The case for a convention on the rights of older persons

Geraldine Van Bueren QC, Professor Emerita, Leverhulme Fellow and one of the original drafters of the Convention on the Rights of the Child, explains why a convention for older persons is necessary.

Why should we have a convention on the rights of older persons, how would it help prevent abuse and what would it contain?

The impact of COVID-19

The impact of COVID-19 on older people globally has been a contributing factor in moving countries forward towards accepting the need for a United Nations treaty on the rights of older persons. The 700 million plus persons over the age of 60, unlike other groups in the community, including children, refugees, and women, do not have any international body or agency to represent them nor yet an international treaty which protects older persons.

In May 2020 the UN Secretary-General issued a Policy Brief on the Impact of COVID-19 on Older Persons. This resulted in 146 States pledging to respect the dignity and rights of older persons and to mitigate the negative impacts during and after the COVID-19 pandemic on older persons’ health, lives, rights, and well-being.

The United Nations is clear that nobody, young or old, is expendable, and that older people have the same rights to life and health as everyone else. Any difficult decisions around triage, life-saving and medical care must respect the human rights and dignity of all.

However, what has become clearer to states which had previously required greater persuasion to support a Convention on the Rights of Older Persons, is that absence of a comprehensive binding international legal instrument to promote and protect the rights and dignity of older persons continues to have significant practical disadvantages impacting on older persons. The current treaties do not specifically address the issues of ageing or transform the often invisibility of older persons to visible participants. This lack of a specific treaty contributes to many older persons being unable to exercise the full range of human rights. Crucial areas of older persons’ lives have been insufficiently addressed in the existing treaties. These areas include legal capacity, long-term care, palliative care, quality of care, assistance to victims of violence and abuse, effective remedies, independence and autonomy, and the right to an adequate standard of living, in particular the right to adequate housing.

Ageism and the struggle for human rights 

Another significant event in moving towards a UN Convention on the Rights of Older Persons has been the first resolution from the Human Rights Council of the United Nations in October 2021, calling upon all states to prohibit all forms of discrimination against older persons, and to take measures to eliminate ageism and age-based discrimination. This means that the United Nations and its member states now recognise that ageism and age discrimination are part of the struggle for human rights, and that equal rights and dignity for older persons ought, from now on, to be on the civil, political, economic, social, and cultural agenda of all countries.

The Resolution recognises that older persons face a number of particular challenges in the enjoyment of their human rights, including, in the areas of ‘prevention of and protection against violence, abuse and neglect, social protection, food and housing, the right to work and access to the labour market, equality and non-discrimination, access to justice, new technologies, education, training, health support, long-term and palliative care, lifelong learning, participation, accessibility and unpaid care work’.

The Human Rights Council also recognised that older persons, in particular older persons with disabilities and those with underlying health conditions, ‘have been disproportionally affected by the COVID- 19 pandemic, which in addition to high morbidity and mortality has exacerbated pre-existing inequalities’.

The UN Human Rights Council also called upon every state to adopt and implement non-discriminatory policies, national strategies, action plans, legislation and regulations, and to promote and ensure the full realization of all human rights and fundamental freedoms for older persons in, ‘employment, social protection, housing, education and training, access to technologies and the provision of financial, social, health-care, long-term support and palliative care services’, which should only occur after consultation with older persons.

For the first time a decision-making body of the United Nations has adopted a dynamic approach to older persons’ lives based on the twin principles of equality and dignity.

Also significantly, the Human Rights Council recognised that ageism can be associated with prejudice, stereotypes, and ‘discriminatory actions or practices, including hate speech, against older persons based on their chronological age or on a perception that the person is “old”.’

The text and substance of this Resolution is likely to find its way into a new Convention on the Rights of Older Persons and accelerate the process of drafting.

The Resolution of the Human Rights Council also requested the UN High Commissioner on Human Rights to prepare a report on the international legal rights and duties protecting older persons, and, importantly, to make the report available in accessible formats appropriate for older age.

Finally, the Resolution also calls for a multi-stakeholder meeting, including with the meaningful and effective participation of older persons and of persons of different ages, to discuss the report, and to identify the gaps in international human rights law on the rights of older persons, and to submit the report to the Human Rights Council.

The report and the multi-stakeholder meeting ought to be the final hurdle before the United Nations convenes a Working Group to draft the new Convention.

Protecting the rights of older persons

Parallel to this progress is the work of the Open-ended Working Group on Ageing and the Independent Expert on the enjoyment of all human rights by older persons. In 2021 the Independent Expert’s Annual Report stated that a ‘comprehensive international treaty on the human rights of older persons containing a clear prohibition of age discrimination would …provide much needed standards and guidance how to practically and meaningfully promote, fulfil and protect the human rights if older persons.’ 

The work of all these different parts of the United Nations means that the case for a binding international treaty on the rights of older persons and the elimination of older person discrimination is irrefutable.

Even before Covid 19, the World Health Organisation had reported that 1 in 10 older people suffer from some form of abuse around the world, ranging from health abuse to finance abuse. A treaty on the rights of older persons would help prevent some of these abuses. It would also accomplish the following:

● Provide a framework for governments to follow the best of global practices.

● Take older persons’ rights out of the party political football pitch and instead replace party politics with international legal entitlements.

● Make older persons more visible both in the United Nations system and to national governments.

● Transform older persons from the recipients of discretionary charity to the holders of rights. There would be a shift of understanding from persons who were objects to subjects of international law.

● Help change the image of older persons to beneficial to national resources rather than a drain and from active citizens rather than passive recipients. 

● Add detail as to what the right to dignity means for older persons in terms of work, political participation,  healthcare and palliative care.

A Convention would result in hard law, which would make a significant difference creating binding obligations on states as opposed to the Madrid Plan of Action, which is non-binding.

A UN Convention on the Rights of Older Persons is not a pipe dream, nor even that far off. The report from the OHCHR concludes that the current international framework is 'fragmented and inconsistent' in protecting the human rights of  older persons and it is necessary to 'move expeditiously towards developing and adopting a coherent, comprehensive and integrated human rights framework on older persons.