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.