First Older Persons’ Rights Convention Enters into Force in Americas
The Inter-American human rights system will soon welcome the entry into force of the world’s first binding convention on the rights of older persons. Costa Rica deposited its ratification of the Inter-American Convention on Protecting the Human Rights of Older Persons on December 12, 2016. [OAS Press Release; IACHR Press Release] Costa Rica is the second OAS Member State—following Uruguay—to ratify the Convention, which allows it to enter into force thirty days after Costa Rica’s deposit of ratification. See OAS, A-70 Signatories and Ratifications. While various non-binding principles and monitoring bodies address the human rights of older persons at the regional and universal levels, the Convention is the first treaty to expressly and exclusively protect this population.
The purpose of the Convention is to recognize, promote, and protect the rights of older persons, generally defined as people aged 60 or older, and establishes that as people age they should continue to enjoy and exercise all human rights and fundamental freedoms on an equal basis with other segments of society. To this end, the Convention draws on existing principles established in nonbinding, or soft law, instruments to enumerate 26 protected rights and also establishes a follow-up mechanism to monitor the implementation of the commitments under the Convention, which includes a reporting procedure and the ability of individuals to submit petitions alleging violations of the Convention to the Inter-American Commission on Human Rights (IACHR). See Inter-American Convention on Protecting the Human Rights of Older Persons (adopted 15 June 2015, will enter into force January 2017), A-70.
The Convention lists general principles related to the rights and fundamental freedoms of older persons, with a focus on equality and non-discrimination. See id. at art. 3. Specifically, the Convention provides a definition for “[a]ge discrimination in old age” stating that it is “[a]ny distinction, exclusion, or restriction based on age, the purpose or effect of which is to annul or restrict recognition, enjoyment, or exercise, on an equal basis, of human rights and fundamental freedoms in the political, cultural, economic, social, or any other sphere of public and private life.” See id. at art. 2. Importantly, the Convention calls for equality regardless of age, while simultaneously encouraging the incorporation of a gender perspective to ensure equity and equality. See id. at art. 3.
Further, the Convention emphasizes the dignity, independence, and autonomy of older persons as well as their physical, economic, and social security. See id. It also calls for the respect and appreciation of cultural diversity, effective judicial protection, and proper treatment and preferential care. See id. In applying these principles, the Convention not only places a responsibility on States, but also requests the participation of the family and the community to care for and assist older persons to ensure the “active, full, and productive integration of older persons into society.” See id.
The Convention defines “older persons” as people that are 60 years or older, except when legislation determines an age that is lesser or greater so long as it is not over 65 years. See id. at art. 2.
States Parties’ Obligations
The Convention lists several general duties of States parties. See id. at art. 4. First, States have a duty to adopt measures to prevent, punish, and eradicate practices contrary to the Convention. States must also adopt affirmative measures and make the necessary changes in domestic legislation so that older persons can exercise the rights established in the Convention. See id.
The Convention also places a duty on States parties to use their resources to the full extent possible and commensurate with their level of development to realize the economic, social, and cultural rights outlined in the Convention. See id. at art. 4. Notably, the Convention emphasizes measures that raise awareness and educate society, including encouraging the participation of civil society and promoting the progressive development of institutions that protect older persons. See id. at arts. 4-29. Finally, the Convention places a general duty on States parties to gather accurate information and statistical research data with the purpose of implementing the policies outlined in the Convention. See id. at art. 4.
Articles 5 through 31 of the Convention list the various protected rights of older persons. Importantly, the Convention elaborates on the right of older persons to safety and a life free of violence of any kind; right to receive long-term care; right to work; right to health; right to education; right to housing; and the right to accessibility and personal mobility. See id. at arts. 5-31.
Article 9 addresses the right to safety and a life free of violence of any kind, which includes any act that causes death, physical, sexual, psychological, or financial harm, regardless of whether it occurs in the public or private sphere. See id. at art. 9. In particular, Article 9 highlights the obligation of States parties to actively promote the elimination of practices that affect the dignity and integrity of older women. See id. The Convention places an obligation on States to adopt legislative and administrative measures that will prevent negligence and mistreatment, and that will ensure that older persons are treated with dignity. Specifically, Article 9 requires States to implement effective complaint mechanisms for cases of violence and to strengthen already existing legal and administrative mechanisms. See id.
The rights of older persons receiving long-term care is detailed in Article 12 of the Convention. The article encompasses the right to a comprehensive system of care that promotes the health of older persons, provides social services that cover food and nutrition security, promotes the ability of older persons to live in their own home and maintain their autonomy, and provides services for families and caregivers. See id. at art. 12. To ensure this right is fulfilled, the Convention calls on States parties to establish mechanisms that ensure long-term care services are subject to the free and express will of older persons and that such services have specialized personnel. See id. Additionally, it requires States parties to establish a regulatory framework that ensures access to information for older persons; prevents arbitrary or illegal intrusions in any sphere in which older persons are involved; protects older persons’ personal security, freedom of movement, and their integrity in all aspects of their lives—particularly in acts of personal hygiene. See id.
Article 18 of the Convention elaborates on older persons’ right to work. The right to work encompasses anti-discriminatory policies and procedures that promote more inclusive labor markets guaranteeing the same rights, benefits, and protections to all workers for similar tasks and responsibilities, regardless of age. In particular, Article 18 includes measures that would facilitate the gradual transition into retirement and expand on labor policies that account for the needs and characteristics of older persons. See id. at art. 18.
The Convention distills the right to health, which includes both physical, mental, and social health, for older persons in detail. See id. at art. 19. To ensure the right to health, States parties’ have an obligation to guarantee preferential care and universal, equitable, and timely health care services. See id. The Convention places an emphasis on strategies that foster a healthy aging process, including public policies on the sexual and reproductive health of older persons, palliative care services, and the development of integrated services for older persons with diseases that generate dependency. See id. The right to health, like the right to receive long-term care, also includes a provision ensuring that older persons have access to physical or digital copies of their medical records. See id.
The right to education includes the right to access educational and training programs, placing an emphasis on programs and policies that would eradicate illiteracy among older persons, specifically women and groups in vulnerable situations. See id. art. 20.
The right to housing places an obligation on States to facilitate access to home loans and other forms of financing, as well as to environments that allow for older persons to live in safe and healthy housing, including promoting programs designed to prevent accidents inside and in the vicinity of older persons’ homes. See id. at art. 24. Further, Article 24 emphasizes policies that progressively adapt housing solutions so that they are architecturally suitable for older persons, policies that ensure expedited procedures for complaints regarding evictions, and measures to protect older persons from illegal forced evictions. See id.
Article 26 elaborates on the right to accessibility of the physical, social, economic, and cultural environment, as well as to personal mobility. See id. at art. 26. This article places an obligation on States parties to progressively adopt measures that would allow older persons to live independently and to fully participate in all aspects of life, including an obligation to identify and eliminate barriers to accessibility. See id. This right not only refers to transportation methods, which include roads and other physical facilities, but also to information and communications services, which include electronic and emergency services. See id.
The Convention also expressly protects the rights to: equality and non-discrimination for reasons of age, life and dignity in old age, independence and autonomy, participation and community integration, freedom from torture or inhuman treatment, free and informed consent on health matters, personal liberty, freedom of expression and opinion and access to information, a nationality and freedom of movement, privacy and intimacy, social security, culture, recreation and leisure, property, a healthy environment, political rights, freedom of association and assembly, protection in situations of risk and humanitarian emergencies, equal recognition before the law, and access to justice. See id. at arts. 5-31.
The Convention foresees two processes for monitoring and assessing States parties’ compliance with its provisions.
Article 35 establishes a Committee of Experts composed of individual experts, appointed by States parties, who will be tasked with monitoring and reviewing States’ implementation of the Convention through a periodic reporting process. States parties would be required to submit an initial report on their compliance with the Convention within one year of the Committee’s first meeting and submit follow-up reports every four years after that. The Committee of Experts will be based at the OAS Headquarters in Washington, D.C.
Additionally, Article 36 authorizes individuals, groups of individuals, and non-governmental organizations to submit complaints of allegations of the Convention by a State party to the Inter-American Commission on Human Rights. States parties may also submit a specific declaration recognizing the competence of the Inter-American Commission to hear inter-State complaints under the Convention. The Convention also expressly authorizes States parties to accept the Inter-American Court of Human Rights’ jurisdiction to hear complaints against it involving the Convention.
While there is no other binding treaty on older persons’ human rights, various regional and United Nations initiatives have established relevant principles and monitoring mechanisms. The Convention draws on principles already established in other international nonbinding instruments at the regional and global levels, such as the United Nations Principles for Older Persons (1991), the Proclamation on Ageing (1992), and the Political Declaration and Madrid International Plan of Action on Ageing (2002), as well as regional instruments, such as the Regional Strategy for the Implementation in Latin America and the Caribbean of the Madrid International Plan of Action on Ageing (2003), the Brasilia Declaration (2007), the Plan of Action on the Health of Older Persons, including Active and Healthy Aging (2009) of the Pan American Health Organization, the Declaration of Commitment of Port of Spain (2009), and the San José Charter on the Rights of Older Persons in Latin America and the Caribbean (2012). See id. at Preamble.
At the universal level, the Human Rights Council appointed the first Independent Expert on the enjoyment of all human rights by older persons, Rosa Kornfeld-Matte, in May 2014. The goal of the mandate is to address the specific challenges and vulnerabilities of older persons and to strengthen the protection of their human rights at a time when about 700 million people around the world are over the age of 60. See OHCHR, Mandate of the Independent Expert on the enjoyment of all human rights by older persons. In her latest report to the Human Rights Council, Kornfeld-Matte emphasized the issues of accessibility, education, the right to work, and violence and abuse, among others, that particularly affect older persons.
Additionally, the UN General Assembly established the Open-Ended Working Group on Ageing in 2010 for the purpose of studying a possible universal treaty on the human rights of older persons, but the group’s work is ongoing. See UN, Open-ended Working Group on Ageing for the Purpose of Strengthening the Protection of the Human Rights of Older Persons. Through their general comments and general recommendations, several UN human rights treaty bodies have detailed how more general rights treaties apply to older persons. See OHCHR, Older Persons: International Standards and Principles.
In the African human rights system, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa was adopted in January 2016 but has not come into force. Also within the African regional system, under the African Commission on Human and Peoples’ Rights, the Working Group on Rights of Older Persons and People with Disabilities works to advance the rights of older persons.
The Council of Europe (COE) Committee of Ministers, in 2014, adopted a non-binding Recommendation on the promotion of the human rights of older persons. See COE, Human Rights of Older Persons. While the COE Commissioner for Human Rights does not have a particular focus on older person’s rights, the European Court of Human Rights has addressed this topic in a variety of cases. See ECtHR, Factsheet: Elderly People and the European Convention on Human Rights.
The Organization of American States (OAS) General Assembly adopted the Convention on June 15, 2015. To date, only Costa Rica and Uruguay have ratified the Convention, while Argentina, Bolivia, Brazil, and Chile have signed it. See OAS, A-70 Signatories and Ratifications.