The AGAC has created ‘Talking about the Human Rights of Older Persons’ as a platform for conversations with experts on various aspects of the human rights of older persons. It invites, both online and offline, renowned academics, researchers and civil society activists based in or representing ASEM partners to talk about their research findings and share their views and experiences in relation to the human rights of older persons and ageing. It is hoped that ‘Talking about the Human Rights of Older Persons’ stimulates debate and deepens knowledge about various issues around the human rights of older persons at the grass-roots level between ASEM partners and build close relations between the AGAC and ASEM partners thereby contributing to enhancing the lives of older persons.
The first meeting under the theme of ‘Talking about the Human Rights of Older Persons’ took place online on February 1, 2021 with Prof. Titti Mattsson. Prof. Mattsson works on Public Law and specializes in Health Law and Social Welfare Law, including Elder Law, at the Faculty of Law, Lund University, Sweden. During the meeting, she talked about research and policy trends in Europe regarding ageing, how they have evolved in recent years and will evolve particularly after the Covid-19 pandemic, the European approach to the human rights of older persons and the relation between (domestic) Elder Law and an International Convention on the Human Rights of Older Persons.
1. Covid-19 and its Impact on Research on Ageing
The Covid-19 pandemic has affected older people more adversely than other groups in society and Europe dealt with the pandemic very poorly compared to some other countries and regions. However, an upside is that there has been a growing interest in and reflection on the issue of ageing in Europe. While ageing has been a much-discussed topic for the last decades in Europe in relation to demographic change, there had been no serious and concerted attempts to deal with it compared to other social issues, particularly from a legal perspective. Starting with a small number of researchers being funded by two non-government private foundations, the Marianne and Markus Wallenberg Foundation and the Torsten Söderbergs Foundation, about ten years ago, Elder Law has become an increasingly established research field, initially in Sweden and now more widely in Europe. Elder Law consists of laws concerning older persons in the fields of social welfare, labor markets, family and health. Research interest in Elder Law has grown notably over the last years and the European Law and Ageing Research Network (ELAN) was launched in 2017 as an initiative to build a research network. It turned out that many researchers had been working on Elder Law without being connected to like-minded colleagues. Therefore, it was timely for ELAN to provide a forum for researchers working in Elder Law to share their common research interests and outputs. An increasing number of researchers have joined the Network – annual conferences have been held since 2019, though one scheduled to take place in Amsterdam in 202o was cancelled due to the Covid-19 pandemic. ELAN currently includes researchers from fourteen European countries and the total number of researchers stands at around 55. Membership is not limited to European researchers as a few researchers from China and Australia also joined ELAN. The Covid-19 pandemic will further boost research interest in Elder Law in Europe and beyond.
2. Different Approaches to the Human Rights of Older Persons
There is a broad consensus, at least in principle, on the importance of adopting a human-rights approach to ageing and the need for a UN Convention for the Human Rights of Older Persons. However, it is important to make a distinction between European and US approaches to the rights of older persons. In the US and Canada, the rights of older persons are a large extent concerned with individuals’ choices and decisions, particularly their rights and prior-consent to choose care homes, proxies and medical treatments. By contrast, the European approach sees the rights of older persons encompassing not only individual choices and finances but social elements. Given Europe’s strong tradition of social democracy and government involvement in the provision of welfare, the Europeans see the rights of older persons being not limited to the private and individual spheres but including social protection and responsibilities. What this suggests is that the content of the human rights of older persons is not uniform and can be understood in different ways: supporting the human rights of older persons does not necessarily point to the same thing.
3. Elder Law and the Human Rights of Older Persons
Elder Law operates at national, regional and international levels and a UN Convention on the Human Rights of Older Persons is not yet present, although the Convention on the Rights of Persons with Disabilities adopted in 2006 provides many reference points from which the protection of older persons can be ensured. While it is important and necessary to create a UN Convention that is specifically designed to protect the human rights of older persons, even if it is established, it will operate, as an international convention, as guiding principles. This points to two key differences between Elder Law and an international convention on the human rights of older persons. First, while the latter operates without having enforcement or legally binding powers on national governments, the former has clear legal consequences. Second, whereas the latter operates as an abstract principle, Elder Law accounts for local, national and regional levels of cultural, social and legal specificities. Seen in this way, the relationship between Elder Law and an international convention on the human rights of older persons is complementary, and the importance of the former does not diminish with the latter. Elder Law can be seen as an attempt to concretize in reality the principle of the human rights of older persons. This also suggests that local, regional and national-level efforts to legislate on the rights of older persons, in parallel with an effort to create an international convention on the human rights of older persons, are equally important, and communications between researchers and practitioners between different countries should continue.
4. The EU and the Human Rights of Older Persons
The EU established the European Union Agency for Fundamental Rights (FRA) in 2007, as a specialist agency to provide relevant information and policy recommendations to EU institutions and EU member states and monitor the latter’s adherence to human rights protection. While the FRA officially promotes a human rights approach to ageing, some EU member states oppose having a UN Convention specifically for the Human Rights of Older Persons. This inconsistent approach to ageing in Europe can be explained by the unique nature of the EU. The EU is an entity of compromises and trade-offs between member states and consists of countries with diverse socio-economic conditions and legal structures. It is inevitable to some extent that the EU lacks coherence in its approach to the human rights of older persons. For example, Scandinavian countries have a high level of social protection for older persons and not all member states have the required resources or share the Scandinavian approach to social welfare. Adopting the Scandinavian level of social protection across Europe would be highly contentious and costly. Furthermore, European politicians, rather than academics and practitioners, argue that there are already two legal systems in place in Europe that ensure human rights, such as the European Court of Justice and the European Court of Human Rights. However, one important achievement in standardizing and universalizing the right to health across the EU is ‘cross-border healthcare’ – under the Directive 2011/24/EU, EU citizens have the right to access healthcare in any EU country and to be reimbursed for care abroad by their home country. The EU’s ‘cross-border healthcare’ can provide a model for a healthcare system for the future when increasingly the world population is mobile.
5. The Future of the Human Rights of Older Persons
As there is a broad consensus on the need for a UN Convention on the Human Rights of Older Persons and there have been global endeavors to this end for the last decades, Prof. Mattsson anticipates that the a UN Convention on the Human Rights of Older Persons will be adopted within the next ten years. To the extent that the Covid-19 pandemic clearly revealed its biggest victim being older persons, progress towards a UN Convention will be quickened. It is important to see a positive outcome from this current crisis. Lund University will be happily and actively cooperate with the AGAC to make this happen sooner rather than later.
Hae-Yung Song (firstname.lastname@example.org)