July 18, 2017

The Human Rights of Older Persons Take a Step Forward

Charles P. Sabatino

In 2014, a group of 115 civil society organizations 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 2,000 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 still in our culture that devalues old age relative to youth, that expects older adults to be decrepit and demented.”
    Female, 70-79 years, USA

(Read the complete 2015 report, The Global Alliance For The Rights Of Older People, In Our Own Words.)

It’s no surprise that the vast majority of participants said that they were treated differently and discriminated against because of their older 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 Ageing, UN member states have debated how to best accomplish this, including whether there is a need for a UN 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 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 the Americas. It seeks to promote their full inclusion, integration and participation in society. (Read the full text of the convention.)

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 Americas 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.  (Excerpt from an August, 2016, email from Judith Heumann, Special Advisor for International Disability Rights, U.S. Department of State)

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 roadmaps and identifying best practices provides only 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 2017 Annual Meeting in August, 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 that make increasing numbers of elderly people 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, according to data from the UN’s Department of Economic and Social Affairs. By 2015 the number rose to 901 million people or over 12 percent of the population. By 2050, the global population of older persons is projected to reach nearly 2.1 billion, or 21.5 percent of the global population. Moreover, the number of people aged 80 years or over is growing even faster. In 2000, there were 71 million people aged 80 or over worldwide. By 2050, that number is projected to increase to 434 million, a more than six-fold increase in its size in 2000. 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 over and 61 percent of those aged 80 years or over 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 support, 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.

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. CEDAW provides for the equal right of women to social security in old age, and it offers some protection against sexist inheritance practices. In articles 25, 28, 13 and 16,   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.

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
  • The scope of 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.

Besides mandating specific rights, 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 Ageing. 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 (the ABA liaison to the Working Group on Ageing is William Mock of the John Marshall Law School). The ABA’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 Gray 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. 

Charles P. Sabatino is the Director of the ABA Commission on Law and Aging.