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CYIL 7 ȍ2016Ȏ TOWARDS A NEW CONVENTION FOR THE PROTECTON OF THE HUMAN RIGHTS
they face go largely unaddressed and, in fact, unnoticed. As summed up in the report
of the Secretary General, the idea behind a new instrument is not that it would
bring human rights into an area where they do not exist at the moment. Rather,
the idea is that having a new instrument would help: a) clarify what the general
obligations mean when applied to older persons; b) prioritize the position of older
persons in the agenda, alongside (not instead of ) that of other vulnerable groups;
c) make the whole issue legally and politically more prominent, i.e. give it visibility
it seems to lack at the moment; and potentially d) create institutions – such as a UN
Committee on the Rights of Older Persons – that would focus specifically on the
needs of and challenges faced by older persons. It is the same logic which was behind
the elaboration of other group-specific human rights instruments and while it is
certainly legitimate to contest whether the group-specific approach is appropriate,
as long as it is maintained, older persons – in view of the specificity and severity of
human rights abuses they are exposed to as well as in view of their sheer number – are
natural candidates to benefit from it.
The argument about the sufficiency of the current legal framework sometimes
comes in a softer form. It is claimed that the existing treaties do indeed lack a specific
focus on older persons but that this gap could be filled in, or has been filled in,
by non-binding instruments, such as the UN Principles for Older Persons.
85
Again,
those making this argument certainly have a point. Non-binding instruments can
have a positive role in helping to interpret the text of general (binding) instruments
in a context-specific situation or in bringing a topic to the forefront of attention.
Sometimes, these instruments can be more successful in this role than binding treaties,
because they leave States more space to decide whether and in what way they would
deal with a certain challenge, not placing them into an either/or position. Yet, higher
flexibility also has downsides to it, as it might impede the creation of a common
international standard. In the area of older persons, non-binding instruments have
existed for 25 years now (UN Principles were adopted in 1991). Looking back at
this period, one may doubt whether they have really succeeded in persuading States
to take the special needs of older persons into account when implementing general
human rights obligations. The data relating to the State reporting produced above
seem to testify to the contrary. It is thus plausible to argue that the soft-law approach
has reached its limit and what is needed now is not a quantitative change (yet another
soft law instrument) but a qualitative one (a binding treaty).
An alternative argument made against a new convention consists of saying that
far from improving the position of older persons, the instrument would actually
make it worse. This argument comes in two main variations. Sometimes, it conveys
a general mistrust towards human rights treaties which are seen as a useless waste
85
See FREDVANG, Marthe, BIGGS, Simon, The rights of older persons,
supra note 78,
pp. 13-14
(the authors do not share this view, they just articulate it in order to discard it).