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VERONIKA BÍLKOVÁ
CYIL 7 ȍ2016Ȏ
Is the Protection of Older Persons in Current Human Rights Law Deficient?
Current international human rights law does not encompass any universal
instrument that would apply specifically (and exclusively) to older persons.
36
This,
however, does not mean that older persons remain outside the scope of application
of this law. All general human rights instruments – such as the 1948 Universal
Declaration of Human Rights (UDHR) and the 1966 International Covenants on
Civil and Political Rights and on Economic, Social and Cultural Rights (ICCPR,
ICESCR) – are applicable to them as to any other individuals. Interestingly enough,
during the elaboration of the Covenants, the possibility of including a reference to older
persons was contemplated. The reference, proposed by India, was supposed to be
inserted in Article 9 of the ICESCR relating to the right to social security. The proposal
was refuted on the ground that the rights of older persons would be dealt with in
a separate convention.
37
Such a convention, however, has never seen the light of the day.
Older persons score better under some of the sectoral human rights treaties that
grant protection to certain vulnerable groups. Two of these treaties contain a reference
to (old) age. The first one is the 1979
Convention on the Elimination of All Forms of
Discrimination Against Women
(CEDAW). In its Article 11, the Convention grants
women
“the right to social security, particularly in cases of retirement, unemployment,
sickness, invalidity and old age and other incapacity to work, as well as the right to paid
leave”
(par. e, emphasis added). The second, the 1990
International Convention on the
Protection of the Rights of All MigrantWorkers and Members of Their Families
(ICMW),
includes
“age”
among grounds on which discrimination among migrant workers is
prohibited.
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Although non-discrimination clauses feature in most human rights
treaties, none of those adopted before 1990 mentions age. It is nonetheless largely
accepted that this omission did not reflect an intention on the part of the drafters to
sanction discrimination on the grounds of older age. Rather, the omission resulted
from the fact that in the first decades after 1945,
“the problem of demographic ageing
was not as evident or as pressing as it is now”
.
39
36
See also RODRÍGUEZ-PINZÓN, Diego, MARTIN, Claudia, The International Human Rights
Status of Elderly Persons,
American University International Law Review,
Vol. 18, No. 4, 2003,
pp. 915-1008.
37
CRAVEN, Matthew C. V.,
The International Covenant on Economic, Social and Cultural Rights:
A Perspective on Its Development,
Oxford: Clarendon Press, 1995, p. 25, ftn. 149.
38
Article 7 of the ICMW reads as follows:
“States Parties undertake, in accordance with the international
instruments concerning human rights, to respect and to ensure to all migrant workers and members of their
families within their territory or subject to their jurisdiction the rights provided for in the present Convention
without distinction of any kind such as to sex, race, colour, language, religion or conviction, political or other
opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth
or other status”
(emphasis added).
39
UN Doc. E/1996/22,
General Comment No. 6: The Economic, Social and Cultural Rights of Older
Persons,
8 December 1995, par. 11 (it is noticeable that even the UN Committee on Economic, Social
and Cultural Rights describes ageing as a “problem”).