Many regions have in recent years witnessed a drastic improvement in life expectancy, resulting in an increasing number of persons surviving into the advanced stages of life. One out of every ten persons is now 60 years or older. By 2050, it is estimated that one out of five will be 60 years or older and by 2150 one out of three persons. The majority of older persons are women and striking differences exist between regions; for instance, one out of five Europeans is 60 years or older, but only one in twenty Africans.
It is only recently that the attention of the world community has been drawn to the social, economic and political issues related to this phenomenon of ageing on a massive scale. As the world’s population ages and the traditional role of the family as the main support of older people weakens, the elderly are increasingly vulnerable to abuse and various forms of negative stereotyping and discrimination. They often have limited access to health care and face specific age-related restrictions in many fields, such as job discrimination in hiring, promotion and dismissal. Furthermore, as many industrialised countries struggle with the task of adapting their social and economic policies to the ageing of their populations, even in affluent societies many older persons live in conditions of poverty. In developing countries with limited social security systems, the emigration of the younger members has left the elderly, traditionally cared for by members of their families, to fend for themselves. This is especially true in the case of older women who live longer than men do and more commonly face poverty and isolation.
In general, the rights stipulated for the elderly in international instruments stem from the principles of dignity and non-discrimination. Neither the UDHR nor its derivatives, the ICCPR and ICESCR, contain any explicit reference to older persons, but many provisions of these instruments are of direct relevance to ensuring equal opportunities 419 Elderly Persons and the full participation of the elderly. The ICESCR Committee expressly addresses the economic, social and cultural rights of older persons in General Comment 6. In the General Comment, the Committee calls on states parties, inter alia: to pay particular attention to older women as they have often not engaged in a remunerated activity entitling them to an old-age pension; to institute measures to prevent discrimination on grounds of age in employment and occupation; to take appropriate measures to establish general regimes of compulsory old-age insurance; and to establish social services to support the whole family when there are elderly people at home and assist elderly persons living alone or elderly couples wishing to remain at home. The General Comment also sets out that, even though not specified as a prohibited ground for discrimination in the Convention, ‘other status’ could be interpreted as applying to age. It is beyond doubt that the principle of non-discrimination enshrined in the ICESCR, ICCPR, CERD and CEDAW prohibits discrimination on the grounds of age. The CRPD specifically addresses age. In its Preamble, concern is expressed about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination, inter alia, on the basis of age. States parties undertake to adopt immediate, effective and appropriate measures to combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on age, in all areas of life (Article 8). In relation to access to justice for persons with disabilities, states parties shall provide ‘age-appropriate’ accommodation (Article 13) and to ensure freedom from exploitation, violence and abuse, states shall provide ‘age-sensitive’ assistance and support (Article 16).
Three regional human rights instruments expressly mention older persons as a group in need of special protection. In Article 18(4), the African Charter stipulates that the aged shall have the right to measures of special protection in keeping with their physical or moral needs. The Protocol to the African Charter on the Rights of Women in Africa sets out special protection for elderly women. In the Inter-American system, Article 17 Protocol San Salvador stipulates that everyone has the right to special protection in old age and calls upon states to progressively provide suitable facilities, food and medical care for elderly persons who lack them; to undertake work programmes to enable the elderly to take part in productive activity; and to foster establishment of social organisations aimed at improving the quality of life of the elderly. The Revised European Social Charter sets out the right to social protection for the elderly in Article 23. According to this provision states parties undertake to adopt measures: a) to enable the elderly to remain full members of society for as long as possible by providing adequate resources and information about available services; b) to enable the elderly to choose their life-style freely and live independently for as long as possible by providing adequate housing and services; and c) to guarantee support for older persons living in institutions. In addition, the Charter on Fundamental Rights of the European Union (2000) prohibits discrimination on the grounds of age (Article 21) and sets out the right to social security for older persons and the rights of the elderly ‘to lead a life of dignity and independence and to participate in social and cultural life’ (Article 25).
Although no Convention expressly dealing with the rights of the elderly has been adopted - as in the case of women and children - a number of steps towards the improvement of the lives of older persons have been taken under the auspices of the UN.
In 1982, the World Assembly on Ageing adopted the Vienna International Plan of Action on Ageing, the first international instrument on ageing. It was endorsed by UNGA Resolution 37/51. The Plan promotes international co-operation to strengthen the capacities of states to contend with the ageing of populations and to address the developmental potential and dependency needs of older persons. It addresses research, training and education and makes recommendations in the following areas: a) education; b) health and nutrition; c) family; d) protection of elderly consumers; e) income security and employment; f) housing and environment; and g) social welfare.
In 1991, in pursuance of the Plan of Action, the UNGA adopted the UN Principles for Older Persons (Resolution 46/91) encouraging states to adopt certain principles relating to the status of the elderly, promoting independence, participation, care, selffulfilment and dignity of elderly persons. Independence: includes access to adequate food, water, shelter, clothing and health care, as well as the opportunity for remunerated work and access to education and training. Participation: aims for older persons to actively participate in the formulation and implementation of policies that affect their well-being and to share their knowledge with younger generations. Furthermore, the elderly should have the right to form movements and associations. Care: entails that the elderly should benefit from family and health care and that when residing in care or treatment facilities their human rights and fundamental freedoms shall be respected. Self-fulfilment: entails that educational, cultural, spiritual and recreational resources should be available for older persons to be able to pursue opportunities for the full development of their potential. Dignity: aims for the elderly to live in dignity and security and be free of exploitation and physical or mental abuse; to be treated fairly, regardless of age, gender, racial or ethnic background, disability, financial situation or any other status; and be valued independently of their economic contribution.
In 1992, the UNGA adopted the Proclamation on Ageing. The Proclamation, inter alia, urges support for older women and that they be recognised for their contributions to society; older men are encouraged to develop capacities which they may have been prevented from developing during breadwinning years; families should be supported in providing care and all family members encouraged to co-operate in caregiving.
In 2002, the Second World Assembly on Ageing adopted a Second International Plan of Action on Ageing. This plan includes a number of central themes setting out goals, objectives and commitments. These include: a) the full realisation of all human rights and fundamental freedoms of all older persons; b) the achievement of secure ageing; c) empowerment of older persons; d) provision of opportunities for individual development; e) ensuring the full enjoyment of all human rights, and the elimination of all forms of violence and discrimination against older persons; f) gender equality among older persons; g) recognition of the importance of families; h) provision of health care, support and social protection for older persons; and k) recognition of the situation of ageing indigenous persons.
The protection of elderly persons is a topic that is increasingly being addressed by different treaty bodies. Several supervisory bodies are progressively developing the application of their respective instruments to afford protection to this group and now concluding observations frequently offer recommendations on the protection of elderly persons (see, e.g., the Concluding Observations of the Human Rights Committee on Germany (2004); CESCR Committee on Serbia and Montenegro (2005); CEDAW Committee on Iceland (2002); and CERD Committee on Iraq (1997)). The Human Rights Committee has addressed a handful of communications concerning age. In Schmitz-de-Jong v. The Netherlands the author claimed to be a victim of discrimination on the ground of age, because as a 44-year-old she was not entitled to a senior citizen’s partner’s pass, which was only provided to partners of 60 years and older. The Committee found that the age limitation of allowing only partners who have reached the age of 60 years to obtain an entitlement to various rate reductions as a partner to a pensioner above the age of 65 years is an objective criterion of differentiation and that the application of this differentiation in the case of the author was not unreasonable. InSolís v. Peru the Committee found that the age criteria for dismissing the applicant was objective and reasonable and thus did not violate the right to equal access to public service. In Love et al. v. Australia the Committee found that terminating pilots’ contracts upon their reaching 60 years of age, pursuant to a compulsory age-based policy, served the objective and reasonable aim of maximising flight safety and did not constitute discrimination in violation of article 26 ICCPR. In Althammer et al. v. Austria the authors claimed to be victims of discrimination because the abolition of household benefits combined with an increase of children’s benefits affected them, as retired persons, to a greater extent than it affected active employees. The Committee found that the measure was not only detrimental for retirees but also for active employees not yet or no longer having children in the relevant age bracket, and the authors had not shown that the impact of this measure on them was disproportionate. The Committee found, moreover, that the measure was based on objective and reasonable grounds. The Committee thus concluded that the measure did not amount to discrimination as prohibited in Article 26.
The UN Commission for Social Development is responsible for follow-up and appraisal of the implementation of the 2002 International Plan of Action on Ageing. The Commission is to integrate the different dimensions of population ageing as contained in the Plan of Action in its work.
To follow up on the International Plan of Action and the Principles for Older Persons the UNGA proclaimed 1999 the International Year of Older Persons. The theme was ‘A society for all ages’, containing four dimensions: individual lifelong development, multigenerational relationships, the inter-relationship between population ageing and development, and the situation of older persons. The International Year raised awareness and fostered research and policy action worldwide, including efforts to integrate the issue of ageing into all sectors of public life.
At the regional level, there have been interesting decisions, particularly relating to the protection of the social security rights of elderly persons. At the Inter-American level, it is worth mentioning the case of Menéndez et al. v. Argentina (Case No. 11.670). In this case, a group of retired persons alleged that in order to seek an adjustment in their retirement benefits, they had to deal with a cumbersome administrative and judicial system that failed to realise their rights. The fundamental violations alleged derived from delayed judgements and inadequate enforcement of the judgements. The retirees also claimed that their rights to property had been adversely affected, and that the social security system was discriminatory as certain retired persons (members of the legislative and judicial branches, the military and former executive branch officials) were privileged. The petitioners also maintained that their right to health, well-being and life had been adversely affected as the situation had prevented them from buying food, essential services or medicine. The Inter-American Commission declared admissible the petitions in reference to, inter alia, the right to judicial guarantees (Article 8(1) American Convention); property (Article 21); equal protection of the law (Article 24); and effective remedy (Article 25(2)(c)); and of the rights to the preservation of health and well-being (Article XI American Declaration on the Rights and Duties of Man); and to social security, in relation to the obligation to work and contribute to social security (Articles XVI, XXXV and XXXVII).
At the European level, the European Court has dealt with several cases concerning elderly persons. Examples include Dodov v. Bulgaria where the applicant alleged that his mother’s life had been put at risk through the negligence of nursing home staff, that the police had not undertaken all necessary measures to search for his mother after her disappearance and that the ensuing investigation had not resulted in criminal or disciplinary sanctions. In these circumstances, the Court considered that the legal system as a whole, faced with an arguable case of negligent acts endangering human life, failed to provide an adequate and timely response consonant with the state’s procedural obligations under Article 2 (right to life). In Runkee and White v. The United Kingdom the Court ruled in favour of the applicants who claimed a violation of the prohibition of discrimination in conjunction with the right to the protection of property as they, as men, were not entitled to receive benefits equivalent to those available to comparable bereaved women.
The European Court of Justice decided in Taylor v. The United Kingdom that regulations for receipt of winter fuel payment benefits, setting out the age of women entitled to the payment at 60 or over and for men at 65, did not comply with the European Union Council Directive on the progressive implementation of the principle of equal treatment for men and women in matters of social security.