distinctions based on other grounds. This is nonetheless mainly the case with the maturation age, on which the exercise of some political and also non-political rights (right to vote, right to marry) is made conditional. The retirement age does not seem to have similar obvious consequences, though it may justify some differences in treatment or outcomes for instance in the area of employment. Such differences do not necessarily constitute unlawful discrimination. The presence (or absence) of reasonable and objective criteria is the decisive factor here. For instance, in the case Love and Others v. Australia mentioned above, the UN Human Rights Committee concluded that the imposition of a mandatory retirement age of 60 for aircraft pilots pursued a legitimate aim of maximizing safety to passengers, crew and other persons and was reasonable and objective in light of the widespread national and international practice. 56 Yet, in a society marked by ageism, the assessment of what is reasonable and objective might be somewhat tainted. Taking this into account, UN human rights treaties, as interpreted by UN human rights bodies, not only prohibit that States enact laws of discriminatory nature or apply laws in a discriminatory manner but also impose on them a range of positive obligations. Those encompass the obligation to extend the protection against discrimination, including age discrimination, to private relations 57 and to adopt measures aimed at combating ageism. 58 Such a holistic approach should help combat age discrimination not only through the sanctioning of those who engage in it but also, and primarily, by means of removing or minimizing the factors that lead to this discrimination in the first place. 53 See, for instance, HRC, John K. Love et al. v Australia, Communication No. 983/2001, 25 March 2003, par. 8.2; HRC, Rubén Santiago Hinostroza Solís v. Peru, Communication No. 1016/2001, 27 March 2006, par. 6.3. 54 HRC, John K. Love et al. v Australia, Communication No. 983/2001, 25 March 2003, individual opinion of Mr. Nisuke Ando. 55 Ibidem. 56 HRC, John K. Love et al. v Australia, op. cit., par. 8.3. See also HRC, Schmitz-de-Jong v. The Netherlands, Communication No 855/1999, 16 July 2001. 57 “States parties must /…/ adopt measures, which should include legislation, to ensure that individuals and entities in the private sphere do not discriminate on prohibited grounds.” UN Doc. E/C.12/GC/20, op. cit., par. 11. 58 “In order to eliminate substantive discrimination, States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination.” Ibidem, par. 9.

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