Research Report
Legislative Imperatives of Korea in accordance with Accelerated Development of a Human Rights Treaty on Older Persons Ⅰ - Focusing on Analysis on Global Norms -
Ⅰ. Backgrounds and Purposes
▶ Backgrounds
○ Despite the rapid aging at the international level and the domestic level, the human rights protection of older persons are not improving, but rather tend to get worse after COVID-19.
○ Although it is natural that older persons as human beings are entitled to various human rights guaranteed by the international human rights norms such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, they have continuously suffered from age-discrimination and negative prejudice, and oder persons who do not hold a dominant position of social and economic structures have not enjoyed their rights properly.
- While other vulnerable groups, such as children and women, can possess their rights through specialized human rights treaties, there is no universal human rights treaty for older persons.
○ In order to improve the protection of human rights of older persons, the regional human rights regimes including the Organization of American States and the African Union adopted their own conventions dedicated to the human rights of older persons.
- The UN human rights regime has paid attention on the protection of human rights of older persons for a long time and, in particular, discussions on the adoption of a specialized human rights treaty for older persons are actively underway at the United Nations as COVID-19 worsens the vulnerability of their human rights.
▶ Purpose
○ This report aims to investigate and analyze the current status of global norms and other important legal materials on human rights of older persons of the UN and other major international human rights governmental organizations and to find some implications for legal improvements of domestic legislation to enhance human rights of older persons.
Ⅱ. Major Content
▶ Meaning and Significance of the Human Rights of Older Persons
○ There is no unified legal definition or standard on older persons in domestic and international legal documents but older persons are usually classified by their age and generally recognized as persons aged over 60 or 65 even though .
- Interestingly, there is a new approach to the definition of older persons to introduce socio-cultural concepts in addition to this age-based method.
○ The characteristics of older persons should be discussed not only in terms of quantity but also in terms of quality.
- According to recent statistics, the economic, education and health circumstances of older persons are gradually improving compared to previous years, and these changes are leading to strengthen their demand for social, economic, and cultural activities and participation.
- There are also relatively vulnerable groups among older persons, for example poverty older persons or older persons with disabilities.
○ Vulnerability to the human rights of older persons
- Older persons are still vulnerable to poverty and abuse, and COVID-19 has made it worse.
- In addition, socio-cultural prejudice and discrimination against older persons and social exclusion are also continuous phenomena.
- On the other hand, as the economic and educational level increases, the demand of older persons for social and political participation is also increasing.
○ Necessity to protect the rights of older persons
- Older persons as human rights holders can enjoy various freedoms and rights, and is also subject to special protection as a vulnerable class due to deterioration of physical or mental function due to aging.
- They should be considered as persons who can play a more active and positive role that can contribute to social development and integration as a member of society, not just as an object of support or in the stage of death.
- The human rights of older persons should be substantially guaranteed by reflecting the needs of older persons.
▶ Current status of global human rights norms on older persons
○ The human rights frameworks such as the 1982 Vienna Action Plan, the 2002 Madrid Action Plan, the Open Aging Working Group, and the Independent Expert on Elderly Human Rights have been operated for a considerable period of time, but due to limitations in terms of sustainability and legal binding, they has not been effective means to protect human rights of older persons.
○ The Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of Discrimination against Women, and Convention on the Rights of Persons with Disabilities apply to older persons. However, international human rights practices including general comments and monitoring systems have rarely paid attention to the human rights issues of older persons.
○ To improve such legal and practical insufficiency, the Orgarnization of American States and the African Union adopted a specialized human rights treaty for older persons.
▶ Trends on Human Rights Treaty for Older Persons under the UN Human Rights Regime
○ The Open-ended Working Group on Aging has continuously discussed agendas related to the human rights of older persons over the past decade, collecting and sharing opinions from experts from each country.
○ At the request of the Human Rights Council, which deeply concerned with the vulnerable human rights status of older persons after COVID-19, the UN High Commissioner for Human Rights published a report in January 2022.
- In this report, the UN High Commissioner for Human Rights concluded that the provisions and practices of various existing human rights norms have failed to substantially guarantee the human rights of older persons.
- At the same time, he suggested that a specialized convention should be adopted in order to faithfully guarantee the human rights of older persons, such as women, children, and persons with disabilities.
○ Along with the publication of the above-mentioned report, the Open-ended Working Group on Aging currently tries to draft a treaty focusing on human rights protection for older persons.
▶ Implications for Domestic Legislation
○ Amid the rapid developments in global norms related to the human rights of older persons, it is necessary to pay attention to the following five points.
- While confirming the principle that older persons also enjoy various freedoms and rights as human beings, older persons as vulnerable groups needs special protection against poverty, abuse ans so on.
- The special consideration or needs on human rights of older persons, such as death with dignity, life-sustaining treatment, and community care, should be reflected in human rights norms on older persons.
- For older persons to play an active and positive role as a member of society, legislative and administrative measures for accessibility and participation and support on social, economic, and cultural activities, etc. should be provided.
- Consideration and support for the relatively more vulnerable older persons among older persons should be strengtened.
- To ensure human rights for older persons, the monitoring mechanism on the implementation of the related norms and policies should also be established and operated.
Ⅲ. Expected Effects
○ It is used as basic data for universal human rights norms and regional human rights norms related to the human rights of older persons.
○ Analysis of the history and current status of the newly formed global norms on the human rights of older persons and used as a reference for establishing countermeasures in Korea.
○ It is used as basic data to find ways to improve the domestic legal system for human rights of older persons in the future.