195 / 536
181
CYIL 7 ȍ2016Ȏ TOWARDS A NEW CONVENTION FOR THE PROTECTON OF THE HUMAN RIGHTS
lead to age-related human rights violations.
31
In his 2011 Report, the UN Secretary
General identified several areas in which older persons are particularly vulnerable to
human rights violations, encompassing political participation, access to work and
working conditions, financial exploitation by family members, access to health care or
access to social security schemes.
32
It is quite obvious that not all older persons suffer
from these violations and that different societies treat their older people somewhat
differently. Despite that, there seems to be certain constant patterns of behaviour that
older persons in all continents encounter regularly enough to be considered, despite
the heterogeneity of their individual experiences, as a special social group. In view of
the nature of such behaviour, involving harm that stems from social prejudices, older
people also qualify as a group endowed with group-based vulnerability.
33
This conclusion does not automatically entail that older persons should be subject
to a special regime within international human rights law, let alone that such a regime
should include an international convention on the human rights of older persons.
As Mégret
34
argues, the need for a group-specific human rights approach stems from
the combination of three elements: (i) an at least minimally definable population
based on common characteristics or a shared experience, (ii) an insufficient taking
into account of the needs of such a population by existing human rights instruments,
(iii) and distinct challenges in terms of specific rights, preferably across the range of
guaranteed rights.
35
Mégret himself concludes that older persons fulfil all the three
elements. They are set apart as a distinct population through the ambivalent rapport
that societies have to then, seeing them both as relatively affluent and powerful and
as isolated and vulnerable. They face special challenges, such as elderly abuse. And
international human rights law, though not fully ignoring older persons, fails to take
their particular needs into account. So far, this paper has established that elements
(i) and (iii) are indeed met in case of older persons. It is now time to consider,
whether the same applies to element (ii), i.e. whether the current legal framework
is really deficient, as Mégret claims. And if this is so, whether a new international
convention focused specifically on the human rights of older persons would be useful
in addressing this deficiency.
31
See UN Doc. A/HRC/AC/4/CRP.1,
The necessity of a human rights approach and effective United Nations
mechanism for the human rights of the older person, Working paper prepared by Ms. Chinsung Chung,
member of the Human Rights Council Advisory Committee,
4 December 2009.
32
UN Doc. 66/173,
Follow-up to the Second World Assembly on Ageing, Report of the Secretary-General,
22 July 2011.
33
See also FINEMAN, Martha Albertson, “Elderly” as Vulnerable: Rethinking The Nature of Individual
and Societal Responsibility,
The Elder Law Journal,
Vol. 20, No. 1, 2012, pp. 72-112.
34
MÉGRET, Frédéric, The Human Rights of Older Persons: A Growing Challenge,
Human Rights Law
Review,
Vol. 11, No. 1, 2011, pp. 37-66.
35
Ibid.,
p. 41.