Strengthening the Human Rights of Older Persons: One Step at a Time?

oewga2013The fourth session of the UN Open-Ended Working Group on Ageing was held from 12-15 August 2013 in New York, and was characterised by greater participation from civil society organisations of older persons, as well as broader representation from African and Asian countries than in previous sessions. Although many actors within group, particularly the Latin American countries, are trying to work towards a new binding instrument to comprehensively protect the human rights of older persons, significant opposition remains from some key States – including the EU, US and Canada.

Prior to this fourth session, a Resolution of the General Assembly A/RES/69/137 was passed in December 2012, called on the Open-Ended Working Group to consider as part of its mandate (beginning at the fourth session) concrete proposals for an international legal instrument to promote and protect the rights and dignity of older persons, and asked the Working Group to present to the General Assembly a proposal on elements which should be contained in an international legal instrument. This Resolution was not widely supported, with 118 countries abstaining from the vote on the resolution (including the EU, Australia, China, Japan, India, and many African and Asian countries). Very few countries voted against the resolution – the US, Canada, Israel, Sudan and the Seychelles. The countries who voted in favour were the Latin American states (except Uruguay who abstained), African states (including South Africa, Mali, Malawi, Ethiopia, Eritrea, Egypt, Senegal, Guinea, Gabon and Congo), and Asian States (Kazakhstan, Turkmenistan, Tajikistan, Bangladesh, Vietnam, North Korea, Cambodia, Thailand, Malaysia, Indonesia).

Member States and civil society were asked in May 2013 to make submissions to the Secretariat of the Open-Ended Working Group prior to the fourth session on the issue of what should be contained in a binding international legal instrument, The Resolution also called on the OHCHR to prepare a compilation of existing legal instruments which directly or indirectly address the situation of older persons. This document was prepared in advance of the fourth session and is available here.

Member States Positions

Member States positions in the fourth session in general reflected their voting in the General Resolution. Other countries which were negative about the potential of a Convention included Albania, Switzerland, the Netherlands, China and Japan, as well as the EU. Those opposed, as in previous sessions, cite the fact that there are no normative gaps in current international human rights instruments, which already cover older people, that there are only implementation and monitoring gaps, which can be fully addressed by strengthening existing mechanisms, requesting thematic studies from special mechanisms, using the Universal Periodic Review more effectively, and making better use of the Madrid International Plan of Action on Ageing. Other opposition arguments included the current over-burdened nature of the UN Treaty Body system, and the financial implications of drafting a new treaty, and establishing a new treaty body mechanism. These kinds of arguments were discredited in the drafting process for the Convention on the Rights of Persons with Disabilities (CRPD), but still seem to be holding water in this process, despite civil society efforts to counteract these arguments. However, those countries opposed were more open than in previous sessions to explore options for how to address the implementation gap in securing the rights of older persons – for example, to update and revise the UN Principles for Older Persons from 1991.

By and large the Latin American states remain the most positive in support of a Convention, with the Argentinian delegation also playing a key role in developing an OAS Convention on the Rights of Older Persons, and establishing a ‘group of friends of the rights of older persons’ for Member States, meeting separately after the sessions, to discuss possible ways forward in building the case for a Convention.

Participation of Civil Society

More NGOs were present at this session than in previous sessions, but as with previous sessions, many of the organizations are those working with older persons (Dementia South Africa, Alzheimers Disease International, International Association of Homes and Services for the Aged, AGE Platform Europe, Age Action Ireland, the International Association of Gerontologists and Geriatrics, International Federation on Ageing, HelpAge International, Age UK, etc.) rather than organsiations of older persons themselves (with the notable exception of the Gray Panthers). However, the Chair made helpful analogies with the Disability Convention negotiation process, asking civil society organizations to increase efforts to ensure the legitimate voice of older persons was more widely represented, and also requesting Member State delegations to include more representation from civil society organisations on their delegations.

Apart from a representative from the Malaysian National Human Rights Institution, who spoke as an expert on a panel at the plenary session, no other National Human Rights Institutions were present, although the International Coordinating Committee of NHRIs has a focal point on ageing, and sent a written submission to the Open-Ended Working Group. Limited participation from civil society organisations in areas beyond ageing was evident, with only one disability organisation in attendance – the World Network of Users and Survivors of Psychiatry.

Regional Efforts to Strengthen Human Rights of Older Persons

Organisation of American States

The OAS has been drafting a Convention since 2011, and the most recent public draft, led by the Chair of the OAS Working Group from Argentina, from April 2012 is available here. It appears that this draft has subsequently been revised but it is not available online. However, it contains language which is very problematic on legal capacity and independent living, and much less progressive than the CRPD. The US opposes the drafting of an OAS Convention, and very little time and funding was available to facilitate the drafting process. In addition, civil society involvement in drafting was quite limited.

Council of Europe

The Council of Europe Committee on Human Rights has a drafting group on the Human Rights of Older Persons (CCDH-AGE), which has drafted a Recommendation on the Rights of Older Persons. This recommendation was drafted by consensus, and was more open and transparent to civil society participation. AGE Platform Europe participated actively in the drafting process. The draft recommendation available here appears to now be final, and there does not seem to have been any formal involvement in its drafting from the Human Rights Commissioner, Nils Muižnieks, whose office, under Thomas Hammarberg prepared two progressive issue papers on legal capacity and independent living, which are not referenced in the draft recommendation.

This draft recommendation contains problematic statements about ‘incapacity’ of older persons, which undermine Article 12 CRPD. The CRPD Committee made a submission to the Council of Europe on this very issue, available here, but it is not clear whether their concerns can be addressed, as the Recommendations seem to have been finalized through the consensus process, and it is expected to be adopted at the next session of CCDH-AGE on 23-25 September.

African Union

The African Commission’s Working Group on the Rights of Older Persons and People with Disabilities (see here) has also developed a Draft Protocol to the African Convention on Human and People’s Rights on the Rights of Older Persons (and had separately developed a similar Protocol on the Rights of Persons with Disabilities). The draft Protocol is not available online, but a Common Position, which references the Protocol and calls for a new UN Convention, is available here. The Chair of the African Working Group presented an overview of the draft Protocol at the UN working group, but when questions about compliance with the CRPD standards were put to him by civil society (via WNUSP) he was not in favour of universal legal capacity and did not perceive there to be problems with the institution of adult guardianship.

Overall Impression and Possible Next Steps

It appears that the process to develop a new human rights Convention for older persons is slowly moving forward. Even among the States that are currently opposed to any new norm-setting process, a consensus on the need to strengthen the human rights of older persons at international level seems to be emerging.  Now that the 10 year Review of the Madrid International Plan of Action on Ageing has concluded, and its findings demonstrate that it has not had significant impact on change at grassroots level, this is being referred to a little less by member states as an alternative to a Convention. Much will depend on the next session of the Open-Ended Working Group, which is likely to take place in late 2015.

Strengthening the Human Rights of Older Persons: One Step at a Time?

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