The United Nations’ top human rights official has acknowledged that the U.N. human rights system is failing due to bureaucratic overload. Yet the Office of the High Commissioner is supporting promulgation of a duplicative international treaty that will further constipate the system, obscure its fundamental animating principle of universal human rights, and dilute attention from grotesque violations of fundamental freedoms with another treaty that mainly mandates more government services.
High Commissioner for Human Rights Navi Pillay’s report documents the exponential growth of U.N. human rights instruments and associated procedures. Since 2004, the size of the U.N. human rights treaty system has doubled. As a result, member-states complain of too many often overlapping reporting requirements; compliance with obligations is low.
The report reassures that the system needs to be strengthened (read: more funds), not reformed, as “the approach of absorbing new mandates within existing resources is not sustainable.”
And yet, a new human rights mandate is in the U.N. pipeline. United Nations human rights officials, lawyers’ groups including the American Bar Association (ABA), nongovernmental organizations (NGOs), and influential governments are pushing hard for a new “U.N. Convention on the Rights of Older Persons.” The proposal is being spearheaded by Argentina, Chile, and other Latin American and African countries.
So far, resistance to this initiative reportedly comes from the United States government, the European Union, China, and other powerful states, with the argument that the rights of older people are already protected by existing international law. But democratic states fear conflict with “like-minded” allies and political backlash from their large aging populations. American resolve on this issue may well go soft, especially as the Obama administration tries to mobilize the elderly with the charge that Republican proposals threaten their benefits. The proposed convention would institutionalize services to the elderly — not as government policies, but as rights protected by international law.
According to proponents, the rights of older persons are “invisible under international law” because they are not “recognized explicitly.” They say universal human rights protections afforded by the main U.N. conventions on civil/political and social and economic rights have not worked to protect the aging from discrimination, exploitation, and deprivation.
At a strategy meeting to promote advocacy for a convention sponsored by the ABA, a top Argentine diplomat offered insight into the views that inform a process of rights inflation that has saddled the international community with numerous, overlapping treaties dealing not with human rights as such, but with the rights of particular groups. She said the main rights treaties came into force at a time (in the 1970s) when people only “thought about white males.” Universal human rights protected all “in theory,” but additional treaties were needed to protect children, women, racial minorities, indigenous people, migrants, those with disabilities, and now: the aging.
A U.N. human rights official said that the lack of such a dedicated human rights protection system was an affront to the Rule of Law. Older persons are victims; international law is the most effective way to make changes in society, and the “progressive development of international law” is a worthwhile investment, as “states turn to the U.N. to solve problems more cheaply.”
NGO representatives say a new treaty will raise the profile of the issue and force states to assign resources and create institutions to comply with legal obligations, “mainstreaming” the rights of older people and basing social services to the elderly on a “rights based” approach. The project of advocacy for a treaty has become a cause — a unifying campaign for civil society groups what want a U.N. treaty dealing with their own area of work — just like women’s rights groups, etc. It is also a strategy to generate and lock in funding steams with binding legal obligations.
The U.N. General Assembly gave a major boost to creation of a new treaty by establishing an “Open-Ended Working Group” to “identify possible gaps in the existing U.N. framework by considering the feasibility of further instruments.” The working group, open to input from civil society, appears to institutionalize the treaty-making process, making it virtually inevitable. A communication from the Working Group states: “Existing instruments and mechanisms do not appear to provide sufficient specificity about quality and accessibility of health and long-term care for older persons.”
Having let the horse escape from the barnyard years ago, states will be hard-pressed to say why there should not be another specialized human rights treaty, given the proliferation of rights instruments. But the international community needs to rein in human rights proliferation that has left governments and civil society with the impression that only members of specially designated groups have meaningful human rights.
Aaron Rhodes is a founder and principal investigator of the Freedom Rights Project (www.freedomrights.info). He was executive director of the International Helsinki Federation for Human Rights between 1993 and 2007.