CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ TOWARDS A NEW CONVENTION FOR THE PROTECTON OF THE HUMAN RIGHTS they face go largely unaddressed and, in fact, unnoticed. As summed up in the report of the Secretary General, the idea behind a new instrument is not that it would bring human rights into an area where they do not exist at the moment. Rather, the idea is that having a new instrument would help: a) clarify what the general obligations mean when applied to older persons; b) prioritize the position of older persons in the agenda, alongside (not instead of ) that of other vulnerable groups; c) make the whole issue legally and politically more prominent, i.e. give it visibility it seems to lack at the moment; and potentially d) create institutions – such as a UN Committee on the Rights of Older Persons – that would focus specifically on the needs of and challenges faced by older persons. It is the same logic which was behind the elaboration of other group-specific human rights instruments and while it is certainly legitimate to contest whether the group-specific approach is appropriate, as long as it is maintained, older persons – in view of the specificity and severity of human rights abuses they are exposed to as well as in view of their sheer number – are natural candidates to benefit from it. The argument about the sufficiency of the current legal framework sometimes comes in a softer form. It is claimed that the existing treaties do indeed lack a specific focus on older persons but that this gap could be filled in, or has been filled in, by non-binding instruments, such as the UN Principles for Older Persons. 85 Again, those making this argument certainly have a point. Non-binding instruments can have a positive role in helping to interpret the text of general (binding) instruments in a context-specific situation or in bringing a topic to the forefront of attention. Sometimes, these instruments can be more successful in this role than binding treaties, because they leave States more space to decide whether and in what way they would deal with a certain challenge, not placing them into an either/or position. Yet, higher flexibility also has downsides to it, as it might impede the creation of a common international standard. In the area of older persons, non-binding instruments have existed for 25 years now (UN Principles were adopted in 1991). Looking back at this period, one may doubt whether they have really succeeded in persuading States to take the special needs of older persons into account when implementing general human rights obligations. The data relating to the State reporting produced above seem to testify to the contrary. It is thus plausible to argue that the soft-law approach has reached its limit and what is needed now is not a quantitative change (yet another soft law instrument) but a qualitative one (a binding treaty). An alternative argument made against a new convention consists of saying that far from improving the position of older persons, the instrument would actually make it worse. This argument comes in two main variations. Sometimes, it conveys a general mistrust towards human rights treaties which are seen as a useless waste

85 See FREDVANG, Marthe, BIGGS, Simon, The rights of older persons, supra note 78, pp. 13-14 (the authors do not share this view, they just articulate it in order to discard it).

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