Having a country level conversation about what can be done to safeguard the rights of the elderly and the utility of the Convention in particular would be useful.
“May you live a long life” has gone from being a blessing to reality. Thanks to a host of factors, almost 700 million people in the world are now over the age of sixty and in 2050, this number is projected to jump to 2 billion when for the first time in human history, there will be more people over the age of 60 than children in the world. What these numbers mean is that we need to prepare for an ageing nation. Part of this preparation is addressing questions on who is responsible for the care and well-being of older persons and to what extent. Issues like affordable access to health care and caregiver support, giving informed consent to medical treatment and in financial matters including property and inheritance and age related employment discrimination also need to be tackled.
Over the last few years, there have been many discussions on how best to protect the cultural, economic, legal, civil, political and social rights of older persons whose vulnerabilities grow with age. One of the several ideas proposed has been to come up with a new international treaty safeguarding these rights. There are two opposite points of view about this idea – the “normative gap” group believe that the present legal structure concerning the rights of the older persons is patchy and uncoordinated and an international instrument specifically guaranteeing these rights is key while the “implementation gap” group is of the view that there is already an adequate framework in place and the problem is that of poor implementation resulting in the lack of protection of the elderly. The scope of this post is to discuss whether there is a need for a new international convention tailored to protect the rights of older persons.
At present, there are three main documents devoted to ageing and old persons: The 1982 Vienna International Plan of Action on Ageing, the UN Principles for Older Persons and 2002 Madrid International Plan of Action on Ageing (MIPAA). These instruments are non-binding. The “normative gap” group point out that due to their non-binding nature, these instruments have a limited impact. They also point out that none of the foundational human rights instruments explicitly prohibit discrimination on the basis of age.* Of the nine core human rights treaties, only the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (Articles 1.1 and 7) prohibits discrimination based on age and the Convention on the Elimination of Discrimination against Women (Article 11.1.e) and the Convention on the Rights of Persons with Disabilities (Articles 25.b and 28.2.b) mention older persons in a restricted context.
The “normative gap” group believes that the result of the lack of an international instrument is the problem of not having a single set of minimum standards. While most countries have some sort of protection in place, national policies vary widely with regard to the rights afforded to older persons. An example of this would be the right to social security. The argument that existing human rights instruments don’t explicitly refer to age is weak. The grounds of discrimination are only illustrative and not restricted to those enumerated. Interpreting ‘age’ as a ground in a non-exhaustive list isn’t a stretch for those well versed in the interpretation of laws especially in the light of various clarifications been made by treaty body monitoring mechanisms regarding the applicability of human rights instruments to older persons. Further, it has been observed that there are limits to the enforceability of international conventions, the accountability system is weak and overburdened and there are no effective sanctions.
The MIPAA already acts as an international standard albeit a voluntary one. Most countries already have protection systems prohibiting discrimination under the Constitution and special laws, schemes, policies and concessions for the benefit of the elderly. For the time being, the focus should be less on matching basic requirements with other countries / regions and more on the implementation of the existing structure. The heart of this dispute is the issue of consensus. The large number of abstentions by countries including India, on Resolution 67/139 (to receive proposals for negotiating a new ageing convention) adopted by the United Nations General Assembly highlights the fact that most countries don’t want a new treaty. What’s more, negotiating a new instrument will cost significant time and money which, given the poor consensus, seems wasteful.
In conclusion, a new treaty isn’t going to resolve all existing concerns about protecting the rights of older persons but neither is relying on implementation alone given that many countries have limited resources and inadequate legal systems to ensure proper implementation. It is best to address this using time-based goals. In the long term, it is important to build global consensus so that there is a uniformity of protection afforded t the elderly all over the world. In the meanwhile, this issue is better served by closing the implementation gaps locally. Having a country level conversation about what can be done to safeguard the rights of the elderly in general and the utility of the convention in particular would be useful.
In addition, as suggested in a joint report between UNFPA and HelpAge International, making available better quality of data on older persons at a national level, using available resources to implement and better monitor existing policy, developing and implementing coordinated responses to ageing across all government ministries and agencies and investing in capacity building to respond to the demands of the demographic transition, ensuring that existing sectoral policies are age-adjusted and reflected in national budget priorities, strengthening ageing mainstreaming into all sectors of public policy, ensuring that resources are available for the bottom-up evaluation of policies and programmes and sharing and communicating good practices in policy implementation, legislative action, data collection and analysis are achievable but solid steps that can be taken towards preparing for an ageing nation.
*The term “other status” has to be interpreted to include age. “[…] without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”
Malaveeka Chakravarthy is a graduate of Columbia Law School, New York City.