The Protection and Promotion of the Interest of Aged People under International Human Rights Law

I. INTRODUCTION

We are living in a rapidly ageing world today. The number of elderly people is growing at an alarming pace. Ageing of population is primarily the result of reductions in fertility and mortality. The demographic studies indicate that the percentage of older people to the total population is on the rise.[1]

The demographic trends create unique challenges for all people, particularly for the governments of nation-states around the globe. Elderly individuals are often subject to discrimination and abuse because they are perceived as easily taken advantage of. With the number of elderly people on earth at any one time rising rapidly, there is an increased urgency to address the rights and roles of elderly persons in our world.

Large numbers of the world’s older people however, live in poverty, neglect and exclusion. Worldwide, poverty during old age is linked to poor diet, ill health, inadequate housing and isolation. These and other socio-economic reasons make the elderly people an important and major vulnerable group in the society. Older widows are among the poorest and most vulnerable groups in developing countries.[2]

Every day we come across reports of older people being attacked, harassed and isolated by anti-social elements, neighbors and even their families. There are instances of old persons being locked-up, denied food, permission to meet other supportive relatives and access to the telephone and post by their children trying to extort money or property from them. There are several reports of thefts and killings of old people living separately by domestic servants, hawkers and other.[3]

The modern human rights thought envisages an inclusive society for an ageing population and considers older persons as full and equal citizens enjoying full and equal rights. The aim of all national policies on Ageing must address the need to empower elderly persons to take decisions with a view to lead active, creative and satisfying life. We need to again establish human rights culture in our society which would facilitate welfare of this important segment of the population.[4]

In this backdrop an attempt is made to take review of international efforts in the protection and promotion of rights of aged people. The instruments/ documents evolved at international level and how the provisions of the same are working, is there any problem in the adoption and implementation of the same etc. is the province in this paper.

II. DEVELOPMENT OF LAW AT INTERNATIONAL LEVEL

The question of ageing was first debated at the United Nations in 1948 at the initiative of Argentina. The issue was again raised by Malta in 1969. In 1971 the General Assembly asked the Secretary-General to prepare a comprehensive report on the elderly and to suggest guidelines for the national and international action. In 1978, Assembly decided to hold a World Conference on the Ageing. Accordingly, the World Conference on Aging was held in Vienna from July 26 to August 6, 1982 wherein an International Plan of Action on Ageing was adopted. The overall goal of the Plan was to strengthen the ability of individual countries to deal effectively with the ageing in their population, keeping in mind the special concerns and needs of the elderly. The Plan attempted to promote understanding of the social, economic and cultural implications of ageing and of related humanitarian and developed issues. The International Plan of Action on Ageing was adopted by the General Assembly in 1982 and the Assembly in subsequent years called on governments to continue to implement its principles and recommendations. The Assembly urged the Secretary-General to continue his efforts to ensure that follow-up action to the Plan is carried out effectively.[5]  

In addition to above there are some more efforts taken at international level by enacting various documents and instruments having the direct provisions for the protection of interest of aged people. The review of all these have been taken and discussed herein below.

INTERNATIONAL BILL OF RIGHTS

Human Rights are natural rights of every individual, acquired by birth and not given by any law or Constitution. They are essential for all round development of all human beings. The United Nations slogan has been “All human rights for all”. The Second World War gave birth to the United Nations. The UN Charter of 1945 and the Universal Declaration of Human Rights 1948 serve as reference points for modern human rights concept and mechanisms. The Bill of Human Rights consists of the following three documents.[6]

· Universal Declaration of Human Rights, 1948.

· International Covenant  Civil and Political Rights, 1966

· International Covenant on Economic, Social and Cultural Rights. 1966.[7]

The UDHR serves as a guiding document but a force of law and once any Member State of the United Nations ratify them the principles are required to be reflected adequately in the domestic policies, laws and procedure. These two Covenants came into force in 1976. It is an accepted principle of international law that the human rights is a legitimate subject for international scrutiny and the agencies of the governments are obliged to know and implement the provisions in the international standards of human rights.[8]

According to Article 25 of the UDHR “everyone has the right to a standard of living adequate for the health and well being of himself and 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”.

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (1966)

The International Covenant on Economic, Social and Cultural Rights (1966) imposes an obligation on the state with respect to dignity full treatment. It says that each State Party undertakes to respect and to ensure to all individuals rights without distinction of any kind. No one shall be subjected to torture or to cruel, inhuman or degrading treatment. In particular, no one shall be subjected without his free consent to medical experimentation. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. No one shall be subjected to arbitrary or unlawful interference with his privacy, family and home.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1966)

The International Covenant on Civil and Political Rights,1966, prohibits the international gender discrimination in case of employment and imposes obligation on the state that, States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: the right to work; the right to the same employment opportunities; the right to promotion, job security and all benefits and conditions of service; the right to social security, particularly in cases of retirement, sickness, invalidity and old age. States Parties shall eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services. States Parties shall eliminate discrimination against women in rural areas in order to ensure in particular the right to benefit directly from social security programs; to enjoy adequate living conditions."[9]

FIRST WORLD ASSEMBLY ON AGING, 1982

First World Assembly on Ageing in 1982 at Vienna, Austria, observed that increasing number of population is ageing and hence all countries should apply policies to enhance lives of ageing and to allow them enjoy, in mind and body, fully and freely, their advancing years in peace, health and security.

The World Assembly also observed the need to all fundamental and inalienable rights in the UDHR to the ageing and to ensure longevity and quality of life by enabling the ageing to enjoy in their own families and communities a life of fulfillment, health, security and contentment as an integral part of society.[10]

INTERNATIONAL PLAN OF ACTION ON AGING (VIENNA PLAN)

(Endorsed by U.N. General Assembly in 1982)[11]

The plan was aimed at strengthening capacities of the governments and civil society to deal with ageing of populations and to address development potential and dependency needs of older persons.

There were 62 recommendations in this plan of Action covering research, data collection and analysis, training and education, health and nutrition, protection of elderly consumers, housing, environment, family, social welfare, income security, employment, education etc.

U.N. PRINCIPLES FOR OLDER PERSONS, 1991 [12]

The U.N. Principle aim to ensure that, the priority attention will be given to the situation of older persons. The UN principles address the independence, participation, care, self-fulfillment and dignity of older persons.

It provides that, the standards already set by the International Plan of Action on Ageing and the conventions, the World Health organization and other United Nations entities, encourages governments to incorporate the following principles into their national programs whenever possible.

As a part of independence it provides that, older persons should have access to adequate food, water, shelter, clothing and health care through the provisions of income, family and community support and self-help.  Further it provides that, older persons should be able to live in environments that are safe and adaptable to personal preferences and changing capacities.

To confer Dignity, it provides that, older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse. Further it provides that, older persons should be treated fairly regardless of age, gender, racial or ethnic background, disability or other status and be valued independently of their economic contribution.

INTERNATIONAL FEDERATION ON AGEING THE MONTREAL DECLARATION [13]

This document is the result of more than year of deliberations and input from member groups of the International Federation on Ageing throughout the world. A draft was presented and reviewed at the IFA Fourth Global Conference on Ageing in Montreal, Canada. It was officially released and turned over to the United Nations Ageing Unit at the closing plenary session of the Conference on Wednesday, September 8, 1999.

Many older persons throughout the world lack access to the essentials of life as the result of discrimination on the basis of age, disability, ethnicity, race, gender or religion, or because of employment practices and legislative barriers.

Recommended to the United Nations that all National Plans on Ageing:

· Assure the universal access of older persons to economic security, food, healthcare, shelter, clothing and transportation.

· Assure the full participation of older persons in the social, cultural and political life of their communities.

· Assure that the dignity and quality of care for older persons are established, maintained and safeguarded, and that older persons are free from exploitation and mental and physical abuse.

· Assure that employment barriers for older persons are eliminated by the provision of training and work opportunities and appropriate work conditions.

· Strengthen the capacity of the family and community to provide basic care and support for older persons.

· Strengthen opportunities for intergenerational dialogue, exchanges, collaboration and mentoring.

· Incorporate Universal Design principles to assure older persons access to all environments.

· Strengthen the ability of the public, private, voluntary, and non-governmental sectors to work together for the benefit of older persons.

INTERNATIONAL YEAR OF OLDER PERSONS, 1999 [14]

During the year special emphasis was given on

· Situation of older persons,

· Individual life long development,

· Relationship between generations,

· Inter-relationship between ‘Population Ageing’ and ‘Development’

SECOND WORLD ASSEMBLY ON AGING AND POLITICAL DECLARATION (MADRID PLAN OF ACTION)

The Madrid Plan lists 33 objectives and 117 concrete recommendations grouped into 3 priorities[15]:

· Older persons and development

· Advancing health and well being into old age.

· Enabling and supportive environments.

The plan sets out a vision and values for a society for all ages. The plan concludes with a section on implementation and follow-up and calls for changes in attitudes, policies and   practices.

THE TORONTO DECLARATION ON THE GLOBAL PREVENTION OF ELDER ABUSE  (17 November, 2002)[16]

This declaration was devised at an expert meeting, sponsored by the Ontario Government in Toronto, 17 November, 2002.

This declaration is a Call for action aimed at the Prevention of Elder Abuse. The United Nations International Plan of Action adopted by all countries in Madrid, April 2002, clearly recognizes the importance of Elder Abuse and puts it in the frame-work of the Universal Human Rights. Preventing elder abuse in an ageing world is everybody’s business.

III. OTHER INTERNATIONAL DOCUMENTS FOR THE PROTECTION OF RIGHTS OF AGED PERSONS

The following are the international treaties, declarations and commitments that determine standards for the protection of the rights of elderly persons:

Declaration on the Rights of Disabled Persons (1975)

This declaration defines the status of disabled persons. As some elderly persons often suffer from various types of disabilities, the rules established in this declaration are also applicable to them. Disabled people are entitled to all measures designed to assist them in becoming as self-reliant as possible. If a disabled person must stay in an institution for assistance, that individual is entitled to living conditions that come as close as possible to those of other people of the same age.[17]

ILO Recommendation No. 162 concerning Older Workers (1980) This recommendation states that older workers must enjoy equality of opportunity and treatment with other workers without age discrimination, including access to housing, social services and health institutions, particularly when this access is related to occupational activity or employment[18].

Declaration on the Elimination of Violence against Women (1993)

This document’s focus is on violence against women as both a violation of their rights and as an obstacle to achieving equality. It outlines the types of violence often committed against women and brings special attention to groups of women that are particularly vulnerable, including elderly women.[19]

Convention on the Elimination of All forms of Discrimination against Women

This provides “States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order ensure, on a basis of equality of men and women, the same rights, in particular: the right to work; the right to the same employment opportunities; the right to promotion, job security and all benefits and conditions of service; the right to social security, particularly in cases of retirement, sickness, invalidity and old age. State Parties shall eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, eliminate discrimination against women in rural areas in order to ensure , in particular the right to benefit directly from social security programmes; to enjoy adequate living conditions.”[20] 

Cairo Program of Action

It lays emphasis on the welfare of aged people has objectives “to develop systems of health care as well as systems of economic and social security in old age paying special attention to the needs of women; to develop a social support system with a view to enhancing the ability of families to take care of elderly people within the family Governments should seek to enhance the self-reliance of elderly people to facilitate their continued participation in society. In consultation with elderly people, governments should ensure that the necessary conditions are developed to enable elderly people to lead self-determined, healthy and productive live and to make full use of the skills and abilities they have acquired in their lives for the benefit of society and governments, in collaboration with non-governmental organizations and the private sector, should strengthen formal and informal support systems and safety nets for elderly people and eliminate all forms of violence and discrimination against elderly people in all countries paying special attention to the needs of elderly women.”[21]

Copenhagen Declaration

Copenhagen Declaration declares that the State will create action to; Improve the possibility of older persons achieving a better life. Develop and implemented policies to ensure that all people have adequate economic and social protection during widowhood, disability and old age.”[22]

Beijing Platform for Action

Beijing Platform for Action has shown the concern for the older women. It says with the increase in life expectancy and the growing number of older women, their health concerns require particular attention. It also says that disease of ageing and the interrelationships of ageing and disability among women need particular attention. Develop information programs and services to assist women to understand and adapt to changes associated with ageing and to address and treat the health needs of older women. Discrimination in hiring and remuneration, promotion continue to restrict employment, economic professional and other opportunities for women. Actions to be taken: Adopt and implement laws against discrimination based on sex in the labour market, especially considering older women workers, hiring and promotion, the extension of employment benefits and social security and working conditions.”[23]

Habitat Agenda

It declares that older persons are entitled to lead fulfilling and productive lives and should have opportunities for full participation in their communities and society and in all decision-making regarding their well-being especially their shelter needs. Their many contributions to the political, social and economic processes of human settlements should be recognized and valued. Special attention should be given to meeting their evolving housing and mobility needs in order to enable them to continue to lead rewarding lives in their communities. It also says that, the shall promote shelter and support basic services and facilities for education and health for older persons.”[24]

IV REGIONAL INSTRUMENTS FOR PROTECTION OF INTEREST OF OLDER PERSONS

COUNCIL OF EUROPE 

European Social Charter (1961)

This charter indirectly clarifies rights that are applicable to the situations of many elderly people: the need for a system of social security and medical care. European states are obligated under this charter to eradicate, as far as science will currently allow, the sources and conditions of ill-health as well as prevent the spread of disease.[25]

Social Cohesion and Quality of Life (1994)

This recommendation was developed due to concern over the increasing numbers of elderly persons in Europe and their tendency toward social exclusion, particularly the exclusion of elderly women, due to the fact that they tend to outlive men by several years. This recommendation is extremely short. However, the Appendix provides guiding principles for member states to follow when developing policies concerning the welfare of elderly people. Elderly individuals should be able to participate fully in their society and have the resources to enable them to do that. Governments should work to prevent the social exclusion of the elderly. Information on issues pertinent to the elderly should be readily available to them as well as other individuals in their networks of security.[26]

Additional Protocol to the European Social Charter (1998)

Every elderly person is entitled to social protection. Elderly persons should be enabled to remain full participants and contributors to society for as long as possible. They should have ready access to services and resources to make this possible. Elderly persons should retain the right to live freely and retain their independence for as long as they desire or are capable of doing. They should also have access to suitable housing for their needs as well as access to health care. Those aged persons who are institutionalized should be guaranteed any necessary support, but should also have access to privacy and have the right to contribute to decision-making in the institutions in which they are staying.[27]

Future of Senior citizens: protection, participation and promotion

This recommendation was developed after the United Nations declared 1999 the “International Year of Older Persons.” It also recognizes the development of the Group of Specialists on Optimizing the Living Conditions of Elderly Dependent People within the Council of Europe. A couple of heretofore unmentioned concerns about the elderly include those older persons living in rural areas and the extreme disparities between their living conditions. The recommendation also encourages research to be done on the elderly at the national level so that programs can be tailored to the unique challenges of older persons in certain geographical locations. Additionally, it encourages states and local governments to develop new measures for the protection, increased societal participation and creation of a more positive image for the elderly.[28]

EUROPEAN UNION

Charter of Fundamental Rights of the European Union (2000) -- This recent charter recognizes the right of the elderly to live in an independent and respectable manner and be active participants in social and cultural life of member states. In the event of old age, individuals are also secured the right to social security benefits as well as social services.[29]

ORGANIZATION OF AMERICAN STATES (OAS)

American Declaration of the Rights and Duties of Man (1948)

This declaration states that all people have the right to be able to maintain their standard of health within the resources of the community or state. Additionally, in the event of old age, one is entitled to social security in order to maintain an adequate standard of living.[30]

American Convention on Human Rights (1969)

This convention establishes that everyone has the right to humane treatment, which is important, as the elderly are often victims of neglect and abuse.[31]

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988)

Similar to the American Declaration of the Rights and Duties of Man, the this protocol establishes that, in the event of old age, one is entitled to social security in order to maintain an adequate standard of living. Additionally, if this individual is to die, and has dependents, the dependents will receive social security benefits at the time of the individual’s death. Article 17 specifically states that special protection is an entitlement of persons of old age. Elderly persons who cannot provide themselves have the right to acceptable facilities, food and medical care. Also, elderly persons actually have the right, according to this document, to participate in work programs that allow individuals to participate in productive work consistent with their needs and wants. Member states are, furthermore, obligated to aid in the establishment of social organizations created in order to improve the lives of elderly persons.[32]

AFRICAN UNION : African Charter on Human and Peoples’ Rights (1981)

The first charter of the African Union dealing with human rights recognizes the basic, specific right of aged and/or disabled persons to special measures of protection and security according to their needs, both physical and moral.[33]

LEAGUE OF ARAB STATES

Arab Charter on Human Rights (1994)

Every citizen of states in the League has the right to comprehensive social security. Although detail is lacking on rules of implementation for member states, the charter recognizes that member states will also provide care for the aged.[34]

The Cairo Declaration on Human Rights in Islam (1990)

This declaration deals with the basic concerns of many elderly persons and their advocates: security and the means of providing for their basic needs. Everyone has the right to health and medical care within the capability of each state. Everyone has the right to live in security. All are entitled to a means of making a living that will enable each person to provide for food, clothing, medical care and any other basic need.[35]

V. CONCLUSION

The careful study and analysis of all these, demonstrate that, the growing population of aged people is a matter to be great concern of the world community. Hence various efforts appear to have been taken at International Level. These efforts reflect in various documents, conventions and Declarations. Not only the International community is serious with the problems and rights of the aged people, but also it appears that, certain Regional efforts have been made worldwide. These regional conventions and protocol are some special efforts taken at regional level which are in addition to the International documents. Hence perusal of the same reveals that, there is double protection afforded to the aged people at international level and much importance is given to the rights, protection and promotion of the interests of aged people at global level.

In spite of efforts at international level to prepare for the ensuing crisis of our world’s aging population, it is widely recognized that the elderly are often victims of discrimination and abuse and that their unique needs are often not sufficiently met by their governments and communities. Many rights of elderly persons are at stakes, like elderly persons’ right to security, right to healthcare, right to an adequate standard of living, right to non-discrimination, right to participation, right to be free from torture or cruel, inhuman or degrading treatment.

From all above discussion working of these instruments and documents when analyze there appears certain hurdles in the implementation of the same. The main hurdle as per researcher is the different regional arrangements and status, lack of proper infrastructural facilities and co-ordination among the world Community. Secondly, it is important to ratify these conventions by the member States, which is optional and hence not adopted by many States. Third obstacle is the political wish and willingness on the part of government in that State. These obligations and treaties can be implemented only when they converted into municipal law or placed in the local legislation, which is mostly depend upon the party politics. Lastly, there require co-ordination between the states which is not feasible for want of disparities in the cultural financial resources.