CYIL vol. 7 (2016)

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VERONIKA BÍLKOVÁ

CYIL 7 ȍ2016Ȏ

of time and money that does not make any change in the real life.

And if it does,

then this change is negative.

This view should obviously be taken seriously. Human

rights treaties are not an end in themselves. They are a means to an end – the end

being to improve protection of human rights of all individuals or of certain special

groups. Were it to be shown that human rights treaties actually decrease that

protection, i.e. that the means does not serve the end, it would be a serious reason

not only to abandon the project of a new instrument on the human rights of older

persons but to invalidate all human rights treaties. Yet, the data is far from conclusive

and while some authors conclude along the lines stated above, others show that human

rights treaties can, and often do, bring positive outcomes.

A more detailed discussion

of this issue is beyond the remit of this paper. It can nonetheless be argued that there is

hardly anything specific about older persons that would make an instrument devised

for them more problematic than other group-based human rights instruments. And

provided the international community has so far embraced the group-based approach,

cogent reasons would be needed to keep older persons excluded from the benefits of

this approach.

The second variation of the argument invokes potential risks that a new instrument

might have for older persons, reifying negative stereotypes about them and fostering

the (wrong) impression that older persons constitute a burden for a society. Instead of

helping older persons overcome challenges they face in their lives, a new instrument

might

“only underline further the distinction between them and ‘normal’ society”.

This

concern, as we already saw in the first section, is of utmost importance, because

if proved true, it could jeopardize one of the main aims of the whole initiative –

that of doing away with stereotypes and prejudices that are so often at the origin of

discrimination and human rights violations. Again, this concern is not specific for

older persons but applies to other vulnerable groups as well. This time, however,

the risks might be higher with respect to older persons, due to the strong element

of social construction of this group. Adopting a new instrument focused on older

persons runs the risk that the definition of older persons introduced for specific

normative purposes, might monopolize the field. And that the vision of older persons

linked to this definition would prevail over other, often much more positive visions.

This concern, however, does not need to result in the rejection of a new

instrument. Rather, it should make us sensitive to the unintended consequences

that even a perfectly well meant act could have. It should also makes us ask, as

For a more general formulation of this argument, see HATHAWAY, Oona A., Do Human Rights

Treaties Make a Difference?,

Yale Law Journal,

Vol. 111, 2001-2002, pp. 1935-2042.

Ibid.

See, for instance, GOODMAN, Ryan, JINKS, Derek, Measuring the Effects of Human Rights Treaties,

European Journal of International Law,

Vol. 14, No. 1, 2003, pp. 171-183.

FREDVANG, Marthe, BIGGS, Simon, The rights of older persons,

supra note 78,

p. 14 (again, the

authors do not share this view, they just articulate it in order to discard it).