Working on normative elements It’s not as hard as it sounds Bridget Sleap, GAROP webinar, January 2019

What are normative elements? The different components (elements) that derive from a human right (the standard or norm) The content of the right The detail we want to see under each right in a new convention

Existing normative elements Universal Declaration of Human Rights Nine international human rights treaties General comments/recommendations by Treaty Bodies Regional human rights treaties Other sources e.g. national legislation, court cases  

Existing normative elements: autonomy and independence Universal Declaration of Human Rights, 1948 Article 6: Everyone has the right to recognition everywhere as a person before the law. International Covenant on Political and Civil Rights, 1966 Article 16: Everyone has the right to recognition everywhere as a person before the law. Inter-American Convention on Protecting the Human Rights of Older Persons, 2015 Article 7: Right to independence and autonomy State Parties to this Convention recognize the right of older persons to make decisions, to determine their life plans, to lead an autonomous and independent life in keeping with their traditions and beliefs on an equal basis, and to be afforded access to mechanisms enabling them to exercise their rights. Autonomy is the ability to make life choices and decisions and act independently, including with support if necessary, according to one’s conscience, will and preferences.   Autonomy is both an underlying principle that governs every right within a new convention as well as a right in and of itself. The principle of autonomy presumes that individuals are able to make choices and act independently according to their own conscience, will and preferences. In order to make such autonomous decisions, and for these decisions to be legally effective, the law requires that the individual has the legal capacity to do so. To enjoy their right to autonomy therefore, older persons must enjoy legal capacity on an equal basis with others. Where legal safeguards are not put in place, it is possible for the relevant authority to presume an older person does not have legal capacity based on ageist notions and prejudices.

Existing normative elements: care and support for independent living Convention on the Rights of Persons with Disabilities, 2006 Article 19 (Living independently and being included in the community) States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that… a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs. Existing normative elements: care and support for independent living

Existing normative elements: palliative care Report of the Independent Expert on the enjoyment of all human rights by older persons, A/HRC/30/43, 2015 131.The right to palliative care should be enshrined in the legal framework so that older persons can enjoy the last years of their lives in dignity and without unnecessary suffering. States should ensure the availability and accessibility of palliative care for all older persons in need, particularly those who suffer from a life-threatening or life- limiting illness. Training, and adequate and affordable medication and therapeutic measures, should be provided in public and private care settings. Inter-American Convention on Protecting the Human Rights of Older Persons, 2015 Articles 6,11,12,19 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa, 2016 Article 11 Residential Care 3. Ensure that Older Persons in palliative care receive adequate care and pain management medication. Existing normative elements: palliative care

How should we frame normative elements? Three parts 1. Affirmation of the right Older persons have the right to…… 2. Scope of the right What or who the right covers 3. State obligations What steps states must take to implement this right

How do we start to develop normative elements? Three steps 1. Look at normative elements of the right in existing human rights treaties and other sources 2. Think about the unique context of older age, how older people are denied this right and what states must do make sure older people can enjoy it 3. Take existing normative elements and re- write and expand them specifically for older people Affirmation Scope State obligations

Working on normative elements Thank you! bsleap@helpage.org