Toward a New UN Convention on the Rights of Older Persons?

By: Marijke De Pauw|

Population ageing constitutes one of the most significant demographic transformations of the twenty-first century and it is taking place at an unseen pace. Recent projections by the United Nations (UN) Department of Economic and Social Affairs show that by 2050, the global number of persons aged 60 years or over will more than double, from 841 million older persons in 2013 to more than 2 billion in 2050. On the one hand, an ageing population is undoubtedly a positive development, as it evinces increased longevity caused by medical advances and better living conditions. On the other hand, however, it is also raises significant challenges for the near future. The number of working-age adults per older persons – or “old-age support ratio” – will decrease significantly and is expected to have a serious impact on social security and health care systems worldwide. Considering their socio-economic consequences, population dynamics have since long been part of the international development agenda. Demographic changes were discussed extensively at the UN World Population Conferences and have been addressed by several instruments, such as the Programme of Action adopted at the International Conference on Population and Development in 1994.

An international human rights approach to ageing

The enormous increase in the number of older persons expected worldwide has also raised the question of how to ensure the well being of the elderly population. Over the last decades, the challenges facing older persons have become an important issue on the agenda of academics, NGOs, governments, and regional and international organizations. More so, it has developed into a global human rights movement advocating for a more effective human rights framework for older persons. In 1982, the first international instrument focusing specifically on the particular concerns and needs of the elderly population was adopted at the first World Assembly on Ageing; the Vienna International Plan of Action on Ageing. The Plan confirmed the full and undiminished application of the rights enshrined in the Universal Declaration of Human Rights to older persons. Since then, the UN has adopted a number of instruments focused on the elderly population, including the 1991 UN Principles for Older Persons, the 1992 Proclamation on Ageing, and the 2002 Madrid International Plan of Action on Ageing (MIPAA). MPIAA was adopted to respond to opportunities and challenges of population ageing in the twenty-first century and to further promote a society for all ages. It provides a large number of recommendations to member states, covering a very wide area of topics relating to the ageing population, including employment and participation in society, access to health-care, provision of enabling and supportive living environments, and the prevention of elder abuse. The outcome of the second review and appraisal of the MIPAA, however, showed that its implementation by member states has remained quite limited. Although the review noted overall progress in the implementation of MIPAA, it nonetheless noted significant gaps between policy and practice deriving from insufficient human and financial resources of member states.

UN Open-Ended Working Group on Ageing

In 2010, the UN Open-Ended Working Group on Ageing (OEWGA) was established with the task of assessing the existing international framework of the human rights of older persons, identifying possible gaps, and determining how best address the gaps. This included considering, as appropriate, the feasibility of further instruments and measures. It has since then concluded five working sessions, during which member states, UN representatives and civil society participated in panels and debates on the human rights situation of the elderly population. Several proposals were made, including the drafting of a new international binding instrument: a UN Convention on the Rights of Older Persons. Although there has been quite some disagreement on the need for such a convention, there was a consensus early on regarding the advantages of establishing a new special human rights mandate. Consequently, the Human Rights Council decided to appoint a UN Independent Expert on the enjoyment of all human rights by older persons for a term of three years. In May 2014, Ms. Rosa Kornfeld-Matte was appointed to take up the new mandate, which consists of assessing the implementation of existing international instruments, identifying best practices, raising awareness regarding the challenges older persons face in the enjoyment of their rights, and working with states to foster implementation of measures that contribute to the promotion and protection of older persons’ rights.

In 2012, the OEWGA’s mandate was altered by the General Assembly, which explicitly requested that OEWGA begin considering proposals for a new international legal instrument. The General Assembly requested that OWEGA present a proposal of the new instrument that contains the main elements that should be included therein. This is surprising considering the lack of agreement on the need for such a new convention. A large number of states, including the United States and a majority of the European Union countries, are still in favor of increasing efforts to implement the MIPAA and to mainstream older persons’ rights into existing monitoring mechanisms, such as the UN treaty bodies and the Universal Periodic Review. At the same time, the call for a new convention is gaining support from an increasing number of NGOs, UN agencies, and Latin American and African countries in particular.

The Pros and Cons of new UN Convention

The drafting of a new UN Convention on the Rights of Older Persons definitely raises a number of questions, and important arguments can be made both in favor and against such a measure. Those who argue in favor of a new UN convention on this issue frequently argue that there is a significant normative gap regarding older persons within the existing international human rights law framework. For example, age-based discrimination is rarely mentioned explicitly in the list of prohibited discrimination grounds, thus potentially rendering older persons invisible as a group with specific needs. Furthermore, the norms applicable to older persons are scattered over a large number of human rights treaties, rather than consolidated into one single binding instrument. If comprehensive treaties have been adopted for various other groups, most recently the UN Convention on the Rights of Persons with Disabilities, shouldn’t one exist for the elderly? It is also true that, contrary to the existing soft law norms enshrined in the MIPAA and UN Principles for Older Persons, a convention would create legally binding obligations for states parties. They would also be required to submit periodic reports to a treaty body, which would also receive individual communications regarding violations of the Convention. In other words, it would not only clarify the rights of older persons, but also create a system of state accountability, reporting, and data collection. Importantly, an international convention would be a useful human rights advocacy tool by raising awareness about the human rights of this particular group and making older person more visible as rights holders.

On the other hand, the entirety of existing human rights norms and standards is applicable to the elderly population. They are entitled to all the rights enshrined in the core human rights treaties. The main problem may therefore be an implementation gap, rather than a normative one. If more specific international guidance is required as regards their rights, it may be argued that a universal treaty is instead likely be drafted in broad and vague terms, potentially leading to a watered-down political compromise. Soft norms, such as the MIPAA are able to be as specific as they are because states are more likely to express their commitment due to the non-binding nature of MIPAA. In addition, regional norms and standards might be able to better take into account the specific social and cultural aspects that shape the ageing experience within a specific region. It should also be noted that treaty negotiations are a costly and time-consuming process, whereas the situation of the elderly population is an urgent issue that requires urgent measures. And even if a new Convention on the Rights of Older Persons were to be drafted, there is of course no guarantee of the number of states that will sign and ratify it. It is also difficult to anticipate the number of treaty reservations states may make and their effect on the implementation of the treaty and its objectives. Moreover, it can be argued that the identification of older persons as a vulnerable group in need of additional human rights protection holds the risk of reinforcing ageist stereotypes.


The debate on the need for a new UN Convention is most definitely a complicated one; valuable arguments can be made both in favor and against, making it very difficult for the OEWGA to find consensus and to move forward in its attempts to strengthen the human rights framework for the elderly population. If anything, however, the continuing discussions have drawn much needed attention to the many human rights violations that older persons are faced with worldwide, including age discrimination, elder abuse, and lack of adequate health care. The various expert opinions and studies in support of the OEWGA’s work have been crucial in identifying and recognizing these different obstacles. At the end of the fifth session, there is indeed no longer any discussion among member states regarding the need to address the issue in an urgent manner. That in itself can be considered a valuable contribution of the OEWGA. In addition, the work of the newly created position of Independent Expert is likely to shed more light on the different gaps within the existing framework and will thus provide an important contribution to the debate. In the meantime, it remains crucial that all options are fully explored and utilized, such as the mainstreaming of older persons in existing human rights frameworks and mechanisms, and that all actors involved continue to promote the full enjoyment by older persons of their fundamental rights.

Promoting Responsible Investing: Rethinking International Frameworks for Sovereign Wealth Funds

By: Xenia Karametaxas |

Sovereign Wealth Funds (SWFs) are public investment vehicles owned and managed directly or indirectly by governments and set up to achieve a variety of macroeconomic objectives. SWFs typically seek to invest the funds from budget or trade surpluses deriving from national oil or mining revenues, for example. Although Kuwait established the first SWF in 1953 to invest excess oil revenues, the increased use of SWFs is a fairly new worldwide phenomenon. Indeed, their use has rapidly expanded over the past decade and SWFs control remarkable financial assets. In the aftermath of the 2007-2009 financial crisis, they played a major role in the bail-out of global banks such as UBS and Citigroup. With a combined total of over seven trillion dollars in assets as of 2014, SWFs have become key players in the international financial markets and in the global economy.

What Obligations Do SWFs Have to Invest Responsibly?

As institutional investors, SWFs have the fiduciary duty to act in the best long-term interests of their beneficiaries. Since the sovereign manages SWFs according to its territory’s objectives, the ultimate beneficiary is not a specific individual but rather the country’s present and future citizenry. In this context, therefore, socially responsible investment may enable a SWF to increase its financial profitability. Investing in companies with a positive ethical footprint has less negative impacts upon social, environmental and human rights factors. Companies that are involved in human rights violations or engage in severe environmental damage may get bad press coverage, become the target of campaigns by non-governmental organizations (NGOs), or even face lawsuits from employees, the community or other stakeholders. This has adverse business consequences, including lower share prices, high litigation costs, damaged corporate reputation, limited market access, and increased difficulties in recruiting the best employees. Conversely, a SWF that invests in companies with a positive ethical footprint may achieve better economic returns.

However, the fiduciary duties of SWFs towards their beneficiaries, the citizens, go beyond the economic maximization of returns on their investments.

First, SWFs operate as saving funds for future generations and consequently their management has the responsibility to respect and promote sustainable development and social justice through their investments in order to give future generations the opportunity to reap the rewards of the investment.

Second, the duty of SWFs to ensure responsible investment practices derives directly form the 1948 Universal Declaration of Human Rights (UDHR), under which “every individual and every organ of society” should respect and promote, to the extent of its capabilities, the rights set out in the UDHR. Thus, as societal actors under this agreement, investors have the obligation to respect and promote human rights.

Third, although SWFs do not formally become parties to international law treaties in the same way that states do and although such treaties do not impose obligations directly on corporations or investors, SWFs can use international treaties “as a moral compass for their responsible investment practices.” Moreover, as state organs, SWFs act as an extended arm of the state, which is often a formal treaty signatory with a clear mandate to protect human rights and the environment under these treaties.

Finally, as important capital providers and shareholders of large public companies, SWFs have the power to influence the behavior of the companies in which they invest. SWFs can be active owners through the exercise of shareholder rights at annual general meetings, by engaging in negotiations with the management of companies with poor corporate social responsibility records, or by putting pressure on such companies through disinvestment. Because SWFs have the ability to influence the management of large companies, they also have the responsibility to take action to correct negative consequences of the companies’ corporate activities.

SWFs’ Responsibilities Under International Normative Frameworks

The only international voluntary framework of investment and operational principles directed at SWFs are the Generally Agreed Practices and Principles (GAPP), commonly referred to as the Santiago Principles. Launched in 2008 by a working group composed of SWFs (the International Working Group of Sovereign Wealth Funds, or “IWG-SWF”) and the International Monetary Fund (IMF), the Santiago Principles aim to guarantee transparency, clarity, and equivalent treatment to SWFs and private funds. The underlying rationale behind the Santiago Principles is to avoid political interference exerted by or upon SWFs in recipient countries, and also to ease the concerns of recipient countries regarding SWFs’ investments.

Surprisingly, the Santiago Principles do not contain any provision addressing responsible investment practices in particular. Nevertheless, the Santiago Principles implicitly encourage responsible investment principles where avoidance of complicity in unethical conduct or social and environmental harm would protect the SWFs’ financial value. Moreover, responsible investment practices are inherently encouraged by the Santiago Principles’ requirement that SWFs identify, assess, and manage the risk of their operations. Thus, investing in a company that (allegedly) violates human rights or that causes environmental damage could risk the SWF’s reputation and bottom-line.

Of course, there are other existing regulatory frameworks that advocate for greater social responsibility that can also be applied to SWFs. The United Nations (UN) Principles for Responsible Investment, the UN Guiding Principles on Business and Human Rights, and the UN Global Compact all reflect the increasing relevance of environmental, social, and governance issues to investment practices of private and public actors. Nonetheless, given the corporate focus of these resources, they are unsuitable tools to apply to SWFs. Indeed, the small number of SWFs among the signatories of such codes reveals that SWFs may be unwilling or unable to meet the responsibilities outlined in these agreements.

Alternatively, given wide acceptance of the Santiago Principles and its focus on SWFs, the Santiago Principles would be a good starting point to reconcile the ethical and financial aspirations of SWFs. A first step towards greater implementation of responsible investment practices of SWFs should be provided by assessing the implementation of the Santiago Principles and encouraging the development of corporate responsibility provisions. In the long-term, the development of a code of conduct under the supervision of an international body such as the IMF, tailored to meet the specific needs of SWFs, should be considered.

SWFs as Promoters for Responsible Investment Practices

Because of their large size and potential market leverage, and due to their long-term investment horizons and their widespread public visibility, SWFs have the potential to catalyze change beyond their own portfolios.

With $ 863 billion in assets, the Norwegian SWF is not only the world’s largest SWF, but has also established itself as a leader and a model for responsible investment practices. Indeed, the Government Pension Fund Global (NGPF-G), as the Norwegian fund is officially known, has demonstrated how an SWF’s responsible conduct can shape best practices in the private sector and thereby set global standards of responsible investment. In fact, the internal investment policies of the NGPF-G have influenced the investment practices of several Norwegian private institutional investors such as pension funds and investment funds. In addition, the NGPF-F’s Council on Ethics draws up a yearly exclusion list in which companies that should be excluded from Norway’s investment universe are publicly listed. In doing so, the Norwegian SWF not only contributes to the professionalization of RI principles, but also exercises a form of normative pressure for RI on private investors.

To sum up, SWFs have not only a financial but also an ethical mandate towards their beneficiaries—the citizens. Through their leverage and impact, SWFs have the potential to contribute substantially to the improvement of the financial markets and the global economy. However, in the context of international frameworks, responsible investment obligations of SWFs have not received sufficient attention yet. In this respect, I advise that the Santiago Principles include a requirement that SWFs commit to ethically responsible investment behavior. Not only should SWFs avoid investing in companies that cause harm to the environment or that violate human rights, but SWFs should also serve as active promoters of sustainable development.