October 03, 2018

Human Rights of Older Persons

Charlie Sabatino

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 37, Issue 2.)

 

2015 was a Big Year for International Progress

This year the Commission continued to participate in the annual meetings of the U.N. Open-Ended Working Group on Ageing in support of the new ABA liaison Professor Bill Mock of John Marshall Law School. The Working Group has continued to engage in extensive inquiry and debate about whether the U.N. should pursue a separate convention on the rights of older persons, or instead, seek to strengthen the enforcement of existing international normative standards as they may apply to older persons. That question remains a threshold sticking point to consensus.

The European Union, the United States, Canada, Australia, and Japan are opposed to drafting such a convention, while the vast majority of low and middle income countries strongly in favor. The high income industrialized countries claim that the existing legal instruments (such as the Convention on Economic, Social and Cultural Rights, for instance) apply to all people, including older persons, and are sufficient. Gaps arise because governments don’t implement the relevant conventions. Countries supporting a specialized convention, as well as nearly every non-governmental organization that has addressed the Working Group, claim that since the existing instruments do not identify older persons as such, these instruments are too non-specific, fragmented, and vague in their application to older persons. As a result, this demographic group “falls between the policy cracks.” Thus, without the explicit international legal protection conferred by a convention, older persons remain extremely vulnerable to poverty, abuse, neglect, illness, and premature mortality, among other things.

The ABA and the Commission have spoken in favor of initiating work on a convention. We have also collaborated with the John Marshall Law School and Roosevelt University in distributing a model international convention, referred to as the Chicago Declaration. The model is an evolving work, based on continuing input from experts and stakeholders internationally, including the ABA Commission. The hope is that this declaration will stimulate more concrete thinking about the organization and terms of a future convention.

On the regional level, the movement toward an inter-American convention achieved a milestone. On June 15, 2015, the General Assembly of the Organization of American States (OAS) adopted the Inter-American Convention on Protecting the Human Rights of Older Persons. Our outgoing Commissioner Marcos Acle and first-year Commissioner Ivan Chanis have both been directly involved in that process in their professional roles at the OAS. The convention represents a major step forward in addressing the human rights needs of older persons. The instrument was immediately signed by the governments of Argentina, Brazil, Chile, Costa Rica, and Uruguay at OAS headquarters in Washington, DC. For the Convention to enter into force it is necessary that at least two signatory countries have not only signed it but also ratified it.

The purpose of the Convention—the first regional instrument of its kind in the world—is to promote, protect, and ensure the recognition and the full enjoyment and exercise, on an equal basis, of all human rights and fundamental freedoms of older persons, in order to contribute to their full inclusion, integration and participation in society. The starting point of the Convention is the recognition that all existing human rights and fundamental freedoms apply to older people, and that they should fully enjoy them on an equal basis with other segments of the population.

At present, people aged 60 or older in the Americas represent 14% of the hemisphere’s population (over 135 million). By 2030, nearly two in five people will be 60 or older, and in total there will be more than 215 million older people in the Americas. The Convention will strengthen the legal obligations to respect, promote and ensure the human rights of older persons. Its ratification will carry the obligation of States parties to adopt measures to guarantee a differentiated and preferential treatment to older persons in all spheres. For the Convention to enter into force it is necessary that at least two signatory countries have ratified it.

Not surprisingly, the U.S. has not been a supporter of the OAS convention or of the proposal for a U.N. convention. The U.S. prides itself on its commitment and innovation in protecting the rights and quality of life of older Americans. However, the U.S. historically has been very reluctant to allow itself to be subject to any laws or rules created and enforced by non-U.S. authorities. Nevertheless, treaties or conventions that are widely adopted by other nations do tend to affect the legal thinking and analysis that occurs in American law, sometimes in profound ways.

Where to Go for Further Information

For the latest on all of the above international activities, see the Commission's International Rights of Older Persons Resources webpage at: http://www.americanbar.org/groups/law_aging/resources/international_rights_of_older_persons.html. ■

Charlie Sabatino

Charlie Sabatino is Director at the ABA Commission on Law and Aging in Washington, DC.