Instantie

Human Rights Committee

Samenvatting

Mw. Broeks heeft een klacht ingediend omdat de Centrale Raad van Beroep
van mening was dat zij geen recht had op een WWV-uitkering zij was immers
kostwinner

Het Human Rights Committee meent dat art. 26 BuPo-verdrag rechtstreekse
werking heeft en de Nederlandse regering moet deze onjuiste beslissing
ongedaan maken

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8.5 With reference to the Central Board of Appeal’s decision of 26 Novem
ber 1983, which the author criticizes, the State party contends that

“The Central Board of Appeal’s observation that the Covenants employ
different international control systems is highly relevant. Not only do
parties to the Covenants report to different United Nations bodies but, above
all, there is a major difference between the Covenants as regards the
possibility of complaints by States or individuals, which exists only under
the ICCPR. The Contracting Parties deliberately chose to make this
difference in international monitoring systems, because the nature and
substance of social, economic and cultural rights make them unsuitable for
judicial review of a complaint lodged by a State party or an individual.”

9.1 In her comments, dated 19 June 1986, the author reiterates that
“article 26 if the ICCPR 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 incomp
atible with the aims of both the ICESCR and the ICCPR and the Optional
Protocol thereto that an individual complaint with respect to the rights of
social security as referred to in article 9 of the ICESCR could be dealt with
by the Human Rights Committee, the author contends that this argument is
ill-founded, because she is not complaining about the level of social security
or other issues relating to article 9 of the ICESCR, 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 ICCPR”

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 (1) of the Optional Protocol. The facts of the case
are not in dispute

11. Article 26 of the Covenant on Civil and Political Rights provides:

“All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this repect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status. “

12.1 The State party contends that there is considerable overla
pping 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, e.g., 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 persued the relevant travaux preparatoires of the 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” (article 32 of the Vienna Convention
on the Law of Treaties). The discussion, 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 reffered 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 (article 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. Its basis stems 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 Dutch law at the time in question and as applied to Mrs.
Broeks constituted discrimination within the meaning of article 26. The
Committee notes that in Dutch law the provisions of articles 84 and 85 of the
Dutch Civil Code imposes 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 a level to be
one of status is in fact one of sex, placing married women at a disadvantage
as 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. Broeks found herself at the material
time and the application of the then valid Dutch 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
equal footing with men

16. The Committee notes that the State party had no intention to
discriminate against women and further notes with appreciation that the
discriminatory provisions in the law applied to Mrs. Broeks 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. Broeks at the time complained of, the Committee is of the view that the
State party should offer Mrs. Broeks an appropriate remedy

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