ZHANG Wanhong*

 

Abstract: Since its establishment, the United Nations Open-ended Working Group on Aging has shouldered the historical mission of exploring the “possibilities” and even laying the “foundation” for a Convention on the Rights of Older Persons. Although the formulation of a convention on the protection of the rights of older persons has been widely supported by the general public and many countries, it still faces many problems. China should adhere to the combination of “human rights” and “development” and adjust its policies to adapt to the new changes in related fields. With successful case studies, concise expression of rights, and regional contracting practice, China could participate more fully in the reform of the international mechanism for the protection of the rights of older persons to improve the voice in future international human rights governance and make greater contributions to the protection of the rights of older persons worldwide.

 

Keywords: rights of older persons · Convention on the Rights of Older Persons · UN human rights mechanism · international human rights law 

 

The aging of populations has become the most significant population trend in the 21st century. As former United Nations Secretary-General Kofi Atta Annan said in his statement marking the International Day of Older Persons, “We are in the midst of a silent revolution. It is a revolution that extends well beyond demographics, with major economic, social, cultural, psychological and spiritual implications.” However, the social policies in various fields still start from “young people,” implying stereotyped prejudice against older people and the deep-rooted and invisible age discrimination. The elderly suffer from a systemic predicament because of the lack of effective response to the demand their rights be respected.¹ The ongoing COVID-19 pandemic is undoubtedly a brutal example of the predicament of the rights of older persons: fatality rates for those over 80 years of age are five times the global average and they have faced the refusal of medical treatment, violence, and abuse, poverty, impaired welfare, discrimination, and so on.²

 

The protection of the rights of older persons was put on the UN agenda by some insightful people as early as the 1950s. It is clarified in such specialized international documents on the aging problem as the Vienna International Plan of Action on Aging, the Madrid International Plan of Action on Aging, and the United Nations Principles for Older Persons that we should eliminate age discrimination and guarantee the full human rights of older persons. However, “age” and “older persons” haven’t been explicitly mentioned in core human rights conventions while the documents directly mentioning the rights of older persons are “non-binding” “soft law” norms, so the existing UN human rights mechanism is weak in promoting the protection of the rights of older persons. As it is pointed out in the Report of the United Nations High Commissioner for Human Rights to the United Nations Economic and Social Council in 2012, “Current arrangements at the national and international level to protect the human rights of older persons are inadequate. Dedicated measures to strengthen the international protection regime for older persons are called for without further delay.”³ In this context, it has become a consensus among scholars at home and abroad to formulate a Convention on the Rights of Older Persons as a specialized human rights document to safeguard the rights of older persons.⁴ After summarizing the opportunities and challenges of formulating a Convention on the Rights of Older Persons, Liu Huawen pointed out that its drafting and formulation are of great significance for effectively promoting the protection of human rights for older persons and suggested that China should take action to actively participate in the formulation process.⁵ Huang Zhengwei stressed the formulation of the convention as an important measure to improve the protection of the rights of older persons under international law.⁶ He Yanhua believed that the formulation of a comprehensive Convention on the Rights of Older Persons with clear standards will help to more accurately define the specific contents of the human rights enjoyed by older persons, strengthen the protection regime of the rights of older persons, and encourage the public to establish a correct concept of aging.⁷

 

The United Nations has long been aware of the shortcomings of the existing regime for protecting the rights of older persons and has made unremitting efforts to improve it. Notable progress is that a resolution of the General Assembly of the United Nations in 2010 decided to set up the United Nations Open-Ended Working Group on Aging (hereinafter referred to as the “Working Group”). Governments, human rights agencies, and NGOs are extensively invited to share their latest policy measures and practices in the protection of the rights of older persons. On this basis, the possibility of the formulation of an international human rights document for older persons is explored.

 

Today, the working sessions have become the major platform for sovereign countries, the UN agencies, and NGOs to negotiate and debate the formulation of a “new convention.” In this context, this paper takes the previous working sessions as the clue to review the efforts of the Working Group for promoting the formulation of the Convention on the Rights of Older Persons, analyzes their different attitudes and reasons that have prompted the various parties to pursue the formulation of the new convention, and makes suggestions for China to be more active in the process.

 

 

 

In the early days of the UN human rights mechanism in the 1950s, initiatives were proposed to provide special protection for the rights of older persons. In 1948, Argentina submitted the Declaration of Old Age Rights: Draft Resolution to the third General Assembly of the United Nations. According to the draft resolution, “old age rights having the same origin and purpose as other universal social safeguards, are essential for the improvement of the living conditions of the worker and his welfare when his physical strength is at an end, and he is exposed to poverty and neglect.”⁸ It calls on countries to pay special attention to the conditions and needs of older persons while taking actions to protect the universal inherent rights of people and initially extracts the concepts and connotations of the rights of older persons like the right of habitation, the right to work, the right to support, and so on. Although the draft resolution failed to attract the attention of most countries, it could be a precursor to the protection of the rights of older persons in the international community.

 

With the growing “silver wave” around the world, the systemic rights predicament faced by older persons has aroused concern. In 1982, the Vienna International Plan of Action on Aging (hereinafter referred to as the Vienna Plan of Action) was adopted during the First World Assembly on Aging, becoming the first international document of the UN on the aging problem. While focusing on the social development problems caused by the aging population, the document reiterated that the fundamental rights in the Universal Declaration of Human Rights should be fully and faithfully applied to older persons. It was declared that “the health, safety, and welfare of older persons” are the most important goals of the World Assembly on Aging. As for the specific content, the Vienna Plan of Action provides multi-level “action” recommendations around key fields related to the well-being of older persons such as health and nutrition, consumer market, family life, housing rights, social welfare, employment, education, and so on. The Vienna Plan of Action should “be considered an integral component of the major international, regional and national strategies and programs.”⁹ Ten years after the release of the Vienna Plan of Action, the General Assembly of the United Nations adopted the United Nations Principles for Older Persons in Resolution 46/91 in 1991, which elaborates on the five key principles for coping with the challenges of the aging population and social problems related to older persons, covering “independence, participation, care, self-fulfillment, and dignity,” and encourages governments to incorporate the principles into their national programs.¹⁰

 

In 2002, the Second World Assembly on Aging reviewed and reflected on the actions taken by governments for coping with the aging population and the effects since 1982 and adopted the Political Declaration and Madrid International Plan of Action on Aging, 2002 (hereinafter referred to as the Madrid Plan of Action) in response to the new situation of social development. As a bold new agenda to solve the aging problem in the 21st century, the Madrid Plan of Action made a comprehensive adjustment to the past action plan.¹¹ First, the Madrid Plan of Action pays special attention to the aging population of developing countries, changing the traditional view that the aging of the population is a problem only of the developed countries, and provides special recommendations for developing countries to prepare for the aging population in advance. According to the Madrid Plan of Action, developing countries have a large population base and face a fast-growing aging population. It is estimated that three-quarters of older persons worldwide will live in developing countries in the future. The unfair international political and economic order has combined the development problems of developing countries with the challenges of an aging population, bringing more severe challenges to the protection of rights of older persons in developing countries.¹² As a result, developing countries should take measures in advance to prepare for the challenges in the aging-population era. Meanwhile, the international community is encouraged to provide support and assistance to developing countries to help them cope with their aging populations. Second, the Madrid Plan of Action realizes a shift from a “humanitarian” perspective focusing on the well-being of older persons to the perspective of focusing on the rights of older persons. It is clarified in the Madrid Plan of Action that its aim is “to ensure that persons everywhere can age with security and dignity and to continue to participate in their societies as citizens with full rights.” Equality, dignity, and participation are eye-catching terms in the Madrid Plan of Action. For methodology, the Madrid Plan of Action advocates the participatory approach of “including older persons in the decision-making process,” marking the shift from considering older persons as the objects of welfare to the subjects of rights from the perspective of policy. For the contents of rights, the Madrid Plan of Action provides a more detailed interpretation of the aims and direction of rights that should be enjoyed by older persons with “development”, “health” and “environment” as the priorities, covering all core issues such as employment and income, health and nutrition, housing conditions and the environment, social services, nondiscrimination, elimination of harm from violence, and the rights of older persons in crisis, and so on. The Madrid International Plan of Action on Aging has become the foundation for the protection of the rights of older persons by the United Nations in the 21st century, providing a comprehensive and systematic policy framework for governments in formulating relevant laws and policies as well as international cooperation at different levels.

 

As is reiterated during the two sessions of the World Assembly on Aging, the rights stipulated in such human rights conventions as the Universal Declaration of Human Rights are equally applicable to older persons. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the Convention on the Rights of Persons with Disabilities explicitly prohibit discrimination based on “age” or multiple discrimination. Although the issue of older persons was not directly mentioned in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, the general comments adopted by related human rights treaty bodies provide general guidance for the protection of the rights of older persons through the interpretation of relevant provisions in these covenants. For example, it is stressed in the general comment No. 6 adopted by the Committee on Economic, Social and Cultural Rights in 1995 that states parties to the International Covenant on Economic, Social and Cultural Rights are obligated to take actions to ensure the full enjoyment of the rights stipulated in the covenant and provide recommendations on policy-making, international cooperation, and so on. General comment No. 14 specifically refers to the key issues that should be highlighted in prompting older persons to enjoy “the right to the highest attainable standard of health.” In the general comment No. 18 on the right to work and general comment No. 20 on non-discrimination, the committee clarified “the need to take measures to prevent discrimination on grounds of age in employment and occupation.” ¹³

 

However, both the specialized documents on the aging population and the general comments adopted by human rights treaty bodies belong to non-binding “soft law” norms. These soft law norms provide conceptual and methodology guidance for countries, international organizations, and even civil society to work together to promote the protection of the rights of older persons, yet they fail to set legally binding obligations or responsibilities for any subject. Meanwhile, although these documents attempt to clarify the contents of the rights enjoyed by older persons, they fail to provide a systematic and clear index system and evaluation program, let alone establish a reliable evaluation and supervision mechanism, so they can hardly support the international practice for the protection of the rights of older persons. Due to the difference in attitudes and pace, the international rights cause has made limited achievements after decades of development.¹⁴ To reverse this situation, efforts have been made to construct a binding system of standards at the regional level. In Europe, the EU institutions were authorized to take appropriate actions to crack down on discrimination, including age discrimination, in article 13 of the Treaty of Amsterdam in 1997. It is stipulated in article 25 of the EU Charter of Fundamental Rights in 2007 that “the Union recognizes and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.” Under the guidance, EU countries have pushed forward institutional changes in the field of labor and employment to identify and eliminate age discrimination as far as possible.¹⁵ In 2007, the Organization of American States published the Brasilia Declaration, announcing the start of negotiations on the Convention on the Rights of Older Persons in America.¹⁶ In 2009, experts participating in the drafting of the Convention of Human Rights Protection for the Old in the American States held a meeting in Germany, aiming to “provide independent expert advice on the rights of older persons to the General Assembly of the United Nations.” The experts finally proposed for the General Assembly of the United Nations to strengthen the international protection of the rights of older persons from two aspects: (1) establish a Special Rapporteur on the rights of older persons; (2) provide support for the formulation of a comprehensive convention on the rights of older persons.¹⁷

 

 

In 2010, it was decided in Resolution 65/182 of the General Assembly of the United Nations to establish an Open-Ended Working Group on Aging. At the same time, the original mission of the Working Group was clarified, namely “strengthening the protection of the human rights of older persons by considering the existing international framework for the human rights of older persons and identifying possible gaps and how best to address them, including by considering, as appropriate, the feasibility of further instruments and measures.”¹⁸ The initial task of the Working Group was to comb through the international, regional, and domestic legal norms on the protection of the rights of older persons, to identify gaps between the legal mechanisms and the effectiveness of implementation and the targets promised in such documents as the Madrid Plan of Action, and to search for solutions.

 

Based on the achievements of the first three sessions of the Working Group, the General Assembly of the United Nations adopted Resolution 67/139 in 2012. It was clearly announced to establish “a comprehensive and integral international legal instrument to promote and protect the rights and dignity of older persons.” The Working Group was authorized to be “based on the holistic approach in the work carried out in the fields of social development, human rights and non-discrimination, as well as gender equality and the empowerment of women.” It was also decided to consider proposals for an international legal instrument to promote and protect the rights and dignity of older persons and explore “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.”¹⁹ The proposal to establish “a comprehensive and integral international legal instrument” reflects the intention of the General Assembly of the United Nations that the new international legal instrument will become a part of the core human rights conventions of the UN. The Convention on the Rights of Older Persons will enjoy equal status to the conventions on the rights of specific groups such as persons with disabilities, children, and women. The mission of the Working Group was also changed from exploring the “possibilities” into the “main elements” or “possible elements” that should be contained in the exploration of a new instrument. It indicates that the missions of the Working Group cover not only the “discussion on whether to establish an international legal instrument” but also the substantive drafting activities.

 

It can be seen that since its establishment the Working Group has shouldered the mission of laying a consensus foundation for the formulation of the Convention on the Rights of Older Persons and even drafting the instrument. In practice, the United Nations Open-ended Working Group on Aging has cooperated closely with independent experts, the Human Rights Council, and other human rights bodies to explore ways to improve the international regime for the protection of the rights of older persons through the formulation of a new legal instrument or revision of existing legal instruments. It also provides a platform for sovereign states, national human rights institutions, and civil society to consult and communicate on matters related to the new legal instruments. Its meeting process reflects the progress and main direction of the contract parties.

 

 

As a subsidiary body of the General Assembly of the United Nations, the previous sessions of the Working Group and the resolutions of the General Assembly of the United Nations are mutually influencing and reinforcing. On one hand, the authorization of resolutions of the General Assembly of the United Nations is the basis for all the work of the Working Group. The agenda of all the previous sessions of the Working Group should focus on the resolutions of the General Assembly of the United Nations. The changes from the review of the “possibilities” in the 2010 resolution, the exploration of “the main elements that should be included in an international legal instrument” in the 2012 resolution, to the presentation of “best practices, lessons learned and possible content for a multilateral legal instrument, as appropriate” reflect the shift of the specific tasks and working principles of the Working Group.²⁰ On the other hand, the achievements of the sessions of the Working Group also influence relevant resolutions of the General Assembly of the United Nations. Sovereign countries, relevant NGOs, and UN independent experts exchange attitudes and views during the sessions of the Working Group to provide support and feedback for the progress of related issues of the General Assembly of the United Nations. Although the topics and agendas of the eleven sessions of the Working Group have varied, they can be divided into two stages according to the important resolutions of the General Assembly of the United Nations. The first stage covers the six sessions from 2011 to 2015, which mainly discussed the establishment of a comprehensive international legal instrument for protecting the rights of older persons, namely the “possibility” and “necessity” of a Convention on the Rights of Older Persons. The second stage encompasses the sessions after 2016, which avoided the endless debate on the necessity of the formulation of a convention and discussed the normative content of the reform on the legal mechanism to promote substantive progress in the protection of the rights of older persons.

 

 

The formulation of a new international human rights convention and related mechanisms should rely on the wide recognition and support of sovereign countries, so the issue of the “necessity of the convention” should be discussed first at the sessions of the Working Group. The issue covers two aspects: one is that the supporters of the new convention should prove the existence of a “normative gap,” namely that the existing international human rights instruments fail to provide sufficient norms for the protection of the rights of older persons; the other is that the supporters should prove that the new Convention on the Rights of Older Persons would effectively promote the legal protection of the rights of older persons.

 

As mentioned previously, the first three sessions of the Working Group were committed to answering the first question. The participants reviewed efforts worldwide to protect the rights of older persons since the two sessions of the World Assembly on Aging and examined the framework of existing international human rights laws. 

 

After two years of discussions, the participants successfully reached the consensus that there is a huge gap between the reality of protecting the rights of older persons and the commitments made by countries at the two sessions of the World Assembly on Aging. The protection of the rights of older persons is not optimistic in every aspect from age discrimination, abuse, medical care, and independent life to legal relief. The results showed, that “their vulnerability to human rights violations was acknowledged, as was the need to put in place special measures to ensure that they can exercise their rights.”²¹ There are no unified evaluation criteria, or a monitoring mechanism, or data collection system, as well as reliable implementation and supervision mechanisms.²² The representative from the Office of the High Commissioner of Human Rights pointed out that although there are existing mechanisms and regulations, the protection system at the international level seems fragmented and some important issues have not been properly addressed.²³ Another representative noted that there are few instruments and standards that specifically refer to older persons and that there is a lack of appropriate monitoring mechanisms and data collection systems for older persons.²⁴ The lack of monitoring, implementation, and relief mechanisms makes it difficult to turn “rights on paper” into “rights in action. “Although it had been solemnly pledged to provide equal and adequate protection for the rights of older persons during the two sessions of the World Assembly on Aging, the commitment was not fulfilled in the follow-up process.

 

Since the existence of gaps has become a consensus, the exploration of measures to address them has naturally become the theme of the sessions of the Working Group. The positive significance of such international conventions as the UN Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child to the improvement of the measures for protecting the rights of corresponding specific groups by countries around the world is evident. Regional legislative practices such as the Convention of Human Rights Protection for the Old in the American States also inspire and encourage those supporting the protection of the rights of older persons. Naturally, the formulation of a new Convention on the Rights of Older Persons becomes the loudest voice during these sessions. Supporters of the new convention hold that, like the impact of the UN Convention on the Rights of Persons with Disabilities, the Convention on the Rights of Older Persons will officially identify “older persons” in human rights protection, reshape the logic of the aging policy and legal framework, and thus turn older persons from the object of welfare and charity into the subject of rights.

 

It is also stressed in the statement of a representative of NGOs that “new human rights instruments are necessary to not only clarify Government responsibilities toward older women and men and improve accountability but to provide a framework for policy and decision-making.”²⁵ A researcher of age discrimination stressed that a widely recognized human rights convention can clarify the definition and manifestation of the infringement such as age discrimination to provide a more solid norm basis for the fight against age discrimination and multiple discrimination and promote the coordinated development of measures to protect the human rights of older persons, persons with disabilities, women, and so on.²⁶

 

However, the initiative of the new convention was not welcomed by all participants. Although many representatives of sovereign countries acknowledged the existence of the “normative gap,” they held that effective remedy could also be realized through strengthening the implementation of such instruments as the Madrid Plan of Action with existing human rights regimes. For example, the Universal Periodic Review of the Human Rights Council, the evaluation mechanism of the UN 2030 Agenda for Sustainable Development, and relevant human rights regimes can also urge countries to implement their commitments concerning full human rights for older persons.²⁷ It seems unnecessary to formulate new human rights conventions with a complete set of implementation mechanisms. For example, the statement of the United States during the third session was quite representative. “In deliberating on whether or not to support a new convention, we urge member states to consider what new protections this treaty would contain that are not already presented in existing treaties, as the rights articulated in existing treaties apply to older persons as well as younger persons. Furthermore, under the best of circumstances, producing a new convention will take years of negotiation and entry into force. And, as we know, unless a country has ratified a particular convention, it has no obligation under the treaty. Therefore, the US government continues to favor the full exploration of options in addition to that of a new UN Convention on the Rights of Older Persons. We continue to favor actions that review and assess the status of aging in member countries and that effect improvement in older persons’ lives in a timely way.”²⁸

 

It can be said that these comments reflect the concerns and doubts of most representatives of the new convention. First, the existing international human rights regimes seem to protect the rights of older persons from some crossover perspectives. Although older persons face various human rights dilemmas in life, it is more manifested in the failure to implement and ensure the “rights on paper” rather than recognizing the rights. The existing human rights regimes “apply to older persons as well as younger persons,” so it is difficult to say what rights that should be enjoyed by older persons that are not already covered by core human rights conventions. For example, while protecting persons with disabilities, the UN Convention on the Rights of Persons with Disabilities also applies to older persons with reduced perception and mobility difficulties due to increasing age.

 

This view has been refuted by Amna Ali Al-Suwaidi, a representative of the United Nations Committee on the Rights of Persons with Disabilities. She pointed out at the first session of the Working Group that although some rights for the elderly are addressed in the UN Convention on the Rights of Persons with Disabilities, these rights are not written in clear and specific terms and the rights of older persons are addressed from the perspective of disability rather than age, making it difficult to cover all the rights of older persons due to marginalization and exclusion. On this basis, she called for a special convention on the rights of older persons.²⁹

 

Compared with the clear-cut opposition, more representatives showed their hesitation about the new convention by stating that “further discussion and analysis are necessary.” For example, a representative of the United States agreed to discuss the necessity of new measures, such as a UN convention, a Special Rapporteur, an independent expert, or other mechanisms, after the ten-year review of the Madrid Plan of Action, at the second session of the Working Group.³⁰ However, the statements at the third session of the Working Group show that the results of the ten-year review, concluded in 2012, failed to change the minds of these representatives. The vote on the UN resolution on a new convention at the 2012 General Assembly resolution on the new convention also provided a glimpse of the attitude of member states. The resolution on the formulation of a comprehensive international legal instrument for the rights of older persons (namely resolution 67/139) received 54 votes and 5 against while abstentions surpassed more than two-thirds of the total votes. Although the resolution was finally passed, the voting proved to some extent the lack of a common position and the wavering attitude of the member states toward a new convention.³¹

 

While the fact that international human rights regimes fail to provide adequate protection for the rights of older persons had become an indisputable consensus by resolution 67/139³² and many countries had made the solemn commitment to building a “more appropriate international protection framework,”³³ it is obvious that sovereign countries are still hesitant about the pace and way to fulfill their promises.

 

 

If the attitude of the majority of the representatives was vague about formulating the new convention, it would be difficult to make substantive progress. The General Assembly of the United Nations decided to put key issues on the table to promote consensus with debate facing up to the difficulties. Resolution 67/139, adopted by the 67th session of the United Nations General Assembly, clarified the mission of the Working Group: “to consider proposals for an international legal instrument to promote and protect the rights and dignity of older persons,” and to advise the General Assembly on what should be contained in the convention.

 

To this end, the Working Group changed its working principles and adjusted the agenda for the fourth and fifth sessions. Compared with the previous three sessions, the agendas were not only richer and broader but also covered the drafting of the convention. The fourth session increased the themed discussion on the compilation of existing international legal instruments, documents, and programs that directly or indirectly address the situation of older persons and invited relevant representatives to introduce the contracting process for the protection of the rights of older persons in Africa, America, and other regions. The compilation of existing norms and rights protection programs is undoubtedly an important preliminary preparation for the formulation of a new convention and the introduction of existing successful experiences can also show the participants the potential of a new international legal instrument to better protect the rights of older persons. Meanwhile, participating countries were encouraged to discuss with representatives of NGOs and new representative NGOs and civil advocates were included in discussions in the following sessions. Judging from the first three sessions, the vast majority of NGOs and civil advocates had supported and welcomed the formulation of a new convention. In this context, the growing number of civil representatives would become an important lobbying force. From the fifth session, independent experts on the enjoyment of all human rights by older persons began to actively participate in the discussion of the Working Group. There is no doubt that Rosa Komfeld-Matte, an independent expert, was also a supporter of a new convention. Besides, the Working Group began to directly discuss the protection of specific rights and invite participants to share relevant experiences, cases, and practical measures in the fourth session. Excellent experience in the protection of the rights of older persons was explored and there were systematic exchanges on policy, legislation, and practice in the sixth session. The Chair reiterated the historical mission of the Working Group at the fifth session and proposed to continue the work of the Working Group from such aspects as “the identification of the implementation gaps” and “the elements of a new legal instrument.” According to the Chair, “for an increasing number of delegations, however, organizations of civil society and several panelists, the goal of greater protection can be reached only through a specific international legal instrument encompassing the particular human rights of older persons, so as to guarantee their full participation in society and combat stereotypes, discrimination, indifference, abuse, and ill-treatment.” ³⁴

 

Resolution 67/139 of the General Assembly of the United Nations and the following sessions of the Working Group promoted the international community (speciically the sovereign countries) to make their attitude clear on whether to formulate a Convention on the Rights of Older Persons or not. However, the consequence was that many countries replaced the “hesitant” rhetoric with open opposition. For a long time, the most frequently expressed objection was that the rights of older persons could be protected through more effective implementation of existing human rights instruments and related regimes. According to the opponents, core human rights conventions and the implementation regimes also applies to older persons. Covering the rights of older persons from different angles, they provide a binding normative basis for relevant subjects to fulfill their human rights obligations and a very effective supervision mechanism so far. For the special needs of older persons, the Madrid Plan of Action not only clarifies the contents and objectives of the specific rights of older persons but also provides specific and operational guidance for countries to protect the rights. The Madrid Plan of Action and the existing human rights instruments form a mechanism for the protection of the rights of older persons that combines general protection with special protection through both binding and non-binding norms. To improve the protection of the rights of older persons, the top priority should be a better use of existing mechanisms to fulfill the commitments contained in the Madrid Plan of Action and other human rights instruments rather than creating new mechanisms that require significant resources and time. As a representative of the European Union pointed out, all existing human rights conventions involve the rights of older persons and the problem is that although we have an international framework of norms that also apply to older persons, it has not been properly or adequately implemented.³⁵ A representative of Australia stressed at the sixth session that the rights and freedom of older persons are properly protected by the existing human rights treaties of the United Nations and the fulfillment of relevant obligations could be strengthened by improving the reporting mechanism.³⁶ Representatives of the United States and other countries also suggested the flexible adoption of existing mechanisms to address the problems of older persons in specific areas, such as universal regular reviews, special rapporteurs, and so on.³⁷

 

Some representatives also questioned whether the effectiveness of a new convention would justify its potential costs. Some representatives stressed the close connection between the aging population and the social and economic development and cultural background of countries, worrying about whether universal human rights standards and rights programs can adapt to the unique needs of older persons in different cultural backgrounds, demographic structures, and economic situations. As a representative of Japan pointed out, compared to discussing the Convention on the Rights of Older Persons, it is more important for countries to implement the existing framework with a strong political will in the light of the unique situation of each society.³⁸ Some countries expressed worry about the cost of the new mechanism and pointed out that there was indeed a proliferation of instruments and there was no necessity for a new one.³⁹ A new human rights convention and the supporting implementation regimes would inevitably increase the operation costs of the UN Human Rights regime, yet it is unclear whether the benefits would offset the growing costs. For state parties, especially developing countries with limited budgets, increasingly complex United Nations human rights rules are not only difficult to follow, but the participation would also bring a heavier financial burden and thus reduce the ability to fulfill the human rights obligations.

 

Proponents of the convention refuted these opinions from multiple perspectives. For example, while “there are numerous obligations vis-à-vis older persons implicit in most core human rights treaties,” they are merely “implicit” and not explicitly “covered.” Many of the needs of older persons, such as planning for the end of life care, palliative care, and so on, could hardly be covered in the contents of existing human rights instruments. More important, the human rights standards under the existing framework are not only decentralized and weak in binding power⁴⁰ but also inappropriate for the specific context of older persons.41 It is most obvious that anti-discrimination laws, whether based on disability, gender, or race, fail to identify the deep-rooted age discrimination in society.⁴²

 

The existence of existing regimes cannot deny the idea of formulating a new convention. On the contrary, research on existing human rights regimes further demonstrates the existence of “normative loopholes” and “rights gaps,” thus highlighting the need for formulating a new convention. Besides, the protection of any rights needs to take into account the social reality and development level of the country and it is difficult to say that the rights of older persons have a special particularity in this aspect. As for the costs, higher costs are also acceptable if the new convention and regime can help the international community to better protect the rights of older persons. Moreover, the new convention will provide a more systematic decision-making framework to help countries develop more efficient countermeasures for protecting rights, thus reducing the cost of fulfilling the commitments to protect the rights of older persons.

 

We should recognize that too much time, energy, and resources have been wasted in the debate on whether to create a new human rights convention, regardless of the attitude and position. Facing the predicaments of the rights of older persons worldwide like exclusion, discrimination, and indifference, it would undoubtedly be a betrayal of its historical mission if the Working Group continued to wander around in the mire of dualism. Therefore, the Working Group changed its working principle again in accordance with the new resolution in 2015, trying to promote substantive progress in the protection of the rights of older persons in an indirect way.

 

 

In 2015, the General Assembly of the United Nations adopted resolution 70/164, “measures to enhance the promotion and protection of the human rights and dignity of older persons,” reconfirming the fact that the rights of older persons could hardly be properly protected by the existing regimes and trying to coordinate the better implementation of existing regimes and the formulation of a new regime. The resolution first recognizes that the Madrid International Plan of Action on Aging, 2002, remains the only international instrument exclusively devoted to older persons, and that measures toward achieving its objectives should be strengthened. Meanwhile, it encourages member states to continue discussions to explore all alternative measures to improve the protection of the human rights of older persons. To achieve the new tone set out in the resolution, the Working Group has once again changed its working principles to focus on building platforms for sovereign states, international organizations, and NGOs to exchange experience and institutional programs to explore best practices and lessons learned in improving and realizing the rights of older persons. However, the change does not mean the suspension of the discussion on a Convention on the Rights of Older Persons. According to the resolution, the Working Group still shoulders the mission of negotiating for “possible content for a multilateral legal instrument.”⁴³ The Working Group bypassed the frustrating debates over dualism about whether to formulate a new convention and began to seek more substantive results, namely the contents of the normative legal instruments on the rights of older persons and the ways to realize them. Even if the international community fails to reach a consensus on a Convention on the Rights of Older Persons, the discussions on the normative contents could guide legal change at the regional or national level. Therefore, the following sessions of the Working Group also made corresponding adjustments to the agendas and arrangements, which were reflected in two aspects:

 

On one hand, the sessions of the Working Group became more representative by including national human rights agencies and NGOs. In response to resolution 70/163 of the General Assembly of the United Nations,⁴⁴ the seventh session of the Working Group voted to invite national human rights institutions in full accordance with the Paris Principles to participate in the subsequent sessions in 2016. As the first subsidiary of the General Assembly of the United Nations to invite the participation of national human rights institutions, the Working Group has played an important exemplary role in encouraging national human rights institutions to play a greater role in the protection of human rights worldwide. For the issue of the rights of older persons, national human rights institutions can contribute to the discussions during the sessions through their knowledge, experience, and data information to smooth the channels of communication and exchange among sovereign countries on the rights of older persons. On the other hand, more NGOs have been approved to participate in the sessions of the Working Group since 2016. For example, the number of NGOs approved for participating in the 10th session of the Working Group in 2019 reached an unprecedented level of 42.⁴⁵ These NGOs from all over the world have become important intermediaries for older persons to express their needs and propositions in the international community. The extensive participation of NGOs marks that older persons are more actively involved in institutional changes related to their own interests and rights, demonstrating the method of participation and empowerment for the protection of rights with practical actions. Meanwhile, NGOs representing the voice of older persons also constitute a huge driving force for the formulation of a new convention. 

 

As mentioned previously, most NGOs and civilian representatives actively support or advocate for the formulation of a new convention. More importantly, the shift from “main elements” to “possible elements” brought about more substantial progress. Thanks to the comprehensive report of the independent expert to the Human Rights Council, participants had a heated discussion on the lack of norms for the protection of older persons at the seventh session.⁴⁶ In the process, the attitudes of the representatives of some countries began to change. For example, a representative of the United Kingdom expressed the willingness to further consider human rights standards, yet the complexity of the issues should be fully understood because not all problems could be solved through the protection of rights.⁴⁷ On this basis, the Working Group identified the main direction for future sessions to focus on “where further protection of the human rights of older persons is needed” and “elements that need to be better addressed by the international community to allow older persons to fully enjoy their human rights.” Partially inspired by comprehensive reports submitted by independent experts, 14 key areas were determined during the session, including equality and non-discrimination (discrimination based on age); neglect, violence, and abuse; autonomy and independence; accessibility, infrastructure, and habitat; right to health and access to health services; access to justice; social protection and social security; economic security; right to work and access to the labor market; education, training, lifelong learning, and capacity-building; participation in the public life and decision-making processes; social inclusion; contribution of older persons to sustainable development; and long-term and palliative care.⁴⁸

 

Since then, two to three key areas have been selected at each of the following sessions of the Working Group to explore the concepts, principles,standards, and shortcomings of the existing rights protection regimes, exchange ideas, and discuss acceptable methods, measures, and normative experience for reference. The UN High Commissioner for Human Rights and the UN Commission for Social Development compiled Background Analytical Overview Papers and Guiding Questions according to the key areas selected to analyze the core issues in each area, determine the framework for discussions, and provide more effective information for participants.⁴⁹ Based on the framework for discussions, representatives submitted themed reports on the protection of rights and corresponding measures of their countries and discussed the framework with representatives of other countries, national human rights institutions, and NGOs to identify the parts that could not be achieved or covered by the legal regime in their countries and draw the experience of other countries in “repairing” the practice in their countries. After the 12th session ended in April 2022, more than half of the key areas had been covered. It can be said that although the international community has not yet decided to draft a Convention on the Rights of Older Persons, the normative elements of the possible Convention on the Rights of Older Persons or other forms of human rights instruments have gradually become clear and perfected in previous discussions. As some NGOs have observed, delegates may not yet have begun drafting a new UN convention, yet they are undoubtedly doing some fundamental work.⁵⁰

 

Over the 11 years from 2011 to 2022, the Working Group fulfilled its historic mission from two perspectives. On one hand, the Working Group explored the areas where the rights of older persons failed to be protected in the existing framework while commanding the human rights conditions of older persons around the world through constructing the platform for the communication of sovereign countries, and international institutions, and civil society.⁵¹ In cooperation with other UN human rights institutions, the Working Group has gradually identified substantive and normative gaps in the rights of older persons worldwide and addressed to the world the need to change the international protection regime for the rights of older persons. On the other hand, the Working Group explored the plans to improve the rights protection regimes. By pooling wisdom and experience of different countries and fields, it gradually drew out the ideal blueprint for the protection of rights and pushed countries around the world to reach consensus on the form, pace, and specific plan of the reform.

 

 

Over the past 11 years, the Working Group and other relevant United Nations institutions have confirmed that there are real gaps in the enjoyment of rights by older persons and that the rights of older persons have not been adequately guaranteed by existing regimes. The international community is increasingly recognizing that the issue of the rights of older persons has unique features, so different ideas, special regimes, and the integration of the efforts of the whole society are needed to ensure the full enjoyment of rights by older persons. Both the theoretical analysis of the existing normative regimes and the historical review of the development process of the Working Group show that the protection regimes of the rights of older persons under the framework of the United Nations human rights law are undoubtedly undergoing a dramatic reform. In other words, a real protection regime for the rights of older persons is gradually being established. As a developing country with a large aging population, China should seize the historical opportunity to formulate a new international human rights regime and participate in the United Nations Open-ended Working Group on Aging and related activities with a more positive attitude to make a greater contribution to the birth of the new regime, grasp the valuable opportunity of the formulation of new international human rights governance rules, and enhance China’s say and influence in the narrative of human rights.

 

 

As the largest developing country in the world and a country with a large aging population, China has always been paying attention to the aging population and the rights of older persons and actively participating in and fully supporting the reform process of the UN rights protection regime for older persons, including the two world assemblies on aging and the follow-up actions.⁵² China has always taken an active part in all sessions of the Working Group and shared its measures and achievements in addressing the aging population and safeguarding the rights of older persons, demonstrating its position on the future development of the UN regime for the rights of older persons. To be specific, China’s position can be summarized in the following aspects.⁵³

 

China adheres to considering the issues of the aging population and the rights of older persons from a comprehensive and balanced perspective and conveys the concepts and opinions of China on the human rights of elderly persons. China has repeatedly stressed in previous sessions that the aging population is not only a human rights issue but also an issue related to development. The protection of the rights of older persons should be based on the premise of economic and social development. China calls on countries to integrate the issue of the aging population into the overall planning for economic and social development to consider the special needs of older persons in the process of overall social development and ensure the rights of older persons. The Chinese delegation has maintained a consistent position on the human rights of elderly persons.⁵⁴ China emphasizes that equal attention should be paid to individual rights and collective rights and that both the political rights and the economic, social, and cultural rights of the people should be protected to give full play to the role of the country in promoting the protection of the rights of older persons. China supports international cooperation in the protection of the rights of older persons to brave the human rights challenges brought by the aging population.

 

Meanwhile, representatives of China also stressed that differentiated analysis on the protection of the rights of older persons should be made in combination with the social development level and historical and cultural traditions of different countries and has proposed providing the necessary support for developing countries. China mentioned repeatedly in its statements at the sessions of the Working Group that countries should consider their national conditions, make full and rational use of existing regimes and resources, and take feasible measures to strengthen and improve the protection of the rights of older persons.

 

China promotes reform of the international protection regime for the rights of older persons from a pragmatic and prudent standpoint. China appreciated and supported the discussion of the sessions of the Working Group on the shortcomings of the existing regimes and possible remedies and was actively involved in the contracting process for a new convention. In the debate on whether a new convention is needed or not, China took a more cautious neutral stance to avoid further contradictions and opposition. China didn’t express its support or objection to a new convention directly, instead it focused on such fundamental issues as the reality of the protection of the rights of older persons and such substantive issues as how to make action plans under the existing regime and actual situation. It has been the consistent stance of China to promote the work step by step and build consensus gradually, which has become the common position of many other countries.⁵⁵ Judging from the change of the working principles after the seventh session, such a pragmatic attitude is undoubtedly quite forward-looking. It is indeed a path for more substantive progress to avoid the debate creating division and gradually accumulate consensus through sharing experiences and engaging in consultations on fundamental and substantive issues. China has also supported the follow-up actions with concrete efforts. In the statements at the seventh and eighth sessions, the Chinese delegation expressed its long-standing stance and further elaborated on its concepts and experience in the protection of the rights of older persons, such as efforts to reshape the opinion of society on older persons through a more positive approach to aging, to advocate a positive view of aging, the elderly and their life, to guide older persons establish a new view of aging and maintain a healthy mindset and an enterprising spirit to make new contributions to society, and so on.⁵⁶ Based on the practice and experience of China, the Chinese delegation put forward two points for promoting the social participation of older persons, including supporting older persons to delay retirement or start their own businesses, and do volunteer work on the premise of protecting their legitimate rights and interests so that they can continue to make contributions to society in their remaining years, bringing the exemplary influence of their virtuous behavior and fully leveraging the experience and prestige of older persons to ease social friction, maintain social stability, and enhance social harmony, and so on.⁵⁷ To give another example, China shared its experience in pension services to construct the pension services system where the elderly are provided with home care, taken care of by the community, and supported by social services, featuring a combination of nursing at home and mutual help. It provided a preliminary explanation of the Chinese plan for old-age care with the family at the center under the kinship of generations, fully demonstrating the traditional virtue of China to respect and care for older persons and related practical experience. 

 

On the whole, China has always attached great importance to the consultation process for a Convention on the Rights of Older Persons and made great contributions to the smooth progress of the relevant process with a pragmatic and prudent stance and active participation. Nevertheless, the prudent stance could be considered as a “lack of a clear attitude” or “fear of human rights standards” and thus be questioned and criticized. If China hopes to take more initiative in the inevitable changes in the working regime regarding the rights of older persons, it should to actively promote advancing the relevant process with more substantial contributions.

 

 

China should seize the historical opportunity of the reform of the UN regime for the protection of the rights of older persons, participate in the consultation process more actively while upholding its human rights position, publicize its human rights claims to the world, and secure an active position in the future international law regime for the rights of older persons. Based on the key issues reflected in the current process of the working sessions of the Working Group, the author puts forward three suggestions for future participation in the working sessions and relevant mechanisms for China.

 

 

Data and information collection on the protection of the rights of older persons has been repeatedly mentioned at previous sessions of the Working Group. In the first session, the participating members reached a consensus on the importance of data collection. “Significant gaps exist in the protection afforded to the human rights of older persons, including in current data collection... Without these tools, it is harder to ensure effective monitoring and assess the fulfillment of all human rights without discrimination.”⁵⁸ Detailed and comprehensive data and information can systematically show the effect of the existing regimes, highlight the situation of the rights of older persons, prove the existence of rights gaps, and constitute an important factual basis for the international community to formulate new conventions or introduce other regimes. More data and cases are also needed for supporting effective rights protection regimes and comprehensive and systematic rights standards. Being considered an important part of “possible elements” in future human rights instruments, the new system of indicators or standards received particular attention in discussions on important areas such as “equality and non-discrimination”, “autonomy and independence” and so on. The wide application and universal recognition and acceptance of the indicators or standard systems require analysis of massive amounts of data and numerous cases representing different groups. As was concluded in the report of the sixth session, “We are aware that the sustainable development goals are already agreed upon, so what we need now is a framework of indicators that is methodologically sound, relevant, measurable, timely, accessible, and easy to interpret.”

 

The indicators should encompass all population groups and be age-sensitive. We need to disaggregate data and identify the indicators that are more suited to measure specifics relating to older persons.”⁵⁹ It is also pointed out during the visit of independent experts on aging from the UN that “the availability of data and analysis is a requirement for efficient policy design.”⁶⁰ Many researchers have pointed out that older persons are highly differentiated internally and often form a complex overlap with other specific groups. Such factors as gender, region, physical condition, property status, and social relations network not only cause a difference in the realization of individual rights of older persons but also bring differences in the process of the protection of rights.⁶¹ This means that the cases and data as the basis of the standard should not only be rich enough but also be fairly representative.

 

With a large aging population and as the largest developing country in the world, China has its unique advantage in collecting relevant data. Meanwhile, China has the cultural tradition of filial piety and respect for older persons and always attached great importance to the protection of the rights and interests of older persons, so it has a profound historical accumulation and rich practical experience in promoting older persons to participate in the social development. In response to the need for data and information in the process of the reform of the UN regime for the rights of older persons, China could collect, sort, and summarize related data and cases, elaborate on the situation, demands, and measures of China in the protection of the rights of older persons with sufficient empirical evidence, and make the human rights standards more in line with the development of Chinese society and the demand for the protection of rights.

 

 

One of the advantages of the new human rights convention is the ability to introduce new ideas and standards for the law-based human rights system. Many new ideas and concepts, such as participation in decision-making, reasonable convenience, legal competence, and so on, have been introduced into the UN Convention on the Rights of Persons with Disabilities. Belonging to the rights of persons with disabilities, they are also the focus of the protection of the rights of older persons and have become the key areas selected by the Working Group. But in fact, aging and disability are two different states. Older persons have their unique considerations and needs for equal integration into social life. For example, the compulsory retirement system involves the consideration of individual autonomy, the aging effect, generational balance, and so on, which calls for more in-depth assessment and analysis by countries according to the actual situation. The protection of the rights of older persons is also related to new fields that haven’t been covered or attract little attention from the existing conventions on rights, like palliative care, planning for the end of life care, age discrimination, and so on. These issues have distinct practical significance. Although there are many examples in practice, they have not yet been transformed into the discourse of rights. On the other hand, the concept of the rights of older persons is facing such problems as ambiguity in concept, contents, and so on. One of the most frequently mentioned questions is how to define “older person”? “Older person is a complex concept. The definition for older persons varies in different countries, regions, historical periods, religions, and cultural traditions.”⁶² Such issues as how to determine the types and concepts of the subjects of rights, how to define the normative significance and standards of rights, and how to clarify the obligations and responsibilities of all parties, are still to be revealed through in-depth cross-disciplinary research.

 

Today, the reform process of the UN regime for protecting the rights of older persons requires not just the attitudes of support or objection but the substantive opinions on the “main elements” or “possible elements” of the future regime. China should strengthen the human rights perspective in the study of the problem faced by older persons, elaborate on the situation and demand of older persons in China with the discourse of rights, and reiterate the excellent concepts, good practice, and practical experience of China in the protection of the rights of older persons and the promotion of the social participation by older persons with the discourse of human rights, summarize the plan for the protection of the rights of older persons with Chinese characteristics, promote the achievements and concepts of China in human rights protection with solid proof, and provide the Chinese narrative of the protection of the rights of older persons. For example, actively responding to the aging population has become a national strategy. Interpreting the concept, principles, and programs in the strategy of China to respond to the aging population from the perspective of human rights and promoting the combination of China’s strategy and human rights discourse could not only let the whole world learn more about old-age care in China but also promote the international cooperation in the coping with an aging population.

 

 

A new human rights convention, or a widely recognized human rights standard, will hardly be formulated by simply making proposals. It requires long-term or even repeated consultations on the social environment, rights concepts, and analysis of the practical progress of different countries to gradually build up consensus through dialogue and coordination. It is always more difficult to form the broadest consensus. Before the international community reaches an agreement on the rights of older persons, China can seek partners and reach a smaller scale consensus to promote common practice through accumulating experience in regional human rights documents and regimes. 

 

Historically, the establishment of the Working Group was inspired by the regional contracting process.⁶³ In 2015, the Organization of American States adopted the first regional convention dedicated to the protection of the human rights of older persons.⁶⁴ The African Union also adopted the Protocol on the Rights of Older Persons in Africa in 2016. It should be noted that the protocol pays full attention to the reality and practical experience in Africa, including emphasizing the role and responsibilities of older persons in education, regulating community conflicts, and raising orphans. Besides, the European Union also provides a certain framework for the protection of the rights of older persons based on such instruments as the European Social Charter, the EU Charter of Fundamental Rights, and related judiciary mechanisms with emphasis laid on fighting age discrimination and promoting the social integration of older persons. These regional practices of rights protection were valued by the sessions of the Working Group, several of which had thematic forums to discuss these regional experiences. 

 

It is a pity that Asia, with the largest and most dense aging population and the cultural tradition of respecting older persons, has neither reached a broad regional consensus on the rights of older persons nor made effective regional practice. From this perspective, China should be more active in promoting consultations on the protection of the rights of older persons in Asia. Based on shared values, similar history, a common future, and the principle of seeking common ground while reserving differences and building consensus, China should promote regional cooperation in Asia to build a system of rules and standards for the rights of older persons in Asia. In fact, with the implementation of the Regional Comprehensive Economic Partnership, the Asia-Pacific region is facing an unprecedented historical opportunity for cooperation in social services, including services in old-age care. From the perspective of policy and law, there are many similarities between the policies and legal systems in family support, home care services, community care, and health care among eastern Asia countries, such as attaching importance to supporting the capacity building of family caregivers, emphasizing the intergenerational care within families, and so on. From the perspective of historical development, China has always attached great importance to exchanges and cooperation with Japan, the Republic of Korea, Singapore, and other countries in the protection of the rights of older persons. Many good cooperation mechanisms have been formed. Such close relations have laid a good foundation for deeper cooperation. China could start from pension services, elderly medical and health care, tourism for older persons, and other commercial cooperation and promote consultation on the formulation of regional industrial standards for personnel training, service standards, financing channels, and so on, to breed a wider range of consensus in the cooperation of private sectors and lay the foundation for a regional Convention on the Rights of Older Persons in East and Southeast Asia.

 

 

With the accelerating aging population, the aging population is intertwined with the rights issue in an unprecedented form in the 21st century. The application of the human rights discourse has become a necessary condition for China to carry out international cooperation.⁶⁵ China should be more active and deeply involved in the operation and reform of the UN regime for the rights of older persons. While adhering to its consistent position, China should introduce its concepts, system, and plans for the protection of the rights of older persons with more sufficient proof and more convincing reasoning to promote the United Nations process and enhance its voice and influence in the United Nations human rights system.

 

It is not easy, even difficult, to create a comprehensive, systematic, and feasible international regime on the rights of older persons. However, as Alan Cordina, quoted Eleanor Roosevelt in the concluding report of the sixth session of the Working Group, “it is more intelligent to hope rather than to fear, to try rather than not to try. For one thing, we know beyond all doubt: Nothing has ever been achieved by the person who says, ‘It can’t be done’”. On this issue, China has the will and ability to contribute its experience and wisdom to the international cause of the protection of the rights of older persons and be more active in the reform process of the UN regime for the rights of older persons.

 

(Translated by HU Liang)

 

* ZHANG Wanhong ( 张万洪 ), Professor and Executive Director of the Institute for Human Rights Studies at Wuhan University.

 

1. Elizabeth Broderick, “Is it Time for a Convention on the Rights of Older People?” Australian Human Rights Commission.

 

2. Antdnió Guterres, “Secretary-General’s policy brief: The impact of COVID-19 on older persons,” United Nations.

 

3. The United Nations Economic and Social Council: Report of the United Nations High Commissioner for Human Rights, UN.DOC.E/2012/51.

 

4. Israel Doron, a professor of the University of Haifa, has demonstrated the necessity and importance of specialized human rights documents for older persons from multiple perspectives and tried to build a standard system for the rights of older persons based on existing regional conventions. For research achievements, see Israel Doron, Itai Apter, “International Rights of Older Persons: What Difference would A New Convention Make to the Lives of Older People?”, 11 Marqutte Elder Advisor 366 (2010) ; Israel Doron, Itai Apter, “The Debate around the Need for an International Convention on the Rights of Older Persons”, 50 Gerontologist 50 (2010): 588-589; Israel Doron, “From National to International Elder Law”, Journal of International Aging Law 44 (2005); Benny Spanier, Israel Doron, “From Well-Being to Rights: Creating an International Older Pemons’ Human Rights Index” (IOPHRI) , The Elder Law Journal 24 (2017): 245.

 

5. Liu Huawen, “A Preliminary Study on the Formulation of the United Nations Convention on the Rights of Older Persons”, Chinese Yearbook of International Law, 2012.

 

6. Huang Zhenwei, “The Dilemma and Countermeasures of the Protection of Older People’s Rights under International Law”, Theory Monthly 2 (2020).

 

7. He Yanhua, “Protection of the Rights of the Elderly under the Framework of the UN International Human Rights Law”, Human Rights 4 (2019); He Yanhua, Research on the Rational Construction of the Convention on the Rights of Older Persons (Beijing: Law Press·China, 2017).

 

8. “That old age rights having the same origin and purpose as other universal social safeguards, are essential for the improvement of the living conditions of the worker and for his welfare when his physical strength is at an end. and he is exposed to poverty and neglect”, Declaration of Old Age Rights: Draft Resolution, UN DOC. A/C. 3/213.

 

9. The First World Assembly on Aging: Vienna International Plan of Action on Aging, 1982, UN.DOC.A/CONF. 113/31.

 

10. the General Assembly of the United Nations, Implementation of the International Plan of Action on Aging and Related Activities, UNDOC.A/RES/46/91.

 

11. the Second World Assembly on Aging, the Madrid International Plan of Action on Aging, 2002, UN.DOC.A/CONF. 197/9.

 

12. the United Nations Economic and Social Council, the Second World Assembly on Aging: Report of the Secretary-General, UN.DOC.E/CN. 5/2001/PC/2.

 

13. the Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN.DOC.HRI/GEN/l/Rev.9(Vol. 1).

 

14. the United Nations Economic and Social Council: Major Developments in the Area of Aging Since the Second World Assembly on Aging Report of the Secretary-General, UN.DOC.E/CN.5/2007/7.

 

15. Steve Peers, Tamara Hervey, Jeff Kenner et al., The EU Charter of Fundamental Rights: A Commentary (London: Bloomsbury Publishing, 2021).

 

17. United Nations Department of Economic and Social Affairs Division for Social Policy and Development Programme on Aging, “ Report of the Expert Group Meeting” Rights of Older Persons”, Convened in preparation for the report of the Secretary-General to the 64th session of the General Assembly, 5-7 May 2009, Bonn, Germany, page 1.

 

18. the General Assembly of the United Nations, Follow-up to the Second World Assembly on Aging, UNDOC.A/RES/65/182.

 

19. The General Assembly of the United Nations, Towards a Comprehensive and Integral International Legal Instrument to Promote and Protect the Rights and Dignity of Older Persons, UN.DOC.A/RES/67/139.

 

20. The General Assembly of the United Nations, Measures to Enhance the Promotion and Protection of the Human Rights and Dignity of Older Persons, UN.DOC.A/RES/70/164.

 

21. Report of the Open-ended Working Group on Aging at the Second Working Session, UN.DOC.A/AC. 278/2011/5.

 

22. Report of the Open-ended Working Group on Aging at the First Working Session, UN.DOC.A/AC. 278/2011/4.

 

23. Statements by Mr. Craig Mokhiber to First Session of Open-ended Working Group on Aging.

 

24. Statements by Ms. Amna Ali Al-Suwaidi to First Session of Open-ended Working Group on Aging.

 

25. Statement submitted by AARP, “Global Action on Aging,” Help Age International, International Association of Gerontology and Geriatrics, International Federation on Aging and the International Network for the Prevention of Elder Abuse, Non-governmental Organizations in Consultative Status with the Economic and Social Council to 1st Session of Open-Ended Working Group on Aging.

 

26. Israel Doron, Itai Apter, “International Rights of Older Persons: What Difference would A New Convention Make to the Lives of Older People?” Marquite Elder Advisor 366 (2010).

 

27. Statement submitted by Canada to the Seventh Session of the Open-Ended Working Group on Aging.

 

28. Statement of United States to the Third Session of the Open-Ended Working Group on Aging.

 

29. Statements by Ms. Amna Ali Al-Suwaidi to First Session of the Open-Ended Working Group on Aging.

 

30. Statement of United States to Secondnd Session of the Open-Ended Working Group on Aging.

 

31. Report of the Open-ended Working Group on Aging at the Second Working Session, A/AC. 278/2013/2.

 

32. According to Resolution 67/139, “the General Assembly acknowledges that there are numerous obligations vis-à-vis older persons implicit in most core human rights treaties but that explicit references to age in core international human rights treaties are scarce, that there is no such instrument for older persons and that only a few instruments contain explicit references to age. “See Resolution of the General Assembly of the United Nations, Towards a Comprehensive and Integral International Legal Instrument to Promote and Protect the Rights and Dignity of Older Persons, A/RES/67/139.

 

33. Report of the Open-ended Working Group on Aging at the Fifth Working Session, A/AC. 278/2014/2.

 

34. Report of the Open-Ended Working Group on Aging at the Fifth Working Session, A/AC. 278/2014/2.

 

35. Statement by European Union to Fifth Session of the Open-Ended Working Group on Aging.

 

36. Statement by Australia to Sixth Working Session.

 

37. Statement by the United States to Sixth Working Session.

 

38. Statement of Japan to the Seventh Session of the Open-Ended Working Group on Aging.

 

39. Statement by Albania to Third Session of the Open-Ended Working Group on Aging.

 

40. He Yanhua, “Protection of the Rights of the Elderly under the Framework of the UN International Human Rights Law”, Human Rights 4 (2019).

 

41. Paul Harpur, Old Age Is Not Just Impairment: The CRPD and the Need for a Convention on Older Persons, University of Pennsylvania Journal of International Law 37 (2016):1027.

 

42. United Nations Human Rights Council: Report of the Independent Expert on the Enjoyment of all Human Rights by Older Persons, Claudia Mahler, UN.DOC.A/HRC/48/53.

 

43. The General Assembly of the United Nations, Measures to Enhance the Promotion and Protection of the Human Rights and Dignity of Older Persons, UN.DOC.A/RES/70/164.

 

44. Namely the resolution on National Institutions for the Promotion and Protection of Human Rights.

 

45. For details see the General Assembly of the United Nations, Report of the open-ended Working Group on Aging on its 10th working session, UN.DOC.A/AC. 278/2019/2.

 

46. United Nations Human Rights Council: Report of the Independent Expert on the Enjoyment of all Human Rights by Older Persons, UN.DOC.A/HRC/33/44. The report had a positive impact on the sessions of the Working Group in two aspects: first, it analyzed and explained the challenges facing older persons in specific areas of rights and inspired the division and discussion of key areas in the following sessions; second, it analyzed the impact of the Madrid Plan of Action on the protection of rights, noting that it considers the issue of older persons from a developing perspective and is insufficient to ensure the full enjoyment of human rights by older persons no matter it could be implemented or not.

 

47. Statement of United Kingdom to the Seventh Working Session of the Open-Ended Working Group on Aging.

 

48. Report of the Open-Ended Working Group on Aging on its Seventh Working Session, A/AC.278/2016/2.

 

49. The questionnaire in the key area of “equality and non-discrimination” at the Eighth session defined the framework of the discussion from four aspects, namely “constitutional and legal guarantees,” “forms of discrimination against older persons,” “accessibility of services,” and “special measures and differential treatment.” See the Official Website of the United Nations Open-Ended Working Group on Aging.

 

50. Bridget Sleap, “UN member states begin discussing older people’s rights in earnest at the Ninth Open-Ended Working Group,” accessed 17 November, 2020.

 

51. Office of the High Commissioner for Human Rights, “Normative standards in international human rights law in relation to older persons: Analytical Outcome Paper,” August 2012.

 

52. For a historical review of China’s participation in relevant meetings and activities, see Liu Huawen, “Preliminary Study on the Establishment of the United Nations Convention on the Rights of Older Persons”, China Yearbook of International Law, 2012; He Yanhua, Research on the Rational Construction of the Convention on the Rights of Older Persons (Beijing: Law Press·China, 2017).

 

53. the website of the Chinese Permanent Mission to the UN for the related positions of China, accessed November 20, 2020.

 

54. T Zwart, “Contesting through Compliance: How China can Gain More Support for its Human Rights Positions”, translated by Qu Xiangfei, Chinese Review of International Law 1 (2017).

 

55. For example, during the voting for the resolution 67/139, China abstained, which was the common position of 117 countries. See the result of voting at the official website of the UN, accessed November 20, 2020.

 

56. Statement by Counsellor Yao Shaojun of the Chinese Delegation in the General Debate at the Seventh Session of the Working Group on Aging, the website of the Chinese Permanent Mission to the UN, accessed November 20, 2020.

 

57. Ibid.

 

58. Report of the Open-Ended Working Group on Aging at the First Working Session, A/AC. 278/2011/4.

 

59. Report of the Open-ended Working Group on Aging on its First Working Session, A/AC.278/2015/2.

 

60. Visit to China: Report of the Independent Expert on the Enjoyment of all Human Rights by Older Persons, A/HRC/45/14/Add.1.

 

61. This difference and its influence are referred to by researchers as “differential modes of association.” See Huang Zhenwei, “The Dilemma and Countermeasures of the Protection of Older People’s Rights under International Law”, Theory Monthly 2 (2020).

 

62. Yu Shaoxiang, “An Analysis of the Concept Weak Group in the Context of Law”, China Legal Science 3 (2009).

 

63. It was promised in the 2009 Brasilia Declaration to promote necessary governmental consultations on the drafting of a convention on the rights of older persons. In the same year, experts participating in the drafting of the Convention of Human Rights Protection for the Old in American States held a meeting in Germany, aiming to “provide independent expert advice on the rights of older persons to the General Assembly of the United Nations.” It was in this meeting that the proposal to formulate a Convention on the Rights of Older Persons was officially included in the agenda of the UN system. (The United Nations Department of Economic and Social Affairs Division for Social Policy and Development Programme on Aging, “Report of the Expert Group Meeting “Rights of Older Persons,” Convened in preparation for the report of the Secretary-General to the 64th session of the General Assembly, 5-7 May 2009, Bonn, Germany, page 1.)

 

64. For the introduction and Comments on the convention, see Zhang Caixia et al., “Introduction and Comment on the Convention of Human Rights Protection for the Old in American States”, Medicine and Jurisprudence 6 (2016).

 

65. Zhang Wanhong, “On Mainstreaming of Human Rights”, Law Review 6 (2016).