Older people, dignity and human rights: towards the development of the rules against torture and ill-treatment

[摘要] This thesis examines whether the rule against torture and ill-treatment in international human rights law could be interpreted to provide more effective protection to older people from key forms of mistreatment which they frequently experience. The thesis' inquiry is prompted by the current disagreement at the United Nations over whether the universal human rights framework contains 'normative gaps' or merely 'implementation gaps' regarding older people. The thesis argues that there are doctrinal shortcomings in the anti-torture framework as currently understood, which prevent the norm from effectively protecting older people in contexts of deprivation of liberty, lack of access to adequate care and impunity for 'historic' torture or ill-treatment. The thesis contends that these doctrinal limitations stem from conceptual paradigms developed without consideration of older people's experiences and from the tendency for discriminatory structures and attitudes in society and law to obscure older people's rights violations. The thesis proposes that dignity reasoning could guide and facilitate the norm's interpretation in order to more effectively protect older people. Maintaining that dignity is the core value underpinning the norm, the thesis proffers a substantive conception of a dignity violation that would shed light on older people's human experiences of torture or ill-treatment, thus challenging the norm's current formalistic constraints. A cornerstone of the proposed conception of a dignity violation is the idea of vulnerability. The thesis argues that an understanding of vulnerability as inherent or situational powerlessness would allow for the identification of structural causes of older people's mistreatment, which could be addressed by adaptation of the norm's positive obligations. By investigating the need and potential to address doctrinal shortcomings within the existing international human rights normative framework, the thesis provides a perspective that has been missing from the debate over a dedicated instrument on the rights of older people. The thesis also makes a unique contribution to scholarly analysis of the meaning and functions of dignity and vulnerability in human rights adjudication.

[发布机构] University:University of Birmingham;Department:Birmingham Law School

[关键词] K Law;K Law (General)