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CYIL 7 ȍ2016Ȏ TOWARDS A NEW CONVENTION FOR THE PROTECTON OF THE HUMAN RIGHTS
take place through periodic reporting. The text is ready and the question now seems
to be when (rather than whether) it will be adopted.
At first sight, it would seem that the legal framework applicable to older persons
under current international human rights law is quite extensive and comprehensive,
encompassing universal and regional hard law and soft law instruments. Does it mean
that Mégret is wrong when he claims that existing instruments do not sufficiently take
into account the needs of older persons?
70
Not necessarily, because as the overview
of sources reveals, the international legal framework exhibit several flaws. First, the
provisions are scattered in many different instruments. Not a single State is bound
by all of these instruments; the extent of obligations relating to older persons that
individual States have is therefore quite diverse and usually also quite limited.
Secondly, most instruments approach older persons from a “single-issue” perspective.
This perspective is either that of non-discrimination or, even more typically, that
of economic, social and cultural rights, especially the right to social security.
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This
obviously does not do justice to the complexity of situations in which older persons
might face age-related violations of their human rights, as is well documented, for
instance, in the 2012 report of the UN High Commission for Human Rights on
the human rights of older persons.
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Thirdly, the most comprehensive universal
instruments, such as the UN Principles for Older Persons, are non-binding in nature.
Their content is, moreover, vague, setting general principles rather than concrete
rules. The situation is somewhat better in certain regions, namely the Americans
(and soon, hopefully, Africa), where binding instruments have been adopted or
drafted focused on the human rights of older persons. These instruments, however,
are limited to their regions and neither of them has entered into force as yet.
Fourthly, although international human rights bodies have not been oblivious
to older persons, their case-law could not make up for the missing provisions. At
the same time, the way in which States report to these bodies, especially through
their periodic reports on the implementation of human rights treaties, reveals that
they do not see older persons as individuals to whom special attention should be
paid. The 2009 report by the UN Secretary General established that out of the
124 reports submitted to the UN Human Rights Committee in 2000–2008, only
three mentioned age discrimination and one highlighted the vulnerability of older
people in long-term care homes. In the same period, in the 122 reports relating
to the ICESCR, 24 references were made to older persons and their rights. For
the CEDAW, the number is 32 in 190 reports. The UN Secretary General rightly
observes that
“many States are “age-blind” in their human rights reporting”.
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70
MÉGRET, Frédéric,
supra note 34,
pp. 41-42.
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See also DE HERT, Paul, MANTOVANI, Eugenio, Specific Human Rights for Older Persons?,
European Human Rights Law Review,
Issue 4, 2011, pp. 398-418.
72
UN Doc. E/2012/51,
Report of the United Nations High Commissioner for Human Rights,
20 April 2012.
73
UN Doc. A/64/127,
supra note 23,
par. 19-20.