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CYIL 7 ȍ2016Ȏ TOWARDS A NEW CONVENTION FOR THE PROTECTON OF THE HUMAN RIGHTS
is a good idea or not. Whereas countries of Latin America actively promote the
idea, other States (EU countries, Canada, China, New Zealand, Norway, Russia,
Switzerland and USA) remain sceptical. In the meantime, in 2014, the UN Human
Rights Council created the post of an Independent Expert on the enjoyment of all
human rights by older persons and appointed Ms. Rosa Kornfeld-Matte from Chile
to this post. Were a new convention to be tabled, the independent expert would be
well placed to contribute to it.
But is a new convention to be tabled after all? Which arguments have those
in favour of it put forward? Which arguments, on the contrary, underpin the view
of the sceptics? Let’s start with the arguments for. Mégret, as we saw above, argues
that the adoption of a new convention on the human rights of older persons should
be considered, because older persons constitute a definable population that faces
distinct human rights challenges and whose needs are not sufficiently taken into
account by human rights instruments.
77
By the same token, and quoting Mégret,
Fredvang and Biggs give a (non-exhaustive) list of five arguments in support of
a new convention.
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They claim that: older persons experience age-specific human
rights violations, there are normative gaps in the regulation, there are also gaps in the
implementation and monitoring of legal instruments, the articulation of age-specific
rights should be possible despite the diversity of definitions, and a new instrument
would draw attention to older persons and strengthen the struggle against ageism.
Mégret’s as well as Fredvang and Biggs’ view is largely premised on the idea that
human rights instruments are useful to address group-based vulnerabilities. Other
scholars and certain NGOs make one step back, seeking to demonstrate that – and
how exactly – a new convention (and not just, for instance, a non-binding declaration
produced by the UN General Assembly) would be useful. HelpAge, an international
NGO established in 1983 to promote rights and needs of older persons worldwide, gives
a list of five important consequences that the adoption of a convention would have.
The instrument would: change attitudes, reducing age discrimination and ageism;
increase visibility of the challenges faced by older persons; clarify responsibilities,
providing a set of obligations binding upon State parties; improve accountability,
establishing a specific mechanism for States to report and – potentially – for individuals
to file complaints; and provide a guiding framework for national policy makers.
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Commenting on the same issue, Doron and Apter concede that in the absence of
a draft text, it is somewhat difficult to say what outcomes a new convention could
bring about. Yet, relying on the analogies with the CEDAW and the Convention
on the Rights of the Child, the authors argue that human rights conventions have
77
MÉGRET, Frédéric,
supra note 34,
pp. 63-66.
78
FREDVANG, Marthe, BIGGS, Simon, The rights of older persons, Protection and gaps under human
rights law, University of Melbourne,
Social Policy Working Paper,
No. 16, 2012.
79
HelpAge,
Strengthening Older People’s Rights: Towards a UN Convention,
sine data; HelpAge,
Why it’s
time for a convention on the rights of older people,
HelpAge Position Paper, 2009.