October 03, 2018

The Human Rights of Older Persons Take a Step Forward

Charlie Sabatino

 

In 2014, a group of 115 civil society organization from around the world, called the Global Alliance for the Rights of Older People, embarked on an effort to hear from older people and their representative organiza­tions to understand whether older people are being discriminated against, what impact this has on their lives, and why they think this is happening. They were also asked about what rights they felt older people were being denied. Just over 2000 people took part in the consultation from across 50 countries.

Here’s a tiny sampling of what they heard:

“Old people are of no use, cost money and might have a lot of problems that can be frustrating if it is difficult to solve them.” -Female, 60-69 years, Sweden

“We feel isolated and alienated as if we are animals.” -Female, over 60 years, Uganda

“In the home they terrorize us, they take all our money, they don’t give us allowances and they constantly threaten that we’ll be kicked out if we don’t behave.” -Nursing home resident, from a group discussion, Serbia

“At my age we are not able to get a decent bank credit or start paying health insurance just because you are more than 65 years old.” - From a group discussion, all over 50 years, Argentina

“There is a general ageism in our culture that devalues old age relative to youth, that expects older adults to be decrepit and demented.” - Female, 70-79 years, USA1

It’s no surprise that the vast majority of participants said that they were treated differently and discriminated against because of their age.

This effort came in the midst of an extended process at the United Nations to examine ways to strengthen the human rights protections of older persons. Since 2010 when the UN General Assembly created an Open-Ended Working Group on Aging, UN member states have debated how to best accomplish this, in­cluding whether there is a need for a United Nations convention on the rights of older persons. But while the debate has darted about in the UN like a peri­patetic rabbit, the Organization of American States (OAS) moved steadily forward like a tortoise with the task of actually drafting an Inter-American Convention on Protecting the Human Rights of Older Persons. The OAS General Assembly approved the convention on June 15, 2015.

In support of the OAS effort, as well as efforts in the United Nations, the ABA adopted a resolution in 2012 supporting ef­forts to strengthen protection of the rights of older persons, “includ­ing the efforts and consultations towards an in­ternational and regional human rights instrument on the rights of older persons.”

The OAS conven­tion is the first fruit of that vision. Starting with a set of general prin­ciples, the con­vention sets forth 27 specific protected rights to ensure the recognition and full enjoyment and exercise, on an equal basis, of all human rights and fundamental freedoms of older persons in the Americas. It seeks to promote their full inclusion, integration and participation in society. So far, the convention has been signed by the govern­ments of Argentina, Bolivia, Brazil, Chile, Costa Rica, and Uruguay. But, as with most conventions, the U.S. is resistant to signing, much less ratifying it. The U.S. has stated that it believes:

…resources of the OAS and its member states should be used to identify practical steps that governments in the Americans might adopt to combat discrimination against older persons, including best practices in the form of national legislation and enhanced implementation of existing international human rights treaties. In doing so, such efforts should be aimed at addressing immediately and in practical ways the challenges faced by older persons.3

The U.S. has also pointed to several other international instruments that set forth principles and goals to strengthen the rights and full participation of older persons in society. The primary counter argument is that rely­ing only on aspira­tional road maps and identifying best practices provides goals with no teeth. They lack a rights-based mandate and enforceability mecha­nism.

Now with the final adoption of an OAS resolution, the ABA Commission on Law and Aging has put forward a reso­lution in the ABA House of Delegates for the August 2017 meeting, stating:

Resolved, that the American Bar Association urges the President to sign and the Senate to approve ratification of the Inter-American Convention on Protecting the Human Rights of Older Persons, approved by the General Assembly of the Organi­zation of American States on June 15, 2015.

Why a Convention is Needed

The need for a convention on the human rights of older persons is driven both by demographic trends which make increasing numbers of elders vulnerable to human rights abuses and by the unique human rights shortcomings experienced by older persons that are not adequately addressed in existing human rights instruments. While the OAS convention is regional in scope, the trends and challenges of aging are world-wide.

The demographics are daunting. Worldwide, per­sons age 60 years and older numbered 607 million in the year 2000, or 9 percent of the world population. By 2015, the number rose to 901 million people, or more than 12% of the population. By 2050, the global population of older persons is projected at nearly 2.1 billion, or 21.5% of the global population. Moreover, the number of people aged 80 years or older is grow­ing even faster. In 2000, there were 71 million people aged 80 or older worldwide. By 2050, that number is projected to increase to 434 million, a more than six-fold increase from 2000.4 The growth rate is not uniform everywhere. Two-thirds of the world’s older persons live in the developing regions and their num­bers are growing faster there than in the developed regions. Gender differences are also important. In 2015, women accounted for 54 percent of the global population aged 60 years or older and 61 per cent of those aged 80 years or older in 2015. Older women are especially vulnerable to multiple discrimination, based on age, gender, race, and other characteristics.

Older persons in large and growing numbers suffer unique human rights shortcomings around the world. They too often struggle on the margins of society because of discriminatory views on aging. We may not see this as frequently in the United States, but we do see it. Conditions vary widely worldwide and abuses are too common. Older men and women are often de­nied access to services, jobs, pensions and other finan­cial supports, and adequate health and long-term care, including appropriate palliative and end-of-life care. Older individuals are especially vulnerable to abuse, neglect, and poverty. While there are a good number of existing human rights instruments and mechanisms that, in theory, protect the rights of older persons, this potential is seriously diluted by the lack of specificity, depth, comprehensiveness, and consistency.

The mother of all UN human rights instruments was adopted after WWII, the non-binding Universal Decla­ration of Human Rights. Article 25 of the Declaration states:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his con­trol. 5 (Emphasis added)

But, of nine legally binding UN rights instruments adopted since then, only three make even brief refer­ence to the circumstances of older people: the Migrant Workers Convention; the Convention on the Elimina­tion of All Forms of Discrimination against Women (CEDAW); and the Convention on the Rights of Persons with Disabilities (CRPD). Only the Migrant Workers Convention prohibits discrimination on the basis of age, but that mandate is limited only to migrant work­ers.6 CEDAW provides for the equal right of women to social security in old age, and it offers some protection against sexist inheritance practices.7 The CRPD re­quires states to provide services to prevent and mini­mize further disabilities among older people and to provide “age appropriate” or “age sensitive” measures for persons with disabilities.8

Nevertheless, human rights law is largely silent on important topics such as:

  • The scope of a right against discrimination on the basis of age.
  • Rights within community-based and long-term care settings.Access to legal planning mechanisms for older age.
  • The abolition of mandatory retirement ages. Legal capacity and equality before the law for older women and men under guardianship or diagnosed with dementia.
  • The right to access to health care, which in existing human rights instruments, fails to address nursing homes and other institutional settings as well as rights to home and community-based care.
  • End-of-life care rights, especially access to pal­liative care.
  • Protection against elder abuse and exploitation in its many forms across cultures, including physical, sexual, and emotional abuse, neglect, and financial exploitation
  • Property rights in old age, the loss of which especially impact older women.
  • Rights to economic security in the face of worldwide population aging.

International human rights standards for identified vulnerable populations (women, children, refugees, persons with disabilities) have gained increasing recognition in contemporary society. However, older persons as a group have not been a high priority beneficiary of this attention. In response, a growing advocacy effort among both non-governmental and governmental organizations has sought to bring about a convention drafting and approval process directly addressing the human rights of older persons. The ef­fort produced the OAS convention.

The convention is more than just a compilation of specific rights. Its message is that the social paradigm of aging must change. Older persons must be seen as legitimate, productive, and important rights holders in an aging world, rather than perceived as merely a vulnerable and no-longer-productive group that makes unwarranted claims on public resources.

What’s Next

An ABA resolution in support of the convention will add significantly to the advocacy of non-governmental organizations such as AARP International, HelpAge USA, and Alzheimer’s Disease International to change the United States’ opposition to the convention. It will also add to the momentum of discussion in the con­tinuing meetings of the United Nations Open-Ended Working Group on Aging.9 Civil society organizations have been strongly advocating for a broad United Nations convention on the rights of older persons. The Working Group has met at least annually, most recently in July 2017. The ABA has been an active par­ticipant in those discussions.10 It’s expertise on access to justice and the workings of a rule of law framework have been and will continue to be a critical part of the discussion.

It is not yet clear what the outcome will be, but the vision is clear and perhaps best described by the late, charismatic founder of the Gran Our Own Words: What Older People Say about Discrimination and Human Rights in Older Agey Panthers, Maggie Kuhn:

Old age is not a disease — it is strength and sur­vivorship, triumph over all kinds of vicissitudes and disappointments, trials and illnesses… Stand before the people you fear and speak your mind — even if your voice shakes.

1 The Global Alliance For The Rights Of Older People, In Our Own Words: What Older People Say about Discrimination and Human Rights in Older Age (2015): available at: http://www.rightsofolderpeople.org/new-garop-report-in-our-own-words/

2 The Global Alliance For The Rights Of Older People, In Our Own Words: What Older People Say about Discrimination and Human Rights in Older Age (2015): available at: http://www.rightsofolderpeople.org/new-garop-report-in-our-own-words/

3 E-mail communication from Judith Heumann, Special Advisor for International Disability Rights. U.S. Department of State, August 11, 2016, to Charles Sa­batino, ABA Commission on Law and Aging.  

4 United Nations, Department of Economic and Social Affairs, Population Division (2015). World Pop­ulation Aging 2015 (ST/ESA/SER.A/390).

5 Handbook – International and Regional Human Rights of Older Persons (Draft, April 2011), Academy on Human Rights and Humanitarian Law, AU WCL, Chapter D., at 1.

6 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 7; CRPD Article 25 (b) Article 28 (2) (b) Article 13, Article 16.

7 CEDAW, Article 11.1 (e).

8 CRPD Article 25 (b) Article 28 (2) (b) Article 13, Article 16.

9 See http://social.un.org/ageing-working-group.

10 The appointed ABA liaison to the UN Open- Ended Working Group on Ageing is Professor William Mock of the John Marshall Law School.    

Charlie Sabatino