CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HUMAN RIGHTS OF OLDER PERSONS IN INTERNATIONAL LAW persons. 64 More recent instruments mark a change in this respect. This is particularly the case of the 2006 CRPD which ranks “respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons” (Art. 3(a)) and “full and effective participation and inclusion in society” (Art. 3(c)) among its general principles and then builds on these general principles in several provisions (e.g. Art. 19 – Living independently and being included in the community, Art. 29 – Participation in political and public life, Art. 30 – Participation in cultural life, recreation, leisure, and sport, etc.). In this way, autonomy, participation, and social inclusion are presented both as values in themselves and as keys to ensure that disabled persons have an active say in all areas of life and that the laws and measures adopted in these areas do not ignore their needs. The same approach should be adopted with respect to older persons and should again find its expression both at the level of general principles and in concrete provisions (e.g. those granting older persons equal recognition before the law, ensuring their right to participate in public or cultural life, or encouraging States to remove physical and mental barriers that may make this participation difficult). 65 C) The provision of care Care is a broad concept which has no precise definition at the international level. It often serves to describe services which “aim at maintaining or regaining the optimum level of physical, mental and emotional wellbeing and to prevent or delay the onset of disease”. 66 It is conventional to make a distinction between health care and social care, the former seeking to maintain, improve, or restore health through prevention, diagnosis, and treatment of diseases, the latter including all forms of personal care or other assistance provided to people in need. While not all older persons are in need and not all people in need are older persons, older persons belong among regular recipients of both health and social care. Some of these services are even provided to older persons in a predominant or exclusive manner (palliative and end- of-life care, geriatric care, etc.). The access to, and quality of, health and social care has a direct effect on the lives of older persons. Yet, these sectors are not always ranked among the main priorities and are not allocated adequate human, material, or financial resources. Elder neglect, i.e. failure to fulfil caretaking obligations with respect to older persons, is not uncommon and it tends to result not only from individual failure but also from “the stereotyped perceptions of the group as a “lapsed” segment of society”. 67 Although the UN human rights system does not know a general right to care, it includes the right to health 68 as well as some other rights which might be of relevance in this context (e.g. the right to social security). The standards of care applicable to older persons have been specified in more details in soft law instruments. 69 The instruments contain the main 64 See Article 27 of the Universal Declaration of Human Rights (the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits) or Article 23 of the American Convention on Human Rights (the right to participate in Government). 65 See also UN Doc. A/HRC/39/50, op. cit., par. 66-77. 68 Article 12 of the ICESCR. It is interesting, and somewhat sad, to note that the Factsheet on the Right to Health, issued by OHCHR and WHO, fails to rank older persons among specific groups that “face specific hurdles in relation to the right to health”. OHCHR/WHO, The Right to Health, Fact Sheet No. 31, UN: Geneva, 2008, p. 11. 69 UN, Vienna International Plan of Action, op. cit.; UN, Madrid International Plan of Action, op. cit .; UN Doc. A/HRC/18/37, op. cit.; UN Doc. E/1996/22, op. cit.; UN Doc. E/C.12/2000/4, General comment No. 14, The right to the highest attainable standard of health, 11 August 2000. 66 UN Doc. A/HRC/30/43, op. cit., par. 70. 67 UN Doc. A/HRC/18/37, op. cit., par. 70.

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