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CYIL 7 ȍ2016Ȏ TOWARDS A NEW CONVENTION FOR THE PROTECTON OF THE HUMAN RIGHTS
persons might indeed be a valuable supplement to the family of universal human
rights treaties.
The paper consists of three sections. The first section discusses to what extent
rights of older persons can be conceptualized as a special category of human rights. It
shows that the concept of older persons is a social construction and that its definition
and content is quite context-specific and, hence, dynamic and unstable. Despite that
the section argues that the way in which the global process of ageing is typically
presented turns older persons, defined as those above 60, into a vulnerable group in
need of a special human rights protection. The second section reveals that current
human rights law fails to grant such protection. Although older persons are subject to
human rights treaties as any other individuals and, moreover, they are also subject to
several soft law and, on the regional level, hard law instruments that focus specifically
on their human rights, this regulation is rather incomplete and has various flaws.
Bearing this in mind, the third section makes a case for the adoption of a new
convention for the protection of the human rights of older persons.
Are Older Persons a Vulnerable Group in Need of Special Human
Rights Protection?
Human rights law applies to all human beings. From that perspective, speaking
about human rights of older persons as a special category of human rights might seem
a
contradictio in adjecto.
Yet older persons would not be the first group to be granted
special human rights protection under current international law. Several other groups
have already been recognized as particularly vulnerable and have had their group-
specific rights codified in international treaties (women, children, refugees, stateless
persons, migrant workers, and disabled persons) or in soft law instruments (indigenous
people, and human rights defenders). Yet other groups (national minorities, HIV/
AIDS victims, and LGBT people) have been declared particularly vulnerable and,
consequently, in need of special human rights protection, by judicial bodies. In this
typology, older persons would fall somewhere in between the second and the third
category, as we will see in Section II.
The concept of vulnerability has never been used in a precise and unambiguous
way. In fact, as Peroni and Timmer demonstrate, international human rights law
is premised on the existence of three different forms of vulnerability that might
complement but also contradict each other.
4
First, we have universal vulnerability,
i.e. vulnerability of all human beings. The whole system of human rights law is based
on the idea that individuals, regardless of their age, physical strength or social status,
are inherently vulnerable. That means that they are susceptible to suffer harm which
4
PERONI, Lourdes, TIMMER, Alexandra, Vulnerable groups: The promise of an emerging concept in
European Human Rights Convention law,
International Journal of Constitutional Law,
Vol. 11 No. 4,
2013, pp. 1056-1085.