Thursday, July 17, 2014

Evolution of Human Rights for Older Persons: Preparation for UN Open-Ended Working Group on Ageing, July 30-Aug.1

On July 30-August 1, the United Nation's Fifth Working Session of the Open-ended Working Group on Ageing will be held in New York City.   Established by the U.N. General Assembly in 2010, the working group's task is to "consider the existing international framework of the human rights of older persons and identify possible gaps and how best to address them, including by considering, as appropriate, the feasibility of further instruments and measures."

One potential result of this process is to frame and seek approval for a Convention (Treaty) on the Rights of Older Persons, a process which was used successfully, for example, with the U.N.'s Convention on the Rights of Persons with Disabilities (CRPD)

The question of a Convention on rights of older persons was a hot topic during the 2014 International Elder Law and Policy Conference hosted by John Marshall Law School in Chicago.  A number of participants and observers described key moments leading to the present status on international recognition of the rights of older people.  Several commented on the prospects for eventual passage of a Convention. Listening to multiple perspective was an educational experience for those not yet steeped in the world of international law and ageing policy and I'll do my best here to provide a concise overview from my notes at the Conference.

Professor Israel ("Issy") Doron from the University of Haifa, a keynote speaker with long experience specifically focused on international human rights for older persons, described the journey that began in the mid-1970s.  The first steps led to a first World Assembly on Ageing in 1982. Known as the Vienna Assembly, the body issued a report with 62 recommendations for action (VIPAA 1982), a report that was unanimously approved by the 124 (then) member states in the United Nations.  Optimism was in the air.  Twenty years later, and with several more intervening gatherings to discuss or focus on international ageing rights, there was a Second World Assembly on Ageing in Madrid and a corresponding report (MIPAA 2002).

Professor Doron rexcognized that this extended timeline can be frustrating for some human rights advocates.  Nonetheless, he explained that these steps were important parts of the journey, moving from concern, to concept, to "soft soft law," to "soft law."  A Convention or treaty would be "hard law," and thus perhaps also a hard sell, at least for some nations, including the United States.  The U.S. has a history of resistence to becoming bound by international laws affecting what it views as "domestic" concerns, even if the U.S. often participates in international drafting.

There are lessons to be learned about the journeys taken by advocates for other human rights instruments.  Professor Gerard Quinn from National University of Ireland Galway drew upon the experience of framing the Convention on disability rights, to demonstrate the need to build alliances and to establish a clear reason for an instrument applied to a specific group, such as older persons. National laws can provide models and their existence may help to build support; for example, U.S. law on disability rights paved the way for a key section of the CRPD that recognizes the rights of disabled persons to reasonable accommodations. 

Professor Quinn noted a concern that "thematic" treaties may be seen, wrongly, as standing in isolation, rather than as a component of the human rights structure as a whole.  Thus, it may be important to show how specific international law is necessary to tackle the problem of "invisibility" of affected individuals.  Advocates for a Convention on ageing should also be realistic about the potential for a dichotomy in goals, as where some may emphasize promotion of "autonomy" of individuals while others focus on "protection," a tension that was present during framing of the CRPD.

One of the historical details for the CRPD, that I had failed to appreciate until hearing Professor Quinn, was what he described as "situational support" coming from potentially surprising sources.  He described important support for the CRPD provided by Ireland's Mary Robinson and Mexico's Vicente Fox, with the latter making disability rights a major feature of his campaign for president of Mexico. Who will emerge as key supporters for rights of older persons?

Another important perspective on a Convention on Rights for Older People came from Ervin Nina, Counselor at the Permanent Mission of Albania to the UN, where one of his roles was as Vice Chair of the Open-ended Working Group on Ageing from 2011-2014.  He explained the history of U.N. Resolution 67/139 ("Towards a Comprehensive and Integral International Legal Instrument to Promote and Protect the Rights and Dignity of Older Persons") adopted by the UN General Assembly in December 2012.  Despite "passage" of this resolution that expressly mandates renewed consideration of an international legal instrument, 118 member states abstained from the vote.  Thus the low number of states actually voting in favor of the resolution signaled low support for movement forward on a Convention on the Rights of Older Persons. 

The final keynote speaker was Eilionoir Flynn, Deputy Director of the Centre for Disability Law and Policy and Senior Lecturer at the School of Law at National University of Ireland Galway.  The very articulate Dr.  Flynn addressed the challenge of moving forward, including using the upcoming 5th session of the Open-ended Working Group on Ageing as an opportunity to regain and drive momentum. She urged that civil society organizations, who have seats at the table in New York, need to work together to identify goals and reach consensus, and thus to build working alliances for drafting and passage.

During the Chicago conference, several speakers noted that one potential ally -- or stumbling block -- to adoption of a formal Convention on the Rights of Older Persons may exist in the person of the United Nation's newly appointed "Independent Expert on Older Persons' Rights," Rosa Kornfeld-Matte from Chile.  On the one hand, Ms. Kornfeld-Matte, appointed by the U.N. Human Rights Council on May 8, and someone with deep experience in ageing issues, has the potential to be a catalyst for true change, including adoption of "hard" international law. However, there is also the potential for international momentum to wane while waiting for the "expert's" investigation and recommendations.

Where to go from here?  One of the unique features of the Chicago conference was the decision of the host, John Marshall Law School, to open a deliberative process of its own.  Beginning in the early spring of 2014, many of the participants in the conference met with faculty and staff at the law school via email, video conference and telephone, to create a working template of a "Chicago Declaration on the Rights of Older Persons."  During the two- day meeting in July, drafting sessions were held in parallel to the speaker presentations, organized into five subject matter groups that examined each element of the working template.  The advantage of this approach was to give not just a few U.S. professors a hands-on opportunity to participate, but to obtain input and review from a wide range of faculty, lawyers, social workers, public officials, advocates and interested organizations from more than 15 countries.  At the close of the conference on July 11 we learned that the finalized "Chicago Declaration" (by then in its 10th iteration) will be presented on August 1 at the 5th Session of the Open-ended Working Group on Ageing in New York.  Check the John Marshall Law School website for updates on the final version.  2014 International Elder Law and Policy Conference, Chicago Declaration

From my perspective as a comparative "newbie" to international human rights drafting, the Chicago Declaration was an impressive and comprehensive undertaking.  It was also a lesson in building consensus and making strategic choices, such as whether to emphasize rights of autonomy or balance that focus with concern about protection for older persons.  As one speaker commented, it was an excellent example of engagement, drawing upon academic research skills and international scholarship to tackle real issues in the real world.

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