(Note: The pdf for the issue in which this article appears is available for download: Bifocal Vol. 35, Issue 6.)
Background
The United Nations General Assembly created an Open-ended Working Group on Ageing in December 2010 to consider existing international framework on human rights of older persons, and identify possible gaps and how best to address them, including by considering, as appropriate, the feasibility of further instruments and measures. The ABA House of Delegates adopted a resolution in August 2011, encouraging support of this effort by the U.S. State Department and the U.N. and its member nations. In 2012, the ABA president appointed Bill Pope, member of the ABA Commission on Law and Aging, to serve as the ABA representative to the U.N. Working Group.
The UN Open-Ended Working Group on Ageing met for the 5th time from July 30 to August 1, 2014, at the UN in New York, with representatives of just over 100 governments attending. Representatives from a few dozen non-governmental organizations representing civil society also attended and participated in lively discussions. The meeting was ably chaired by Mr. Mateo Estrémé, the representative from Argentina. The Working Group discussed the need to strengthen older peoples’ rights, promising practices, and the possibility of a new international human rights instrument—a convention—to protect them.
The general discussion on the first day provided member states the opportunity to express their views on the direction the Working Group should take. As in the prior meetings, member states uniformly agreed that stronger steps were needed to improve the human rights status of older persons; but they were divided on the question of whether the Working Group should be moving towards the creation of a new human rights instrument, a convention on the rights of older persons.
The ABA Commission on Law and Aging co-sponsored a significant side event during the lunch break on the third day—the presentation of the “Chicago Declaration,” a draft model convention developed under the leadership of the John Marshall Law School and Roosevelt University in Chicago. The model draft was prepared with input from both academic authorities and a multitude of civil society organizations and is meant to focus discussion more acutely on how to articulate the specific rights of older persons in a comprehensive way. Civil society organizations and a handful of member states welcomed the draft as a positive contribution to the discussion.
The Draft is available online: http://www.jmls.edu/braun/pdf/chicago-declaration-v11.pdf.
Remarks
Thank you, Mr. Chairman. We very much appreciate your dedication and the efforts of the bureau in implementing the mandate of the working group. I am honored to speak on behalf of the American Bar Association and its Commission on Law and Aging. The ABA represents nearly 400,000 lawyers and judges in the United States, and the Commission on Law and Aging serves as a focal point for the ABA’s efforts to strengthen the legal rights, dignity, autonomy and quality of life of older persons. The ABA is deeply committed to promoting the rule of law by building sustainable institutions and societies that deliver justice, foster opportunity, and ensure respect for human dignity. Because of that priority, we see the work of this open-ended working group on ageing extremely important.
Over the past meetings of the working group, including the current meeting, we have heard numerous examples of deficiencies and violations of basic rights of older persons, as well as many examples of promising developments and programs addressing the needs and status of older persons in many countries. But in regard to the question of whether a new convention is needed, much of the discussion has revolved around a needless debate about whether there is a normative gap in international law, or instead, an implementation gap.
We respectfully suggest that it makes no difference, because even if one concludes that there is primarily an implementation gap, there remains the critical need to be clear about exactly what it is that needs to be better implemented. To be clear about that, discussion needs to focus on better defining the parameters of the rights and social frameworks needing better implementation. In other words, discussion should focus on articulating the panoply of human rights standards as they apply to the circumstances of older persons.
Existing human rights instruments have neither the clarity nor cogency to provide sufficient guidance in applying them to older persons. Without that clarity, cogency, and integration, there is no common measure by which member states, or civil society, or the Independent Expert can fully evaluate the situation of older persons across the states.
For example, we have learned of many promising developments from member states in how they are addressing the circumstances of elders, but how does one evaluate those developments? Are they supportive of a dependency, welfare-based framework of aging; OR are they supportive of a rights-based, social justice framework of human rights and aging? One needs well-articulated, common standards by which to make that judgment.
This task of articulating clearer, common standards is virtually one and the same as formulating the language of a potential convention, BUT it leaves open the question as to whether there are alternative means implementing the standards once they are articulated and widely accepted. If reasonable implementation can be accomplished without a convention, then by all means consider those alternative strategies. In the end, we strongly suspect that the convention approach will prevail as the soundest approach, but commitment to a convention by member states is not necessarily required to move ahead right now with identifying common standards.
We hope that the Working Group will be able to move forward with that discussion in a productive and energetic way, and we look forward to the opportunity to contribute to that process along with our colleagues in civil society.
Thank you.