CYIL vol. 10 (2019)

VERONIKA BÍLKOVÁ

CYIL 10 ȍ2019Ȏ

B) The lack of autonomy Autonomy is a broad concept but in the human rights context it usually refers to “the principle or right of individuals to determine their own rule and preferences”. 59 Autonomous individuals make decisions about their own life and have the legal/physical/mental capacity to exercise these decisions. They also, at least to some extent, are economically and financially self-sufficient, though they may not be completely independent of assistance provided by other persons (lack of independence does not entail lack of autonomy). Autonomy is closely linked to two other general concepts. One is participation, which denotes the principle or right of individuals to be actively involved in the design of laws, public policy, and measures that affect their lives. The other is social inclusion. This concept is usually defined by its opposite, social exclusion, which relates to “a complex process that involves the lack or denial of resources, rights, goods and services as people age, and the inability to participate in societal relationships and activities, available to the majority of people across the varied and multiple domains of society”. 60 The Independent Expert has paid a high attention to this issue area, devoting one report to autonomy (and care) and another to social exclusion. 61 Older persons are often deprived of autonomy, participation, and social inclusion. This is partly the result of natural physical or mental limitations. It is also, however, an outcome of how society responds to these limitations and, more generally, how it portrays older persons. Old age tends to be associated with passivity, frailty, incompetence, incapacity to make decisions, etc. Even for people positively disposed towards older persons, it might be difficult to avoid seeing these persons as passive objects of protection and care rather than as active subjects with their own views and priorities. We make decisions for older persons rather than making them with older persons or simply respecting the decisions taken by older persons on their own. This paternalist approach, which is not limited to older persons but applies to members of other categories of vulnerable persons as well, contributes to perpetuating the stereotypes and prejudice on which the denial of autonomy, participation, and social inclusion is based in the first place. 62 This fact has not been lost on human rights experts. For instance, in his 2011 Thematic study on the realization of the right to health of older persons, the Special Rapporteur on the right to the highest attainable standard of physical and mental health called for “a paradigm shift away from the perception of older persons as a “social burden” to one that emphasizes the process of “active ageing” and that will reorient our ideas about ageing to focus on the continuing contribution of older persons to society”. 63 There is no autonomous right to autonomy, participation, or social inclusion enshrined in the major universal human rights treaties such as the ICCPR or the ICESCR. Non-binding instruments and regional human rights treaties contain some provisions on participation but these are limited to a particular area and do not relate specifically to older (or any other) 59 UN Doc. A/HRC/30/43, op. cit., par. 44. 60 UN Doc. A/HRC/39/50, op. cit., par. 78. 61 UN Doc. A/HRC/30/43, op. cit., UN Doc. A/HRC/39/50, op. cit. 62 See FINEMAN, Martha A., The Vulnerable Subject: Anchoring Equality in the Human Condition, Yale Journal of Law and Feminism, Vol. 20, 2008, pp. 1-23. 63 UN Doc. A/HRC/18/37, Thematic study on the realization of the right to health of older persons by the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, 4 July 2011, para. 13.

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