CYIL Vol. 7, 2016

VERONIKA BÍLKOVÁ CYIL 7 ȍ2016Ȏ Is the Protection of Older Persons in Current Human Rights Law Deficient? Current international human rights law does not encompass any universal instrument that would apply specifically (and exclusively) to older persons. 36 This, however, does not mean that older persons remain outside the scope of application of this law. All general human rights instruments – such as the 1948 Universal Declaration of Human Rights (UDHR) and the 1966 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (ICCPR, ICESCR) – are applicable to them as to any other individuals. Interestingly enough, during the elaboration of the Covenants, the possibility of including a reference to older persons was contemplated. The reference, proposed by India, was supposed to be inserted in Article 9 of the ICESCR relating to the right to social security. The proposal was refuted on the ground that the rights of older persons would be dealt with in a separate convention. 37 Such a convention, however, has never seen the light of the day. Older persons score better under some of the sectoral human rights treaties that grant protection to certain vulnerable groups. Two of these treaties contain a reference to (old) age. The first one is the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In its Article 11, the Convention grants women “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” (par. e, emphasis added). The second, the 1990 International Convention on the Protection of the Rights of All MigrantWorkers and Members of Their Families (ICMW), includes “age” among grounds on which discrimination among migrant workers is prohibited. 38 Although non-discrimination clauses feature in most human rights treaties, none of those adopted before 1990 mentions age. It is nonetheless largely accepted that this omission did not reflect an intention on the part of the drafters to sanction discrimination on the grounds of older age. Rather, the omission resulted from the fact that in the first decades after 1945, “the problem of demographic ageing was not as evident or as pressing as it is now” . 39 36 See also RODRÍGUEZ-PINZÓN, Diego, MARTIN, Claudia, The International Human Rights Status of Elderly Persons, American University International Law Review, Vol. 18, No. 4, 2003, pp. 915-1008. 37 CRAVEN, Matthew C. V., The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development, Oxford: Clarendon Press, 1995, p. 25, ftn. 149. 38 Article 7 of the ICMW reads as follows: “States Parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction of any kind such as to sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status” (emphasis added). 39 UN Doc. E/1996/22, General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons, 8 December 1995, par. 11 (it is noticeable that even the UN Committee on Economic, Social and Cultural Rights describes ageing as a “problem”).

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