The human rights of older persons: A growing challenge

Human Rights Law Review

Volumn 11, Issue 1, 2011, Pages 37-66

  Mégret, Frédéric ^a  

^a MCGILL UNIVERSITY   (Canada)

Author keywords

Age discrimination; Elder rights; Fragmentation of human rights; Older persons; Social and economic rights; Treaties

Indexed keywords

EID: 79951914242     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngq050     Document Type: Article

References (150)

1. For convenience, 'elder persons' and 'elderly' will be the terms generally used. In practice, many terms are used including 'seniors', 'the elderly', 'the aged', the 'third age' or 'older persons'.
2. For an excellent overview, see Rodriguez-Pinzon and Martin, 'The International Human Rights Status of Elderly Persons' (2002) 18 American University International Law Review 915.
3. Implementation of Sections III and IV of the Annex to Human Rights Council Resolution 5/1 of 18 June 2007: Agenda and annual programme of work, including new priorities: The necessity of a human rights approach and effective United Nations mechanism for the human rights of the older person, Working paper prepared by Chinsung Chung, Member of the Human Rights Council Advisory Committee ('Chinsung Chung Report'), 4 December 2009, A/HRC/AC/4/CRP.1, at para 1.
4. For an example from law and economics, see Posner, Aging and Old Age (Chicago: University of Chicago Press, 1995).
5. Nursing older people: constructing need and care.
6. Kalache, Barreto and Keller, 'Global Ageing: The Demographic Revolution in all Cultures and Societies' in The Cambridge Handbook of Age and Ageing (Cambridge: Cambridge University Press, 2005) 30-46.
7. Department of Economic and Social Affairs (DESA) of the United Nations Secretariat, Population Division, Population Ageing 2006 Wall Chart, January 2006, available at: http://www.un.org/esa/population/publications/ageing/ageing2006chart.pdf [last accessed 7 November 2010].
8. This is in part due to the phenomenon of AIDS, which is disproportionately affecting the middle-aged: see Pelaez and Kalache, 'Aging in Developing Countries' (2001) 145 Aging: Culture, Health, and Social Change 145.
9. African Commission on Human and Peoples' Rights, Report of Focal Point on the Rights of Older Persons in Africa, Commissioner YKJ Yeung Sik Yuen, available at: http://www.achpr.org/english/Commissioner's%20Activity/43rd%20OS/Special%20Rapporteurs/rights%20of%20the%20older%20persons.pdf [last accessed 7 November 2010].
10. Mégret, 'The Disabilities Convention Human Rights of Persons with Disabilities or Disability Rights?' (2008) 30 Human Rights Quarterly 494.
11. Mégret, 'The Disabilities Convention: Towards a Holistic Concept of Rights' (2008) 12 International Journal of Human Rights 261.
12. GA Res 217A(III), A/810 91.
13. Contribution from the World Health Organization, 29 March 1993, A/CONF.157/PC/61/Add.8.
14. Interesting calls for such a convention have not come from typical human rights groups, but from actors more associated with social work: see Tang and Lee, 'Global Social Justice for Older People: The Case for an International Convention on the Rights of Older People' (2006) 36 British Journal of Social Work 1135: or gerontology.
15. See Doron and Apter, 'The Debate Around the Need for an International Convention on the Rights of Older Persons' (2010) 50 The Gerontologist 586.
16. And Butler, 'Declaration of the Rights of Older Persons' (2002) 42 The Gerontologist 152.
17. Organisations specialising in ageing have increasingly adopted the idea of a specific convention: see 'Strengthening Older People's Rights: Towards a UN Convention' by INPEA et al. 2010, at 11.
18. Finally, international governmental organisations have increasingly expressed their support. United Nations Division on Economic and Social Affairs Division for Social and Development Programme on Ageing, Report of the Expert Group Meeting 'Rights of Older Persons', 5-7 May 2009.
19. Domestic voices have also remarkably quickly been heard in favour of the initiative: see speech by Elizabeth Broderick, 'Is it Time for a Convention on the Rights of Older People', Australian Human Rights Commission, International Federation of Ageing, Melbourne, 6 May 2010.
20. However, it is important to note that several members of the Advisory Committee, while considering that the issue was worthy of further attention, also noted that talk of a new treaty was precocious: see The United Nations Office at Geneva, 'Advisory Committee Discusses Working Paper on Human Rights of Elderly', 27 January 2010.
21. Second Regional Intergovernmental Conference on Ageing in Latin America and the Caribbean: Towards a Society for All Ages and Rights-based Social Protection (Brasilia Declaration), 6 December 2007, at para 26.
22. Follow-up to the Second World Assembly on Ageing, Report of the Secretary General, 6 July 2009, A/64/127.
23. United Nations Department of Economic and Social Affairs, Division for Social Policy and Development, Programme on Ageing, Report of the Expert Group Meeting 'Rights of Older Persons', 5-7 May 2009, at 18-19.
24. Williams, 'When I'm Sixty Four: Lawyers, Law and Old Age' (2003) 34 Cambrian Law Review 103.
25. Van Bueren, 'The Protection of the Human Rights of Older Persons in Europe: A Legal Perspective', in International Symposium on the Rights of Older People, January 2009, at 8, available at: http://www.globalaging.org/elderrights/world/2009/humanrightseurope.pdf [last accessed 7 November 2010].
26. Detrick, A Commentary on the United Nations Convention on the Rights of the Child (The Hague: Martinus Nijhoff Publishers, 1999) at 58-60.
27. And Bytheway, 'Ageism and Age Categorization' (2005) 61 Journal of Social Issues 361.
28. For a very interesting history of the concept of 'old age' as a byproduct of, in particular, evolving medical knowledge, see Silva, 'Da velhice a' terceira idade: o percurso histórico das identidades atreladas ao processo de envelhecimento' (2008) 15 História, Ciências, Saúde-Manguinhos 155.
29. 1577 UNTS 3.
30. Chiu et al., 'Age Stereotypes and Discriminatory Attitudes towards Older Workers: An East-West Comparison' (2001) 54 Human Relations 629.
31. Patterson and Malley-Morrison, 'A Cognitive-Ecological Approach to Elder Abuse in Five Cultures: Human Rights and Education' (2006) 32 Educational Gerontology 73.
32. And Kosberg and Garcia, 'Common and unique themes on elder abuse from a world-wide perspective', in Elder Abuse-International and Cross-Cultural Perspectives (New York: Haworth Press, 1995) at 183.
33. Stoller and Gibson, Worlds of Difference: Inequality in the Aging Experience (Thousand Oaks: Pine Forge Press, 1999).
34. Doron and Apter, 'The Debate around the Need for an International Convention on the Rights of Older Persons' (2010) 50 The Gerontologist 2.
35. Tepe and Vanhuysse, 'Are Aging OECD Welfare States on the Path to the Politics of Gerontocracy? Evidence from 18 Democracies, 1980-2002' (2009) Journal of Public Policy.
36. And Maddox, 'Will Senior Power Become a Reality?' (1978) Aging into the 21st Century: Middle-Agers Today 185.
37. Meyer, Street and Quadagno, 'The Impact of Family Status on Income Security and Health Care in Old Age: A Comparison of Western Nations' (1994) 14 International Journal of Sociology and Social Policy 53.
38. Street and Cossman, 'Greatest generation or greedy geezers? Social spending preferences and the elderly' (2006) 53 Social Problems 75.
39. The evidence suggests, for example, that the elderly are almost indistinguishable from other age cohorts in terms of their attitude towards old age issues: see Day, What Older Americans Think: Interest Groups and Aging Policy (Princeton: Princeton University Press, 1990).
40. 78 UNTS 227, entered into force 12 January 1951.
41. Michalsen and Reinhart, "'Euthanasia": A Confusing Term, Abused Under the Nazi Regime and Misused in Present End-of-Life Debate' (2006) 32 Intensive Care Medicine 1304.
42. Friedlander, The Origins of Nazi Genocide: From Euthanasia to the Final Solution (Chapel Hill: University of North Carolina Press, 1995).
43. Gallagher, By Trust Betrayed: Patients, Physicians, and the License to Kill in the Third Reich (New York: H. Holt Publishers, 1990) at 139.
44. Lang, 'Abandoned Elderly Population, A New Category of People Suffering in War' (1997) 19 Journal of Public Health Medicine 476.
45. Ngo, 'When Disasters and Age Collide: Reviewing Vulnerability of the Elderly' (2001) 2 Natural Hazards Review 80.
46. Wilkinson et al., 'Vulnerability to Winter Mortality in Elderly People in Britain: Population Based Study' (2004) 329 British Medical Journal 647.
47. GA Res 61/106 Annex 1, 13 December 2006, A/61/106.
48. Kite and Wagner, 'Attitudes toward Older Adults', in Nelson (ed), Ageism: Stereotyping and Prejudice Against Older Persons (Cambridge: MIT Press, 2002) 129.
49. Kohn, 'Outliving Civil Rights' (2009) 86 Washington University Law Review 1053.
50. Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), Ch 11.
51. Human Rights Act 1998 (Designated Derogation) Order 2001 [United Kingdom of Great Britain and Northern Ireland], Statutory Instrument 2001 No 3644,13 November 2001, available at: http://www.unhcr.org/refworld/docid/46e5564f2.html [last accessed 8 November 2010].
52. GA Res 37/51, 3 December 1982, A/Res/37/51.
53. GA Res 47/5, 16 October 1992, A/RES/47/5.
54. GA Res 49/91, 16 December 1991, A/RES/46/91.
55. (2000) 39 ILM 7.
56. Fagan, 'An Analysis of the Convention on the International Protection of Adults' (2002) 10 Elder Law.
57. Journal 334.
58. General Comment 6: Rights of older persons, E/C.12/1995/16/Rev.1 (1995); 3 IHRR 253 (1995), at para 14.
59. Report of the Second World Assembly on Ageing, Madrid, 8-12 April 2002, A/CONF.197/9 Annex II at 5.
60. And Sidorenko and Walker, 'The Madrid International Plan of Action on Ageing: from conception to implementation' (2004) 24 Ageing and Society 147.
61. Article 9, International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3; and General Comment 19: The right to social security (art. 9), 4 February 2008, E/C.12/GC/9; 15 IHRR 605 (2008), at para 15. See also Article 25 (1), Universal Declaration of Human Rights 1948, GA Res 217 A(III), A/810 91.
62. ETS 177, 8 IHRR 300 (2000).
63. 2000/C 364/01.
64. Case C-388/07 R, The Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] IRLR 373.
65. ETS 163.
66. The Banjul Charter, CAB/LEG/67/3 rev. 5; 1520 UNTS 217. See also Article 6, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ('Protocol of San Salvador'), 17 November 1988, OAS TS69.
67. GA Res 61/106, 13 December 2006, A/RES/61/106 Annex 1.
68. 1990, 2220 UNTS 93; 12 IHRR 296 (2005).
69. CEDAW, Concept note on the draft general recommendation on older women and protection of their human rights, 12 May 2009, CEDAW/C/2009/II/WP.1/R.
70. Final Communiqué of the 45th ordinary session of the African Commission on Human and People's Rights held in Banjul, The Gambia, 13 to 27 May 2009, EX.CL/5 29(XV), at para 31, available at: http://www.achpr.org [last accessed 12 January 2011].
71. Scheinin, 'The Right to Social Security', in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook, 2nd edn (The Hague, The Netherlands: Kluwer Law International, 2001).
72. International Conference on Population and Development, Chapter VI(C), (Draft) Programme of Action of the Conference, 13 May 1994, A/CONF.171/L.1.
73. For example, Article 50 of the Spanish Constitution 1978 ('The public authorities shall guarantee, through adequate and periodically updated pensions, a sufficient income for citizens in old age'); and Article 45(4.1) of the Irish Constitution 1937 ('The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged').
74. See also, International Labour Organization, Convention No 102 concerning Social Security (Minimum Standards) 1952, 210 UNTS 132; and Convention No 128 concerning Invalidity, Old-Age and Survivors' Benefits 1967, 699 UNTS 185.
75. Madzingira, 'Poverty and Ageing in Zimbabwe' (1997) 12 Journal of Social Development in Africa 5 at18.
76. This issue is further discussed below in the discrimination context.
77. Daniels, Just Health Care (Cambridge: Cambridge University Press, 1985).
78. Eglit, 'Health Care Allocation for the Elderly: Age Discrimination by Another Name?' (1989) 26 Houston Law Review 813.
79. 'Elderly US killer is put to death', BBC News, 17 January 2006, available at: http://news.bbc.co.uk/1/hi/4617902.stm [last accessed 8 November 2010].
80. Brogden, Geronticide: Killing the Elderly (London: Jessica Kingsley Publishers, 2001).
81. Lachs et al., 'The Mortality of Elder Mistreatment' (1998) 280 The Journal of the American Medical Association 428.
82. There have been a number of cases in recent years involving the killing of elderly and extremely vulnerable patients in homes: see, for example, Wainwright, 'Nurse Who Killed Four Elderly Patients Jailed for Life', The Guardian, 5 March 2008, available at: http://www.guardian.co.uk/society/2008/mar/05/nhs.ukcrime [last accessed 5 March 2010].
83. Dodov v Bulgaria 47 EHRR 41.
84. Williams, 'The Rationing Debate: Rationing Health Care by Age: The Case For' (1997) 314 British Medical Journal 820.
85. Doyal and Wilsher, 'Withholding and Withdrawing Life Sustaining Treatment from Elderly People: Towards Formal Guidelines' (1994) 308 British Medical Journal 1689.
86. Annas and Glantz, 'The Right of Elderly Patients to Refuse Life-Sustaining Treatment' (1986) 64 The Milbank Quarterly 95.
87. Battin, 'Age Rationing and the Just Distribution of Health Care: Is there a Duty to Die?' (1987) 97 Ethics 317.
88. Zdenkowski, 'The International Covenant on Civil and Political Rights and Euthanasia' (1997) 20 University of New South Wales Law Journal 170.
89. And Ren and Cao, 'Euthanasia from the Right to Life Perspective' (2007) 3 Asian Social Science 35.
90. Pretty v United Kingdom 2002-III; 35 EHRR 1.
91. Ife, Human Rights and Social Work: Towards Rights-Based Practice (Cambridge: Cambridge University Press, 2001).
92. Jeary, 'Sexual Abuse of Elderly People: Would We Rather Not Know the Details?' (2004) 6 The Journal of Adult Protection 21.
93. Humber and Almeder, Is there a duty to die? (Totowa: Humana Press Inc, 2000).
94. Mouisel v France 2002-IX; 38 EHRR 34.
95. Faulkner, 'Mandating the Reporting of Suspected Cases of Elder Abuse: An Inappropriate, Ineffective and Ageist Response to the Abuse of the Older Adults' (1982) 16 Family Law Quarterly 69.
96. See Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas 2008, OEA/Ser/L/V/II.131 doc. 26 (approved by the Inter-American Commission during its 131st regular period of sessions held 3-14 March 2008).
97. HM v Switzerland 2002-II; 38 EHRR 17.
98. JE v DE (2006) EWHC 3459 (Fam).
99. See particularly Olmstead v L.C. ex rel. Zimring 119 U.S. 2176 (1999).
100. McBryde Johnson and Bowers, 'Civil Rights and Long-Term Care: Advocacy in the Wake of Olmstead v. L.C. ex Rel. Zimring' (2002) 10 Elder LawJournal 453 at 460.
101. See, for example, York, 'Conservatorship Proceedings and Due Process: Protecting the Elderly in Tennessee' (2005-2006) 36 University of Memphis Law Review 491.
102. See, for example, Doron, 'Aging in the Shadow of the Law - The Case of Elder Guardianship in Israel' (2004) 16 Journal of Aging & Social Policy 59.
103. Süssmann v Germany 1996-IV; 25 EHRR 64.
104. Jablonská v Poland Application No 60225/00, Merits, 9 March 2004, at para 39. See also Dewicka v Poland Application No 38670/97, Merits, 4 April 2000, at para 55: ('The Court agrees that what was at stake in the litigation in issue was undoubtedly of crucial importance to the applicant. Indeed, her very great age, her disability and the fact that the outcome of the case was of vital significance for her basic human needs, in particular, the need to maintain essential contact with the outside world, required that the domestic courts show special diligence in handling her case').
105. Womack, 'Care Home Separations "May Breach Human Rights"', Telegraph, 4 February 2006, available at: http://www.telegraph.co.uk/news/uknews/1509595/Care-home-separations-maybreach-human-rights.html [last accessed 26 September 2010].
106. Killen, 'Elderly Couple Forced Apart by Red Tape', Nova News, 15 August 2007, available at: www.novanewsnow.com/World/2007-08-15/article-591077/Elderly-couple-forced-apart-byred-tape/1 [last accessed 8 July 2010].
107. And Tozer, 'Heartache of Elderly Couple Forced to Live Apart After 51 Years of Marriage', Daily Mail, 5 October 2006, available at: http://www.dailymail.co.uk/news/article-408815/Heartache-elderly-couple-forced-live-apart-51-yearsmarriage.html [last accessed 28 September 2010].
108. Hunter, 'HSE Keeping Elderly Couple Apart', Irish Health, 23 March 2007, available at: http://www.irishhealth.com/article.html?id=11204 [last accessed 28 February 2010].
109. The British Institute of Human Rights, The Human Rights Act - Changing Lives (London: BIHR, 2007), available at: http://www.bihr.org.uk/sites/default/files/The%20Human%20Rights%20Act%20-%20Changing%20Lives.pdf [last accessed 28 September 2010].
110. Prince, 'Elderly Couples "Can Stay Together in Care", Telegraph, 3 March 2008, available at: http://www.telegraph.co.uk/news/uknews/1580556/Elderly-couples-can-stay-together-in-care.html [last accessed 28 September 2010].
111. Rosofsky, 'Elderly have Right to Sex - Even at Nursing Homes', Miami Herald, 8 September 2009.
112. Essén, 'The Two Facets of Electronic Care Surveillance: An Exploration of the Views of Older People Who Live With Monitoring Devices' (2008) 67 Social Science & Medicine 128.
113. Lemonidou et al., 'Nurses' and elderly patients' perceptions regarding autonomy, privacy and informed consent in nursing interventions in Greece' (2003) 12 Reviews in Clinical Gerontology 191.
114. Faulkner, 'Mandating the Reporting of Suspected Cases of Elder Abuse: An Inappropriate, Ineffective and Ageist Response to the Abuse of the Older Adults' (1982) 16 Family Law Quarterly 69 at 89.
115. For example, section 102.003 of the Texas Human Resources Code anticipates that: 'Any treatments or personal care should be given in private, not in front of an open door.'.
116. Stewart, 'Disenfranchise the Old', The New Republic, 29 August 1970, at 22.
117. Roy, 'Sleeping Watchdogs of Personal Liberty: State Laws Disenfranchising the Elderly' (2003) 11 Elder Law Journal 109.
118. Parijs, 'The Disfranchisement of the Elderly, and Other Attempts to Secure Intergenerational Justice' (1998) 27 Philosophy and Public Affairs 292.
119. Sabbagh, 'Women's Equal Participation in Conflict Prevention, Management and Conflict Resolution and in Post-Conflict Peace-building', Paper submitted to the Commission on the Status of Women, 48th session, 1-12 March 2004 at 7, available at: http://www.un.org/womenwatch/osagi/meetings/2004/CSW48Panel/PD1-Amal%20Sabbagh.pdf [last accessed 7 July 2010].
120. Fay, 'Elderly Electors Go Postal: Ensuring Absentee Ballot Integrity for Older Voters' (2005) 13 Elder Law Journal 453.
121. Kohn, 'Preserving Voting Rights in Long-Term Care Institutions: Facilitating Resident Voting While Maintaining Election Integrity' (2007) 38 McGeorge Law Review 1065.
122. And Schrauben, 'Ensuring the Fundamental Right to Vote for Elderly Citizens in the United States' (2006) 9 Thomas M. Cooley Journal of Practice and Clinical Law 307.
123. Fenge, 'Empowerment and Community Care-Projecting the 'Voice' of Older People' (2001) 23 Journal of Social Welfare and Family Law 427.
124. And Schindler, 'Empowering the Aged-A Postmodern Approach' (1999) 49 The International Journal of Aging and Human Development 165.
125. Andersson, Cultural Gerontology (Westport: Auburn House Publishing Company, 2002).
126. Johnson and Bytheway, 'Ageism: Concept and Definition', in Johnson and Slater, Ageing and Later Life (Thousand Oaks: Sage Publications, 1993) 200.
127. Butler, 'Age-ism: Another form of bigotry' (1969) 9 The Gerontologist 243.
128. Phelan, 'Elder Abuse, Ageism, Human Rights and Citizenship: Implications for Nursing Discourse' (2008) 15 Nursing Inquiry 320.
129. Drury, 'Older Workers in the European Community: Pervasive Discrimination, Little Awareness' (1993) 20 Ageing International 12.
130. And Neumark, 'The Age Discrimination in Employment Act and the Challenge of Population Aging' (2009) 31 Research on Aging 41.
131. (2010) C83 Official Journal of the European Union 47, previously Article 13 of the Treaty Establishing the European Community 2001.
132. (2002) C325 Official Journal of the European Union 33.
133. (2010) C83 Office Journal of the European Union 389.
134. The Age Discrimination in Employment Act was adopted in 1967, and was subsequently amended in 1986 in a way that clearly limited mandatory retirement clauses.
135. See Schuck, 'The Graying of Civil Rights Law: The Age Discrimination Act of 1975' (1979) 89 Yale Law Journal 27.
136. McDougal, Lasswell and Chen, 'The Human Rights of the Aged: An Application of the General Norm of Nondiscrimination' (1976) 28 University of Florida Law Review 639.
137. Kam, 'Empowering Elderly People: A Community Work Approach' (1996) 31 Community Development Journal 230.
138. Justice L'Heureux-Dubé in the Canadian case, McKinney v University of Guelph [1990] 3 SCR 229.
139. McCallum, 'Australian Mandatory Retirement Challenged' (1990) 2 Journal of Aging and Social Policy 183 at 197.
140. And MacGregor, 'Neglecting Elders in the Workplace: Civil Society Organizations, Ageism, and Mandatory Retirement' (2006) 25 Canadian Journal on Aging 243.
141. European Union Council Directive, 27 November 2000, 2000/78/EC.
142. R (Age UK) v Secretary of State for Buisness, Innovation, and Skills [2009] EWHC 2336 (Admin).
143. See the dissenting opinions of L'Heureux-Dubé and McLachlin in the Canadian case, Dickason v University of Alberta [1992] 2 S.C.R. 1103.
144. Levine, Age Discrimination and the Mandatory Retirement Controversy (Baltimore: Johns Hopkins University Press, 1988).
145. The ECJ ruled that the lower-age threshold for a winter fuel benefit discriminated against elderly men: see C-382/98, Taylor v United Kingdom [1998] EHRLR 90.
146. Klassen and Gillin, 'The Heavy Hand of the Law: The Canadian Supreme Court and Mandatory Retirement' (1999) 18 Canadian Journal on Aging 259.
147. See, for example, in Canada, McKinney v University of Guelph [1990] 3 SCR 229.
148. Estes and Binney, 'The Biomedicalization of Ageing: Dangers and Dilemmas' (1989) 29 The Gerontologist 587.
149. Morgan and David, 'Human rights: A new language for aging advocacy' (2002) 42 The Gerontologist 436.
150. Unlike duties that might be imposed on the elderly and would weaken rights claims, duties reasonably imposed on others could be said to reinforce the rights of the elderly, at least to the extent that these rights are meaningless without corresponding obligation.