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Every person living in the society has right to enjoy fundamental rights such as the right to speech, right to equality, the right to freedom, and so on. The older people in society also should have independence as well as the ability to participate in society. Across the world, a larger number of older people are facing challenges such as abuse, poverty, and discrimination and their rights have remained disadvantaged for a long period. In this manner, it would not be wrong to state that concerns related to aging people are not new. Not only under national laws but also at the international level these rights are required to be protected. United Nations recognized the specific needs of disadvantaged groups such as migrant workers, children, women, and so on. Recently many people have argued that the aged population should be identified as a distinct category and they deserve attention and special care under human rights law.
Historically older people and their rights have been neglected under human rights laws but now the situation is being changed. In addition to local and national, international organizations are also focusing on a stronger framework for protection. The objective of this report is t understand the rights of elderly persons under international law.
United Nations have adopted some principles for the protection of older persons in October 1992. This report will discuss current protections confirmed to older people and the need for new laws if any.
Before moving the focus to current protection given to elderly people under international law, first, it is necessary to know what are international human rights. Here to state that these laws are those which are inalienable and inherent to all humans irrespective of age, religion, ethnic origin, and so on. To check whether these protections are even required for older persons or not, it is to state they can make an important contribution to the development. Proving human rights to this social group will ensure their contribution to social development. If to discuss the related data by 2050, the highest growing age group will be older persons worldwide and for this reason, it is necessary to make international laws stronger for them already (un.org, 2020a). Most of the delegations agreed that the current international human rights law framework does not identify age as a reason for forbidden discrimination. This develops a deficiency in the present system where violation of older’s human rights often remains not investigated. As per the data offered by World Health Organisation’s estimates 1 in every 6 people who are aged 60 years or more usually suffer from this (ohchr.org, 2018). It means nearly 141 million persons globally are facing this abandonment, violence, and abuse, where many of the incidents have never been reported. This is the reason that older people are required to have some legal protection under international laws as well so that even if the national governments are not taking enough efforts, this social group remains secured.
Several treaties and documents refer to and outline rights that are particularly related to the elderly nevertheless no particular instrument is there which fulfills the particular needs as well as desired protection for the elderly protection. It does not mean that international instruments do not protect the elderly population (Miller, 2009). Many instruments are there which provides them protection regarding some of their specific rights which are further discussed hereby.
As discussed, human rights are universal which applies to every person irrespective of personal characteristics and the bill of rights is a document that in addition to every other person the also secure right of older persons. Technically it is a declaration that is usually considered as customary law by the Universal Declaration of Human Rights and therefore is legally binding. Article 25(1) of UDHR states that every person has the right to security in addition to have an entitlement of standard of living which is adequate for the wellbeing of himself as well as their family members (un.org, 2020b). ICCPR and ICESCR are two conventions that grant generic protection of social, civil, economic, political, and cultural rights. In concern to older people, some rights are confirmed in some of the articles of ICESCR. For instance, article 6-7 of the convention outlines work-related right, article 9 of the convention gives the right to social security, article 11 confirms the right to an adequate standard of living, and so on. It means the convention itself does not provide any direct reference to older people (who.int, 2020). General comment no. 6 on n ‘the economic, social and cultural rights of older persons’ has been released in the Committee on Economic, Social and Cultural Rights (CESCR). The objective of this comment is to give a legal interpretation of the manner in that ICESCR should be applied concerning older persons. In furtherance of it, general comment no. 20 of the committee’s 2009 report is titled ‘Non-discrimination in economic, social and cultural rights’ where it says that ‘Age is a prohibited ground of discrimination in several contexts. The CESCR focuses on the requirements to address the issue of discrimination happening with older people in their professional training, finding work, and against those whoever dealing with poverty as a result of unequal access to poverty due to the place they reside. Article 18, 19, and 21 of ICCPR provides “participation rights” of older people have the right to freedom of expression, right to association, and assembly (treaties.un.org, 2020). Article 25 ensure that every person owns the right to participate in the affairs of the nation. Article 26 talks about legal protection and provides that every person deserves equal treatment before the law regardless of sex, color, religion, language, and other factors. Age is not specifically identified as a factor here nevertheless can be said that it is inclusive under the head of ‘other factors. It would not be wrong to state that these instruments only provide an indirect reference to the older group.
Although human rights are global and ensure the protection of basic entitlements, some United treaties are also there which specially address the rights of some disadvantaged groups such as older people. However, none of them clearly emphasize older persons, some of them mention the factor of “age” in details. For instance, article 7 of “The Convention on the Protection of the Rights of Migrant Workers and the Members of their Families” has “age” as one of the prohibited grounds of discrimination (Sirkeci, and Alili, 2020). Among all the human rights treaties that confirm rights for specific people, this is to state that the “Convention on the Rights of Persons with Disabilities” is the most appropriate protection which is given to old people. Here it is necessary to understand that not every old person has a disability bit despite this they can utilize by older people who seek protection under human rights protection. One of the positive points of this convention is that the same does not define “disability” and it shifts focus to a right-based approach. Article 3 of the convention provides the right of dignity, full participation in society, nondiscrimination, and equality of opportunity (Nifosi-Sutton, 2017). In addition to this, article 8 puts an obligation on states to combat prejudices and harmful practices in respect to a person with disabilities including those which are based on age and sex in every area of life. Article 16 which assures a right to freedom from violence, abuse, and exploitation takes into account the factor of age.
Conclusively to state that under binding international law, several instruments are there which ensure the human right protection for every person including liabilities towards an older person which are required to be followed by signatory states as well as their citizens. Nevertheless, these laws are protected in very general. In this sense, at present no treaty provides a comprehensive, tailored, and binding protection of older person’s.
VIPAA which stands for “Vienna International Plan of Action on Ageing”, is another action taken in the subjective direction where this plan has been adopted by the world assembly. Several recommendations have been granted under this law which include avoidance of segregation of older persons, avoiding stereotypical concepts in government policies, identifying the value of old age. At the second world assembly on Ageing “Madrid International Plan of Action on Ageing” has been adopted. The main objective of this plan is the full realization of freedom and fundamental entitlements as well as freedoms for elderly people (Zaidi, 2018). Further, it ensures that older persons have access to cultural, social, and economic rights and discrimination and violence against this social group. Policy development needs some direction. The subjective plan identifies three of such directions which emphasize supportive environment creation and advancement of wellbeing and health for older persons. This plan restates the promise to escalate age discrimination and ensure the involvement of older persons in society. In 1991, resolution 46/91 was adopted by the UN general assembly which is focused on older persons (paho.org, 2020). Here it is to inform that the same is not binding but the same outline gives principles that national governments are encouraged to consider in their national policies. These five principles are care, dignity, participation, self-fulfillment, and independence.
In addition to the creation of these soft laws, their follow-up has also been done on regular basis. In this manner, Second World Assembly on Ageing has also been followed up and results of the same are mentioned under UN Secretary-General’s report. The report informs that a significant effort has been made since 2002 in concern to older person’s right. Nevertheless, these policies are not consistent among different nations and do not reflect that a comprehensive policy, legal and institutional framework for the security of older person’s rights exist.
Concluding the discussion about soft laws made for the protection of older person’s life, it is to state that the same is wide-ranging and includes relevant principles, declarations well as a plan that provides comments for the interpretation of ICESCR concerning elderly populations (helpage.org, 2020). These different documents are there to help and guide states in their action of setting and changing domestic policies and standards. These documents do not possess any legally binding obligation. Therefore, states often fail to incorporate international guidelines and standards mentioned in these documents in their domestic policies.
The above-mentioned discussion was about the current legal framework for older persons' rights under international law but the same does not comment on the effectiveness of these laws, documents, and guidelines and mentioned under the same. This part of the report would analyze whether these laws are effective and enough or not. The above-stated details show that there are many international conventions and treaties offer generic human right protection which also includes another person. Nevertheless, some UN member states, NGOs, and the international federation on Ageing argue that these laws fail to support the human rights of old people effectively. This is the reason for that these organization argues that a new document and law is required to provide explicit protection to older people. An open-ended working group has been formed to check to evaluate the current law, to identify gaps as well as to consider the possibility of additional measures and instruments. This group was formed with the resolution 65/182. NGOs and member states have also participated and their statement revealed that many implementations, as well as normative gaps, exist in the current law. Nevertheless, not all the parties have been agreed to the point that a new convention to protect older person’s rights must be created. Where on one side, south American nations have agreed to make a legally binding agreement, many other nations such as United States, China, Canada, Russia along with European Union focused on a stronger and effective use of already existing instruments (Fredvang and Biggs, 2012, 13).
Nations that put their views against a new and dedicated convention believe that a new convention would be costly and already existing soft laws are strong enough. They also argued that the subjective convention will have the paradox that would work against the entitlements and rights of the older people. These countries think that the rights of older people are sufficiently covered and protected under existing laws. The influence of soft laws should not be underrated as they provide a detailed guideline to states which can be used for policymaking. Agreeing on the point that they are not binding in nature yet can be adopted in local policies. Whether these are UN principles or MIPAA, all of these laws can deal with the breach of older person’s rights or to say are capable to protect their rights under the international framework. If an international convention would be drawn then it will take much time. Also, it is very difficult to implement an international convention. A system that takes care of complaints and surveillance their implementation is already very stressed and new convention would disturb it much. In conjunction with this, it has been seen that the countries which are not able to ensure human rights protection demands this convention on older person’s right which would only make superficial legal changes where a social change is demanded.
Similar to arguments against convention, some arguments in favor are also there. One of such arguments in the favor of convention believes that older people need some additional protection than the general ones. Further, it is to believe that some normative gaps bring negative results to the dignity of older people. A group-specific convention is demanded because the issues, discrimination, and struggle of elder people are also different from the normal ones (Fredvang and Biggs, 2012, 15). Older people are more vulnerable and are likely to be affected by the issues of poverty and economic crisis more than other groups and therefore a convention is needed.
Older people should have the dignity of life similar to other members of society. Several places the protection is given to their rights under international laws which are discussed in detail in this report. It includes the international Bill of rights, UN principles, and soft laws. These documents confirm the rights of an older person’s in conjunction with others and demand that no discrimination must be done based on age. They also provide guidelines following that local policy about older people must be developed but these soft laws are not mandatory in nature and therefore are not as effective as a legally binding convention can be. The report also provides arguments in favor and against of convention for older people’s rights. Conclusively to state that a new convention is not as much demanded as effective implementation of the already existing measure is. No law can bring results unless the same is implemented effectively. Hence rather than focusing on new documents and convention creation, governments of the nation and international organizations must assure that the already existing measures are being followed up efficiently.
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