Contemporary Human Rights Law and Ageism

Abstract

The continuously and dynamically growing number of older persons worldwide experience various types of exclusion, negligence, isolation, degrading treatment, elder abuse and the deprivation of a long list of their human rights. Regardless of residence and standard of living in a given country, older adults are the most excluded from the mainstream. Just as racism or sexism leads to a violation of the dignity and rights of people of a different race or gender, so ageism has a similar effect. Therefore, combating ageism is a challenge to international human rights law. This chapter is based on the core human rights treaties and the latest developments of the international community in combating ageism. Selected human universal and regional rights treaties along with soft law documents are analysed. The activities of the human rights bodies, including the independent expert on the enjoyment of all human rights by older persons, are also reviewed as the author focuses on human rights law in action. The author intends to indicate the untapped potential of states’ current international obligations, international mechanisms and gaps in addressing ageism at the international forum.

1. Introduction

Like the phenomena of sexism, racism and ableism, it is clear that ageism also existed before it was given a name and analysed by scholars from various scientific disciplines and perspectives. However, we usually count the ‘history of ageism’ from the time when Robert N. Butler used the term ‘age-ism’ during a Washington Post interview in 1969 [1]. He coined it as the ‘prejudice of one age towards other age groups’ [2]. Later, when relating to ageism against older adults, he described it as ‘a process of systematic stereotyping and discrimination against people because they are old, just like racism and sexism’ [3]. He aligned ageism with negligence, ignorance and the damaging assumption that older adults are old-fashioned, unproductive, incompetent, slow-thinking, inflexible, unattractive, sexless, etc. [4].

Ageism manifests itself in various individual and institutionalised forms, ranging from elder speak, disregard and mockery, through neglect, segregation, social isolation and financial and corporal abuse, to extermination, defined as a conscious attempt to shorten the ‘worthless’ or suffering-ridden life of an older person [5]. Moreover, new forms of ageism are constantly being identified, for example, those that include the introduction of policies and strategies that are designed to meet the needs of older people but which, in fact, stigmatise them or require them to be constantly active, regardless of their capabilities [6, 7]. Regardless of the gravity of the manifestation of ageism, its form and scale, ageism always leads to a violation of human dignity. For this reason, ageism should be a concern of international human rights law, as human dignity is the essence and source of all human rights. That is why states’ and societies’ awareness of ageism is a preliminary condition for the effective protection of older persons’ rights.

Along with ongoing research, the concept of ageism has been evolving. It has appeared, for example, that ageism should not be put into the same box as sexism and racism, as the group of older adults exposed to ageism is heterogeneous and, therefore, unlike sexism and racism, is much more difficult to identify [8]. Paradoxically, age lacks a clear threshold and is not a connecting factor for older persons, as they are people of different ages, living conditions, health and needs [9]. Indeed, the older population is much more similar to people with disabilities, who are also of various ages, types of disability and with diverse needs.

This chapter is a study in human rights law, so the newest analysis of ‘ageism’ proposed at the international forum should be presented here. In March 2021 the World Health Organisation (WHO) published ‘Kicking Off a Global Conversation about Ageism: the Launch of the First UN Global Report on Ageism’ (Global Report on Ageism). This report brings together the global output in identifying ageism and its determinants and explores three levels of manifestation of ageism – institutional, interpersonal and self-directed. Explicit [conscious] and implicit [unconscious] forms of expression of ageism are also addressed in the report [10]. Finally, it proposes interventions to reduce this phenomenon.

However, what is particularly relevant to this study, the report contains a comprehensive description of ageism. It is defined as a multifaceted social phenomenon that has stereotypes, prejudice and discrimination directed towards others or oneself based on age. The first relates to human thoughts, prejudices towards feelings, and finally, discrimination of actions or behaviours. Age stereotypes [positive or negative] tend to differ by context and culture. Prejudice is an emotional reaction or feeling (positive or negative) that is directed towards a person based on their perceived (age) group membership, and it contributes to creating or maintaining hierarchical status relations between groups. Age discrimination is the easiest to identify as it relates to behaviours – including actions, practices and policies – that are directed towards people based on their age [10].

This conception of ageism seems to unite previous proposals for definitions, which often assumed that ageism is a unique form of age discrimination [11, 12, 13], or conversely treated ageism as a source of discrimination and other negative behaviours towards older adults, and have usually qualified it as a feeling, idea or belief, or even an ideology [5, 14].

Over the years, the phenomenon of ageism, its determinants, aspects, consequences and scale have been the subject of diverse multidisciplinary studies, analyses and meta-analyses on ageism, provided by gerontologists, psychologists, psychiatrists, sociologists, medics and researchers from other disciplines [11, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28]. This phenomenon is also the subject of research from the perspective of the international protection of human rights and the obligations of states in this area [29, 30, 31, 32, 33, 34, 35, 36, 37, 38]. However, as the world’s population is ageing, and the global treaty on the rights of older persons is constantly ‘under construction’, the research in this area needs further development.

Therefore, the formal dogmatic method in legal science is applied in this chapter. The primary research material is act of international law (hard and soft) and the output of human rights bodies in identifying, condemning, and redressing ageism. Moreover, a review of human rights literature supports the analysis of legal acts. The contributions from other scientific disciplines are used only as auxiliary.

Such an approach should help confirm the hypothesis that international law has the potential, currently untapped, to counter ageism affecting older persons, especially those belonging to vulnerable groups. That is why the main goal of this chapter is to assess the progress in the visibility of ‘ageism’ in international documents that are able to (at least potentially) affect states’ policies and laws to reduce ageism at domestic levels. Another goal of this chapter is to identify new or still underestimated areas in which the international community’s action against ageism is desirable.

2. Blindness of the treaties

Any discourse on the elimination of ageism in international human rights treaties should begin with the Universal Declaration of Human Rights (UDHR), even though it is not a treaty. This is primarily because it is ascribed the force of customary international law, and because it gave rise to all presently binding international human rights treaties. According to its Preamble, ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. Its Article 1 states that ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status [39]’.

The recognition of human dignity and non-discrimination, as stipulated in the UDHR, became an inspiration for the whole human rights system. Thus, human dignity is invoked in various international acts, including the International Covenant on Civil and Political Rights [40] and the International Covenant on Economic, Social and Cultural Rights [41] adopted in 1966. In addition, the concept of dignity has been introduced into treaties protecting particular groups of people, such as children, women, migrant workers, disabled persons and victims of involuntary disappearances, as well as into treaties protecting specific human rights and freedoms, especially freedom from torture and racial discrimination. We can also find some references to human dignity in the international labour and environmental and humanitarian laws [42, 43, 44, 45, 46].

Indeed, the protection of human dignity underpins protection against phenomena such as sexism, racism, ableism and ageism, but it would be naive to believe that general references to dignity in international law are sufficient to protect older adults from ageism. First of all, ‘human dignity’ is not defined in international acts and, in spite of a common appreciation, it is unclear, disputable and causes many interpretive difficulties [8, 10, 14, 38]. Usually, understanding a violation of human dignity requires an in-depth case study and sensitivity to various nuances. As indicated above, seemingly beneficial solutions can conceal ageist attitudes against older persons, which is why ageism needs targeted, legal and extra-legal actions to combat it. General references to human dignity are simply starting points for further developments.

Unfortunately, there is no universal, sectoral convention on the protection of human rights in old age that could play an educative role among the international community and raise awareness of decision makers on the rights of older persons and the harmful effects of ageism.

Surprisingly, two treaties that are considered milestone achievements of regional communities – the Inter-American Convention on Protecting the Human Rights of Older Persons of 2015 [47] and the Protocol on the Rights of Older Persons to the African Charter on Human and Peoples’ Rights of 2016 [48] – do not mention ageism’ at all. On the other hand, they contain provisions obliging the state parties, to take steps towards eradicating prejudices, stereotypes, stigmatisation and marginalisation resulting in preventing older persons from fully enjoying their human rights.

In addition, these particular treaties recognise the prohibition on age discrimination as one of their main principles. The clear recognition of the prohibition on (old) age discrimination in international law is an important step, as the anti-discrimination clauses contained in the core international human rights treaties, following the UDHR, usually do not contain such a prohibition. The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families of 1990 [49] is an exception. Moreover, the Convention on the Rights of Persons with Disabilities of 2006 mentions age as one of the reasons for multiple or aggravated forms of discrimination [50].

Certainly, the premise of ‘other status/circumstances/conditions’ should be recognized as the premise covering young and old age. However, it took years before the Committee on the Economic, Social and Cultural Rights (CESCR) and the Human Rights Committee (HCR) finally confirmed in their general comments and case law that both covenants prohibit age discrimination [34].

It may be also observed that the international community and the human rights bodies providing the interpretation of relevant treaties were more willing to oblige states to take measures against stereotypes, prejudices and stigmatisation than to address age discrimination. For example, already in 1995, the Committee on Economic, Social and Cultural Rights, in its general comment No. 6 on the Economic, Social and Cultural Rights of older persons, called on governments, non-governmental organisations and older persons themselves to make efforts to overcome negative stereotyped images of older persons as suffering from physical and psychological disabilities, incapable of functioning independently and having neither a role nor a status in society [51].

Moreover, the human rights treaties dedicated to the protection of women and people with disabilities, who are particularly exposed to stereotypes and prejudices, contain provisions to counter these phenomena and could become a model of solutions applicable to older persons.

The Convention on the Rights of Persons with Disabilities (2006) should be considered the most advanced in combating stereotypes and prejudices, including those based on sex and age, in all areas of life [Article 8]. What is particularly important, the CRPD promotes an approach to people with disabilities, not through the prism of the assistance they receive, but through the prism of human rights [human rights-based approach –HRBA]. HRBA is also the best way to prevent ageism and protect older persons’ rights [52].

Meanwhile, Article 5 of the Convention on the Elimination of All Forms of Discrimination against Women of 1979 obliges states to take all appropriate measures to modify social and cultural patterns and eliminate stereotypes and prejudices about the roles and behaviours of men and women [53]. Interpreting this provision, the Committee on the Elimination of Discrimination against Women (CEDAW), in its General Recommendation on the Rights of Older Women [No. 27 of 2010], stressed the states’ obligation to ‘eliminate negative stereotyping and modify social and cultural patterns of conduct that are prejudicial and harmful to older women…’ [54]. The transformation of incumbent social and cultural patterns of older persons into intergenerational solidarity is another factor in the elimination of ageism.

It is also worth noting that the protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the Maputo Protocol of 2003 [55] obliges states to ensure the right of older women to freedom from discrimination based on age, and the right to be treated with dignity. The protocol also refers to various kinds of stereotyping and prejudices against women in general.

However, similarly to both covenants, the regional human rights treaties of general character, including the European Convention for the Protection of Human Rights and Fundamental Freedoms [56], do not indicate an age premise in their anti-discrimination clauses. It appears that age discrimination has not been deeply examined by the international tribunals, and the evident cases of ageism may not be addressed. The best example is the case Carvalho Pinto de Morais v. Portugal considered by the European Court of Human Rights (ECtHR) [57]. This case referred to the Portuguese court’s decision to reduce compensation for medical errors during gynaecological surgery. The national judges justified their judgement arguing that sexuality was not important for a 50-year-old woman and that she did not need any substantial compensation to cover the costs of employing a domestic helper because, with the children grown up, the applicant’s domestic duties were mainly looking after her husband.

The ECtHR found that Portugal had violated the convention, but the majority of the ECtHR judges focused more on gender discrimination, comparing judgements of the Portuguese courts in cases referred to male victims of medical malpractice with the applicants’ situation, and did not deeply analyse age discrimination, ageism and evident stereotyping. The ECtHR did not give a more in-depth interpretation of the premise of age, which was as important to the applicant as that gender. The ECtHR admitted that age could fall within the criterion of ‘other status’ within the meaning of Article 14 of the Convention, but did not confirm that age discrimination had ‘the same force’ as the other grounds for discrimination. Above all, the Court decided not to compare the situation of younger and older women with regard to the stereotype concerning their sexual life. In this respect, the Court seems to have passed over the chance to establish a line of case law on stereotyping [33].

Unlike the international human rights law, the prohibition on age discrimination is present in the European Union [EU] framework, in its primary law, including the Charter of Fundamental Rights [58], in the EU secondary law, as well as in the jurisprudence of the Court of Justice of the European Union [59]. However, ageism, age stereotyping and prejudices are not directly indicated there [30, 60, 61].

It is easy to note that general references to human dignity, and imprecise ‘other status/condition/circumstances’ permissions of non-discrimination, are not sufficient to protect older persons’ rights and prevent them against all aspects of ageism.

With this in mind, the United Nations General Assembly established the Open-Ended Working Group on Ageing [OEWGA] in December 2010 [62]. The first task of this body, composed of delegations from states and civil society organisations, was to analyse the existing international framework for the protection of the human rights of older persons and identify possible legal gaps and propose the best possible solutions for the future. In 2012, the UN General Assembly commissioned OEWGA to draft a treaty to protect the rights and dignity of older persons [63].

Over the course of 12 sessions, OEWGA considered the scope of the future convention, addressing the issues of autonomy, independence, non-discrimination, long-term and palliative care, elder abuse, social protection, education and lifelong learning, capacity building, access to justice and the labour market, economic security, and older persons’ right to contribute to sustainable development. Calls to combat ageism have certainly been present at the OEWGA sessions, especially at the third and sixth, though perhaps surprisingly, ageism has not been the principal, separate topic of any of the sessions.

3. Outside the treaties

The first milestone, though not legally binding, acts on older persons’ rights adopted on the international forum did not refer to ageism. The first complex international instrument on ageing – the Vienna International Plan of Action on Ageing – adopted at the World Assembly on Ageing in 1982 [64], does not mention ‘ageism’ itself, but certainly refers to various symptoms of ageism, especially on the labour market and in the media. Another crucial UN document is the United Nations Principles for Older Persons of 1991 this does not address ageism either, though it does contain important guidelines on older persons’ dignity. It states that: ‘Older persons should be able to live in dignity and security and be free from exploitation and physical or mental abuse. Older persons should be treated fairly regardless of age, gender, racial or ethnic background, disability or another status and be valued independently of their economic contribution’ [65].

Finally, the Madrid International Plan of Action on Ageing (MIPAA) and the Political Declaration adopted at the Second World Assembly on Ageing in April 2002, being a milestone in addressing the key challenge of ‘building a society for all ages [66]’, indicated ‘ageism’. However, it happens only once, when calling on the media and the private and public sectors to avoid ageism in the workplace and to present positive images of older persons as wise, productive and experienced. Certainly, there are many recommendations in the MIPAA encouraging states to combat stereotypes and prejudices, including intersectional, in various spheres of life, especially in employment.

However, the MIPAA is not a one-off event, as it has its continuity. Every year since 2002, the UN Secretary-General has been submitting to the UN General Assembly reports entitled ‘follow-up to the Second World Assembly on Ageing’. The notion of ‘ageism’ was mentioned for the first time in the report of 2009. The secretary-general argued at that time that ‘systematic stereotyping and discrimination against people because they have reached a certain chronological point and are considered ‘old’, has come to be known as ‘ageism’. Ageism reinforces a negative image of older persons as dependent people with declines in intellect, cognitive and physical performance, as well as other areas required for autonomous, daily functioning. As a result, older persons are often perceived as a burden, a drain on resources and persons in need of care. ‘These perceptions contribute to their vulnerability, which puts their rights at risk [67]’.

Since 2009, ‘ageism’, its harmful consequences and calls to counteract them have been developed in the subsequent reports. For example, in the report of 2011, the secretary-general noted that, despite older persons playing an important role as custodians of culture and history, paradoxically, they are victims of ageism which is broadly tolerated in societies around the world [68]. In the report of 2012, he devoted an entire subsection to ageism in various spheres of life, arguing that, ten years after the adoption of the MIPAA, prejudicial attitudes and discriminatory practices on the part of individuals and institutions towards older persons continue to undermine their participation in society. He also referred to the findings presented at the European Union forum on the occasion of the European Year for Active Ageing and Solidarity between Generations 2012, which reached the conclusion that ageist attitudes were not only the source of discrimination experienced by older persons but also served to justify that discrimination and, in many countries, a number of existing institutional and policy practices tended to create a ‘culture of ageism’ that reinforced ageist views and led to the further marginalisation and exclusion of older persons [69]. In 2014, the UN Secretary-General raised concerns that ageism is still a roadblock to the full implementation of the Madrid International Plan of Action on Ageing [70].

New aspects of ageism emerged in the 2021 report. The COVID-19 pandemic sharpened ageist attitudes towards older people. According to the report, data gathered before the crisis revealed that one in two people held ageist attitudes towards older persons globally, but the crisis amplified and exacerbated the widespread practice of discrimination against older persons, especially in the area of provision of health and other critical services and resources, and in long-term care facilities [71]. That is why the UN Secretary-General called to build stronger legal frameworks at the national and international levels to protect the human rights of older persons, including accelerated efforts to develop proposals for a convention that would be key to promoting and protecting the rights and dignity of older persons. He also called to combat ageism and age discrimination and address the intersectional discrimination that affects older persons, in particular women and persons with disabilities [71].

The MIPAA process within the UN framework is the most universal in promoting the rights of older people and in campaigning against ageism as a threat to human dignity. However, it is also worth referring to other international forums where the issue of ageism is or can be raised.

Potentially, this could happen at the International Labour Organisation [ILO] forum. The ILO’s conventions do not address ageism, but ILO Recommendation No 162 of 1980 contains a whole chapter dedicated to the equality of opportunity and treatment of older workers [72]. However, since the adoption of this recommendation, the labour market has changed considerably, with the concept of ageism spreading beyond academic considerations. It, therefore, seems appropriate to include the problem of ageism in employment in the ILO’s legal framework, as the negative multidimensional consequences and costs of ageism and age discrimination on the labour market are today well known and analysed [73]. For example, the European Commission’s recent ‘Green Paper on Ageing Fostering Solidarity and Responsibility Between Generations’ mentions ageism specifically as a potential barrier to the economic activity of older adults [74].

At a regional level, the resolutions and recommendations drawn up on the Council of Europe forum should be mentioned here, as the states gathered on this forum, unlike the American and African states, have not yet decided on the adoption of a treaty on older persons’ rights. The Parliamentary Assembly resolution entitled ‘Promoting Active Ageing—Capitalising on Older People’s Working Potential’ of 2011 refers to ‘ageism’ and defines it as ‘a harmful prejudice that results in a widespread lack of respect for older people… [75]’. Another resolution –‘Combating Discrimination Against Older Persons on the Labour Market’ – of 2013, also explicitly refers to ageism and age discrimination. It encourages states to start campaigns to change beliefs and attitudes in order to eliminate stereotypes and build a positive and accurate image of workers in all age groups [76].

The terms ‘ageism’, ‘stereotypes’ and ‘prejudices’ are not present in the most complex Council of Europe document on older persons – the Committee of Ministers Recommendation on the Promotion of Human Rights of Older Persons. On the other hand, the recommendation aims to eliminate barriers denying older adults and their human rights, so potentially covers ageism [77].

The impact of this recommendation was revised after five years from its adoption, in 2019. It turned out that only one of the 21 reporting states – Austria – had addressed ageism in its report on the assessment of implementation of the recommendation. The Austrian authorities declared ‘in light of the recommendation, we continue to mainstream these rights in all policies and programmes, in order to actively combat ageism, the marginalisation and social exclusion of older persons’ [78].

Therefore, it may be stated that the states are not ‘used to’ addressing ageism. This dearth of references proves that, if a given notion is not introduced into a document, there is no further action, or this action is severely limited.

It seems clear that ageism has not become a ‘popular’ notion, either in human rights treaties or in the soft international law. However, we may expect changes in this area, as, on 7 October 2021, the Human Rights Council adopted a resolution on the rights of older persons. It goes hand in hand with the WHO Report adopted in the same year and recognises that ageism ‘can be associated with stereotypes, prejudice and/or discriminatory actions or practices, including hate speech, against older persons based on their chronological age or on a perception that a person is “old”, and that ageism can be implicit or explicit and be expressed at different levels [79]’. Among various recommendations to states and international bodies, the Human Rights Council calls to make the situation of older persons more visible in the international forum, including human rights procedures and reports of international bodies.

Therefore, attention should also be paid to reports, working papers, thematic studies and other analyses prepared and presented at the UN forum. Their publication may become a turning point in negotiations on a new document or a given issue, or at least may contribute to raising awareness among the international community. For example, Amnesty International’s 1972 report on torture [80] launched a campaign that culminated in the adoption of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1984 [81]. Gerard Quinn and Theresa Degener’s 2002 report identifying gaps in the protection of the human rights of people with disabilities [82] provided the impetus for the adoption of the Convention on the Rights of Persons with Disabilities in 2006 [50].

Therefore, particular attention should be drawn to the working paper, ‘The necessity of a human rights approach and effective United Nations mechanism for the human rights of older persons’ (known as the Chung Report) of 2009 [83], which contributed significantly to the establishment of OEWGA and initiating the work on the treaty on the rights of older persons. We can read in this study that ‘ageism or stereotyping and prejudice against older people that can lead to age discrimination, ranges from negative stereotyping to witch-hunting’; ‘ageism seems to be increasing over time, despite our growing awareness of the issue’; ‘ageing is a double whammy for women, who get hit with more ageism and sexism’ and ‘ageism is more prevalent in America than racism [83]’.

Another important voice on ageism can be heard in the ‘Normative Standards in International Human Rights Law in Relation to Older Persons. Analytical Outcome Paper’ drawn up by the Office of the UN High Commissioner for Human Rights in 2012 [84] and in the study ‘update to the 2012 Analytical Outcome Study on the Normative Standards in International Human Rights Law in Relation to Older Persons’ provided in March 2021. It is easy to observe that in the study of 2012 there is just one passage on defining ageism and related concepts. Meanwhile, its updated version contains a depth analysis of ageism and its harmful consequences. Ageism is not only barely noticed here, but it constitutes a starting point for all of the High Commissioner’s further recommendations on the rights of older persons [85].

Finally, the mandate of the independent expert on the enjoyment of all human rights by older persons, established as a new UN Human Rights Council Special Procedure in 2013 [86], has introduced a new quality to the protection of older persons’ rights. The two independent experts appointed so far – Rosa Kornfeld-Matte and Claudia Mahler – contributed significantly to raising awareness of the harmful effects of ageism in their annual reports, statements and observations on their country visits. Special attention should be drawn to the annual thematic report dedicated exclusively to ageism and age discrimination that Claudia Mahler presented in 2021 [87]. Following an in-depth analysis of ageism and age discrimination, Claudia Mahler called on states to take legislative and organisational steps against ageism and age discrimination and to simultaneously target the root causes of ageism. She stressed that working towards a cultural and societal transformation of how society sees ageing and older people is indispensable. Older persons and their organisations must be active actors in this transformation. She stressed the importance of awareness-raising efforts coupled with strategies to empower older persons, build up their skills and capacities and reduce internalised and self-directed ageism. She also called on states and other stakeholders to take measures to encourage the media to avoid stereotypical portrayals of older persons and promote a culture of tolerance, empathy, diversity and intergenerational solidarity, which are essential for anti-discrimination measures to be effective. She concluded her report with a message that ageism ‘is largely invisible in treaty provisions and interpretations by monitoring treaty bodies. To address this gap in international and regional human rights law, age as a ground of discrimination must be explicitly recognised, including in a comprehensive binding legal instrument on the human rights of older persons [87].

4. The UN human rights machinery

As ageism and age discrimination are often not visible in the international treaties, condemning ageism by the international courts or the human rights treaty bodies in their judgements or views is more a matter for the future. However, it does not mean that there is no space for other actions against ageism in the current international human rights law.

The United Nations human rights machinery, under the auspices of the Human Rights Council, has at its disposal procedures that have the potential to shape the international community’s awareness of the harmful effect of ageism, even in a situation when there is no sectoral treaty on older persons’ rights. This is possible as the special procedures mandate holders are guided in their actions by the Universal Declaration of Human Rights and soft law documents. Moreover, states participate in this system not because treaties bind them, but because they belong to an international community within the framework of the UN.

The mandate holders act as independent experts, operate in dialogue with the relevant government authorities and cooperate with civil society organisations and other stakeholders [35]. Therefore, the mandate of the independent expert on the enjoyment of all human rights by older persons should be indicated here. The mandate covers, among other things, country visits allowing experts to examine and evaluate the situation of older people on the spot and make targeted recommendations to governments and other actors, for example, business and civil society.

The independent expert’s recommendations are sometimes very practical. For example, in a report on a visit to China in 2020, the independent expert noted that there is no semantic and linguistic equivalent of ‘ageism’ in many languages and dialects used in China. Insufficient awareness and appreciation of this phenomenon were observed in China, so the independent expert recommended the translation and mainstreaming of the term ‘ageism’, along with its notional conception and the adoption of specifically targeted policies and a dedicated normative anti-ageism response. She also encouraged the authorities to establish an independent national equality body to monitor and report discrimination issues, including discrimination against older persons or ageism [88].

In the reports on visits to China, Mozambique and Montenegro, the independent experts noted the concern about ageism mixed with gender-based discrimination arising from patriarchal attitudes and stereotypes regarding the roles and responsibilities of women and men, placing women at a disadvantage [88, 89, 90].

In Mozambique, the independent expert also observed ageism and age discrimination in many spheres and contexts, from household decision-making about scarce resources to ageist attitudes of health professionals towards older persons. She noted that older adults are frequently refused treatment or are treated with disrespect due to their age [90]. The reports on the visits to Montenegro and Uruguay focused on ageism leading to violence against older persons, maltreatment and elder abuse [89, 90, 91].

In 2015, the independent expert encouraged the Austrian authorities to continue mainstreaming the rights of older persons in all policies and programmes, which should actively combat ageism as well as the marginalisation and social exclusion of older persons, thereby reducing their vulnerability, including abuse and violence [92].

In addition to governments, the private sector is also the addressee of the independent expert’s recommendations. In the reports on visits to Montenegro and Uruguay, she expressed her concern about ageism and the stereotyping of older persons, which goes hand in hand with certain forms of discrimination. She reminded businesses that they should comply with the guiding principles on Business and Human Rights [89, 91].

Ageism against older women was also of interest under another thematic mandate within the Human Rights Council – the special rapporteur on violence against women, its causes and consequences. The reference to ageism can be found in the special rapporteur’s report on her visit to Australia in 2018. The Australian government was advised to develop a national plan to promote the autonomy and agency of older people by addressing ageism and promoting community understanding of elder abuse, achieving national consistency in standards, safeguarding at-risk adults and improving responses, as well as building the evidence base for responding to elder abuse [93].

Apart from the Human Rights Council Special Procedures, the Universal Periodic Review [UPR] is another mechanism that can be taken into account. It is a review of the achievements and shortcomings in a state’s respect for human rights and fulfilment of its obligations. It is carried out periodically and is a form of the inter-state dialogue. While it is certainly flawed and vulnerable to politicisation, due to its universal coverage it has the potential to disclose ageism as a harmful phenomenon internationally. During recent UPR cycles, older persons’ rights and dignity and the dangers of age discrimination are more and more frequent topics of this dialogue. However, states rarely address ageism expressis verbis in their recommendations to other states. Therefore, Vietnam’s call on Singapore to enhance measures to ensure the protection of the rights and well-being of older persons, including efforts to reduce ageism, is unique. It is possible that the Vietnamese recommendation formulated during the UPR cycle of 2021 may become a model for other states in subsequent reviews [94].

Finally, it should be noted that today it is difficult to imagine a system of international human rights protection without NGOs in the reporting procedure in all human rights treaty bodies, or in the course of the Universal Periodic Review and the special procedures of the Human Rights Council. Moreover, NGOs act as amicus curiae before international tribunals, as well as before quasi-judicial bodies, reviewing notifications of violations of human rights treaties. They can play a crucial role within the framework of these diverse procedures, providing expertise on ageism and all its aspects.

5. Conclusions

Although many years have passed since ageism was first identified, and although there is no doubt that this phenomenon lies at the root of social exclusion, it was hardly visible in the international forum just a decade ago. Today, this notion is present mainly in reports and observations of specialised human rights bodies, though it is not widely used in legal and law-related language. The notion of ageism does not appear expressis verbis in the core human rights treaties, nor even in the regional treaties on older persons’ rights. It is true that stereotypes, prejudices and age discrimination are frequently referred to in sectoral treaties [mainly referring to women and persons with disabilities], but it is rare that all these aspects are equally stigmatised there, and certainly, they are not directly linked with older persons.

Consequently, ageism is not addressed in the general conclusions and recommendations provided by the human rights treaty bodies when interpreting the states’ obligations under human rights treaties. Moreover, this notion is not as widely used as expected in resolutions and recommendations issued by international organs. Generally speaking, international hard and soft human rights laws are still dragging their heels in naming ‘ageism’, which severely weakens combating it on international and, consequently, national levels.

Hence, introducing this concept into international hard law as a ‘keyword’ covering age discrimination, stereotypes and prejudices would be a clear message to the whole international community. Therefore, a global treaty on the rights of older people or human rights in old age condemning ageism and all ageism’s dimensions is desirable. Such a treaty would impose positive obligations on states to eliminate various obstacles, including ageism, to older people’s enjoyment of human rights. Human rights can only be achieved when states are legally obliged to respect them and where monitoring mechanisms are thoughtfully operationalised [95].

However, one cannot be naïve and assume that merely introducing a call to combat ageism into hard international law will prove sufficient. It is clear that raising awareness of the international community is a long-term effort and requires dealing with new challenges.

It, therefore, seems worth using hitherto unused or rarely used mechanisms such as the UPR to raise awareness of this phenomenon. Above all, however, new varieties and forms of ageism, especially the hidden ones, should be analysed and revealed to the international community. Thus, any extra-legal action by international bodies, states, NGOs and other stakeholders, should also be appreciated.

It seems essential to bring new areas and aspects of ageism to the attention of both scholarship and international bodies. It is clear that life and the political situation in the world constantly pose new challenges, with ageism during emergencies being one such challenge. The best recent example of this is the COVID-19 pandemic when older adults were blamed for being the reason for lockdowns and other restrictions [96, 97]. As a result, in May 2020, 146 states at the United Nations forum signed a statement expressing their deep concern over the escalation of ageism, including age discrimination and the stigmatisation of older persons, which aggravates their vulnerabilities [97].

Another issue to be explored is conscious and unconscious ageism against older persons during armed conflicts. In February 2022, Human Rights Watch published a report revealing older persons’ vulnerability in recent international and war conflicts, both those who remained in their homes and those who became war refugees or internally displaced persons [98]. The report does not cover the war in Ukraine, where the situation of older adults, regardless of whether people left their homes or stayed, is dramatic. HelpAge International, referring to this humanitarian crisis, noted that ‘while war does not discriminate, the international response does. Time and again, the toll of war on older people is overlooked as they struggle to survive and piece together a new normal [99]’.

Finally, it also seems that the fight against ageism internationally should become ‘more specialised’ and more attentive to the combination of ageism and other inequalities. The double standards concerning ageing between man and woman are best known and described in the doctrine and in international reports [100]. The stigma, stereotyping and discrimination of older adults with disabilities are also well-explored [101]. However, international law does not address all disadvantaged groups. Various groups, like LGBTQ people, similarly to older persons, do not enjoy ‘their own’ treaty. Others, like indigenous peoples, are selectively protected by international regulations. This leaves the older members of such groups ‘doubly invisible’. It appears that addressing ageism against older adults belonging to diverse, disadvantaged populations is another challenge to the international community.

This chapter had its limitations and focused on legal issues; however, the non-legal initiatives that have been taken internationally cannot be underestimated in the fight against ageism. Thus, one of the goals of the global campaign, the UN Decade of Healthy Ageing [102], which is compatible with the Sustainable Development Goals (SDG), is to prevent an older population from ageism in order to improve the lives of older people, their families and the communities in which they live. In turn, the central message of the 2030 SDG Agenda, ‘to leave no one behind [103]’, is critical to changing attitudes toward older persons and protecting people of all ages.

Conflict of interest

The author declares no conflict of interest.