What would a convention on the rights of older persons look like?
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In this article, Geraldine Van Bueren QC, Professor Emerita and Leverhulme Fellow, one of the original drafters of the Convention on the Rights of the Child, follows her previous article on why a convention for older persons is necessary with an explanation of what this convention might look like.
There has been much movement on a regional level. There is already a Convention on the Human Rights of Older Persons in the Americas. There is also one in Africa - a Protocol which is an additional treaty to the African equivalent of the European Convention on Human Rights. If poorer regions in the world can afford such treaties, why not Europe? These two treaties trump the arguments that a treaty on older person’s human rights is neither possible nor desirable. In Europe we do not have not a treaty on older persons’ human rights, we only have specific provisions in the European Union’s Charter of Fundamental Rights, which only applies to member states of the European Union. The Charter prohibits discrimination on the basis of age and article 25 provides that: ‘The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.’
It does not even include political life. The European Convention on Human Rights has no equivalent provision.
There is no truly justifiable reason to oppose a convention particularly since treaty bodies deal with so many issues, often priority appears to be given to those groups who already have protection under specific treaties.
Underlying the arguments opposing a Convention on the Rights of Older Persons is the fear of cost, the cost of socio-economic rights such as social care. Protecting rights would help, not cost society. The World Health Organisation’s study of the UK showed that older workers created a net benefit of 40 billion dollars through the paying of tax, as consumers and through unpaid care.
What would a new Convention look like?
As is often the case with treaties, defining who the treaty is for is challenging, but not insurmountable. The Inter American Convention puts the age of an older person at 60 unless national legislation sets a higher age, but it cannot be higher than 65. The African Protocol also sets the defining age as 60.
Following the Inter-American Convention there would also be:
- A duty to promote public institutions which represent older persons and older persons should be involved in the formation of policies and laws, which affect us.
- A duty that states parties should take steps to ensure that public and private institutions offer older persons access without discrimination to comprehensive care, including palliative care; avoid isolation; appropriately manage problems related to the fear of death of the terminally ill and pain; and prevent unnecessary suffering, and futile and useless procedures, in accordance with the right of older persons to express their informed consent.
- States Parties to the Convention would also have to adopt measures to enable older persons to participate actively and productively in their community and to develop our capacities and potentialities.
To that end, States Parties shall have to:
- Create and strengthen mechanisms for the participation and social inclusion of older persons in an environment of equality that serves to eradicate the prejudices and stereotypes that prevent us from fully enjoying those rights.
- Promote the participation of older persons in intergenerational activities to strengthen solidarity and mutual support as key components of social development.
- Ensure that facilities and community services for the general population are available to older persons on an equal basis and that they take account of our needs.
Article 18 of the Inter American Convention focuses on the right to work and provides that older persons have the right to dignified and decent work and to equal opportunity and treatment on the same terms as other workers, whatever their age.
States Parties should also adopt measures to prevent labour discrimination against older persons. The Convention also prohibits any kind of distinction, which is not based on the specific requirements of the job, in accordance with domestic laws and local conditions.
The same guarantees and benefits and pay should apply to all workers in the same employment or occupation and for similar tasks and responsibilities.
A UN Convention on the Rights of Older Persons would also have the equivalent of Article 24 of the Inter American Convention, that States Parties should progressively foster access to home loans and other forms of financing without discrimination, promoting, inter alia, collaboration with the private sector, civil society and other social actors.
Such policies should pay particular attention to the need to build or progressively adapt housing solutions, so that they are architecturally suitable and accessible for older persons with disabilities and restricted mobility. A convention would also put an obligation on Governments to demonstrate how changes in public services, such as library closures and reductions in rural public services here in the UK, affect older people.
A transformation for older people everywhere
A UN Convention on the Rights of Older Persons would encourage a culture respectful to older persons.
In brief, it would transform the lives of older persons living in the UK and in developing countries.
A Convention would also have teeth so that governments would regularly have to report in publically available documents in public sessions on how they have implemented all the rights in the treaty. The drafting of these state reports should involve older persons and the idea is that such a reporting process ought to lead to a national discussion on how older person’s rights should be respected.
If an older person is unable to receive a remedy after having exhausted all national procedure then it is possible to submit a complaint to the treaty body and if process is free, win or lose.
Eleanor Roosevelt was in her sixties when she helped draft the world’s most influential moral and legal document: the Universal Declaration of Human Rights. We should heed her words: “It is more intelligent to hope rather than to fear, to try rather than not to try. For one thing we know beyond all doubt: Nothing has ever been achieved by the person who says, ‘It can’t be done.”
It is in the national interest of the UK to be one of the leading states urging the United Nations to draft and adopt a Convention on the Rights of Older Persons.
© 2021Geraldine Van Bueren QC
Geraldine Van Bueren QC is Professor Emerita at Queen Mary University of London and a Visiting Fellow of Kellogg College, Oxford.
She has served as a Commissioner on the Equality and Human Rights Commission and is a member of Doughty Street Chambers. Geraldine was also one of the original drafters of the Convention on the Rights of the Child.