Tuesday, August 23, 2016

The Report of the Independent Expert on the enjoyment of all human rights by older persons has been published

The Report of the Independent Expert (IE) on the Enjoyment of All Human Rights by Older Persons:
 A Short Summary 
by Prof. Israel (Issi ) Doron

In general, this is the comprehensive report of the Independent Expert on the enjoyment of all human rights by older persons, Ms. Rosa Kornfeld-Matte, prepared pursuant to Council resolution 24/20. In the present report, the Independent Expert assesses the implementation of existing international instruments with regard to older persons while identifying best and good practices and gaps in the implementation of existing laws related to the promotion and protection of the rights of older persons. The report also provides an analysis of the human rights implications of the implementation of the Madrid International Plan of Action on Ageing, 2002. The report consists 6 parts:

In Part 1, the Introduction, the reports describes the background of the IE's nomination, its mandate, its relationships with the UN OEWG (Open Ended Working Group) on Ageing. In the introduction, the IE's activities prior to submitting of the report (e.g. participation in various international conferences and cooperation with various organizations) are also described.

In Part 2, a descriptive analysis of existing human rights of older persons in provided. It begins with referring to the demographic shift and aging of human society. It refers to the IE's 1st report which provided an overview of the existing HR instruments and initiatives pertaining to the rights of older persons. Therefore, the present report focuses only on the regulatory and normative developments that have taken place since the completion of the Independent Expert’s previous report. In specific, it mentions the States members of the Organization of American States approved the Inter-American Convention on Protecting the Human Rights of Older Persons; as well as the African Union Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa. It also refers to the adoption of the Sustainable Development Goals by the General Assembly on 25 September 2015 represents an important step forward, as older persons are included directly or by implication in 15 of the 17 global Goals.

In Part 3, an attempt was made to describe best practices and gaps in implementation of existing law. The methodology used by the IE was described as follows: the Independent Expert sent out a questionnaire to States and stakeholders to identify and collect best practices and good practices. As at 2 June 2016, 74 replies had been received, 40 of which had come from States, 14 from national human rights institutions, 19 from non-governmental organizations and 1 from an intergovernmental organization (Art. 26).[1] In summarizing its findings, the IE organized the findings in the following key topics: [For each topic only a few examples are provided in this summary. See the full report for the comprehensive picture]

(1) Legal institutions and policy framework: For example, the IE indicates that A number of countries have adopted national strategies, action plans or specific legislation on older persons, which are sometimes comprehensive in nature or geared towards specific areas such as non-discrimination or the right to health of older persons.  In specific, the IE emphasizes the importance of the engagement and participation of older persons in framing such policies and strategies.
(2) Care: The IE refers to her previous report on this topic. For example, the IE describes initiatives regarding the importance of information, coordination, and medical insurance as key issues. Furthermore, examples around the right to age in place (or at home), the right to care in rural areas, and the challenges of residential and institutional care are also presented.
(3) Social protection: The IE opens with the important statement that Poverty and lack of income security constitute major concerns for many older persons. Social transfers, in particular adequate pensions, significantly contribute to ensuring the financial security of older persons and are a suitable means of reducing the at-risk-of-poverty rate, their vulnerability and social exclusion. The IE then describes the various trends that emerge, including the provision of universal public pensions, providing information and advisory services, and the promotion of resource-generating activities.
(4) The right to work: the IE re-emphasizes that participation in the labour market enhances the self-esteem of older persons, their social inclusion and their financial security. Older workers should enjoy equality of opportunity and treatment in relation to all aspects of work and conditions of employment in all sectors. Within this context the IE touches on the need to change employers attitudes, and to improve career counselling, training, and support to business start-ups in the field.
(5) Equality and non-discrimination: the IE points to the important fact that equality encompasses discrimination on the basis of age, and although many countries have enacted anti-discrimination legislation, ageism remains a major concern for older persons in their daily lives. It is therefore essential that legislation contain an explicit prohibition of direct and indirect discrimination on the basis of age. In specific, the prohibition of discrimination should be broadened to various areas on public life, beyond employment (e.g. accommodation or education).
(6) Violence and abuse: The IE begins with stating that violence against older persons is a global phenomenon. It takes many different forms and there are indications that it occurs frequently in all types of settings. The IE points to the need to establish reliable information and data in this field; the need for national strategies; look not only at the abusers but to support the victims; and the issues of safety and prevention plans.
(7) Participation: The IE points that several countries have established participatory mechanisms, such as national or local councils, to ensure the participation of older persons to guarantee that States develop age-sensitive laws and policies to implement and mainstream access to the required protection.
(8) Adequate standard of living: The IE points specifically to countries which adopted policies and good practices around issues of housing and homelessness.
(9) Access to justice: In specific, referring to the fact that several countries have designed comprehensive policies to facilitate older persons’ access to justice. Measures comprise preferential treatment of older persons in judicial proceedings and the provision of adequate information in an age-friendly manner.
(10)           Education, training and lifelong learning: Lifelong learning is not only a precondition for longer participation in the labour market, it also affects the social integration of older persons. The IE points to a number of countries that have developed lifelong learning programmes for older persons or created third age universities.
(11)            Accessibility: Putting in place age-friendly and barrier-free infrastructures requires the systematic inclusion of accessibility criteria in housing and building codes and in city planning and the human rights compliant involvement of architects and engineers in the design of buildings and public places.
(12)           Awareness-raising and research: The IE points that many States conduct awareness-raising activities, some of which focus on ageing in general to promote a positive attitude towards older persons, or on specific issues such as age discrimination. It also emphasized the importance of collecting traditional knowledge, and the need to promote research on the situation of older persons, and to create partnership between various sectors of society in this field.
In Part 4 the IE moves to assess the human rights implications of the implementation of the Madrid International Plan of Action on Ageing.  Methodologically, a questionnaire-based review of the human rights implications of the implementation of the Madrid Plan of Action was carried out. 103 responses had been received, including 44 from States, and the remainder from national human rights institutions, non-governmental organizations and international organizations. The IE notes that while most national plans of action on ageing were adopted after the adoption MIPAA in 2002, the information received is not conclusive as to the extent to which MIPAA has been used to guide government action or has directly influenced legislative and policy frameworks after 2002. Various examples are given by the IE, as the overall picture is again very diverse. The IE also stresses that MIPAA may have informed government action on older persons and that its adoption correlates with the development and adoption of national plans of action and specific laws and policies in a number of countries. However, where legal and policy frameworks exist, they tend to focus on issues such as care or social protection, without addressing the full spectrum of human rights. [2]

Part 5: Conclusions and recommendation include the following key points:
-            Older persons face a number of particular challenges in the enjoyment of their human rights that need to be addressed urgently.
-            The information received appears to indicate that the implementation of the Madrid International Plan of Action on Ageing may have positive implications for the enjoyment of some human rights by older persons. However, uneven progress with regard to the implementation of the Madrid Plan of Action and gaps between policy and practice remain major constraints.
-            While the Madrid Plan of Action contains a number of references to human rights, it is not a human rights instrument and it addresses ageing issues mainly from a developmental perspective. It has not been designed to comprehensively address existing protection gaps and is therefore not sufficient to ensure the full enjoyment of their human rights by older persons.
-            The Independent Expert calls on States to step up their efforts to determine the best way to strengthen the protection of the human rights of older persons and to consider the various proposals that have been made, notably the elaboration of a convention on the rights of older persons.

1.    The limitation of the report: The IE acknowledges that "in the light of the all-encompassing nature of the mandate, does not claim to exhaustively cover the whole spectrum of challenges faced by older persons in the realization of their human rights" (Art. 7). Moreover, from a purely academic perspective, one can also point to some methodological limitations once describing best practices and gaps in implementation of existing law as well as the assessment of MIPPA (e.g. in both cases, as seen in the reports, the samples are not full [only a quarter of the world's countries responded], and reports from key countries [e.g. China, India or USA] are missing). However, these limitations are inherent to almost any empirical study, and are actually very reasonable within the context of a global study conducted within limited resources.

2.    The strengths of the report: The report is balanced, carefully written, and based on evidence provided directly from both member states as well as civil society. It is not ideological or theoretical in its content but rather grounded on the hard work of the IE collecting information and objectively analyzing it. The IE should be commended for her hard work. Overall, the report supports three key arguments that were hotly disputed in the international arena and during the OEWG deliberations:
          i.          Older persons face unique human rights challenges which are not addressed under existing HR instruments;
        ii.          MIPAA, despite its importance and contribution, is not sufficient in addressing the human rights needs of older persons;
      iii.          While there is some progress and there are various examples of good practices in different countries – in almost all fields of life there are still significant gaps in the awareness, realization, enforcement, and promotion of human rights of older persons.
3.    The bottom line: In her concluding recommendation (Art. 125), the IE states that she: "calls on States to step up their efforts to determine the best way to strengthen the protection of the human rights of older persons and to consider the various proposals that have been made, notably the elaboration of a convention on the rights of older persons." She continues to state that "It is also hoped that the Working Group will in due course present to the General Assembly a proposal containing, inter alia, the main elements that should be included in an international legal instrument to promote and protect the rights and dignity of older persons, which are not currently addressed sufficiently by existing mechanisms and therefore require further international protection." In light of these words, written after an extensive work, the UN OEWG should adopt these recommendations and join forces in moving forward with the promotion a novel and specific Human Rights Convention for the Rights of Older Persons.

Here is a link to the report: