CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ HUMAN RIGHTS OF OLDER PERSONS IN INTERNATIONAL LAW The UN human rights system is not completely ignorant of older persons and their increased vulnerability. General human rights instruments (e.g. ICCPR and ICESCR) which apply to all human beings, apply to older persons as well. The adaptation of the general standards to the context of older persons is to be found in the case law of UN human rights bodies, reports of the OEWG and the Independent Expert on the enjoyment of all human rights by older persons, and various soft law instruments (e.g. UN Principles for Older Persons). This regulation is scattered and heavily relies on non-binding sources. Moreover, it fails to provide a definition of older persons, leaving it largely up to individual States to decide how they will interpret the term. While cultural and regional diversity in the way the term older persons is understood is not to be ignored, it should be accommodated within a common definitional framework. As shown in the first section above, this framework, rather than setting a specific age threshold or providing an exhaustive list of features characterising old age, could take the common vulnerability of people considered old in the given society as the main starting point. The definition should ideally be enshrined in a new comprehensive human rights treaty related to older persons that would be adopted at the UN level. The OEWG has been tasked to consider the option of such a new instrument and potentially draft it but, so far, after almost 10 years of its existence, it has yet to come up with any formal draft. 90 It is of course not to be expected that a new treaty would become a magic stick that would solve all problems of older persons (such as age discrimination, the lack of autonomy, the provision of care, violence and abuse, and the access to education and to employment) and bring immediate positive changes on the ground. It would however have the merit of clarifying how the general standards should be applied to grant efficient protection to older persons and it would do so in one instrument, which moreover would be legally binding. The existence of such an instrument, alongside other sectoral human rights treaties, would also draw attention to the problems and challenges faced by older persons and would confirm and manifest that those persons have the right to enjoy human rights as any other vulnerable persons or, in fact, any other human beings. There is, as always in such cases, the risk that the presence of a special instrument could contribute to the perpetuation of stereotypes and age discrimination, strengthening the belief that older persons create a uniform homogeneous group with certain specific features. This risk could however be at least partly deflected by following the approach chosen in the 2006 CRPD, i.e. by combining a flexible definition of the protected groups with equally flexible standards, reflecting the common vulnerability of older persons but leaving space to accommodate individual and cultural diversities.

90 See also DORON, Israel, APTER, Itai, The Debate Around the Need for an International Convention on the Rights of Older Persons, The Gerontologist, Vol. 50, No. 5, 2010, pp. 586-593; DORON, Israel, APTER, Itai, International Rights of Older Persons: What Difference Would a New Convention Make to the Lives of Older People?, Marquette Elder´s Advisor, Vol. 11, 2010, pp. 367-385.

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