In Course of Change? Soft Law, Elder Rights, and the European Court of Human Rights

Law and Inequality (University of Minnesota Law School), 34(1), 55-86

Posted: 4 May 2016  

Benny Spanier

University of Haifa - Faculty of Law

Israel Issi Doron

University of Haifa - Department of Gerontology

Faina Milman-Sivan

University of Haifa - Faculty of Law

Date Written: May 3, 2016

Abstract

The European Court of Human Rights (ECtHR) is a significant human rights tribunal. The European convention on Human rights (ECHR) is the only applicable instrument for the ECtHR and there is no explicit expression of older persons’ rights there .One of the key international instruments aimed at promoting the rights of older persons are “soft law”. Up to day, no study has attempted to explore the usage of “soft law” in cases brought before the ECtHR on issues concerning the rights of older persons.

The question is to what extent is the ECtHR aware of the soft law that addresses rights of older persons? Does the wealth of soft law on the matter of older persons permeate the Court? Allegedly, these norms could be used by older persons or by the Court when they negotiate and determine the rights of older persons.

A total of 1,503 judgments were delivered to older persons from the 12, 680 overall judgments at the period between January 1st 2000 and January 1st 2011 (11 years in total). These 1,503 judgments constituted the “study population” and the database for this study. Basic descriptive analysis was performed on this population. Due to limited time and resources, we used stratified random sampling of 226 judgments, which were fully analyzed for this study.

The study’s findings show that, with very high probability, no soft law legal Instruments that address older persons were mentioned in the ECtHR’s judgments and claims. As a rule, the court has made sparse use of soft law (not of older persons) in adjudicating cases that concern the older persons. When the judges do turn to soft law in those cases, it is for general topics rather than specific issues of aging or older person's rights.

The study demonstrates the usefulness of a recommendation created by the Council of Europe itself such as the recommendation adopted on 2014 to promote the human rights of older persons. It is encouraging that the ECtHR is not blind to soft law, and it makes use of it. The effort required now is to increase awareness and transition to practical use of this law. The struggle over elder rights needs to include judicious entry to the Court. Success in using soft law before the ECtHR would constitute realization of the potential of soft law that has yet to be realized.

Keywords: European Court of Human Rights, Elder Law, Soft Law

JEL Classification: K33, K39,

Suggested Citation

Spanier, Benny and Doron, Israel Issi and Milman-Sivan, Faina, In Course of Change? Soft Law, Elder Rights, and the European Court of Human Rights (May 3, 2016). Law and Inequality (University of Minnesota Law School), 34(1), 55-86. Available at SSRN: https://ssrn.com/abstract=2774072

Benny Spanier

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

Israel Doron (Contact Author)

University of Haifa - Department of Gerontology ( email )

Haifa 31905
Israel
972-4-8249954 (Phone)
972-4-8249946 (Fax)

Faina Milman-Sivan

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

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