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ANNEX*

Views of the Human Rights Committee under article 5, paragraph 4,

of the Optional Protocol to the International Covenant

on Civil and Political Rights

- Twenty-ninth session -

Communication No. 172/1984

The Human Rights Committee established under article 28 of the International Covenant on Civil and Political Rights,

Having concluded its consideration of communication No. 172/1984 submitted to the Committee by S. W. M. Broeks under the Optional Protocol to the International Covenant on Civil and Political Rights;

Having taken into account all written information made available to it by the author of the communication and by the State party concerned;

1. The author of the communication (initial letter dated 1 June 1984 and subsequent letters dated 17 December 1984, 5 July 1985 and 20 June 1986) is Mrs. S. W. M. Broeks, a Netherlands citizen born on 14 March 1951 and living in the Netherlands. She is represented by legal counsel.

2.1 Mrs. Broeks, who was married at the time when the dispute in question arose (she has since divorced and not remarried), was employed as a nurse from 7 August 1972 to 1 February 1979, when she was dismissed for reasons of disability. She had become ill in 1975, and from that time she benefited from the Netherlands social security system until 1 June 1980 (as regards disability and as regards unemployment), when unemployment payments were terminated in accordance with Netherlands law.

2.2 Mrs. Broeks contested the decision of the relevant Netherlands authorities to discontinue unemployment payments to her and in the course of exhausting domestic remedies invoked article 26 of the International Covenant on Civil and Political Rights, claiming that the relevant Netherlands legal provisions were contrary 'to the right to equality before the law and equal protection of the law without discrimination guaranteed by article 26 of the International Covenant on Civil and Political Rights. Legal counsel submits that domestic remedies were exhausted on 26 November 1983, when the appropriate administrative authority, the Central Board of Appeal, confirmed a decision of a lower municipal authority not to continue unemployment payments to Mrs. Broeks.

2.3 Mrs. Brooks claims that, under existing law (Unemployment Benefits Act (WWV), sect. 13, subsect. 1 (1), and Decree No. 61 452/IIIa of 5 April 1976, to give effect to sect. 13, subsect. 1 (1), of the Unemployment Benefits Act) an unacceptable distinction has been made on the grounds of sex and status. She bases her claim on the following: if she were a man, married or unmarried, the law in question would not deprive her of unemployment benefits. Because she is a woman, and was married at the time in question, the law excludes her from continued unemployment benefits. This, she claims, makes her a victim of a violation of article 26 of the Covenant on the grounds of sex and status. She claims that article 26 of the International Covenant on Civil and Political Rights was meant to give protection to individuals beyond the specific civil and political rights enumerated in the Covenant.

2.4 The author states that she has not submitted the matter to other international procedures.

3. By its decision of 26 October 1984, the Human Rights Committee transmitted the communication, under rule 91 of the provisional rules of procedure, to the State party concerned, requesting information and observations relevant to the question 'of admissibility of the communication.

4.1 In its submission dated 29 May 1985 the State party underlined, inter alia, that:

4.2 The State party then posed the question whether the way in which the Netherlands was fulfilling its obligations Under article 9 in conjunction with articles 2 and 3 of the International Covenant on Economic, Social and Cultural Rights could become, by way of article 26 of the International Covenant on Civil and Political Rights, the object of an examination by the Human Rights Committee. The State party submitted that the question was relevant for the decision whether the communication was admissible.

4.3 The State party stressed that it would greatly benefit from receiving an answer from the Human Rights Committee to the question mentioned in paragraph 4.2 above. "Since such an answer could hardly be given without going into one aspect of the merits of the case - i.e. the question of the scope of article 26 of the International Covenant on Civil and Political Rights - the Government would respectfully request the Committee to join the question of admissibility to an examination of the merits of the case."

4.4 In case the Committee did not grant that request and declared the communication admissible, the State party reserved the right to submit, in the course of the proceedings, observations which might have an effect on the question of admissibility.

4.5 The State party also indicated that a change of legislation had been adopted recently in the Netherlands, eliminating article 13, paragraph 1, of WWV, which was the subject of the author's claim. This is the Act of 29 April 1985, S 230, having a retroactive effect to 23 December 1984.

5.1 In a memorandum dated 5 July 1985, the author commented on the State party's submission under rule 91. The main issues dealt with in the comments are set out in paragraphs 5.2 to 5.10 below.

5.2 Firstly, the author stated that in the preambles to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights an explicit connection was made between an individual's exercise of his civil and political rights and his economic, social and cultural rights. The fact that those different kinds of rights had been incorporated into two different covenants did not detract from their interdependence. It was striking, the author submitted, that in the International Covenant on Civil and Political Rights, apart from in article 26, there were specific references on numerous occasions to the principle of equality or non-discrimination. She listed them as follows:

5.3 Further, the author stated that article 26 of the Covevant was explicitly not confined to equal treatment with reference to certain rights, but stipulated a general principle of equality. It was even regarded as of such importance that under article 4, paragraph 1, of the Covenant, in a time of public emergency, the prohibition of discrimination on the grounds of race, colour, sex, religion or social origin must be observed. In other words, even in time of public emergency, the equal treatment of men and women should remain intact. In the procedure to approve the Covenant it had been assumed by the Netherlands legislative authority, as the Netherlands Government wrote in the explanatory memorandum to the Bill of Approval, that "the provision of article 26 is also applicable to areas otherwise not covered by the Covenant'. That (undisputed) conclusion was based on the difference in formulation between article 2, paragraph 1, of the Covenant and of article 14 of the European Convention on Human Rights on the one hand and article 26 of the Covenant on the other.

5.4 The author recalled that during the discussion by the Human Rights Committee, at its fourteenth session, of the Netherlands report submitted in compliance with article 40 of the Covenant (CCPR/C/10/Add.3, CCPR/C/SR.321, SR.322, SR.325, SR.326), it had been assumed by the Netherlands Government that article 26 of the Covenant also applied in the field of economic, social and cultural rights. Mr. Olde Kalter had stated, on behalf of the Netherlands Government, that by virtue of national, constitutional law "direct application of article 26 in the area of social, economic and cultural rights depended on the character of the regulations or policy for which that direct application was requested" (see CCPR/C/SR.325, para. 50). In other words, in his opinion, article 26 of the Covenant was applicable to those rights and the only relevant question in terms of internal, constitutional law in the Netherlands (sects. 93 and 94 of the Constitution) was whether in such instances article 26 was self-executing and could be applied by the courts. He had regarded it as self-evident that the Netherlands in its legislation, among other things, was bound by article 26 of the Covenant. "In that connection he [Mr. Olde Kalter] noted that the Government of the Netherlands was currently analysing national legislation concerning discrimination on grounds of sex or race". In the observations of the State party in the present case, the author adds, this last point is confirmed.

5.5 The author further stated that in various national constitutional systems of countries which have acceded to the Covenant, generally formulated principles of equality could be found which were also regarded as being applicable in the field of economic, social and cultural rights. Thus, in the Netherlands Constitution, partly inspired, the author submitted, by article 26 of the Covenant, a generally formulated prohibition of discrimination (sect. 1) was laid down which was irrefutably regarded in the Netherlands as being applicable to economic, social and cultural rights as well. The only reason, she submitted, why the present issue had not been settled at a national level by virtue of section 1 of the Constitution was because the courts were forbidden to test legislation, such as that being dealt with currently, against the Constitution (sect. 120 of the Constitution). The courts, she stated, were allowed to test legislation against self-executing provisions of international conventions.

5.6 The author submitted that judicial practice in the Netherlands had been consistent in applying article 26 of the Covenant also in cases where economic, social and cultural rights had been at stake, for example:

5.7 The author further submitted that the question of equal treatment in the field of economic, social and cultural rights was not fundamentally different from the problem of equality with regard to freedom to express one's opinion or the freedom of association, in other words with regard to civil and political rights. The fact was, she argued, that in both cases it was not a question of the level at which social security had been set or the degree to which freedom of opinion was guaranteed, but purely and simply whether equal treatment or the prohibition of discrimination was respected. The level of social security did not come within the scope of the International Covenant on Civil and Political Rights nor was it relevant in a case of unequal treatment. The only relevant question, she submitted, was whether unequal treatment was compatible with article 26 of the Covenant. A contrary interpretation of article 26, the author argued, would turn that article into a completely superfluous provision, for then it would not differ from article 2, paragraph 1, of the Covenant. Consequently, she submitted, such an interpretation would be incompatible with the text of article 26 of the Covenant and with the object and purpose of the Covenant as laid down in article 26 of the preamble.

5.8 The author recalled that in its observations the State party had put forward the question whether the way in which the Netherlands was meeting its commitments under the International Covenant on Economic, Social and Cultural Rights (via article 26 of the International Covenant on Civil and Political Rights), might be judged by the Human Rights Committee. The question, she submitted, was based on a wrong point of departure, and therefore required no answer. The fact was, the author argued, that the only question that the Human Rights Committee was required to answer in that case was whether, ratione materiae, the alleged violation came under article 26 of the International Covenant on Civil and Political Rights. The author submitted that that question must be answered in the affirmative.

5.9 The author further recalled that the State party was of the opinion that the alleged violation could also fall under article 9 of the International Covenant on Economic, Social and Cultural Rights in conjunction with articles 2 and 3 of the same Covenant. Although that question was not relevant in the case in point, the author submitted, it was obvious that certain issues were related to provisions in both Covenants. Although civil and political rights on the one hand and economic and social and cultural rights on the other had been incorporated for technical reasons into two different Covenants, it was a fact, the author submitted, that those rights were highly interdependent. That interdependence, she argued, had not only emerged in the preamble to both Covenants, but was also once again underlined in General Assembly resolution 543 (VI), in which it had been decided to draw up two covenants: "the enjoyment of civic and political freedoms and of economic, social and cultural rights are interconnected and interdependent". The State party, too, she submitted, had explicitly recognized that interdependence earlier in the Explanatory Memorandum to the Act of Approval, appendix 1, page 8: 'the drafters of the two Covenants wanted to underline the parallel nature of the present international conventions by formulating the preambles in almost entirely identical words. The point is that they have expressed in the preambles that, although civil rights and political rights on the one hand and economic, social and cultural rights on the other, have been incorporated into two separate documents, the enjoyment of all these rights is essential'. If the State party was intending to imply that the subject-matter covered by the one covenant did not come under the other, that was demonstrably incorrect: even a summary comparison of the opening articles of the two covenants bore witness to the contrary, the author argued.

5.10 In her opinion, the author added, the State party seemed to wish to say that the Human Rights Committee was not competent to take note of the present complaint because the matter could also be brought up as part of the supervisory procedure under the International Covenant on Economic, Social and Cultural Rights (see art. 16-22). That assertion, the author contended, was not valid because the reporting procedure under the International Covenant on Economic, Social and Cultural Rights could not be regarded as 'another procedure of international investigation or settlement' in the sense of article 5, paragraph 2 (a) of the Optional Protocol.

6.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

6.2 Article 5, paragraph 2 (a), of the Optional Protocol precludes. the Committee from considering a communication if the same matter is being examined under another procedure of international investigation or settlement. In this connection the Committee observes that the examination of State reports, submitted under article 16 of the International Covenant on Economic, Social and Cultural Rights, does not, within the meaning of article 5, paragraph 2 (a), constitute an examination of the "same matter" as a claim by an individual submitted to the Human Rights Committee under the Optional Protocol.

6.3 The Committee further observes that a claim submitted under the Optional Protocol concerning an alleged breach of a provision of the International Covenant on Civil and Political Rights, cannot be declared inadmissible solely because the facts also relate to a right protected by the International Covenant on Economic, Social and Cultural Rights or any other international instrument. The Committee need only test whether the allegation relates to a breach of a right protected by the International Covenant on Civil and Political Rights.

6.4 Article 5, paragraph 2 (b), of the Optional Protocol precludes the Committee from considering a communication unless domestic remedies have been exhausted. The parties to the present communication agree that domestic remedies have been exhausted.

6.5 With regard to the State party's inquiry concerning the scope of article 26 of the International Covenant on Civil and Political Rights, the Committee did not consider it necessary to pronounce on its scope prior to deciding on the admissibility of the communication. However, having regard to the State party's statement (para. 4.4 above) that it reserved the right to submit further observations which might have an effect on the question of the admissibility of the case, the Committee pointed out that it would take into account any further observations received on the matter.

7. On 25 October 1985, the Human Rights Committee therefore decided that the communication was admissible. In accordance with article 4, paragraph 2, of the Optional Protocol, the State party was requested to submit to the Committee, within six months of the date of transmittal to it of the decision on admissibility, written explanations or statements clarifying the matter and the measures, if any, that might have been taken by it.

8.1 In its submission under article 4, paragraph 2, of the Optional Protocol, dated 22 May 1986, the State party again objected to the admissibility of the communication, reiterating the arguments advanced in its submission of 29 May 1985.

8.2 In discussing the merits of the case, the State party elucidates first the factual background as follows:

8.3 With regard to the scope of article 26 of the Covenant, the State party argues, inter alia, as follows:

8.4 With regard to the principle of equality laid down in article 26 of the Covenant in relation to section 13, subsection 1 (1), of WWV in its unamended form, the State party explains the legislative history of WWV and in particular the social justification of the "breadwinner" concept at the time the law was drafted. The State party contends that, with the "breadwinner" concept, "a proper balance was achieved between the limited availability of public funds (which makes it necessary to put them to limited, well-considered and selective use) on the one hand and the Government's obligation to provide social security on the other. The Government does not accept that the 'breadwinner' concept as such was 'discriminatory' in the sense that equal cases were treated in an unequal way by law." Moreover, it is argued that the provisions of WWV "are based on reasonable social and economic considerations which are not discriminatory in origin. The restriction making the provision in question inapplicable to men was inspired not by any desire to discriminate in favour of men and against women but by the de facto social and economic situation which existed at the time when the Act was passed and which would have made it pointless to declare the provision applicable to men. At the time when Mrs. Broeks applied for unemployment benefits the de facto situation was not essentially different. There was therefore no violation of article 26 of the Covenant. This is not altered by the fact that a new social trend has been growing in recent years, which has made it undesirable for the provision to remain in force in the present social context."

8.5 With reference to the decision of the Central Board of Appeal of 26 November 1983, which the author criticizes, the State party contends that:

9.1 In her comments, dated 19 June 1986, the author reiterates that 'article 26 if the Covenant is explicitly not confined to equal treatment with reference to certain rights, but stipulates a general principle of equality.'

9.2 With regard to the State party's argument that it would be incompatible with the aims of both the Covenants and the Optional Protocol if an individual complaint with respect to the rights of social security, as referred to in article 9 of the International Covenant on Economic, Social and Cultural Rights could be dealt with by the Human Rights Committee, the author contends that this argument is ill-rounded, because she is not complaining about the level of social security or other issues relating to article 9 of the International Covenant on Economic, Social and Cultural Rights, but rather she claims to be a victim of unequal treatment prohibited by article 26 of the International Covenant on Civil and Political Rights.

9.3 The author further notes that the State party "seems to admit implicitly that the provisions of the Unemployment Benefits Act were contrary to article 26 at the time when [she] applied for unemployment benefits, by stating that the provisions in question in the meantime have been amended in a way compatible with article 26 of the International Covenant on Civil and Political Rights.

10. The Human Rights Committee has considered the present communication in the light of all information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol. The facts of the case are not in dispute.

12.1 The State party contends that there is considerable overlapping of the provisions of article 26 with the provisions of article 2 of the International Covenant on Economic, Social and Cultural Rights. The Committee is of the view that the International Covenant on Civil and Political Rights would still apply even if a particular subject-matter is referred to or covered in other international instruments, for example, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, or, as in the present case, the International Covenant on Economic, Social and Cultural Rights. Notwithstanding the interrelated drafting history of the two Covenants, it remains necessary for the Committee to apply fully the terms of the International Covenant on Civil and Political Rights. The Committee observes in this connection that the provisions of article 2 of the International Covenant on Economic, Social and Cultural Rights do not detract from the full application of article 26 of the International Covenant on Civil and Political Rights.

12.2 The Committee has also examined the contention of the State party that article 26 of the International Covenant on Civil and Political Rights cannot be invoked in respect of a right which is specifically provided for under article 9 of the International Covenant on Economic, Social and Cultural Rights (social security, including social insurance). In so doing, the Committee has perused the relevant travaux preparatoires of the International Covenant on Civil and Political Rights, namely, the summary records of the discussions that took place in the Commission on Human Rights in 1948, 1949, 1950 and 1952 and in the Third Committee of the General Assembly in 1961, which provide a 'supplementary means of interpretation' (art. 32 of the Vienna Convention on the Law of Treaties a/). The discussions, at the time of drafting, concerning the question whether the scope of article 26 extended to rights not otherwise guaranteed by the Covenant, were inconclusive and cannot alter the conclusion arrived at by the ordinary means of interpretation referred to in paragraph 12.3 below.

12.3 For the purpose of determining the scope of article 26, the Committee has taken into account the 'ordinary meaning' of each element of the article in its context and in the light of its object and purpose (art. 31 of the Vienna Convention on the Law of Treaties). The Committee begins by noting that article 26 does not merely duplicate the guarantees already provided for in article 2. It derives from the principle of equal protection of the law without discrimination, as contained in article 7 of the Universal Declaration of Human Rights, which prohibits discrimination in law or in practice in any field regulated and protected by public authorities. Article 26 is thus concerned with the obligations imposed on States in regard to their legislation and the application thereof.

12.4 Although article 26 requires that legislation should prohibit discrimination, it does not of itself contain any obligation with respect to the matters that may be provided for by legislation. Thus it does not, for example, require any State to enact legislation to provide for social security. However, when such legislation is adopted in the exercise of a State's sovereign power, then such legislation must comply with article 26 of the Covenant.

12.5 The Committee observes in this connection that what is at issue is not whether or not social security should be progressively established in the Netherlands but whether the legislation providing for social security violates the prohibition against discrimination contained in article 26 of the International Covenant on Civil and Political Rights and the guarantee given therein to all persons regarding equal and effective protection against discrimination.

13. The right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26.

14. It therefore remains for the Committee to determine whether the differentiation in Netherlands law at the time in question and as applied to Mrs. Brooks constituted discrimination within the meaning of article 26. The Committee notes that in Netherlands law the provisions of articles 84 and 85 of the Netherlands Civil Code impose equal rights and obligations on both spouses with regard to their joint income. Under section 13, subsection 1 (1), of the Unemployment Benefits Act (WWV), a married woman, in order to receive WWV benefits, had to prove that she was a 'breadwinner' - a condition that did not apply to married men. Thus a differentiation which appears on one level to be one of status is in fact one of sex, placing married women at a disadvantage compared with married men. Such a differentiation is not reasonable; and this seems to have been effectively acknowledged even by the State party by the enactment of a change in the law on 29 April 1985,' with retroactive effect to 23 December 1984 (see para. 4.5 above).

15. The circumstances in which Mrs. Brooks found herself at the material time and the application of the then valid Netherlands law made her a victim of a violation, based on sex, of article 26 of the International Covenant on Civil and Political Rights, because she was denied a social security benefit on an equal footing with men.

16. The Committee notes that the State party had not intended to discriminate against women and further notes with appreciation that the discriminatory provisions in the law applied to Mrs. Brooks have, subsequently, been eliminated. Although the State party has thus taken the necessary measures to put an end to the kind of discrimination suffered by Mrs. Brooks at the time complained of, the Committee is of the view that the State party should offer Mrs. Brooks an appropriate remedy.

a/ United Nations, Juridical Yearbook 1969 (United Nations publication, Sales No. E.71.V.4), p. 140.