Towards an effective legal protection for older persons in the 21st century: a comparative study of international human rights law and arab constitutions

The Right to Work

The right to work is a fundamental right essential for promoting human dignity and maintaining social stability. This right has been enshrined in several Arab constitutions, with some including specific articles related to it and others mentioning it alongside other rights.

Article 40/1 of the amended Syrian constitution of 2012 ensures that `Work shall be a right and a duty for every citizen, and the State shall endeavour to provide for all citizens, and the law shall organise work, its conditions and the workers' rights.' Article 23/1 of the Jordanian constitution (Amendment 2016) stipulates that work is a right for all citizens, and the state should provide it to Jordanians by directing the national economy. Article 41 of the Kuwaiti Constitution of 1962 states: `Every Kuwaiti shall have the right to work and to choose the nature of his occupation. Work is the duty of every citizen. Dignity requires it and the public welfare ordains it. The State shall make work available to citizens and shall see to the equity of its conditions.' Article 20 of the UAE Constitution stipulates that community values work as a fundamental pillar of its progress and work to provide it to citizens and qualify them for it, creating the appropriate conditions for this. However, Article 34 grants Emirati citizens the freedom to choose their jobs. Lastly, Article 26 of the Qatari Constitution of 2004 states property, capital, and labour are essential components of the social entity of the state, and they are all rights of social nature regulated by law.

Notably, the Arab constitutions have conferred recognition of the importance of work, with the majority acknowledging its status as a right and some recognising the state's responsibility to provide favourable conditions for its pursuit. In fact, certain constitutions, such as the Syrian and Kuwaiti, have even established it as a duty for citizens. Furthermore, some constitutions, including the UAE and Kuwait, have granted citizens the right to choose their preferred work type. Elias (n 14).

Considering the provisions outlined in the Constitution, there is no explicit exclusion of older persons regarding their right to work. Furthermore, no restrictions or conditions were imposed on this category of citizens. As such, older persons are entitled to the same rights and protections as other workers, without discrimination based on age. ibid.

Right to Social Security

Social Security holds great significance for both older persons and all citizens as a cornerstone of human dignity and the full realisation of human rights. Its importance lies in its ability to alleviate poverty, mitigate its effects, and foster social integration, particularly for those experiencing inadequate or insufficient income. With age, individuals may find it difficult to work or secure employment that provides a suitable standard of living, and social security serves as a crucial safety net to ensure that basic rights are met. Most constitutions recognise the human right to social security as a fundamental human right, albeit with varying terminology.

Article 30/2 of the Iraqi Constitution stipulates that the state should provide social and health security to its citizens in the event of old age, illness, incapacity, homelessness, orphanhood, unemployment, or any other similar circumstances, as regulated by law. Similarly, Article 69 of the Algerian Constitution ensures workers' right to social security. In contrast, Article 73 confirms the state's commitment to providing for the living conditions of citizens who are unable to work, including those who are completely unable to do so. Constitution of the People's Democratic Republic of Algeria (2016) <https://www.joradp.dz/har/consti.htm> accessed 30 September 2023.

Article 5/c of the Bahraini Constitution ensures social security for citizens in the event of old age, illness, inability to work, or unemployment. Likewise, article Eight of the Constitution affirms the state's commitment to providing health care to all citizens. Constitution of the Kingdom of Bahrain (2002, rev 2017) <https://www.constituteproject.org/ constitution/Bahrain_2017> accessed 30 September 2023. In line with the mentioned constitutional articles, Article 2 of Bahraini Law No. 58 of 2009 on the Rights of the Elderly affirms the state's commitment to caring for a decent life for older persons by assisting them financially and morally. The mentioned article stressed the state's commitment to providing them health, housing, social, and administrative services.

Article 16 of the UAE Constitution states, `Society shall be responsible for protecting childhood and motherhood and shall protect minors and others unable to look after themselves for any reason, such as illness, incapacity, old age, or forced unemployment. It shall be responsible for assisting them and enabling them to help themselves for their own benefit as well as that of the community. Such matters shall be regulated by welfare and social security legislations.' Based on the mentioned article, Federal Law No. (2) of 2001 was enacted regarding social security, which specified the conditions for obtaining social security benefits and specified in its third and fourth articles the categories that benefit from social security, which incorporates older persons.

In accordance with Article 11 of the Kuwaiti Constitution, the state affords aid to citizens in the event of old age and provides them with social insurance, aid, and welfare services. Similarly, Article 27 of the Saudi Basic Law guarantees the rights of citizens and their families in cases of emergency, illness, disability, and old age and supports the Social Security System. Based on the previous text, Article 2 of the Saudi Social Security System for the year 1427 AH specified the conditions for citizens' entitlement to social security. Article 3 also specified the categories eligible for this security and assured that new categories may be added by a decision of the Council of Ministers by a proposal from the Minister. Correspondingly, Article 22/1 of the Syrian Constitution of 2012 stipulates that the state ensures the provision of aid to citizens and their families in cases of emergency, illness, disability, orphanhood, and old age.

Most Arab national constitutions recognise mandatory Social Security insurance for citizens of the state, particularly for those who are older. This aligns with the requirements stipulated in international instruments such as the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Rights of Persons with Disabilities. However, certain constitutions have explicitly mentioned social security, such as those of Iraq, Algeria, and Saudi Arabia, while others have employed the term `social insurance, such as those of Kuwait and Syria. Notably, the Syrian Constitution does not specify any form of guarantee or mechanism to ensure the welfare of citizens in the event of old age. Certain constitutions, including those of Iraq and the Emirates, have enacted special laws to address this issue thoroughly.

Social security systems are characterised by the fact that they are financed by the general budget of the state, and they are managed by the public utility of the state, which does not seek to achieve profit, and they are characterised by generality and apply to all citizens. It should be noted that social security systems are backup systems; they do not apply to persons to whom special insurance and pension systems provide citizens with income equal to or greater than the amount of support specified in the Social Security System. Thus, the social security system is a last resort for providing income to those who do not have a decent income. Elias (n 14).

The Right to Health Care

The right to health care is fundamentally inextricably linked to notions of equality, employment, and Social Security. This right encompasses healthcare provision and the availability of essential components that contribute to health, including safe food and water, adequate housing, and a healthy work environment. To fulfil the right to health, states have an obligation to create the necessary conditions that enable individuals to attain the highest level of health possible. It is important to note that the realisation of the right to health does not guarantee that all individuals will be healthy but rather that appropriate healthcare and conditions are provided to ensure that all citizens have access to the means to achieve optimal health. The obligation to provide health care, therefore, can be understood as an obligation to achieve a result, while the obligation to take care ensures that all citizens have access to the resources necessary to maintain their health. ibid.

Given the importance of health issues for older persons, it is noteworthy that many constitutions have not dedicated special articles on their health. Article 31/1 of the Iraqi Constitution of 2005 specifies that each Iraqi has the right to the state concerned with public health and ensures prevention and treatment by establishing various types of hospitals and health institutions. In the same context, Article 22/2 of the Constitution states that the state protects the health of citizens and provides them with means of prevention, treatment, and medication. Article 25 of the Syrian Constitution states that education, health, and social services are essential pillars for building society, and the state is working to achieve balanced development among all regions of the Syrian Arab Republic. Article 55 of the Yemeni Constitution states that health is a fundamental right accorded to all citizens, and the state recognises this right by establishing and developing numerous hospitals and healthcare institutions. Article 66 of the 2016 Algerian Constitution affirms that healthcare is a right that belongs to the citizens of Algeria. The state is responsible for preventing and controlling the spread of epidemics and other infectious diseases.

The Kuwaiti Constitution specifically provides for the right to healthcare for older persons. Article 11 states that the state guarantees aid to citizens in the case of old age and provides them with social insurance, social aid, and welfare services.

One of the modern Arab constitutions that guarantees the rights of older persons is the Moroccan constitution of 2011, which states in Article 34, `the public authorities develop and activate policies aimed at people and groups with special needs. For this purpose, special care was given to `addressing and preventing the vulnerable situations of groups of women and mothers, children and older persons' In this article, it is observed that the Moroccan constitution recognises older persons as a vulnerable group that requires special protection and care and charges public authorities responsible for implementing corresponding policies.

The authors observed previous constitutional provisions that although the constitutions agreed on the obligation to care for citizens' health, there was a difference in the methodology of dealing with healthcare and how the texts were drafted. It is also clear that constitutions hesitate to deal with the issue of health care; some of them have given it the status of the right, such as the Iraqi, Yemeni, and Algerian constitutions, and some of them only emphasised the obligation of states to provide health care to their citizens. This implies an implicit recognition of citizens' right to healthcare. ibid.

The Arab constitutions' provisions regarding the provision of healthcare for older persons align with the standards set by international human rights courts, such as the European

Court of Human Rights, which affirmed that the age of the individual should not exempt them from prosecution or imprisonment if they are treated with dignity and receive adequate medical care. Caroline Davidson, `Aging Out: Elderly Defendants and International Crimes' (2020) 61(1) Virginia Journal of International Law 57; Sawoniuk v. United Kingdom (Court of Appeal (Criminal Division), Great Britain (UK), 10 February 2000) <https://internationalcrimesdatabase.org/Case/744/ Sawoniuk> accessed 1 October 2023.

CONCLUSION AND RECOMMENDATIONS

In conclusion, the study highlighted the urgent need to strengthen the protection of older persons by combining international human rights law and the Arab constitutions and reached the following conclusions and recommendations:

Conclusions

The development regarding the protection of the rights of older persons in the twenty-first century is doubtful and does not live up to the level of aspirations. No new binding instruments have been enacted in this regard, so the commitment remains to arise from previous international legislation and modern national constitutions and legislation.

The general protections provided by human rights laws, both in international human rights charters and national legislation, are inadequate when it comes to protecting geriatric citizens.

Most international instruments on older people are legal documents that are not binding on states; they are merely guidelines that governments may or may not adopt.

There is a lack of a dedicated legal framework designed specifically for the rights and needs of older people in both international human rights laws and Arabic legislation. This gap underscores the need for a focused and comprehensive international convention to address this growing demographic.

Without a universal, legally binding international framework, it is feasible to rely on the provisions of national constitutions to safeguard the well-being and recognise the rights of older people.

Recommendations

Given the demographic transition towards an ageing population and the unique challenges older citizens face, it is imperative for Arabic countries, in cooperation with the international community, to reconsider and revise their constitutional frameworks to proactively address the challenges faced by senior citizens. This can be accomplished by harmonising national laws with international human rights standards.

This study emphasises the importance of a comprehensive approach to protect older citizens. This approach should include not only health care but also social support, economic welfare, and social inclusion. Arabic constitutions must address these multifaceted needs to ensure comprehensive and effective protection.

Protecting older people under international human rights laws and Arabic constitutions requires adopting effective legislative procedures. These include the establishment of government agencies and organisations with specific responsibilities to older people and monitoring the implementation of laws related to them. Raising awareness and educating society about the rights of senior citizens and promoting their understanding and respect is imperative. Arabic countries should adopt integrated policies and programs to improve the conditions of senior citizens and provide them with the necessary support and care. These programs can include adequate healthcare, job opportunities and continuing education, adequate housing, and promoting social solidarity to ensure dignified and stable lives for older people.

The protection of older people under international human rights laws and the constitutions of Arabic states requires cooperation and joint efforts from governments, civil society, and international and local organisations. Senior citizens deserve decent lives and should benefit from all human rights, including healthcare, social justice, and political participation. Providing for their legal protection and protecting their civil rights promotes social justice and contributes to a prosperous and equitable society.

REFERENCES

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Summary: 1. Introduction. - 2. Protecting the Rights of the Older Persons in International Law. - 2.1. Protecting of the Older persons in General International Instruments. - 2.1.1. Charter of the United Nations. - 2.1.2. Universal Declaration of Human Rights. -

International Covenants on Civil and Political Rights. - 2.1.4. The International Covenant on Economic, Social, and Cultural Rights. - 2.2. The Protection of Older Persons in Light of the International Conventions Pertaining to Specific Categories. - 2.2.1. Convention on the Elimination of All Forms of Discrimination Against Women. - 2.2.2. International Convention on the Rights of Migrant Workers and Members of Their Families. - 2.2.3. The International Convention on the Rights of Persons with Disabilities. - 3. International Instruments for the Protection of the Rights of Older persons. - 3.1. Vienna International Plan of Action on Aging, 1982. - 3.2. The 1992 United Nations Principles on Older persons. -

Program of action of the International Conference on population and development. -

Madrid International Plan of Action on Aging. - 4. Protecting the Rights of Old Persons on the Regional and National Level. - 4.1. Protection of Old Persons at the Regional Level. - 4.2. Protection of Old Persons by national institutions. - 5. Older Persons Rights in the Constitutions of Arab States. - 5.1. The right to Equality and non-discrimination. - 5.2. The right to work. - 5.3. Right to Social Security. - 5.4. The right to health care. - 6. Conclusion and Recommendations. - 6.1. Conclusions. - 6.2. Recommendations.

Keywords: older person, international instruments, Vienna action plan, The Madrid Plan, Arab law.

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