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Since the creation of the United Nations in 1948, international human rights treaties have been part of the international law framework governing states. In 1948, the United Nations General Assembly set forth the Universal Declaration of Human Rights (UDHR) as a “common standard” of rights and freedoms for all people. In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted. These covenants were ratified by states, creating binding enforcement mechanisms for the rights expressed more generally in the UDHR. Since that time, many additional treaties addressing the rights of particular populations have been adopted and ratified. For example, there are conventions on the rights of children, indigenous peoples, migrant workers, women, and persons with disabilities. However, there is not presently an international treaty specifically addressing the human rights of older persons, and there is debate about whether developing a Convention on the Rights of Older Persons is a good idea.
Regional Instruments Protecting the Rights of Older Persons
The idea of creating a treaty specifically for the rights of older persons is not uncharted territory. There are regional human rights bodies around the world that protect human rights of people in their region. These regional bodies have their respective human rights treaties, and several regional bodies have adopted instruments that specifically protect the human rights of older persons. The Organization of American States was the first to do so.
Organization of American States
The Organization of American States (OAS) adopted the Inter-American Convention on Protecting the Human Rights of Older Persons in 2015. There are currently 12 states party to the treaty – Argentina, Belize, Bolivia, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Mexico, Peru, Suriname, and Uruguay. The Inter-American Commission on Human Rights (IACHR), the body tasked with promoting observance of treaty obligations for the OAS, created a Thematic Rapporteurship on the Rights of Older Persons in 2019. Gloria Monique de Mees, the current IACHR Rapporteur on the Rights of Older Persons, is charged with monitoring the human rights of older persons in the region.
African Union
The African Union adopted special protections for the rights of older persons in 2016. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa has been ratified by 15 states – Angola, Benin, Burundi, Cameroon, Ethiopia, Kenya, Lesotho, Malawi, Mozambique, Niger, Nigeria, Rwanda, Saharawi Arab Democratic Republic, Sao Tome & Principe, and Togo. The Protocol went into force on November 4, 2024. The Protocol was created in part to implement the recommendations of the 2002 African Union Policy Framework and Plan of Action on Ageing. One of the recommendations from the 2002 Plan was to adopt a protocol relating to the rights of older persons. The Protocol also notes that the 2002 Plan called for implementation of international recommendations with respect to the rights of older persons – the 1991 United Nations Principles for Older Persons, the 1992 United Nations Proclamation on Ageing, and the 2002 Madrid International Plan of Action on Ageing. In fact, Article 2 of the Protocol codifies implementation of the 1991 United Nations Principles:
States Parties shall ensure that the 1991 United Nations Principles of Independence, Dignity, Self-fulfilment, Participation and Care of Older Persons are included in their national laws and are legally binding as the basis for ensuring their rights. (Article 2, Paragraph 2)
The African Union has special rapporteurs, but there is no rapporteur on the rights of older persons. The African Union does have a Working Group on the Rights of Older Persons and People with Disabilities in Africa. The Working Group was established in 2007, much before the Protocol was adopted. Part of the mandate of the Working Group is to identify best practices with respect to the rights of older persons and to submit reports to the African Commission on their work.
Council of Europe
Europe does not have an instrument specific to the rights of older persons, but the European Court has heard a case involving the rights of older persons. Europe has a general human rights treaty, the European Convention on Human Rights. In 2002, the European Court of Human Rights heard the case HM v. Switzerland. The applicant, in her 80s, was placed in a nursing home after accusations of neglect including an inability to meet her dietary and hygiene needs, inability to dress herself, no heat in the home, and her live-in son not providing care for her.
The applicant’s complaint was a deprivation of liberty when she was placed in a nursing home against her will. She argued that neglect was not a grounds for detention under Article 5 of the European Convention. Article 5 states, in part: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (e) the lawful detention of persons…of unsound mind…or vagrants.” The applicant specifically argued that “vagrancy” was not comparable to “neglect.” The applicant had a home and a regular pension income and was therefore not a burden to the public (a vagrant).
The European Court held that the Swiss government did not violate Article 5 of the European Convention. The Court held that being placed in a nursing home did not amount to a deprivation of liberty, “but was a responsible measure taken by the competent authorities in the applicant’s interests.” (Decision paragraph 48) This case begins to establish the legal limits of autonomy for older adults in cases of neglect.
Current International Treaties that Address Older Persons’ Rights
While there is not a Convention on the Rights of Older Persons at the UN level, current international treaties protect the rights of older persons in so far as they protect the rights of every person. These international treaties confer universal rights to all people. Some of these treaties do refer to older persons or rights associated with older persons in specific articles. Here are some examples with emphasis added:
- Universal Declaration of Human Rights
Article 25. 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.
- International Covenant on Civil and Political Rights
Article 26. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [There is an argument that “other status” includes age.]
- International Covenant on Economic, Social and Cultural Rights
Article 9. The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.
- Convention on the Elimination of All forms of Discrimination against Women
Article 11. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: […] (e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave.
- Convention on the Rights of Persons with Disabilities
Article 8. States Parties undertake to adopt immediate, effective and appropriate measures:
To raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities; To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life; To promote awareness of the capabilities and contributions of persons with disabilities.
Article 16. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive.
The universal nature of international human rights law is one of the arguments raised by those who oppose the creation of a specialized treaty on the rights of older persons. Those opposed argue that separating older persons as “others” or apart from society only increases ageism and reinforces ideas that older persons are not productive, active members of society. Another argument raised by those opposed to a specialized treaty for older persons is that it is difficult to define who exactly is an “older person.” Opponents argue that the definition of “older person” is bound to social and national constructs about age, especially around the idea of when someone “should” retire and receive retirement benefits. The argument being that it would be difficult to determine who is protected by a specialized treaty for older persons.
The Path Toward a Convention on the Rights of Older Persons
There is a substantial history and body of work at the international level on ageing and the rights of older persons. The full history deserves its own article. For the purposes of this article, a few meetings and publications will be highlighted.
The United Nations convened two world assemblies on aging, one in 1982 and one in 2002. The 1982 World Assembly on Ageing was intended to kickstart the development of an international aging plan. The result of the assembly was the adoption of the Vienna International Plan of Action on Ageing (VIPAA), the first international instrument on aging. The Second World Assembly on Ageing adopted a revised action plan, the Madrid International Plan of Action on Ageing (MIPAA). Two of many common recommendations in VIPAA and MIPAA are the importance of collecting data on older persons in various states and the importance of ensuring that member states protect the human rights of older persons. MIPAA also reaffirmed the 1991 UN Principles for Older Persons adopted by the General Assembly in response to VIPAA. In its resolution, the General Assembly encouraged states to incorporate the principles into national programs. There are eighteen principles placed into five categories: independence, participation, care, self-fulfillment, and dignity.
The five categories used in the 1991 UN Principles for Older Persons correlate to divisions made in the ICESCR. In 1995, the Committee on Economic, Social, and Cultural Rights issued General Comment No. 6, “The Economic, Social, and Cultural Rights of Older Persons.” General Comments are documents published by treaty bodies to provide guidance on the interpretation of the treaty. General Comment No. 6 on the rights of older persons therefore serves as guidance to states on enforcement of the ICESCR with respect to older persons. It is worth noting that the Committee felt it necessary to issue a specific General Comment on the rights of older persons. This suggests that while the rights in the ICESCR are universal, their application with respect to older persons is not being given enough attention.
In 2010, the UN General Assembly established the UN Open-Ended Working Group on Ageing (OEWGA). The OEWGA was tasked with identifying gaps in the international human rights framework with respect to older persons and to offer recommendations. The American Bar Association contributed to the work of the OEWGA. Professor William Mock of the John Marshall Law School was the ABA-appointed liaison to the OEWGA. The Commission on Law and Aging also contributed to this work in collaboration with Professor Mock. The mandate of the OEWGA concluded on August 13, 2024 after the OEWGA submitted its Report in May 2024. The OEWGA report recommends that states consider adoption of an “international legally binding instrument to promote, protect and ensure the recognition and the realization, on the equal basis, of all human rights of older persons.” The UN General Assembly has continued to encourage member states to collect data on older persons and place emphasis on protecting the rights of older persons when submitting their treaty reports. It has yet to recommend that the Human Rights Council begin drafting a convention specific to the human rights of older persons.